COMMON CAUSE (A REGD. SOCIETY) versus UNION OF INDIA & ANOTHER

COMMON CAUSE (A REGD. SO[2018] 6 S..R. 1CIETY) v. UNION OF INDIA

COMMON CAUSE (A REGD. SOCIETY)

UNION OF INDIA & ANOTHER

(Writ Petition (Civil) No. 215 of 2005)

MARCH 09, 2018[DIPAK MISRA, CJI, A. K. SIKRI,DR. D. Y. CHANDRACHUD, ASHOK BHUSHAN ANDA. M. KHANWILKAR, JJ.]

Constitution of India – Art.21 – Passive Euthanasia – Rightto die with dignity – Held: The right to life with dignity includes thesmoothening of the process of dying when the person is in avegetative state or is living exclusively by the administration ofartificial aid that prolongs the life by arresting the dignified andinevitable process of dying – Here, the issue of choice also comesin – Such right should come within the ambit of Art.21 of theConstitution – As part of right to die with dignity in case of dyingman who is terminally ill or in persistent vegetative state onlypassive euthanasia would come within the ambit of Art.21 and notthe one which would fall within the description of active euthanasiain which positive steps are taken either by the treating physician orsome other person. (Per Dipak Misra, CJI [for himself andKhanwilkar, J.])

Constitution of India – Art.21 – Right to refuse treatment – Apatient (terminally ill or in persistent vegetative state) exercisingthe right to refuse treatment may ardently wish to live but, at thesame time, he may wish to be free from any medical surgery, drugsor treatment of any kind so as to avoid protracted physical suffering– Any such person who has come of age and is of sound mind hasa right to refuse medical treatment – This right stands on differentpedestal as compared to suicide, physician assisted suicide or eveneuthanasia – When terminally ill patient refuses to take medicaltreatment, it can neither be termed as euthanasia nor as suicide – Apatient refusing medical treatment merely allows the disease to takeits natural course and if, in this process, death occurs, the causefor it would primarily be the underlying disease and not any selfinitiated act – All adults with capacity to consent have the right of

Aself- determination and autonomy – The ‘Emergency Principle’ orthe ‘Principle of Necessity’ has to be given effect to only when it isnot practicable to obtain the patient’s consent for treatment andhis/her life is in danger – But where patient has already made avalid Advance Directive which is free from reasonable doubt andspecifying that he/she does not wish to be treated, then such directiveBhas to be given effect to.(Per Dipak Misra, CJI [for himself andKhanwilkar, J.])

Constitution of India – Art.21 – Right to refuse treatment –Continuing treatment against the wishes of patient is not only aviolation of the principle of informed consent, but also of bodilyCprivacy and bodily integrity that have been recognised as facetof privacy – Just as people value having control over decisionsduring their lives such as where to live, which occupation to pursue,whom to marry, and whether to have children, so people valuehaving control over whether to continue living when the quality ofDlife deteriorates. (Per Dr. D.Y. Chandrachud, J.)

Constitution of India – Art.21 – Dignity of life must encompassdignity in the stages of living which lead up to the end of life –Dignity in the process of dying is as much part of the right to lifeunder Art.21 – To deprive an individual of dignity towards the endEof life is to deprive the individual of meaningful existence – Hence,the Constitution protects the legitimate expectation of every personto lead life of dignity until death occurs.(Per Dr. D.Y. Chandrachud, J.)

Constitution of India – Art.21 – Right to refuse treatment –FAn adult human being of conscious mind is fully entitled to refusemedical treatment or to decide not to take medical treatment andmay decide to embrace the death in natural way.(Per Ashok Bhushan, J.)

Constitution of India – Art.21 – Decision for withdrawal ofGlife saving treatment in case of person who is incompetent to takean informed decision – Held: Right of patient who is incompetent toexpress his view cannot be outside of fold of Art.21 of theConstitution – When an adult person having mental capacity totake decision can exercise his right not to take treatment orwithdraw from treatment, the above right cannot be negated for

person who is not able to take an informed decision due to terminalillness or being Persistent Vegetative State (PVS) – When the rightof an adult person who expresses his view regarding medicaltreatment can be regarded as right flowing from Art.21 of theConstitution, the right of patient who is incompetent to express hisview cannot be outside the fold of Art.21 of the Constitution – Incases of incompetent patients who are unable to take an informeddecision, it is in the best interests of the patient that the decision betaken by competent medical experts and that such decision beimplemented after providing cooling period at least of one monthto enable aggrieved person to approach the Court of Law – Thebest interest of the patient as determined by medical experts shallmeet the ends of justice – The medical team by taking decision shallalso take into consideration the opinion of the blood relations ofthe patient and other relevant facts and circumstances.(Per Ashok Bhushan, J.)

Constitution of India – Art.21 – Right to life – As the processof dying is an inevitable consequence of life, the right to lifenecessarily implies the right to have nature take its course and todie natural death – It also encompasses right, unless theindividual so wishes, not to have life artificially maintained by theprovision of nourishment by abnormal artificial means which haveno curative effect and which are intended merely to prolong life.(Per A.K. Sikri, J.)

Constitution of India – Art.21 – Concept of human dignity –Ideology of different religions – Hinduism doesn’t recognize humanbeings as mere material beings – Its understanding of human identityis more ethical-spiritual than material – That is why sense ofimmortality and divinity is attributed to all human beings in Hinduclassical literature – Even in Islam, tradition of human rights becameevident in the medieval ages – Being inspired by the tenets of theHoly Koran, it preaches the universal brotherhood, equality, justiceand compassion – Islam believes that man has special status beforeGod – Because man is creation of God, he should not be harmed

– The Bhakti and Sufi traditions too in their own unique wayspopularized the idea of universal brotherhood – It revived andregenerated the cherished Indian values of truth, righteousness,justice and morality. (Per A.K. Sikri, J.)

AConstitution of India – Art.21 – Right to live with dignity –Dignity implies, apart from right to life enjoyment of right to befree of physical interference – At common law, any physicalinterference with person is, prima facie, tortious – When it comesto medical treatment, even there the general common law principleis that any medical treatment constitutes trespass to the personBwhich must be justified, by reference either to the patient’s consentor to the necessity of saving life in circumstances where the patientis unable to decide whether or not to consent. (Per A.K. Sikri, J.)Constitution of India – Art.21 – Right to receive or denymedical treatment and euthanasia – Rights with regard to medicalCtreatment fall essentially into two categories: first, rights to receiveor be free of treatment as needed or desired, and not to be subjectedinvoluntarily to experimentation which, irrespective of any benefitwhich the subjects may derive, are intended to advance scientificknowledge and benefit people other than the subject in the longDterm; secondly, rights connected incidentally with the provision ofmedical services, such as rights to be told the truth by one’s doctor– Having regard to this right of the patients in common law, coupledwith the dignity and privacy rights, it can be said that passiveeuthanasia, under those circumstances where patient is in PVS andhe is terminally ill, where the condition is irreversible or where he isEbrain dead, can be permitted. (Per A.K. Sikri, J.)

Constitution of India – Art.21 – Right to health – Held: It is apart of Art.21 of the Constitution – At the same time, it is also aharsh reality that everybody is not able to enjoy that right becauseof poverty etc. – The State is not in position to translate into realityFthis right to health for all citizens – Thus, when citizens are notguaranteed the right to health, the questions that arise are can theybe denied right to die in dignity - because of rampant povertywhere majority of the persons are not able to afford health services,should they be forced to spend on medical treatment beyond theirGmeans and in the process compelling them to sell their house property,household things and other assets which may be means of livelihood– Secondly, when there are limited medical facilities available, shoulda major part thereof be consumed on those patients who have nochances of recovery – Judicial notice. (Per A.K. Sikri, J.)

Constitution of India – Arts.14, 21 – Human dignity – Howphilosopher-jurist Dworkin perceived interpretative process adoptedby Judge – Discussed – Interpretation of statutue.(Per A.K. Sikri, J.)

Constitution of India – Art.21 – Gian Kaur case, analysis of –Reference to Airedale’s case – In Gian Kaur, validity of s.306 waschallenged – The Constitution Bench in Gian Kaur clearly held thatwhen man commits suicide, he has to undertake certain positiveovert acts and the genesis of those acts cannot be tested to or beincluded within the protection of the expression “right to life” underArt.21 of the Constitution – It was also observed that dignifiedprocedure of death may include the right of dying man to also diewith dignity when the life is ebbing out – This is how thepronouncement in Gian Kaur has to be understood – It was also notthe ratio of the authority in Gian Kaur that euthanasia has to beintroduced only by legislation – What was stated in paragraph 41of Gian Kaur is what has been understood to have been held inAiredale’s case – The Court has neither expressed any independentopinion nor has it approved the said part or the ratio as stated inAiredale – There was only reference to Airedale’s case and theview expressed therein as regards legislation – Therefore, theperception in Aruna Shanbaug that the Constitution Bench hasapproved the decision in Airedale was not correct – Thus, GianKaur has neither given any definite opinion with regard toeuthanasia nor has it stated that the same can be conceived of onlyby legislation – Euthanasia.(Per Dipak Misra, CJI [for himselfand Khanwilkar, J.])

Constitution of India – Art.21 – Aruna Shanbaug case, analysisof – The two-Judge Bench in Aruna Shanbaug noted that Gian Kaurhas approved the decision of the House of Lords in Airedale andobserved that euthanasia could be made lawful only by legislation– This perception is not correct as Gian Kaur does not lay down thatpassive euthanasia could be made lawful only by legislation. (PerDipak Misra, CJI [for himself and Khanwilkar, J.])

Euthanasia – Passive euthanasia – Social Morality, medicalethicality and State Interest – Withdrawal of treatment in anirreversible situation is different from not treating or attending to apatient – Once passive euthanasia is recognized in law regard beinghad to the right to die with dignity when life is ebbing out and when

Athe prolongation is done sans purpose, neither the social moralitynor the doctors’ dilemma or fear will have any place – It is becausethe sustenance of dignity and self-respect of an individual is inheredin the right of an individual pertaining to life and liberty and thereis necessity for this protection – And once the said right comes withinthe shelter of Art.21 of the Constitution, the social perception andBthe apprehension of the physician or treating doctor regarding facinglitigation should be treated as secondary because the primacy ofthe right of an individual in this regard has to be kept on highpedestal – Constitution of India – Art.21. (Per Dipak Misra, CJI[for himself and Khanwilkar, J.])

Euthanasia – Intention to cause death – Distinction betweenactive euthanasia and passive euthanasia – distinction arisesbetween active and passive euthanasia from the provisions of thePenal Code – Active euthanasia involves an intention on the partof the doctor to cause the death of the patient – Such cases fallDunder the first clause of s.300 – Mens rea requires guilty mind;essentially an intent to cause harm or injury – Passive euthanasiadoes not embody an intent to cause death – doctor may withholdlife support to ensure that the life of patient who is in the terminalstage of an incurable illness or in permanent vegetative state, isnot prolonged artificially – The decision to do so is not foundedEupon an intent to cause death but to allow the life of the patient tocease at the end of its natural term – decision not to prolong lifeby artificial means does not carry an intention to cause death – Ina case involving passive euthanasia, the affliction of the patient isnot brought about either by an act or omission of the doctor – TheFcreation of the condition of the patient is outside the volition of thedoctor and has come about without covert or overt act by thedoctor – The decision to withhold medical intervention is to preventpain, suffering and indignity to human being who is in the endstage of terminal illness or of vegetative state with no reasonableprospect of cure – Thus, both in case of withdrawal of lifeGsupporting intervention and withholding it, the law protects bonafide assessment of medical professional – There being no intent tocause death, the act does not constitute either culpable homicide ormurder – Moreover, the doctor does not inflict bodily injury –Death emanates from the pre-existing medical condition of the patient

which enables life to chart natural course to its inexorable end –The law protects decision which has been made in good faith by amedical professional not to prolong the indignity of life placed onartificial support in situation where medical knowledge indicatesa point of no return – Neither the act nor the omission is done withthe knowledge that it is likely to cause death – Penal Code, 1860 –ss.299, 300. (Per Dr. D.Y. Chandrachud, J.)

Euthanasia – Active and passive Euthanasia – Distinctionbetween – Legality of passive euthanasia – Held: There is an inherentdifference between active euthanasia and passive euthanasia asthe former entails positive affirmative act, while the latter relatesto withdrawal of life support measures or withholding of medicaltreatment meant for artificially prolonging life – In active euthanasia,a specific overt act is done to end the patient’s life whereas in passiveeuthanasia, something is not done which is necessary for preservinga patient’s life – It is due to this difference that most of the countriesacross the world have legalised passive euthanasia either bylegislation or by judicial interpretation with certain conditions andsafeguards – Post Aruna Shanbaug, the 241[st] report of the LawCommission of India on Passive Euthanasia has also recognizedpassive euthanasia, however, no law as such has been enacted.(Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Euthanasia –Protection under s.92 IPC – Withdrawing lifesupport to person in permanently vegetative state or in terminalstage of illness is not ‘prohibited by law’ – Such an act would alsonot fall outside the purview of s.92 for the reason that there is nointentional causing of death or attempt to cause death – In situationwhere passive euthanasia is non-voluntary, there is an additionalprotection which is also available in circumstances which give riseto the application of s.92 – Where an act is done for the benefit ofanother in good faith, the law protects the individual – Penal Code,1860 – s.92. (Per Dr. D.Y. Chandrachud, J.)

Euthanasia – Active euthanasia in India, Legality of – Theintentional taking away of the life of another is made culpable bythe Penal Code – Active euthanasia falls within the expressprohibitions of the law and is unlawful. (Per Dr. D.Y. Chandrachud,J.)

AEuthanasia – Passive euthanasia – The decision by treatingdoctor to withhold or withdraw medical intervention in the case ofa patient in the terminal stage of illness or in persistently vegetativestate or the like where artificial intervention will merely prolong thesuffering and agony of the patient is protected by the law – Wherethe doctor has acted in such case in the best interest of the patientBand in bona fide discharge of the duty of care, the law will protectthe reasonable exercise of professional decision.(Per Dr. D.Y. Chandrachud, J.)

Euthanasia – Passive euthanasia – Legal principles governingcriminal law on passive euthanasia – Report by Justice MCJagannadha Rao as Chairperson of 196[th] Report of LawCommission of India, elucidated. (Per Dr. D.Y. Chandrachud, J.)

Euthanasia – In Gian Kaur case, the Constitution Bench held,while affirming the constitutional validity of s.306 of the Penal Code(abetment of suicide), that the right to life does not include the rightDto die – Gian Kaur case does not conclusively rule on the validity ofpassive euthanasia – The two Judge Bench decision in ArunaShanbaug proceeds on an incorrect perception of Gian Kaur –Moreover, Aruna Shanbaug has proceeded on the basis of the act-omission distinction which suffers from incongruities of aEjurisprudential nature – Aruna Shanbaug has also not dwelt on theintersection between criminal law and passive euthanasia, beyondadverting to ss.306 and 309 of the Penal Code – Aruna Shanbaughas subordinated the interest of the patient to the interest of othersincluding the treating doctors and supporting caregivers – Theunderlying basis of the decision in Aruna Shanbaug is flawed –FHence, it is necessary for this Court in the present reference torevisit the issues raised and to independently arrive at conclusionbased on the constitutional position – Penal Code, 1860 –ss.306,309. (Per Dr. D.Y. Chandrachud, J.)

Euthanasia – Restraints on judicial power – Active/PassiveGeuthanasia - whether in the form of withholding or withdrawingtreatment - has the effect of removing, or as the case may be, notproviding supportive treatment – Its effect is to allow the individualto continue to exist until the end of the natural span of life – On theother hand, active euthanasia involves hastening of death: the lifeHspan of the individual is curtailed by specific act designed to

bring an end to life – Active euthanasia would in the light of penallaw as it stands constitute an offence – It is only Parliament whichcan in its legislative wisdom decide whether active euthanasia shouldbe permitted – Passive euthanasia on the other hand would notimplicate criminal offence since the decision to withhold/withdrawartificial life support after taking into account the best interest ofthe patient would not constitute an illegal omission prohibited bylaw. (Per Dr. D.Y. Chandrachud, J.)

Euthanasia – Voluntary passive euthanasia, where deathresults from selective non-treatment because consent is withheld, islegally permissible while voluntary active euthanasia is prohibited.(Per Dr. D.Y. Chandrachud, J.)

Euthanasia – Impact of, at the institutional, governmental andsocietal level – Discussed. (Per Dr. D.Y. Chandrachud, J.)

Euthanasia – Distinction between legality of active andpassive euthanasia – Discussed. (Per Dr. D.Y. Chandrachud, J.)

Euthanasia – Passive euthanasia – Direction to set upcommittees to exercise supervisory role and function – Besideslending assurance to the decision of the treating doctors, the settingup of committees and the processing of proposed decision throughthe committees would protect the ultimate decision that is taken froman imputation of lack of bona fides – Committees.(Per Dr. D.Y. Chandrachud, J.)

Euthanasia – Law on Euthanasia in other countries –Discussed. (Per Ashok Bhushan, J.)

Euthanasia – Passive euthanasia – Legality of – The decisionnot to take life saving medical treatment by patient, who iscompetent to express his opinion cannot be termed as euthanasia,but decision to withdraw life saving treatment by patient who iscompetent to take decision as well as with regard to patient who isnot competent to take decision can be termed as passive euthanasia– On the strength of the precedents in this country and weight ofprecedents of other countries, such action of withdrawing life savingdevice is legal – Thus, such acts, which are commonly expressed aspassive euthanasia is lawful and legally permissible in this country– The act of withdrawal from live-saving devices is an independent

Aright which can lawfully be exercised by informed decision. (PerAshok Bhushan, J.)

Euthanasia – Active Euthanasia – Legality of – No one ispermitted to cause death of another person including physicianby administering any lethal drug even if the objective is to relieveBthe patient from pain and suffering. (Per Ashok Bhushan, J.)

Euthanasia – Gian Kaur case – The Constitution Bench inGian Kaur case held that the “right to life: including right to livewith human dignity” would mean the existence of such right up tothe end of natural life, which also includes the right to dignifiedClife upto the point of death including dignified procedure of death– Gian Kaur case did not express any binding view on the subject ofeuthanasia – The Constitution Bench, however, noted distinctionbetween cases in which physician decides not to provide or continueto provide for treatment and care, which could or might prolong hislife and those in which he decides to administer lethal drug evenDthough with object of relieving the patient from pain and suffering– The latter was held not to be covered under any right flowingfrom Art.21 – Constitution of India – Art.21. (Per Ashok Bhushan,

Euthanasia – Passive euthanasia and death with dignity areEinextricably linked – The opportunity to die unencumbered by theintrusion of medical technology and before experiencing loss ofindependence and control, appears to many to extend the promiseof dignified death – When medical technology intervenes toprolong dying like this it does not do so unobtrusively – NowadaysFpatients insist on more than just right to health care in general –They seek right to choose specific types of treatment, able to retaincontrol throughout the entire span of their lives and to exerciseautonomy in all medical decisions concerning their welfare andtreatment.(Per A.K. Sikri, J.)

GEuthanasia – Morality of medical science – Hippocratic Oath,coupled with ethical norms of medical profession, stand in the wayof euthanasia – It brings about situation of dilemma insofar asmedical practitioner is concerned – On the one hand his duty is tosave the life of person till he is alive, even when the patient isterminally ill and there are no chances of revival – On the otherH

hand, the concept of dignity and right to bodily integrity, whichrecognises legal right of autonomy and choice to the patient (oreven to his relations in certain circumstances, particularly whenthe patient is unconscious or incapacitated to take decision) maylead to exercising his right of euthanasia – Medical science. (PerA.K. Sikri, J.)

Advance Directives – Safeguards to be followed as to whocan execute the advance directive and how; what should it contain;how should it be recorded and preserved; when and by whom can itbe given effect to; what if permission is refused by the medical board;revocation or inapplicability of advance directive – Principlesrelating to the procedure for execution of Advance Directive andthe guidelines to give effect to passive euthanasia in bothcircumstances, namely, where there are advance directives and wherethere are none laid down in exercise of the power under Art.142 ofthe Constitution and the law stated in Vishaka case – The directiveand guidelines to remain in force till the Parliament brings alegislation in the field – Constitution of India – Art.142 – Legislation,need for. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Advance Directives – Principles in vogue across the globegoverning Advance Health Directives – Various jurisdictions,discussed. (Per Dipak Misra, CJI [for himself and Khanwilkar,J.])

Advance Directives – failure to legally recognize advancemedical directives may amount to non-facilitation of the right tosmoothen the dying process and the right to live with dignity – Astudy of the position in other jurisdictions shows that AdvanceDirectives have gained lawful recognition in several jurisdictionsby way of legislation and in certain countries through judicialpronouncements – Though the sanctity of life has to be kept on thehigh pedestal yet in cases of terminally ill persons or PVS patientswhere there is no hope for revival, priority shall be given to theAdvance Directive and the right of self-determination – In theabsence of Advance Directive, the procedure provided for the saidcategory shall be applicable. (Per Dipak Misra, CJI [for himselfand Khanwilkar, J.])

AAdvance Directives – If permission to withdraw medicaltreatment is refused by the Medical Board, it would be open to theexecutor of the Advance Directive or his family members or eventhe treating doctor or the hospital staff to approach the High Courtby way of writ petition under Art.226 of the Constitution.(Per DipakMisra, CJI [for himself and Khanwilkar, J.])B

Advance Directives – Meaning of – Held: Advance directivesare documents person completes while still in possession ofdecisional capacity about how treatment decisions should be madein the event she or he loses decision making capacity in future –Mental Healthcare Act 2017. (Per Dr. D.Y. Chandrachud, J.)

Advance Directives – Recognition of advance directives aspart of regime of constitutional jurisprudence is an essentialattribute of the right to life and personal liberty under Art.21 –That right comprehends dignity as its essential foundation – Qualityof life is integral to dignity – As an essential aspect of dignity andDthe preservation of autonomy of choice and decision-making, eachindividual must have the right on whether or not to accept medicalintervention – Such choice expressed at point in time when theindividual is in sound and competent state of mind should havesanctity in the future if the individual were to cease to have themental capability to take decisions and make choices – Yet, aEbalance between the application of the substituted judgmentstandard and the best interest standard is necessary as matter ofpublic interest – This can be achieved by allowing supervisoryrole to an expert body with whom shall rest oversight in regard towhether patient in the terminal stage of an illness or in permanentFvegetative state should be withheld or withdrawn from artificial lifesupport – The directions in regard to the regime of advance directiveshave been issued in exercise of the power conferred by Art.142 andshall continue to hold the field until suitable legislation is enactedby Parliament to govern the area – Constitution of India – Art.142.(Per Dr. D.Y. Chandrachud, J.)

Advance Directives – Forms of advance directive – LivingWill which indicates person’s views and wishes regarding medicaltreatment and Durable Power of Attorney for Health Care orHealth care Proxy which authorises surrogate decision maker tomake medical care decisions for the patient in the event she or he isHincapacitated – Although there can be an overlap between these

two forms of advance directives, the focus of durable power is onwho makes the decision while the focus of living will is on whatthe decision should be – “living will” has also been referred as“a declaration determining the termination of life,” “testamentpermitting death,” “declaration for bodily autonomy,” “declarationfor ending treatment,” “body trust,” or other similar reference. (PerDr. D.Y. Chandrachud, J.)

Advance Directives – When patient is brought for medicaltreatment in state of mind in which he or she is deprived of themental capacity to make informed choices, the medical professionalneeds to determine the line of treatment – One line of enquiry, whichseeks to protect patient autonomy is how the individual would havemade decision if he or she had decision-making capacity – This iscalled the substituted judgment standard – An advance medicaldirective is construed as facilitative mechanism in the applicationof the substituted judgment standard, if it provides to the physiciana communication by the patient (when she or he was in fit state ofmind) of the desire for or restraint on being provided medicaltreatment in future – Conceptually, there is second standard, whichis the caregiver standard – This is founded on the principle ofbeneficence – The second standard seeks to apply an objectivenotion of line of treatment which reasonable individual woulddesire in the circumstances – The difference between these twostandards is that the first seeks to reconstruct the subjective pointof view of the patient – The second allows for “a more generic viewof interests”, without having to rely on the “idiosyncratic valuesand preference of the patient in question”.(Per Dr. D.Y. Chandrachud, J.)

Advance Directives – Meaning and purpose – An advancemedical directive is an individual’s advance exercise of his autonomyon the subject of extent of medical intervention that he wishes toallow upon his own body at future date, when he may not be in aposition to specify his wishes – The purpose and object of advancemedical directive is to express the choice of person regardingmedical treatment in an event when he looses capacity to take adecision – Use and operation of advance medical directive is toconfine only to case when person becomes incapacitated to takean informed decision regarding his medical treatment – So long as

Aan individual can take an informed decision regarding his medicaltreatment, there is no occasion to look into advance medicaldirectives. (Per Ashok Bhushan, J.)

Advance Directives – Revocation of – person has unfetteredright to change or cancel his advance medical directives looking toBthe need of time and advancement in medical science – Hence, aperson cannot be tied up or bound by his instructions given at anearlier point of time. (Per Ashok Bhushan, J.)

Advance Directives – Possibility of misuse – Autonomy of anindividual gives him right to choose his destiny and, therefore, heCmay decide before hand, in the form of advance directive, at whatstage of his physical condition he would not like to have medicaltreatment, and on the other hand, there are dangers of misuse thereofas well – At the same time, possibility of misuse cannot be held to bea valid ground for rejecting advance directive, as opined by theLaw Commission of India as well in its 196th and 241st Report –DInstead, attempt can be made to provide safeguards for exercise ofsuch advance directive – Mental Healthcare Act, 2017 – s.5 –Transplantation of Human Organs and Tissues Act, 1994 – s.3. (PerA.K. Sikri, J.)

Doctrines/Principles – Sanctity principle – “life should notEalways be maintained at any and all cost” – Euthanasia.(Per Dr. D.Y. Chandrachud, J.)

Interpretation of Statutes – Liberal construction – Thelanguage employed in the constitutional provision should be liberallyconstrued, for such provision can never remain static – It is becauseFfixity would mar the core which is not the intent. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])

Jurisprudence – Liberty impels an individual to change andlife welcomes the change and the movement – Life does not intendto live sans liberty as it would be, in all possibility, meaninglessGsurvival – There is no doubt that no fundamental right is absolute,but any restraint imposed on liberty has to be reasonable – Individualliberty aids in developing one’s growth of mind and assertindividuality – She/he may not be in position to rule others butindividually, she/he has the authority over the body and mind. (PerDipak Misra, CJI [for himself and Khanwilkar, J.])H

Jurisprudence – Dignity – If man is allowed to or, for thatmatter, forced to undergo pain, suffering and state of indignitybecause of unwarranted medical support, the meaning of dignity islost and the search for meaning of life is in vain. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])

Living Will – Specific guidelines laid down to test the validityof living will, by whom it should be certified, when and how itshould come into effect, etc. – The guidelines also cover situationwhere there is no living will and how to approach plea for passiveeuthanasia – Guidelines. (Per Dipak Misra, CJI [for himself andKhanwilkar, J.])

Living Will – Whether ‘living will’ or ‘advance directive’should be legally recognised and can be enforced – Held: It isundisputed that Doctors’ primary duty is to provide treatment andsave life but not in the case when person has already expressedhis desire of not being subjected to any kind of treatment – It is acommon law right of people, of any civilized country, to refuseunwanted medical treatment and no person can force him/her totake any medical treatment which the person does not desire tocontinue with – Advance directives are instruments through whichpersons express their wishes at prior point in time, when they arecapable of making an informed decision, regarding their medicaltreatment in the future, when they are not in position to make aninformed decision, by reason of being unconscious or in PVS orin coma – medical power of attorney is an instrument throughwhich persons nominate representatives to make decisions regardingtheir medical treatment at point in time when the persons executingthe instrument are unable to make informed decisions themselves –Clause 11 of the draft Treatment of Terminally-III Patients(Protection of Patients and Medical Practitioners) Bill, 2016 statesthat advance directives or medical power of attorney shall be voidand of no effect and shall not be binding on any medical practitioner– This blanket ban, including the failure even to give some weightto advance directives while making decision about the withholdingor withdrawal of life-sustaining treatment is disproportionate – Itdoes not constitute fair, just or reasonable procedure, which is arequirement for the imposition of restriction on the right to life (inthis case, expressed as the right to die with dignity) under Art.21.(PerA.K. Sikri, J.)

AMental Healthcare Act 2017 – Advance directives for personswith mental illness – Held: The Act recognises an advance directive– The Act provides that while making an advance directive, the makershould be major and indicate the manner in which he or she wishesor does not wish to be cared for and treated for mental illness;and the person he or she appoints as nominated representative –BAn advance directive is to be invoked only when the person whomade it ceases to have the capacity to make mental healthcaretreatment decisions – It remains effective until the maker regainsthe capacity to do so. (Per Dr. D.Y. Chandrachud, J.)

Medical profession – Medical ethics – History of ethicalCprinciples – Discussed. (Per Ashok Bhushan, J.)

Words and Phrases – Advance medical, living will, advancemedical power of attorney – Meaning of – Advance medical directiveis, “a legal document explaining one’s wishes about medicaltreatment if one becomes incompetent or unable to communicate” –DA living will, on the other hand, is document prescribing person’swishes regarding the medical treatment the person would want if hewas unable to share his wishes with the health care provider –Another type of advance medical directive is medical power ofattorney – It is document which allows an individual (principal)Eto appoint trusted person (agent) to take health care decisionswhen the principal is not able to take such decisions.(Per Dipak Misra, CJI [for himself and Khanwilkar, J.])Words and Phrases – Killing and letting die – Differencebetween, discussed. (Per Dipak Misra, CJI [for himself andFKhanwilkar, J.])

Words and Phrases – Involuntary euthanasia, non-voluntaryeuthanasia, voluntary euthanasia, active euthanasia and passiveeuthanasia – Meaning of – Discussed. (Per Dr. D.Y. Chandrachud,

GDisposing of the Writ petition, the CourtHELD:

Per Dipak Misra, CJI [for himself and Khanwilkar, J.]

1.1 The Constitution Bench in Gian Kaur’s case hasHreferred to the decision in Airedale that has been recapitulated

in Aruna Shanbaug case which was case relating to withdrawalof artificial measures of continuance of life by the physician. TheConstitution Bench noted that Airedale held that in the contextof existence in the persistent vegetative state of no benefit tothe patient, the principle of sanctity of life, which is the concernof the State, was not an absolute one. The bench further noticedthat in Airedale, it had been stated that in such cases also, theexisting crucial distinction between cases in which physiciandecides not to provide or to continue to provide, for his patient,treatment or care which could or might prolong his life, and thosein which he decides, for example, by administering lethal drugactively to bring his patient’s life to an end, was indicated.Thereafter, while again referring to Airedale case, the benchobserved that it was case relating to withdrawal of artificialmeasures for continuance of life by the physician. [Para 40][96-C-F]1.2 careful reading of Gian Kaur shows narration,reference and notice of the view taken in Airedale case. The Courtwas concerned with the constitutional validity of Section 309 IPCthat deals with attempt to commit suicide and Section 306 IPCthat provides for abetment to commit suicide. The ConstitutionBench, while distinguishing the case of dying man who isterminally ill or in persistent vegetative state and his terminationor premature extinction of life, observed that the said categoryof cases may fall within the ambit of right to die with dignity as apart of right to life with dignity when death due to termination ofnatural life is inevitable and imminent and the process of naturaldeath has commenced. The Constitution Bench further opinedthat the said cases do not amount to extinguishing the life butonly amount to accelerating the process of natural death whichhas already commenced and, thereafter, the Bench stated thatthe debate with regard to physician assisted suicide remainsinconclusive. The Bench has reiterated that the cases pertainingto premature extinction of life during the process of certain naturaldeath of patients who are terminally ill or in persistent vegetativestate were of assistance to interpret Article 21 of the Constitutionto include therein the right to curtail the natural span of life. GianKaur has not decried euthanasia as concept. On the contrary, itgives an indication that in such situations, it is the acceleration of

18SUPREME COURT REPORTS

Athe process of dying which may constitute part of right to lifewith dignity so that the period of suffering is reduced. There is adistinction between positive or overt act to put an end to life bythe person living his life and termination of life so that an individualdoes not remain in vegetative state or, for that matter, whenthe death is certain because of terminal illness and he remainsBalive with the artificially assisted medical system. In Gian Kaur,while dealing with the attempt to commit suicide, the Court clearlyheld that when man commits suicide, he has to undertake certainpositive overt acts and the genesis of those acts cannot be testedto or be included within the protection of the expression “rightCto life” under Article 21 of the Constitution. It was also observedthat dignified procedure of death may include the right of adying man to also die with dignity when the life is ebbing out.This is how the pronouncement in Gian Kaur has to beunderstood. It is also not the ratio of the authority in Gian Kaur

that euthanasia has to be introduced only by legislation. TheDCourt has neither expressed any independent opinion nor has itapproved the said part or the ratio as stated in Airedale. Therehas been only reference to Airedale’s case and the viewexpressed therein as regards legislation. Therefore, theperception in Aruna Shanbaug that the Constitution Bench hasEapproved the decision in Airedale is not correct.[Para 42][97-D-H; 98-A-E]

Gian Kaur v. State of Punjab (1996) 2 SCC 648 : [1996]3 SCR 697 – analysed.

1.3 The two-Judge Bench in Aruna Shanbaug. noted thatFGian Kaur has approved the decision of the House of Lords inAiredale and observed that euthanasia could be made lawful onlyby legislation. This perception is not correct. [Para 43][98-G-H]

Aruna Ramachandra Shanbaug v. Union of India andothers (2011) 4 SCC 454 : [2011] 4 SCR 1057 – PartlyGincorrect.

Kharak Singh v. State of U.P. and others [1964] 1 SCR332 : AIR 1963 SC 1295; Gobind v. State of MadhyaPradesh and another (1975) 2 SCC 148 : [1975] 3 SCR946; People’s Union for Civil Liberties v. Union of India

and another (1997) 1 SCC 301 : [1996] 10 Suppl. SCR321; P. Rathinam v. Union of India and another (1994)3 SCC 394 – referred to.

Airedale N.H.S. Trust v. Bland (1993) 2 WLR 316 :(1993) 1 All ER 821, HL – referred to

2.1 Right to refuse treatment: Any adult person of soundmind has right to refuse medical treatment. This right standson different pedestal as compared to suicide, physician assistedsuicide or even euthanasia. When terminally ill patient refusesto take medical treatment, it can neither be termed as euthanasianor as suicide. Albeit, both suicide and refusal to take treatmentin case of terminal ailment shall result in the same consequences,that is, death, yet refusal to take treatment by itself cannot amountto suicide. In case of suicide, there has to be self initiatedpositive action with specific intention to cause one’s own death.On the other hand, patient’s right to refuse treatment lacks hisspecific intention to die, rather it protects the patient fromunwanted medical treatment. patient refusing medical treatmentmerely allows the disease to take its natural course and if, in thisprocess, death occurs, the cause for it would primarily be theunderlying disease and not any self initiated act. [Para 131][134-F-H; 135-A]

Cruzan v. Director, Missouri Department of Health 111L Ed 2d 224 : 497 US 261 (1990) : 110 S.Ct. 2841(1990); Rodriguez v. British Columbia (AttorneyGeneral) 85 C.C.C. (3d) 15 : (1993) 3 S.C.R. 519;Re J (A Minor) (Wardship: Medical Treatment) [1991]2 WLR 140: [1990] 3 All ER 930 : [1991] Fam 33;Washington v. Glucksberg 138 L Ed 2d 772 : 521 US702 (1997); Vacco v. Quill 138 L Ed 2d 834 : 521 US793 (1997); In the matter of Claire C. Conroy 98 N.J.321 (1985) : (1985) 486 A.2d 1209 (N.J.); v. WestBerkshire Health Authority [1989] 2 All ER 545 : [1990]2 AC 1; Bolam v. Friern Hospital ManagementCommittee [1957] 1 W.L.R. 582 : [1957] 2 All ER 118;Re Quinlan355 A. 2d 647 : (1976) 70 NJ 10;Superintendent of Belchertown State School v.Saikewicz (1977) 373 Mass 728: 370 N.E. 2d 417

A(1977); In re (Mental Patient : Sterilisation) [1990] 2AC 1 : [1989] 2 WLR 1025 : [1989] 2 All ER 545; Inre (A Minor) (Wardship : Medical Treatment)[1981] 1WLR 1424 : [1990] 3 All ER 927; In re J (A Minor)(Wardship : Medical Treatment) [1991] Fam 33 : [1990]3 All ER 930 : [1991] 2 WLR 140; R (on the applicationBof Pretty) v. Director of Public Prosecutions [2002] 1All ER 1 : [2001] UKHL 61; In re (Consent toTreatment – Capacity) [2002] 1 FLR 1090 : [2002] 2All ER 449; R (on the application of Nicklinson andanother) v. Ministry of Justice [2014] UKSC 38; HunterCand New England Area Health Service v. [2009]NSWSC 761; Brightwater Care Group (Inc.) v. Rossiter[2009] WASC 229 : 40 WAR 84; Australian CapitalTerritory v. JT[2009] ACTSC 105; Auckland AreaHealth Board v. Attorney-General [1993] NZLR 235;Messiha v. South East Health [2004] NSWSC 1061;DCarter v. Canada (Attorney General) (2015) SCC 5;Schloendorff v. Society of New York Hospital (1914)105 NE 92 : (1914) 211 NY 125; v. R (1983) 33SASR 189 at 193; Rogers v. Whitaker [1992] HCA 58: (1992) 175 CLR 479 at 487; Malette v. Shulman 67EDLR (4[th]) 321 (1990) : 72 OR (2d) 417; Secretary,Department of Health and Community Services (NT) v.JWB and SMB (1992) 66 AJLR 300 : (1992) 175 CLR218; Re MB (Medical Treatment) [1997] EWCA Civ3093 : [1997] 2 FLR 426; Pretty v. United Kingdom(application no. 2346/02) [2002] ECHR 423 (29 April,F2002); Hass v. Switzerland (application no. 31322/07) [2011] ECHR 2422 : (2011) 53 EHRR 33; Lambertand others v. France (application no. 46043/14) [2015]ECHR 185 – referred to.3.2 There is presumption of capacity whereby an adult isGpresumed to have the capacity to consent to or to refuse medicaltreatment unless and until that presumption is rebutted. Theconsent may be vitiated if the individual concerned may not havebeen competent in law to give or refuse that consent; or even ifthe individual was competent in law, the decision has been obtained

by undue influence or some other vitiating means; or the apparentconsent or refusal does not extend to the particular situation; orthe terms of the consent or refusal are ambiguous or uncertain;or if the consent or refusal is based on incorrect information orincorrect assumption. In circumstances where it is practicablefor medical practitioner to obtain consent to treatment, then,for the consent to be valid, it must be based on full information,including as to its risks and benefits. Where it is not practicablefor medical practitioner to obtain consent for treatment andwhere the patient’s life is in danger if appropriate treatment isnot given, then the treatment may be administered withoutconsent. This is justified by what is sometimes called the“emergency principle” or “principle of necessity”. Usually, themedical practitioner treats the patient in accordance with hisclinical judgment of what is in the patient’s best interests. [Paras134, 135][135-E-G; 136-A-B]

4.1 Passive Euthanasia in the context of Art.21 of theConstitution: The word ‘liberty’ is the sense and realization ofchoice of the attributes associated with the said choice; and theterm ‘life’ is the aspiration to possess the same in dignifiedmanner. The two are intrinsically interlinked. Liberty impels anindividual to change and life welcomes the change and themovement. Life does not intend to live sans liberty as it wouldbe, in all possibility, meaningless survival. No fundamental rightis absolute, but any restraint imposed on liberty has to bereasonable. Individual liberty aids in developing one’s growth ofmind and assert individuality. She/he may not be in position torule others but individually, she/he has the authority over thebody and mind. The liberty of personal sovereignty over bodyand mind strengthens the faculties in person. [Para 138][136-G-H; 137-A-B]

Board of Trustees of the Port of Bombay v. DilipkumarRaghavendranath Nadkarni and others (1983) 1 SCC124 : [1983] 1 SCR 828; Maneka Gandhi v. Union ofIndia and another (1978) 1 SCC 248 : [1978] 2 SCR621; State of Andhra Pradesh v. Challa RamkrishnaReddy and others AIR 2000 SC 2083 : (2000) 5 SCC712 : [2000] 3 SCR 644 – relied on.

ABC

[2018] 6 S.C.R.

AAdkins v. Children’s Hospital 261 US 525, 568(1923) –referred to.

4.2 The interpretation of the Constitution, especiallyfundamental rights, has to be dynamic and it is only suchinterpretative dynamism that breathes life into the written words.BAs far as Article 21 is concerned, it is imperative to mention thatdynamism can, of course, infuse life into life and liberty as usedin the said Article. The language employed in the constitutionalprovision should be liberally construed, for such provision cannever remain static. [Paras 145, 149][139-C-D; 141-F]

Central Inland Water Transport Corporation LimitedCand another v. Brojo Nath Ganguly and another (1986)3 SCC 156 : [1986] 2 SCR 278; M. Nagaraj and othersv. Union of India and others (2006) 8 SCC 212 : [2006]7 Suppl. SCR 336; V.C. Rangadurai v. D. Gopalan andothers (1979) 1 SCC 308 : [1979] 1 SCR 1054 – reliedDon.5.1 Individual Dignity as facet of Article 21: Dignity of anindividual has been internationally recognized as an importantfacet of human rights in the year 1948 itself with the enactmentof the Universal Declaration of Human Rights. Human dignityEnot only finds place in the Preamble of this important documentbut also in Article 1 of the same. Law gladly takes cognizance ofthe fact that dignity is the most sacred possession of man. Andthe said possession neither loses its sanctity in the process ofdying nor evaporates when death occurs. As part of the right todie with dignity in case of dying man who is terminally ill or in aFpersistent vegetative state, only passive euthanasia would comewithin the ambit of Article 21 and not the one which would fallwithin the description of active euthanasia in which positive stepsare taken either by the treating physician or some other person.[Paras 150, 155, 159][141-G-H; 142-A; 144-G; 147-D-E]

GK.S. Puttaswamy and another v. Union of India andothers (2017) 10 SCC 1 : [2017] 10 SCR 569 –followed.

Mehmood Nayyar Azam v. State of Chhattisgarh andothers (2012) 8 SCC 1 : [2012] 8 SCR 651; Vikas YadavHv. State of Uttar Pradesh and others (2016) 9 SCC 541

: [2016] 8 SCR 872; Francis Coralie Mullin v. TheAdministrator, Union Territory of Delhi (1981) 1 SCC608 : [1981] 2 SCR 516; National Legal ServicesAuthority v. Union of India and others (2014) 5 SCC438; Shabnam v. Union of India and another (2015) 6SCC 702 : [2015] 8 SCR 289 – relied on.

Christine Goodwin v. the United Kingdom [2002]ECHR 588; S v. Makwanyane 1995 (3) SA 391 –referred to.

5.2 The law must take cognizance of the changing societyand march in consonance with the developing concepts. Theimmediate needs are required to be addressed through theprocess of interpretation by the Court unless the same totallyfalls outside the constitutional framework or the constitutionalinterpretation fails to recognize such dynamism. The right to lifewith dignity has to include the smoothening of the process ofdying when the person is in vegetative state or is livingexclusively by the administration of artificial aid that prolongsthe life by arresting the dignified and inevitable process of dying.Here, the issue of choice also comes in. Thus analysed, such aright should come within the ambit of Article 21 of theConstitution. [Para 160][147-F-H; 148-G-H]6. Right of self-determination and individual autonomy: Asfar as the United Kingdom is concerned, it is generally clear thatwhenever there is conflict between capable adult’s exerciseof the right of self-determination and the State’s interest inpreserving human life by treating it as sanctimonious, the rightof the individual must prevail. In the United States, the aspect ofself-determination and individual autonomy is concretised in lawas all fifty States along with the District of Columbia, the capital,which is commonly referred as Washington D.C., have passedlegislations upholding different forms of Advance Directives. TheCanadian Criminal Code asserts and protects the sanctity of lifein number of ways which directly confront the autonomy of theterminally ill in their medical decision making. However, theSupreme Court of Canada in Reibl v. Hughes approved an oft-quoted statement of Cardozo J. in Scholoendorf that “every humanbeing of adult years and sound mind has right to determine

Awhat shall be done with his own body” and Chief Justice Laskinin Reibl has further added that battery would lie where surgery ortreatment was performed without consent or where apart fromemergency situations, surgery or medical treatment was givenbeyond that to which there was consent. Thus, the Supreme Courtof Canada suggested that competent adults have the right to makeBtheir own medical decisions even if such decisions are unwise.Enquiring into common law and statutory rights of terminally illpersons in other jurisdictions would indicate that all adults withthe capacity to consent have the common law right to refusemedical treatment and the right of self determination. However,Cdoctors would be bound by the choice of self-determination madeby the patient who is terminally ill and undergoing prolongedmedical treatment or is surviving on life support, subject to beingsatisfied that the illness of the patient is incurable and there is nohope of his being cured. Any other consideration cannot pass offas being in the best interests of the patient. [Paras 164, 165, 166,D168, 169][150-A-B, F-G; 151-C-E]

Reeves v. Commissioner of Police of the Metropolis[2000] 1 AC 360, 379; Re Jobes (1987) 108 N.J. 394;Reibl v. Hughes [1980] 2 SCR 880 – referred to.

E7.1 Social Morality, medical ethicality and State Interest:The society at large may feel that patient should be treated tillhe breathes his last breath and the treating physicians may feelthat they are bound by their Hippocratic oath which requires themto provide treatment and save life and not to put an end to life bynot treating the patient. The members of the family may remainFin constant state of hesitation being apprehensive of many asocial factor which include immediate claim of inheritance, socialstigma and, sometimes, the individual guilt. The Hippocratic oathtaken by doctor may make him feel that there has been failureon his part and sometimes also make him feel scared of variousGlaws. There can be allegations against him for negligence orcriminal culpability. In this regard, two aspects are to be bornein mind. First, withdrawal of treatment in an irreversible situationis different from not treating or attending to patient and second,once passive euthanasia is recognized in law regard being had tothe right to die with dignity when life is ebbing out and when the

prolongation is done sans purpose, neither the social moralitynor the doctors’ dilemma or fear will have any place. It is becausethe sustenance of dignity and self-respect of an individual isinhered in the right of an individual pertaining to life and libertyand there is necessity for this protection. And once the said rightcomes within the shelter of Article 21 of the Constitution, thesocial perception and the apprehension of the physician or treatingdoctor regarding facing litigation should be treated as secondarybecause the primacy of the right of an individual in this regardhas to be kept on high pedestal.[Paras 170, 171][151-F-H; 152-A-C]7.2 Passive euthanasia fundamentally connotes absence ofany overt act either by the patient or by the doctors. It also doesnot involve any kind of overt act on the part of the family members.It is avoidance of unnecessary intrusion in the physical frame of aperson, for the inaction is meant for smooth exit from life. It isparamount for an individual to protect his dignity as an inseparablepart of the right to life which engulfs the dignified process ofdying sans pain, sans suffering and, most importantly, sansindignity. There are philosophers, thinkers and also scientistswho feel that life is not confined to the physical frame and biologicalcharacteristics. But there is no denial of the fact that life in itsconnotative expanse intends to search for its meaning and findthe solution of the riddle of existence for which some lean onatheism and some vouchsafe for faith and yet some stand by theideas of an agnostic. However, the legal fulcrum has to be howArticle 21 of the Constitution is understood. If man is allowedto or, for that matter, forced to undergo pain, suffering and stateof indignity because of unwarranted medical support, the meaningof dignity is lost and the search for meaning of life is in vain.[Paras 172, 173][152-C-F]

8. Advance Directive/Advance Care Directive/AdvanceMedical Directive: In order to overcome the difficulty faced incase of patients who are unable to express their wishes at thetime of taking the decision, the concept of Advance MedicalDirectives emerged in various countries. Advance Directivesfor health care go by various names in different countries thoughthe objective by and large is the same, that is, to specify an

Aindividual’s health care decisions and to identify persons whowill take those decisions for the said individual in the event he isunable to communicate his wishes to the doctor. The agentappointed to deal with such issues can interpret the principal’sdecisions based on their mutual knowledge and understanding.[Paras 177, 178, 180][154-B, D-E, G]B

9. Advance medical directive ideal in our country

9.1 Advance Medical Directive cannot operate inabstraction. There are certain safeguards for operating it. It canbe executed only by an adult who is of sound and healthy stateCof mind and in position to communicate, relate and comprehendthe purpose and consequences of executing the document. Itmust be voluntarily executed and without any coercion orinducement or compulsion and after having full knowledge orinformation. It should have characteristics of an informed consent

given without any undue influence or constraint. It shall be inDwriting clearly stating as to when medical treatment may bewithdrawn or no specific medical treatment shall be given whichwill only have the effect of delaying the process of death that mayotherwise cause him/her pain, anguish and suffering and furtherput him/her in state of indignity. It should clearly indicate theEdecision relating to the circumstances in which withholding orwithdrawal of medical treatment can be resorted to. It should bein specific terms and the instructions must be absolutely clearand unambiguous. It should mention that the executor mayrevoke the instructions/authority at any time. It should disclosethat the executor has understood the consequences of executingFsuch document. It should specify the name of guardian orclose relative who, in the event of the executor becomingincapable of taking decision at the relevant time, will be authorizedto give consent to refuse or withdraw medical treatment in amanner consistent with the Advance Directive. In the event thatGthere is more than one valid Advance Directive, none of whichhave been revoked, the most recently signed Advance Directivewill be considered as the last expression of the patient’s wishesand will be given effect to. [Para 191][158-D-H; 159-A-E]

9.2 The document should be signed by the executor in theHpresence of two attesting witnesses, preferably independent, and

countersigned by the jurisdictional Judicial Magistrate of FirstClass (JMFC) so designated by the concerned District Judge.The witnesses and the jurisdictional JMFC shall record theirsatisfaction that the document has been executed voluntarily andwith full understanding of all the relevant information andconsequences. The JMFC shall forward one copy of the documentto the Registry of the jurisdictional District Court for beingpreserved. Additionally, the Registry of the District Judge shallretain the document in digital format. The JMFC shall cause toinform the immediate family members of the executor, if notpresent at the time of execution, and make them aware about theexecution of the document. copy shall be handed over to thecompetent officer of the local Government or the MunicipalCorporation or Municipality or Panchayat, as the case may be.The JMFC shall cause to handover copy of the Advance Directiveto the family physician, if any. In the event the executor becomesterminally ill and is undergoing prolonged medical treatment withno hope of recovery and cure of the ailment, the treating physician,when made aware about the Advance Directive, shall ascertainthe genuineness and authenticity thereof from the jurisdictionalJMFC before acting upon the same. The instructions in thedocument must be given due weight by the doctors. However, itshould be given effect to only after being fully satisfied that theexecutor is terminally ill and is undergoing prolonged treatmentor is surviving on life support and that the illness of the executoris incurable or there is no hope of him/her being cured. If thephysician treating the patient (executor of the document) issatisfied that the instructions given in the document need to beacted upon, he shall inform the executor or his guardian/closerelative, as the case may be, about the nature of illness, theavailability of medical care and consequences of alternative formsof treatment and the consequences of remaining untreated. Hemust also ensure that he believes on reasonable grounds thatthe person in question understands the information provided,has cogitated over the options and has come to firm view thatthe option of withdrawal or refusal of medical treatment is thebest choice. The physician/hospital where the executor has beenadmitted for medical treatment shall then constitute MedicalBoard consisting of the Head of the treating Department and at

CDEFG

Aleast three experts from the fields of general medicine, cardiology,neurology, nephrology, psychiatry or oncology who, in turn, shallvisit the patient in the presence of his guardian/close relativeand form an opinion whether to certify or not to certify carryingout the instructions of withdrawal or refusal of further medicaltreatment. This decision shall be regarded as preliminaryBopinion. In the event the Hospital Medical Board certifies thatthe instructions contained in the Advance Directive ought to becarried out, the physician/hospital shall forthwith inform thejurisdictional Collector about the proposal who shall thenimmediately constitute Medical Board comprising the ChiefCDistrict Medical Officer of the concerned district as the Chairmanand three expert doctors. They shall jointly visit the hospital wherethe patient is admitted and if they concur with the initial decisionof the Medical Board of the hospital, they may endorse thecertificate to carry out the instructions given in the AdvanceDirective. The Board constituted by the Collector mustDbeforehand ascertain the wishes of the executor if he is in aposition to communicate and is capable of understanding theconsequences of withdrawal of medical treatment. In the eventthe executor is incapable of taking decision or develops impaireddecision making capacity, then the consent of the guardianEnominated by the executor in the Advance Directive should beobtained regarding refusal or withdrawal of medical treatment tothe executor to the extent of and consistent with the clearinstructions given in the Advance Directive. The Chairman ofthe Medical Board nominated by the Collector, that is, the ChiefDistrict Medical Officer, shall convey the decision of the BoardFto the jurisdictional JMFC before giving effect to the decision towithdraw the medical treatment administered to the executor.The JMFC shall visit the patient at the earliest and, afterexamining all aspects, authorise the implementation of thedecision of the Board. It will be open to the executor to revokeGthe document at any stage before it is acted upon andimplemented. [Para 191][159-E-G; 160-A-H; 161-A-G; 162-C-D]

9.3 If permission to withdraw medical treatment is refusedby the Medical Board, it would be open to the executor of theHAdvance Directive or his family members or even the treating

doctor or the hospital staff to approach the High Court by way ofwrit petition under Article 226 of the Constitution. The High Courtwill be free to constitute an independent Committee consistingof three doctors. [Para 191][162-E-F]

9.4 Revocation or inapplicability of Advance Directive: Anindividual may withdraw or alter the Advance Directive at anytime when he/she has the capacity to do so and by following thesame procedure as provided for recording of Advance Directive.Withdrawal or revocation of an Advance Directive must be inwriting. An Advance Directive shall not be applicable to thetreatment in question if there are reasonable grounds forbelieving that circumstances exist which the person making thedirective did not anticipate at the time of the Advance Directiveand which would have affected his decision had he anticipatedthem. If the Advance Directive is not clear and ambiguous, theconcerned Medical Boards shall not give effect to the same and,in that event, the guidelines meant for patients without AdvanceDirective shall be made applicable. Where the Hospital MedicalBoard takes decision not to follow an Advance Directive whiletreating person, then it shall make an application to the MedicalBoard constituted by the Collector for consideration andappropriate direction. [Para 191][163-B-F]

10. There will be cases where there is no Advance Directive.The said class of persons cannot be alienated. In cases wherethere is no Advance Directive, the procedure and safeguards areto be same as applied to cases where Advance Directives are inexistence and in addition there to, the following procedure shallbe followed:- (i) In cases where the patient is terminally ill andundergoing prolonged treatment in respect of ailment which isincurable or where there is no hope of being cured, the physicianmay inform the hospital which, in turn, shall constitute HospitalMedical Board. In the event the Hospital Medical Board certifiesthe option of withdrawal or refusal of further medical treatment,the hospital shall immediately inform the jurisdictional Collector.The jurisdictional Collector shall then constitute Medical Boardwho shall visit the hospital for physical examination of the patientand, after studying the medical papers, may concur with the opinionof the Hospital Medical Board. In that event, intimation shall be

[2018] 6 S.C.R.

Agiven by the Chairman of the Collector nominated Medical Boardto the JMFC and the family members of the patient. The JMFCshall visit the patient at the earliest and verify the medical reports,examine the condition of the patient, discuss with the familymembers of the patient and, if satisfied in all respects, mayendorse the decision of the Collector nominated Medical BoardBto withdraw or refuse further medical treatment to the terminallyill patient. There may be cases where the Board may not take adecision to the effect of withdrawing medical treatment of thepatient on the Collector nominated Medical Board may not concurwith the opinion of the hospital Medical Board. In such situation,Cthe nominee of the patient or the family member or the treatingdoctor or the hospital staff can seek permission from the HighCourt to withdraw life support by way of writ petition under Article226 of the Constitution. The directions with regard to theAdvance Directives and these safeguards shall remain in forcetill the Parliament makes legislation on this subject. [Paras 193,D194][163-G-H; 164-A-E; 165-A, E]

Vishaka and Others v. State of Rajasthan and Others(1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404 – reliedon.

EState of Himachal Pradesh and another v. Umed RamSharma and others (1986) 2 SCC 68 : AIR 1986 SC847 : [1986] 1 SCR 251; Maruti Shripati Dubal v. Stateof Maharashtra 1987 Cri LJ 473 : (1986) 88 Bom LR589; R.C. Cooper v. Union of India (1970) 2 SCC 298: AIR 1970 SC 1318 : [1971] 1 SCR 512; Vikram DeoFSingh Tomar v. State of Bihar (1988) Supp. SCC 734 :AIR 1988 SC 1782 : [1988] Suppl. SCR 755; CharanLal Sahu v. Union of India (1990) 1 SCC 613 : [1989]2 Suppl. SCR 597; State of Kerala and another v. N.M.Thomas and others (1976) 2 SCC 310 : [1976] 1 SCRG906 – referred to.

Per Dr. D.Y. Chandrachud, J. - 1. Patient’s consent –Consent gives an individual the ability to choose whether or notto accept the treatment that is offered. But consent does notconfer on patient the right to demand that particular form ofHtreatment be administered, even in the quest for death with

dignity. Voluntary passive euthanasia, where death results fromselective non-treatment because consent is withheld, is thereforelegally permissible while voluntary active euthanasia is prohibited.Moreover, passive euthanasia is conceived with purpose of notprolonging the life of the patient by artificial medical intervention.Both in the case of withdrawal of artificial support as well as innon-intervention, passive euthanasia allows for life to ebb awayand to end in the natural course. In contrast, active euthanasiaresults in the consequence of shortening life by positive act ofmedical intervention. It is perhaps this distinction whichnecessitates legislative authorisation for active euthanasia, asdifferentiated from the passive. [Para 45][196-E-G]Sushila Rao, “India and Euthanasia: The PoignantCase of Aruna Shanbaug”, Oxford Medical LawReview, Volume 19, Issue 4 (1 December 2011), atpages 646–656; “Humanization and Decriminalizationof Attempt to Suicide”, Law Commission of India(Report No. 210, 2008); Rajeev Ranjan, et al, “(De-)Criminalization of Attempted Suicide in India: AReview”, Industrial Psychiatry Journal (2014), Vol. 23,issue 1, at page 4–9; Benatar, “Should there be alegal right to die?” Current Oncology (2010), Vol. 17,Issue 5, at pages 2-3; Richard Delgado, “EuthanasiaReconsidered-The Choice of Death as an Aspect of theRight of Privacy”, Arizona Law Review (1975), Vol.17, at page 474; Ratna Kapur, “The Spectre of ArunaShanbaug”, The Wire (18 May 2015), available athttps://thewire.in/2005/the-spectre-of-aruna-shanbaug/; Hazel Biggs, “Euthanasia, Death withDignity and the Law”, Hart Publishing (2001), at page12; James Rachels, “Active and Passive Euthanasia”,New England Journal of Medicine (January 9, 1975),at page 78-80; James Rachels, End of Life: Euthanasiaand Morality (Oxford University Press, 1986); BruceR. Reichenbach, “Euthanasia and the Active-PassiveDistinction”, Bioethics (January 1987), Volume 1, atpages 51–73; Len Doyal and Lesley Doyal, “WhyActive Euthanasia and Physician Assisted Suicide

[2018] 6 S.C.R.

AShould Be Legalised/ If Death Is in Patient’s BestInterest Then Death Constitutes Moral Good”, BritishMedical Journal (2001), at pages 1079–1080; RohiniShukla, “Passive Euthanasia in India: critique”,Indian Journal of Medical Ethics (Jan-Mar 2016), atpages 35-38; Aparna Chandra and Mrinal Satish,B“Misadventures of the Supreme Court in ArunaShanbaug v Union of India”, Law and other Things(Mar 13, 2011), available at http://lawandotherthings.com/2011/03/misadventures-of-supreme-court- in-aruna/; Roop Gurusahani and RajCKumar Mani, “India: Not country to die in”, IndianJournal of Medical Ethics (Jan- Mar 2016), at pages30-35; Anne J. Davis, “Dilemmas in Practice: To MakeLive or Let Die”, The American Journal of Nursing(March 1981), Vol. 81, No. 3, at page 582; HeikeBaranzke, “Sanctity-of-Life”—A Bioethical PrincipleDfor Right to Life?”, Ethic Theory Moral Practice(2012), Vol. 15, Issue 3, page 295 – referred to.

2. Though the sanctity principle prohibits “the deliberatedestruction of human life, it does not demand that life shouldalways be prolonged for as long as possible”. While providing forEan intrinsic sacred value to life “irrespective of the person’scapacity to enjoy life and notwithstanding that person may feeltheir life to be great burden”, the principle holds that “life shouldnot always be maintained at any and all cost”. Ethical proponentsof the sanctity of life tend to agree that when “medical treatment,

Fsuch as ventilator and probably also antibiotics, can do nothingto restore those in permanent vegetative state to state of healthand well-functioning, it is futile and need not be provided”. [Para60][203-C-E]

3. Life and natural death: The defenders of the sanctityGprinciple place sacred value to human life from “conception tonatural death”. The word “natural” implies that “the onlyacceptable death is one that occurs from natural causes”. Life isonly “sacred insofar as it ends by natural means”. Medicaladvancements, however, have brought uncertainty about thedefinition of death? “what constitutes death, in particular aH

“natural” death”. Medical advances have “complicated thequestion of when life ends”. There exists no natural death whereartificial technology is concerned. Technology by artificial meanscan prolong life. In doing so, technology has re-shaped both humanexperience as well as our values about life in natural state andits end by natural causes. Modern medicine has found ways toprolong life and to delay death. But, it does not imply that modernmedicine “necessarily prolongs our living full and robust lifebecause in some cases it serves only to prolong mere biologicalexistence during the act of dying”. This may, in certain situationsresult in mere “prolongation of heart-beat that activates thehusk of mindless, degenerating body that sustains an unknowingand pitiable life-one without vitality, health or any opportunity fornormal existence-an inevitable stage in the process of dying”.[Paras 66, 67, 68][209-B-C, D, F-G; 210-A]

4.1 The sanctity of human life lies in its intrinsic value. Itinheres in nature and is recognised by natural law. But humanlives also have instrumental functions. Our lives enable us tofulfil our needs and aspirations. The intrinsic worth of life is notconditional on what it seeks to or is capable to achieve. Life isvaluable because it is. The Indian Constitution protects the rightto life as the supreme right, which is inalienable and inviolableeven in times of Emergency. It clearly recognises that everyhuman being has the inherent right to life, which is protected bylaw, and that “No person shall be deprived of his life… exceptaccording to procedure established by law”. It, thus, envisagesonly very limited circumstances where person can be deprivedof life. [Para 73][212-D-F]

Pt. Parmanand Katara v. Union of India AIR 1989 SC2039 – relied on.

Great Ormond Street Hospital v. Constance Yates,Christopher Gard, Charlie Gard (by his guardian),[2017] EWHC 1909 (Fam) – referred to.

John Keown, The Law and Ethics of Medicine: Essayson the Inviolability of Human Life (Oxford UniversityPress, 2012), at page 3; John Locke, Two Treatises ofGovernment (ed. P. Laslett) (Cambridge University

Press, 1988); Ronald Dworkin, Life’s Dominion: AnArgument about Abortion and Euthanasia (HarperCollins, 1993), at pages 73-74; John Finnis, HumanRights and Common Good (Oxford University Press,2011), at page 221; Alexandra Mullock, End-Of-LifeLaw And Assisted Dying In The 21st Century: Time ForCautious Revolution? (PhD Thesis, University ofManchester, 2011), at page 24; Luis Kutner,“Euthanasia: Due Process for Death with Dignity; TheLiving Will”, Indiana Law Journal (Winter 1979), Vol.54, Issue, 2, at page 225; Sushila Rao, “The MoralBasis for Right to Die”, Economic & Political Weekly(April 30, 2011), at page 14; Alexandra Mullock, End-Of-Life Law And Assisted Dying In The 21st Century:Time For Cautious Revolution? (PhD Thesis,University of Manchester, 2011), at page 25; JohnKeown, “The Legal Revolution: From “Sanctity of Life”to “Quality of Life” and “Autonomy”, Journal ofContemporary Health Law & Policy (1995) Vo. 14,Issue 2, at page 281; Margaret A. Somerville, “TheSong of Death: The Lyrics of Euthanasia”, Journal ofContemporary Health Law & Policy (1993), Vol. 9,Issue 1, at page 67; Jessica Stern, Euthanasia andthe Terminally Ill (2013), retrieved from Florida StateUniversity Libraries; Roger S. Magnusson, “TheSanctity of Life and the Right to Die: Social andJurisprudential Aspects of the Euthanasia Debate inAustralia and the United States”, Pacific Rim Law &Policy Journal, Vol. 6, No. I, at page 40; Peter Singer,“Sanctity of Life or Quality of Life”, Pediatrics (1983),Vo. 72, Issue 1, at pages 128-129; Sanctity of life vs.quality of life”, Los Angeles Times (June 7, 2015),available http://www.latimes.com/opinion/readersreact /la-le-0607-sunday-assisted-suicide-20150607-story.html; Jessica Stern, Euthanasia andthe Terminally Ill (2013), available at https://fsu.digital.flvc.org/islandora/object/fsu:209909/datastream/PDF; John Breck, “Euthanasia and theQuality of Life Debate”, Christian Bioethics (1995),

Vol. 1, No.3, at pages 322-337; Michael Weingarten,“On the sanctity of life”, British Journal of GeneralPractice (April 2007), Vol. 57(537), at page 333; AleciaPasdera, The Rhetoric of the Physician-Assisted SuicideMovement: Choosing Death Over Life (2014), availableat https://ou.monmouthcollege.edu/_resources/pdf/academics/mjur/ 2014/Rhetoric-of-the-Physician-Assisted-Suicide-Movement-Choosing-Death-Over-Life.pdf, at page 68; Arval A. Morris, “VoluntaryEuthanasia”, Washington Law Review (1970), Vol. 45,at page 240; Lady Justice Arden, Law of medicine andthe individual: current issues, What does patientautonomy mean for the courts?, (Justice KT DesaiMemorial Lecture 2017) – referred to.

4.2 Human dignity has been “considered the uniqueuniversal value that inspires the major common bioethicalprinciples, and it is therefore considered the noyau dur of bothinternational bio law and international human rights law”. Thefirst idea considers dignity as the foundation of human rights?“that dignity relates to the intrinsic value of persons (such that itis wrong to treat persons as mere things rather than asautonomous ends or agents)”. According to this premise, everyperson, from conception to natural death, possesses inherentdignity. The other interpretation of dignity is by the supportersof euthanasia. For them, right to lead healthy life also includesleaving the world in peaceful and dignified manner. Living withdignity, in this view, means the right to live meaningful life havingcertain quality. This interpretation endorses the “quality of life”proposition. [Paras 74, 75][213-A-C, E]Stefania Negri, “Universal Human Rights and End-of-Life Care” in S. Negri et al. (eds.), Advance CareDecision Making in Germany and Italy: Comparative,European and International Law Perspective, Springer(2013), at page 18; Ronald Dworkin, Life’s Dominion(London: HarperCollins, 1993) as quoted in DeryckBeyleveld and Roger Brownsword, “Human Dignity,Human Rights, and Human Genetics”, Modern LawReview (1998), Vol. 61, at pages 665-666; Deryck

ABeyleveld and Roger Brownsword, “Human Dignity,Human Rights, and Human Genetics”, Modern LawReview (1998), Vol. 61, at page 666; Stefania Negri,“Ending Life and Death” in A. den Exter (eds.),European Health Law, MAKLU Press (2017), at page241; Sebastian Muders, Autonomy and the Value ofBLife as Elements of Human Dignity (Oxford UniversityPress, 2017); LW Sumner, “Dignity through Thick andThin”, in Sebastian Muders, Human Dignity andAssisted Death (Oxford University Press, 2017);Aneeta Minocha, Arima Mishra and Vivek RCMinocha, “Euthanasia: Social Science Perspective”,Economic & Political Weekly (December 3, 2011), atpages 25-28 – referred to.

5.1 Under our Constitution, the inherent value whichsanctifies life is the dignity of existence. Recognising humanDdignity is intrinsic to preserving the sanctity of life. Life is trulysanctified when it is lived with dignity. There exists closerelationship between dignity and the quality of life. For, it is onlywhen life can be lived with true sense of quality that the dignityof human existence is fully realized. Hence, there should be noantagonism between the sanctity of human life on the one handEand the dignity and quality of life on the other hand. Quality of lifeensures dignity of living and dignity is but process in realizingthe sanctity of life. [Para 80][216-F; 217-A]

5.2 Human dignity is an essential element of meaningfulexistence. life of dignity comprehends all stages of livingFincluding the final stage which leads to the end of life. Libertyand autonomy are essential attributes of life of substance. It isliberty which enables an individual to decide upon those matterswhich are central to the pursuit of meaningful existence. Theexpectation that the individual should not be deprived of his orGher dignity in the final stage of life gives expression to the centralexpectation of fading life: control over pain and suffering andthe ability to determine the treatment which the individual shouldreceive. When society assures to each individual protectionagainst being subjected to degrading treatment in the process ofdying, it seeks to assure basic human dignity. [Para 81][217-B-D]H

5.3 Dignity in the process of dying as well as dignity indeath reflects long yearning through the ages that the passageaway from life should be bereft of suffering. These individualyearnings are enhanced by the experiences of sharing, observingand feeling with others: the loss of parent, spouse, friend or anacquaintance to the cycle of life. Dignity in death has sense ofrealism that permeates the right to life. It has basic connectwith the autonomy of the individual and the right to self-determination. Loss of control over the body and the mind areportents of the deprivation of liberty. As the end of lifeapproaches, loss of control over human faculties denudes lifeof its meaning. Terminal illness hastens the loss of faculties.Control over essential decisions about how an individual shouldbe treated at the end of life is hence an essential attribute of theright to life. Corresponding to the right is legitimate expectationthat the State must protect it and provide just legal order inwhich the right is not denied. In matters as fundamental as deathand the process of dying, each individual is entitled to reasonableexpectation of the protection of his or her autonomy by legalorder founded on the rule of law. constitutional expectation ofproviding dignity in death is protected by Article 21 and isenforceable against the State. [Para 82][218-B-E]6.1 The nine-judge Bench decision of this Court in JusticeK.S. Puttuswamy case held privacy to be the constitutional coreof human dignity. The right to privacy was held to be an intrinsicpart of the right to life and liberty under Article 21 and protectedunder Part III of the Constitution. [Para 83][218-F]

Justice KS Puttaswamy (Retd.) v. Union of India (2017)10 SCC 1 – followed.

Maneka Gandhi v. Union of India (1978) 1 SCC 248 :[1978] 2 SCR 621; Coralie Mullin v. Administrator,Union Territory of Delhi (1981) 1 SCC 608 : [1981] 2SCR 516 – relied on.

6.2 The protective mantle of privacy covers certaindecisions that fundamentally affect the human life cycle. It protectsthe most personal and intimate decisions of individuals that affecttheir life and development. Thus, choices and decisions on matterssuch as procreation, contraception and marriage have been held

Ato be protected. While death is an inevitable end in the trajectoryof the cycle of human life, individuals are often faced with choicesand decisions relating to death. Decisions relating to death, likethose relating to birth, sex, and marriage, are protected by theConstitution by virtue of the right of privacy. The right to privacyresides in the right to liberty and in the respect of autonomy. TheBright to privacy protects autonomy in making decisions relatedto the intimate domain of death as well as bodily integrity.Continuing treatment against the wishes of patient is not only aviolation of the principle of informed consent, but also of bodilyprivacy and bodily integrity that have been recognised as facetCof privacy by this Court. Just as people value having controlover decisions during their lives such as where to live, whichoccupation to pursue, whom to marry, and whether to havechildren, so people value having control over whether to continueliving when the quality of life deteriorates. [Paras 84, 85][220-B-D]

DRichard Delgado, “Euthanasia Reconsidered-TheChoice of Death as an Aspect of the Right of Privacy”,Arizona Law Review (1975), Vol. 17, at page 474; TLBeauchamp, “The Right to Privacy and the Right toDie”, Social Philosophy and Policy (2000), Vol. 17, atpage 276; 70 N.J. 10; 355 A.2d 647 (1976); Peter J.ERiga, “Privacy and the Right to Die,” The CatholicLawyer (2017) Vol. 26: No. 2 , Article 2 – referred to.

7. Privacy recognises that the body and mind are inviolable. An essential attribute of this inviolability is the ability of theindividual to refuse medical treatment. [Para 90][223-B]F8. Socio-Economic Concerns – One of the limitations ofcontemporary debates on euthanasia is that they do not take intoconsideration “certain socio-economic concerns that mustnecessarily be factored into any discourse”. This has beencriticised as making the debate around ending life “incomplete”as well as “elitist”. The inadequacies of the range and reach ofGIndian healthcare may lead to situation where euthanasia/activeeuthanasia may become “an instrument of cost containment”.[Paras 91, 92][223-C; 224-E]

S Nagral, “Euthanasia: Cost Factor is Worry”, TheTimes of India (June 19, 2011), available at http://Hwww.timesofindia.com/home/sunday/Euthanasia-cost-

factor-is-a-worry/articleshow/7690155.cms – referredto.

9. Restraints on judicial power: It is only Parliament whichcan in its legislative wisdom decide whether active euthanasiashould be permitted. Passive euthanasia on the other hand wouldnot implicate criminal offence since the decision to withhold orwithdraw artificial life support after taking into account the bestinterest of the patient would not constitute an illegal omissionprohibited by law. [Para 93][225-C]

Noel Douglas Conway v. The Secretary of State forJustice (2017) EWHC 2447 (Admin) – referred to.

S Balakrishnan and RK Mani, “The constitutional andlegal provisions in Indian law for limiting life support”,Indian Journal of Critical Care Medicine (2005), Vol.

9, Issue 2, at page 108 – referred to.

10.1 Penal provisions: The legality of and constitutionalprotection which is afforded to passive euthanasia cannot be readin isolation from the provisions of the Penal Code. Physiciansare apprehensive about their civil or criminal liability when calledupon to decide whether to limit life-supporting treatment. Adecision on the constitutional question cannot be rendered withoutanalyzing the statutory context and the impact of penal provisions.The decision in Aruna Shanbaug did not dwell on the provisionsof the Penal Code (apart from Sections 306 and 309) which havea vital bearing on the issue of euthanasia. Undoubtedly,constitutional positions are not controlled by statutory provisions,because the Constitution rises above and controls legislativemandates. But, in the present reference where no statutoryprovision is called into question, it is necessary for the court toanalyse the relationship between what the statute penalizes andwhat the Constitution protects. The task of interpretation is toallow for their co-existence while interpreting the statute to giveeffect to constitutional principle. This is particularly so in an areasuch as the present where criminal law may bear significantrelationship to the fundamental constitutional principles of liberty,dignity and autonomy. [Para 95][226-H; 227-A-C]

10.2 Our law of crimes deals with acts and omissions. Section32 of the Penal Code places acts and omissions on the same plane.

DEF

AAn illegalomission (unless contrary intent appears in the Code)is proscribed when the act is unlawful. The language of the statutewhich refers to acts applies, unless contrary intent appears inthe text, to omissions. The next aspect is about when an act oromission is illegal. Section 43 explains the concept of illegality.Here again, being legally bound to do something is the mirrorBimage of what is illegal to omit doing. Section 43 comprehendswithin the meaning of illegality, that (i) which is an offence; or (ii)which is prohibited by law; or (iii) which furnishes ground for acivil action. Section 81 protects acts which are done without acriminal intent to cause harm, in good faith, to prevent or avoidCother harm to person or property. The law protects the actionthough it was done with the knowledge that it was likely to causeharm if three-fold requirement is fulfilled.[Para 95][227-D, F;228-A, C]

10.3 Section 92 protects an individual from consequenceDwhich arises from the doing of an act for the benefit of another ingood faith, though harm is caused to the other. What was doneis protected because it was done in good faith. Good faith isdistinguished from an evil design. When person does somethingto protect another from harm or injury, the law protects whatwas done in good faith, treating the harm that may result as aEconsequence unintended by the doer of the act. This protectionis afforded by the law even in the absence of consent when thecircumstances are such that it is impossible for the person forwhose benefit the act was done to consent to it. This may arisewhere the imminence of the apprehended danger makes itFimpossible to obtain consent. Another eventuality is where theindividual is incapable of consenting (by being incapacitated inmind) and there is no person in the position of guardian orperson in lawful charge from whom consent can be obtained intime to perform the act for the benefit of that person. However,the first proviso to Section 92 makes it clear that the exceptionGdoes not extend to the intentionalcausing of death or attempt tocause death to the individual, howsoever it may be for the benefitof the other. Abetment embodies three-fold requirement: firstan intentional aiding, second the aiding of an act or illegal omissionand third, that this must be toward the doing of that thing. ItHpresupposes course of conduct or action which facilitates another

to end life. Hence abetment of suicide is an offence expresslypunishable under Sections 305 and 306 of the IPC. [Paras 95,96][229-A-E, F; 230-A-B]

10.5 Active euthanasia involves an intention on the part ofthe doctor to cause the death of the patient. Such cases fall underthe first clause of Section 300. There also exists distinctionbetween active and passive euthanasia. This is brought out inthe application of the doctrine of ‘double effect’. Active euthanasiainvolves an intention to cause the death of the patient. Passiveeuthanasia does not embody an intent to cause death. doctormay withhold life support to ensure that the life of patient whois in the terminal stage of an incurable illness or in permanentvegetative state, is not prolonged artificially. The decision to doso is not founded upon an intent to cause death but to allow thelife of the patient to continue till and cease at the end of its naturalterm. Placing such person on life support would have been anintervention in the natural process of death. The crucial elementin Section 299 is provided by the expression “causes death”. Ina case involving passive euthanasia, the affliction of the patientis not brought about either by an act or omission of the doctor.Hence, decision by the doctor based on what is in the bestinterest of the patient precludes an intent to cause death. Similarly,withdrawal of artificial life support is not motivated by an intentto cause death. What withdrawal of life support does is not toartificially prolong life. The end of life is brought about by theinherent condition of the patient. [Paras 97, 98][230-G; 231-D,G; 232-A-C, E]

“Doctrine of Double Effect”, Stanford Encyclopediaof Philosophy (July 28, 2004), available at https://plato.stanford.edu/entries/double-effect/ - referred to.

10.6 Section 43 of the Penal Code defines the expressionillegal to mean “…everything which is an offence or which isprohibited by law, or which furnishes ground in civil action”.Withdrawing life support to person in permanently vegetativestate or in terminal stage of illness is not ‘prohibited by law’.Such an act would also not fall outside the purview of Section 92for the reason that there is no intentional causing of death orattempt to cause death. Where decision to withdraw artificial

42SUPREME COURT REPORTS

Alife support is made in the caregiver of the patient, it fulfils theduty of care required from doctor towards the patient. Where adoctor has acted in fulfilment of duty of care owed to the patient,the medical judgment underlying the decision protects it from acharge of illegality. Such decision is not founded on an intentionto cause death or on the knowledge that it is likely to cause death.BAn act done in pursuance of the duty of care owed by the doctorto patient is not prohibited by law. The intent in passiveeuthanasia is not to cause death. decision not to prolong lifebeyond its natural span by withholding or withdrawing artificiallife support or medical intervention cannot be equated with anCintent to cause death. [Paras 99, 100][233-B-D, G]11. In 2006, the Law Commission of India submitted its196th Report titled “Medical Treatment to Terminally Ill Patients(Protection of Patients and Medical Practitioners)”. The reportby Justice M Jagannadha Rao as Chairperson contains succinctDelucidation of legal principles governing criminal law on thesubject. Some of them are explained as follows: An informeddecision of patient to refuse medical treatment is accepted atcommon law and is binding on treating doctor. While doctorhas duty of care, doctor who obeys the instructions of acompetent patient to withhold or withdraw medical treatment doesEnot commit breach of professional duty and the omission totreat will not be an offence; The decision of patient to allownature to take its course over the human body and, inconsequence, not to be subjected to medical intervention, doesnot amount to deliberate termination of physical existence.FAllowing nature to take its course and decision to not receivemedical treatment does not constitute an attempt to commitsuicide within the meaning of Section 309 of the Penal Code;Once competent patient has decided not to accept medicalintervention, and to allow nature to take its course, the action of

the treating doctor in abiding by those wishes is not an offence,Gnor would it amount to an abetment under Section 306. UnderSection 107, an omission has to be illegal to constitute anabetment. doctor bound by the instructions of patient towithhold or withdraw medical treatment is not guilty of an illegalact or an abetment. The doctor is bound by the decision of theHpatient to refuse medical intervention; doctor who withholds

or withdraws medical treatment in the best interest of patient,such as when patient is in permanent vegetative state or in aterminal state of an incurable illness, is not guilty under Section299 because there is no intention to cause death or bodily injurywhich is likely to cause death. The act of withholding orwithdrawing life support system in the case of competent patientwho has refused medical treatment and, in the case of anincompetent person where the action is in the best interest ofthe patient would be protected by good faith protections availableunder Sections 76, 79, 81 or, as the case may be, by Section 88,even if it is construed that the doctor had knowledge of thelikelihood of death; and The decision of the doctor, who is undera duty at common law to obey the refusal of competent patientto take medical treatment, would not constitute culpable act ofnegligence under Section 304A. When the doctor has taken sucha decision to withhold or withdraw treatment in the best interestof the patient, the decision would not constitute an act of grossnegligence punishable under Section 304A. Introducing astructural safeguard, in the form of Medical Board of expertscan be contemplated to further such an objective. TheTransplantation of Human Organs and Tissues Act 1994 providesfor the constitution of Authorisation Committees under Section9(4). Authorisation Committees are contemplated at the stateand district levels and hospital board. Once the process ofdecision making has been arrived at by fulfilling mandatedsafeguard (the prior approval of committee), the decision towithdraw life support should not constitute an illegal act oromission. The setting up of broad-based board is precisely witha view to lend assurance that the duty of care owed by the doctorto the patient has been fulfilled. Once due safeguards have beenfulfilled, the doctor is protected against the attribution of culpableintent or knowledge. It will hence fall outside the definition ofculpable homicide (Section 299), murder (Section 300) or causingdeath by rash or negligent act (Section 304A). [Paras 101,102][234-A-H; 235-A-E]

12.1 Advance Directives: patient, in sound state ofmind, possesses the ability to make decisions and choices andcan legitimately refuse medical intervention. However, patientmay not always have the opportunity to grant or withhold consent

ABC

Ato medical treatment. An unforeseen event may deprive theindividual of the ability to indicate desire to either receive ornot to have medical treatment. An occasion necessitatingtreatment in sudden cases where person suffers an accident, astroke or coronary episode may provide no time for reflection.In anticipation of such situations, “where an individual patientBhas no desire to be kept in state of complete and indefinitevegetated animation with no possibility of recovering his mentaland physical faculties, that individual, while still in control of allhis/her faculties and his ability to express himself/herself”, couldstill retain the right to refuse medical treatment by way ofC“advance directives”. [Paras 103, 104][235-F; 236-F-G; 237-A-B]

Schloendorff v. Society of NY Hospital 105 N.E. 92, 93(N.Y. 1914) – referred to.

12.2 There are two forms of advance directives: (i) LivingDWill which indicates person’s views and wishes regardingmedical treatment. (ii) Durable Power of Attorney for HealthCare or Health care Proxy which authorises surrogate decisionmaker to make medical care decisions for the patient in the eventshe or he is incapacitated. Although there can be an overlapEbetween these two forms of advance directives, the focus of adurable power is on who makes the decision while the focus of aliving will is on what the decision should be.[Para 105][237-B-D]

12.3 The principles of patient autonomy and consent arethe foundation of advance medical directives. competent andFconsenting adult is entitled to refuse medical treatment. By thesame postulate, decision by competent adult will be valid inrespect of medical treatment in future. Advance directives arethus documents person completes while still in possession ofdecisional capacity about how treatment decisions should be madein the event she or he loses decision making capacity in future.GThey cover three conditions: (i) terminal condition; (ii) apersistently unconscious condition; and (iii) an end-stagecondition. terminal condition is an incurable or irreversiblecondition which even with the administration of life-sustainingtreatment will result in death in the foreseeable future. AHpersistently unconscious condition is an irreversible condition,

in which thought and awareness of self and environment areabsent. An end-stage condition is condition caused by injury,disease or illness which results in severe and permanentdeterioration indicated by incompetency and complete physicaldependency for which treatment of the irreversible conditionwould be medically ineffective. [Paras 107-109][239-A, D-F]

Luis Kutner, “Due Process of Euthanasia: The LivingWill, proposal”, Indian Law Journal (1969), Vol. 44,Issue 4, at page 539; “Advance Directives andSubstitute Decision-Making”, Stanford Encyclopaediaof Philosophy (24 March 2009), available at https://plato.standford.edu/entries/advance-directives/;James Turner, “Living Wills – Need for legalrecognition”, West Virginia Law Review (1976), Vol.78, Issue 3, at page 370 – referred to.

12.4 The reasons which may lead person in sound stateof mind to refuse medical treatment are inscrutable. Thosedecisions are not subject to scrutiny and have to be respected bythe law as an essential attribute of the right of the individual tohave control over the body. The state cannot compel an unwillingindividual to receive medical treatment. While an individualcannot compel medical professional to provide particulartreatment (this being in the realm of professional medicaljudgment), it is equally true that the individual cannot be compelledto undergo medical intervention. The principle of sanctity of lifethus recognises the fundamental liberty of every person to controlhis or her body and as its incident, to decline medical treatment.The ability to take such decision is an essential element of theprivacy of the being. Privacy also ensures that decision aspersonal as whether or not to accept medical treatment liesexclusively with the individual as an autonomous being. Thereasons which impel an individual to do so are part of the privacyof the individual. The mental processes which lead to decisionmaking are equally part of the constitutionally protected right toprivacy. Advance directives are founded on the principle that anindividual whose state of mind is not clouded by an affliction whichprevents him or her from taking decisions is entitled to decidewhether to accept or not accept medical intervention. If decisioncan be made for the present, when the individual is in sound

FGH

Astate of mind, such person should be allowed to decide thecourse of action which should be followed in the future if he orshe were to be in situation which affects the ability to takedecisions. If decision on whether or not to receive medicaltreatment is valid for the present such decision must be equallyvalid when it is intended to operate in the future. [Paras 110,B111][239-H; 240-A-E]

12.5 When patient is brought for medical treatment in astate of mind in which he or she is deprived of the mental capacityto make informed choices, the medical professional needs todetermine the line of treatment. One line of enquiry, which seeksCto protect patient autonomy is how the individual would have madea decision if he or she had decision-making capacity. This is calledthe substituted judgment standard. An advance medical directiveis construed as facilitative mechanism in the application of thesubstituted judgment standard, if it provides to the physician aDcommunication by the patient (when she or he was in fit state ofmind) of the desire for or restraint on being provided medicaltreatment in future. Conceptually, there is second standard,which is the caregiver standard founded on the principle ofbeneficence. The second standard seeks to apply an objectivenotion of line of treatment which reasonable individual wouldEdesire in the circumstances. The difference between these twostandards is that the first seeks to reconstruct the subjectivepoint of view of the patient. The second allows for “a more genericview of interests”, without having to rely on the “idiosyncraticvalues and preference of the patient in question”. [Paras 112,

F113][240-G-H; 241-A-B; 242-B]

13.1 The sanctity of an advance directive is founded uponthe expression of the will of an individual who is in sound stateof mind when the directive is executed. Underlying theconsensual character of the declaration is the notion of the consentGbeing informed. Undoubtedly, the reasons which have weighedwith an individual in executing the advance directive cannot bescrutinized (in the absence of situations such as fraud or coercionwhich implicate the very basis of the consent). However, anindividual who expresses the desire not to be subjected to aparticular line of treatment in the future, should she or he beH

ailing in the future, does so on an assessment of treatment optionsavailable when the directive is executed. For instance, decisionnot to accept chemotherapy in the event that the individual isdetected with cancer in the future, is based on today’s perceptionof the trauma that may be suffered by the patient through thattreatment. Advances in medical knowledge between the date ofthe execution of the document and an uncertain future date whenthe individual may possibly confront treatment for the diseasemay have led to re-evaluation by the person of the basis onwhich desire was expressed several years earlier. Anotherfundamental issue is whether the individual can by means of anadvance directive compel the withholding of basic care such ashydration and nourishment in the future. Protecting the individualfrom pain and suffering as well as the indignity of debility maysimilarly raise important issues. Advance directives may henceconceivably raise ethical issues of the extent to which theperception of the individual who executes it must prevail inpriority to the best interest of the patient.[Para 117][244-D-H;245-A]13.2 Advance directives provide moral authority for thefamily of the patient that the decision which has been taken towithdraw or withhold artificial life support is in accord with thestated desire of the patient expressed earlier. But the ethicalconcerns may warrant nuanced application of the principle. Thedecision on whether to withhold or withdraw medical treatmentshould be left to competent body comprising of, but notrestricted to medical professionals. Assigning supervisory roleto such body is also necessary in order to protect against thepossibility of abuse and the dangers surrounding the misuse ofan advance directive. An advance directive should not be utilizedas subterfuge to fulfil unlawful or unethical purposes such asfacilitating succession to property. [Para 119][245-E-H; 246-A]

13.3 The recognition of advance directives as part of aregime of constitutional jurisprudence is an essential attribute ofthe right to life and personal liberty under Article 21. That rightcomprehends dignity as its essential foundation. Quality of life isintegral to dignity. As an essential aspect of dignity and thepreservation of autonomy of choice and decision-making, each

48SUPREME COURT REPORTS

Aindividual must have the right on whether or not to accept medicalintervention. Such choice expressed at point in time whenthe individual is in sound and competent state of mind shouldhave sanctity in the future if the individual were to cease to havethe mental capability to take decisions and make choices. Yet, abalance between the application of the substituted judgmentBstandard and the best interest standard is necessary as matterof public interest. This can be achieved by allowing supervisoryrole to an expert body with whom shall rest oversight in regardto whether patient in the terminal stage of an illness or in apermanent vegetative state should be withheld or withdrawn fromCartificial life support. [Para 120][246-A-D]

Re AK (Adult Patient) (Medical Treatment: Consent)[2001] 1 FLR 129; HE v. Hospital NHS Trust [2003]2 FLR 408; Re T (Adult: Refusal of Treatment) [1942]4 All ER 649; Re (Adult: Refusal of MedicalDTreatment)[1994] 1 All ER 819; St George’s HealthcareNHS Trust v S [1998] 3 WLR 936; Re (Adult: Refusalof Medical Treatment) [2002] 2 All ER 449 – referredto.

Alexander Ruck Keene, “Advance Decisions : gettingEit right?”, available at http://www.39essex.com/docs /articles/advance_decisions_paper_ark_december_2012.pd;Elizabeth Wicks, The State and the Body : LegalRegulation of Bodily Autonomy, Hart Publishing (2016);A S Kessel and J Meran, “Advance directives in theUK: legal, ethical, and practical considerations forFdoctors”, British Journal of General Practice (1998),at page 1263; Are advance directives legally bindingor simply the starting point for discussion on patients’best interests?”, BMJ (28 November 2009), Volume339, page 1231 – referred to.G14.1 The Mental Healthcare Act 2017, which was assentedto by the President of India on 7 April 2017, enacts specificprovisions for recognising and enforcing advance directives forpersons with mental illness. The Act recognises an advancedirective. An advance directive has to be in writing. The personHsubscribing to it must be major. While making an advance

directive, the maker indicates the manner in which he or shewishes or does not wish to be cared for and treated for mentalillness; and the person he or she appoints as nominatedrepresentative. An advance directive is to be invoked only whenthe person who made it ceases to have the capacity to makemental healthcare treatment decisions. It remains effective untilthe maker regains the capacity to do so. [Para 130][252-G; 253-C-D]

Aintree University Hospitals NHS Foundation Trust v.James and Others [2013] UK SC 6 – referred to.

14.2 Advance directives are capable of being revoked,amended or modified by the maker at any time. The Act specifiesthat an advance directive will not apply to emergency treatmentadministered to the maker. Otherwise, duty has been cast uponevery medical officer in charge of mental health establishmentand psychiatrist in charge of treatment to propose or givetreatment to person with mental illness, in accordance with avalid advance directive, subject to Section 11. Section 11elucidates procedure which is to be followed where mentalhealth professional, relative or care-giver does not desire to followthe advance directive. In such case, an application has to bemade to the Board to review, alter, cancel or modify the advancedirective. In deciding whether to allow such an application theBoard must consider whether the advance directive is trulyvoluntary and made without force, undue influence or coercion;The advance directive should apply in circumstances which arematerially different; The maker had made sufficiently wellinformed decision; The maker possessed the capacity to makedecisions relating to mental health care or treatment at the timewhen it was made; and The directive is contrary to law or toconstitutional provisions. duty has been cast to provide accessto the advance directive to medical practitioner or mental healthprofessional, as the case may be. In the case of minor, an advancedirective can be made by legal guardian. The Act has specificallygranted protection to medical practitioners and to mental healthprofessionals against being held liable for unforeseenconsequences upon following an advance directive. [Paras 133,134][253-F-G; 254-A-E]

DEF

Vishaka v. State of Rajasthan (1997) 6 SCC 241 :[1997] 3 Suppl. SCR 404 – relied on.

Gian Kaur v. State of Punjab (1996) 2 SCC 648 : [1996]3 SCR 697; P Rathinam v. Union of India (1994) 3SCC 394 – referred to.

Aruna Ramachandra Shanbaug v. Union of India (2011)15 SCC 480 – Not correct law.

Airedale NHS Trust v. Bland (1993) 2 WLR 316 (H.L)– referred to.

“The Dilemmas of Euthanasia”, Bio-Science (August1973), Vol. 23, No. 8, at page 459; Margaret A.Somerville, “Legalising euthanasia: why now?”, TheAustralian Quarterly (Spring 1996), Vol. 68, No. 3, atpage 1; Christopher N. Manning, “Live And Let Die:Physician-Assisted Suicide And The Right To Die”,Harvard Journal of Law and Technology (1996), Vol.9, No. 2, at page 513; Alan Norrie, “Legal Form andMoral Judgement: Euthanasia and Assisted Suicide”in R.A. Duff, et al (ed); The Structures of the CriminalLaw (Oxford University Press, 2011), at page 134;Elizabeth Wicks, The Right to Life and ConflictingInterests (Oxford University Press, 2010), at page 199;Elizabeth M. Andal Sorrentino, “The Right To Die?”,Journal of Health and Human ResourcesAdministration (Spring,1986), Vol. 8, No. 4, page 361;Atul Gawande, Being Mortal: Medicine and WhatMatters in the End (Hamish Hamilton, 2014), at page260; Henry Marsh, Admissions: Life in Brain Surgery,(Weidenfeld & Nicolson, 2017), at page 265-266;Randy Pausch and Jeffrey Zaslow, The Last Lecture,(Hodder & Stoughton, 2008), at page 17 – referred to.

PER ASHOK BHUSHAN, J: 1.1 In Western World“Hippocrates” is regarded as “father of western medicine”.Hippocratic period dates from 460 BC. “Corpus Hippocraticum”comprises of not only general medical prescription, descriptionof diseases, diagnosis, dietary recommendations but also opinionof professional ethics of physician. Thus, those who practiced

medicine from ancient time were ordained to follow some ethicalprinciples. For those who follow medical profession ‘HippocraticOath’ was always treated to be Oath to which every medicalprofessional was held to be bound. The noticeable portion of theHippocratic Oath is that medical practitioner swears that he willnot give lethal drug to anyone nor he will advise such plan.[Paras 7, 8][266-B-C; 267-B]

1.2 Although on one hand medical professional has to takeHippocratic Oath that he shall treat his patient according to hisability and judgment and never do harm to anyone and he willnot give any lethal drug to anyone even he is asked for, on theother hand Greek philosopher Plato held that those who has sicklyconstitution and intemperate habits should not be helped bymedicine. Thus, the cleavage in views regarding ethics of amedical professional as well as not supporting medical treatmentfor those who are thoroughly diseased is found from ancient timein Greek thoughts itself. The dilemma of medical professionalstill continues to this day and medical professionals are hesitantin adopting course which may not support the life of patient orlead to patient’s death. [Paras 11-12][267-G-H; 268-A-B]

2.1 The only statutory provision in our country which refersto euthanasia is statutory regulations framed under Indian MedicalCouncil Act, 1956, namely The Indian Medical Council(Professional Conduct, Etiquette & Ethics) Regulations, 2002.The Law Commission of India had stated and submitted detailedreport on the subject in 196[th] report on “Medical Treatment toTerminally Ill Patients (Protection of Patients and MedicalPractitioners)”. Law Commission examined various provisionsof Indian Penal Code and other statutory provisions, judgmentsof this court and different courts of other countries and had madecertain recommendations. [Paras 26-27][272-B, F]

2.2 The 196[th] Report was again revised by the LawCommission of India in 241[st] Report dated August, 2012. The2006 draft bill was redrafted by Law Commission. The above billhowever could not fructify in law. The Ministry of health andfamily welfare had published another draft bill namely The MedicalTreatment of Terminally Ill Patients (Protection of Patients &Medical Practitioners) Bill, 2016, as private member bill which

Awas introduced in Rajya Sabha on 5[th] August 2016, which is stillpending. Thus, the only statutory provision on euthanasia isregulation 6.7 of the 2002 Regulations. The regulations prohibitpracticing euthanasia and declare that practicing euthanasiaconstitute unethical conduct on behalf of the medical practitioner.The regulation however carves an exception that on specificBoccasion, the question of withdrawing supporting devices tosustain cardio-pulmonary function even after brain death, shallbe decided only by team of doctors and not merely by the treatingphysician alone. The regulation further provides that team ofdoctors shall declare withdrawal of support system. TheCwithdrawal of medical treatment of terminally ill Persons iscomplex ethical, moral and social issue with which many countrieshave wrestled with their attempt to introduce legal frameworkfor end of life decision making. In absence of comprehensivelegal framework on the subject the issue has to be dealt withgreat caution. [Paras 29-31][274-C-G]DGian Kaur v. State of Punjab (1996) 2 SCC 648 : [1996]3 SCR 697; P. Rathinam v. Union of India & Anr. (1994)3 SCC 394; Aruna Ramachandra Shanbaug v. Unionof India & Ors. (2011) 4 SCC 454 : [2011] 4 SCR 1057– explained.E3.1 Law on subject in other countries: The laws of differentcountries expresses thoughts of people based on different culture,philosophy and social conditions. Assisted suicide was alwaystreated as an offence in most of the countries. Physician assistedsuicide is also not accepted in most of the countries except inFfew where it gain ground in last century. In several countriesincluding different States of U.S.A., European Countries andUnited Kingdom, various legislations have come into existencecodifying different provisions pertaining to physician assistedsuicide. The right to not commence or withdraw medicalGtreatment in case of terminally ill or PSV patients, advancemedical directives have also been made part of differentlegislations in different countries. Switzerland, Netherlands,Belgium, Luxembourg, and American States of Oregan,Washington, Montana and Columbia has permitted physicianassisted suicide with statutory regulations.H

[Paras 39, 40][279-G-H; 280-A, C]

3.2 Euthanasia is criminal offence in the United Kingdom.According to Section 2(1) of the Suicide Act, 1961, personassisting an individual, who wish to die commits an offence. Theprovision states that it is an offence to aid, abet, counsel or procurethe suicide of another or an attempt by another to commit suicide,however, it is not crime if it is by their own hands. There hasbeen large parliamentary opposition to the current UnitedKingdom Law concerning assisted suicide but there has been nofundamental change in the law so far. [Para 41][280-D-E]

Airedale NHS Trust v. Bland (1993) 1 All ER 821; Ms.B v. An NHS Hospital Trust 2002 EWHC 429; Regina(Pretty) v. Director of Public Prosecutions (Secretaryof State for the Home Department intervening) (2002)1 AC 800 – referred to.

3.3 The State of New York in 1828 enacted statute declaringassisted suicide as crime. New York example was followed bydifferent other States. [Para 48][287-F]

Schloendroff v. Society of New York Hospital 211 N.Y.125; Nancy Beth Cruzan Vs. Director, MissouriDepartment of Health 497 U.W. 261; Washington, EtAlv v. Harold Glucksberg Et Al, 521 US 702 equivalentto 138 L.Ed 2d 772; Dennis C. Vacco, Attorney Generalof New York Et Al. v. Timothy E. Quill Et Al, 521 US 793– referred to .

3.4 Section 241(b) of the Canada Criminal Code providesthat everyone who aids or abets person in committing suicidecommits an indictable offence. In Switzerland the assisted suicideis allowed only for altruistic reasons. person is guilty anddeserved to be sentenced for imprisonment on assisted suicidewhen he incites someone to commit suicide for selfish reasons.The Netherlands has the most experience with physician-hasteneddeath. Both euthanasia and assisted suicide remain crimes therebut doctors who end their patients’ lives will not be prosecuted iflegal guidelines are followed. The pre-dominant thought as ondate prevailing in other part of the World is that assisted suicideis crime. No one is permitted to assist another person to commit

Asuicide by injecting lethal drug or by other means. In India,Section 306 of the Indian Penal Code specifically makes it anoffence. The Constitution Bench of this Court in Gian Kaur hasalready upheld the constitutional validity of Section 306, thus,the law of the land as existing today is that no one is permitted tocause death of another person including physician byBadministering any lethal drug even if the objective is to relivethe patient from pain and suffering. [Paras 58-61]292-E; 293-A-C, E-F]

3.5 The Constitution Bench in Gian Kaur noted differencebetween cases in which physician decides not to provide or toCcontinue to provide for medical treatment or care and those caseswhere he decides to administer lethal drug activity to bring hispatient’s life to an end. The judgment of House of Lords inAiredale’s case was referred to and noted in the above context.The Airedale’s case was cited on behalf of the appellant in supportDof the contention that in said case the withdrawal of life savingtreatment was held not to be unlawful. The Constitution Benchin Gian Kaur did not express any binding view on the subject ofeuthanasia. [Paras 68, 69][298-C-E]

Airedale N.H.A. Trust v. Bland 1993 (2) W.L.R. 316E(H.L.) – referred to.New Webster’s Dictionary (Deluxe EncyclopedicEdition) – referred to.

4. In recent times, three principles had gained acceptancethroughout the world they are: 1. Sanctity of life 2. Right of self-Fdetermination 3. Dignity of the individual human being. Thesanctity of life is one thought which is philosophically, religiouslyand mythologically accepted by the large number of population ofthe world practicing different faiths and religions. Sanctity of lifeentails it’s inviolability by an outsider. Sanctity of life is theGconcern of State. Right of self-determination also encompassesin it bodily integrity. Without consent of an adult person, who isin fit state of mind, even surgeon is not authorised to violatethe body. Sanctity of the human life is the most fundamental ofthe human social values. The acceptance of human rights anddevelopment of its meaning in recent times has fully recognisedH

the dignity of the individual human being. These three principlesenable an adult human being of conscious mind to take decisionregarding extent and manner of taking medical treatment. Anadult human being of conscious mind is fully entitled to refusemedical treatment or to decide not to take medical treatmentand may decide to embrace the death in natural way. Euthanasiaas the meaning of the word suggest is an act which leads to agood death. Some positive act is necessary to characterise theaction as Euthanasia. Euthanasia is also commonly called“assisted suicide” due to these reasons. [Paras 73-75][300-B-F]K.S. Puttaswamy and Another v. Union of India andOthers (2017) 10 SCC 1 – followed.

5.1 WITHDRAWAL OF LIFE SAVING DEVICES:Withdrawal of medical assistance or withdrawal of medical deviceswhich artificially prolong the life cannot be regarded as an act toachieve good death. Artificial devices to prolong the life areimplanted, when person is likely to die due to different causesin his body. Life saving treatment and devices are put byphysicians to prolong the life of person. The Law Commissionof India in its 196[th] Report on “Medical Treatment to TerminallyIll Patients (Protection of Patients and Medical Practitioners)”was of the opinion that withdrawing life supporting measures ofpatient terminally ill is concept, different from Euthanasia. Theopinion of Cardozo, J., rendered more than hundred years agothat every human being of adult years and sound mind has rightto determine what shall be done with his own body, is nowuniversally accepted principle. The judgment of the U.S. SupremeCourt and House of Lords also reiterate the above principle.[Paras 76-77][300-G-H; 301-B-C]

5.2 The decision not to take life saving medical treatmentby patient, who is competent to express his opinion cannot betermed as euthanasia, but decision to withdraw life savingtreatment by patient who is competent to take decision as wellas with regard to patient who is not competent to take decisioncan be termed as passive euthanasia. Such acts, which arecommonly expressed as passive euthanasia is lawful and legallypermissible in this country. This Court is not legislative bodynor is entitled or competent to act as moral or ethical arbiter.

DEF

AThe task of this Court is not to weigh or evaluate or reflectdifferent believes and views or give effect to its own but toascertain and build the law of land as it is now understood by all.Message which need to be sent to vulnerable and disadvantagedpeople should not, however, obliviously to encourage them toseek death but should assure them of care and support in life.BThe act of withdrawal from live-saving devices is an independentright which can lawfully be exercised by informed decision. [Paras80, 81 and 82][302-B-E]

6. Decision for withdrawal of life-saving treatment in caseof person who is incompetent to take an informed decisionC

In case of person who is suffering from disease and istaking medical treatment, there are three stake holders; theperson himself, his family members and doctor treating the patient.In cases of incompetent patients who are unable to take aninformed decision, it is in the best interests of the patient thatDthe decision be taken by competent medical experts and thatsuch decision be implemented after providing cooling period atleast of one month to enable aggrieved person to approach theCourt of Law. The best interest of the patient as determined bymedical experts shall meet the ends of justice. The medical teamEby taking decision shall also take into consideration the opinionof the blood relations of the patient and other relevant facts andcircumstances. [Paras 84, 85][303-B; 304-E-F]

7. Advance medical directive

7.1 The advance medical directive has been recognised firstFby Statute in United States of America when in the year 1976,State of California passed “Natural Death Act”. It is claimed that48 states out of 50 in the United States of America have enactedtheir own laws regarding Patient’s Rights and advance medicaldirectives. Advance medical directive is mechanism throughGwhich individual autonomy can be safeguarded in order to providedignity in dying. [Para 87][305-D-E]

7.2 Advance medical directives are not exclusivelyassociated with end of life decisions. However, it is vital to ensurethat form of an advance medical directive reflects the needs ofits author and is sufficiently authoritative and practical to enableH

its provisions to be upheld. In most of the western countriesadvance medical directives have taken legalistic formincorporating formal declaration to be signed by competentwitnesses. The laws also make provisions for updatingconfirmation of its applicability and revocation. Protecting theindividual autonomy is obviously the primary purpose of anadvance medical directive. The right to decide one’s own fatepre-supposes capacity to do so. The answer as to when aparticular advance medical directive becomes operative usuallydepends upon an assent of when its author is no longer competentto participate in medical decision making. So long as an individualcan take an informed decision regarding his medical treatment,there is no occasion to look into advance medical directives. Aperson has unfettered right to change or cancel his advancemedical directives looking to the need of time and advancementin medical science. Hence, person cannot be tied up or boundby his instructions given at an earlier point of time. [Para 87][305-F-H; 306-A, D]

7.3 The concept of advance medical directive originatedlargely as response to development in medicines. Many peopleliving depending on machines cause great financial distress tothe family with the cost of long term medical treatment. Advancemedical directive was developed as means to restrict the kindsof medical intervention in event when one become incapacitated.The foundation for seeking direction regarding advance medicaldirective is extension of the right to refuse medical treatmentand the right to die with dignity. When competent patient hasright to take decision regarding medical treatment, with regardto medical procedure entailing right to die with dignity, the saidright cannot be denied to those patients, who have becomeincompetent to take an informed decision at the relevant time.The concept of advance medical directive has gained ground togive effect to the rights of those patients, who at particulartime are not able to take an informed decision. Another conceptwhich has been accepted in several countries is recognition ofinstrument through which person nominates representativeto make decision regarding their medical treatment at point oftime when the person executing the instrument is unable to make

ABCD

Aan informed decision. This is called attorney authorisation leadingto medical treatment. In this country, there is no legislationgoverning such advance medical directives. It is, however,relevant to note recent legislation passed by the Parliamentnamely “The Mental Healthcare Act, 2017”, where as per Section5 every person, who is not minor has right to make an advanceBdirective in writing regarding treatment to his mental illness inthe way person wishes to be treated. Section 6 of the Act providesthat an advance directive shall be made in the manner as hasbeen prescribed by the regulations made by the Central Authority.In the draft Medical Healthcare Regulation published by MinistryCof Health and Family Welfare, form is prescribed in whichadvance directive may be made. Other aspects of medicaldirective have also been dealt with by draft regulation. Thus, inour country, recognition of advance directives regarding medicaltreatment has started to be recognised and are in place relatingto specified field and purpose. Another legislation which alsoDrecognise some kind of advance directive relating to person’sbody is Section 3 of the Transplantation of Human Organs andTissues Act, 1994. The rules have been framed under Section24 of the Transplantation of Human Organs and Tissues Act, 1994namely Transplantation of Human Organs and Tissues Rules,E2014 where form of authorisation for organ or tissue pledging isForm 7, which provides an authorisation by donor in presence oftwo witnesses which is also required to be registered by OrganDonor Registry. The statutory recognition of the authorisationin two statutes is clear indication of acceptance of the concept ofadvance medical directive in this country. [Paras 88-91][306-E-FH; 307-A-B, H; 308-A-B]

7.4 The concept of advance medical directive has gainedground throughout the world. Different countries have framednecessary legislation in this regard. The republic of Singaporehas passed an enactment namely Advance Medical Directive ActG(Act 16 of 1996). Section 3(1) of the Act empowers person whois not mentally disordered and attained the age of 21 years tomake an advance directive in the prescribed form. Otherprovisions of Statute deals with duty of witness, registration ofdirectives, objections, revocation of directive, panel of specialists,H

certification of terminal illness, duty of medical practitioner andother related provisions. The Belgian Act on Euthanasia, 2002,Swiss Civil Code 1907 and Mental Capacity Act, 2005 (England)and Pennsylvania Act 169 of 2006 contemplate for an advancedirective. In our country, there is yet no legislation pertaining toadvance medical directive. However, Ministry of Health andFamily Welfare by its order dated 06.05.2016 uploaded the LawCommission’s 241[st] report and solicited opinions, comments onthe same. [Para 95][311-B-D, F]

Per A.K. SIKRI, J. 1.1 Section 306 IPC makes abetmentto suicide as punishable offence. Likewise, Section 309 IPCmakes attempt to commit suicide as punishable offence.Intention to commit suicide is an essential ingredient in order toconstitute an offence under this provision. Thus, this provisionspecifically prohibits person from terminating his life andnegates right to die. Constitutional validity of this provision, onthe touchstone of Article 21, was the subject matter of Gian Kaur’scase. The Court held Sections 306 and 309 IPC to beconstitutionally valid. While so holding, the Court observed thatwhen man commits suicide, he has to undertake certain positiveovert acts and the genesis of those acts cannot be traced to, orbe included within the protection of the ‘right to life’ under Article21. The significant aspect of ‘sanctity of life’ is also not to beoverlooked. Article 21 is provision guaranteeing protection oflife and personal liberty and by no stretch of imagination can‘extinction of life’ be read to be included in ‘protection of life’.Whatever may be the philosophy of permitting person toextinguish his life by committing suicide, the Court found itdifficult to construe Article 21 to include within it the ‘right todie’ as part of the fundamental right guaranteed therein. ‘Rightto life’ is natural right embodied in Article 21 but suicide is anunnatural termination or extinction of life and, therefore,incompatible and inconsistent with the concept of ‘right to life’.[Paras 38][331-G; 332-A-C]

Gian Kaur v. State of Punjab (1996) 2 SCC 648 : [1996]3 SCR 697 – referred to.

1.2 There has been significant advancement in medicalscience. Medical scientists have been, relentlessly and

Acontinuously, experimenting and researching to find out bettertools for not only curing the disease with which human beingssuffer from time to time, noble attempt is to ensure that humanlife is prolonged and in the process of enhancing the expectancyof life, ailments and sufferings therefrom are reduced to theminimal. There is, thus, fervent attempt to impress the qualityBof life. It is this very advancement in the medical science whichcreates dilemma at that juncture when, in common perception,life of person has virtually become unlivable but the medicaldoctors, bound by their Hippocratic Oath, want to still spare effortsin the hope that there may still be chance, even if it is veryCremote, to bring even such person back to life. The issue,therefore, gets compounded having counter forces of medicalscience, morality and ethical values, the very concept of life fromphilosophical angle. In this entire process, the vexed questionis to be ultimately decided taking into consideration the normative

law, and in particular, the constitutional values. [Para 40][333-F-DH; 334-A-C]2. Whether passive euthanasia, voluntary or even, in certaincircumstances, involuntary, is legally permissible?

As the process of dying is an inevitable consequence oflife, the right to life necessarily implies the right to have natureEtake its course and to die natural death. It also encompasses aright, unless the individual so wishes, not to have life artificiallymaintained by the provision of nourishment by abnormal artificialmeans which have no curative effect and which are intendedmerely to prolong life. Insofar as concept of human dignity isFconcerned, it dates back to thousands of years. Historically,human dignity, as concept, found its origin in different religionswhich is held to be an important component of their theologicalapproach. Later, it was also influenced by the views ofphilosophers who developed human dignity in their

contemplations. Hinduism doesn’t recognize human beings asGmere material beings. Its understanding of human identity is moreethical-spiritual than material. That is why sense of immortalityand divinity is attributed to all human beings in Hindu classicalliterature. Even in Islam, tradition of human rights becameevident in the medieval ages. Being inspired by the tenets of theHHoly Koran, it preaches the universal brotherhood, equality,

justice and compassion. Islam believes that man has special statusbefore God. Because man is creation of God, he should not beharmed. Harm to human being is harm to God. God, as an actof love, created man and he wishes to grant him recognition,dignity and authority. Thus, in Islam, human dignity stems fromthe belief that man is creation of God – the creation that Godloves more than any other. The Bhakti and Sufi traditions too intheir own unique ways popularized the idea of universalbrotherhood. It revived and regenerated the cherished Indianvalues of truth, righteousness, justice and morality. [Paras 64,72, 73, 76 and 77][345-C-D; 348-H; 349-A, E; 350-C-E]

Lochner v. New York 198 US 45, 76 (1905) – referred

3.1 Constitutional perspective of dignity: The mostimportant lesson which was learnt as result of Second WorldWar was the realization by the Governments of various countriesabout the human dignity which needed to be cherished andprotected. It is for this reason that in the U.N. Charter, 1945,adopted immediately after the Second World War, dignity of theindividuals was mentioned as of core value. The almostcontemporaneous Universal Declaration of Human Rights (1948)echoed same sentiments. Article 3 of the Geneva Conventionsexplicitly prohibits “outrages upon personal dignity”. There areprovisions to this effect in International Covenant on Civil andPolitical Rights (Article 7) and the European Convention ofHuman Rights (Article 3) though implicit. The ICCPR beginsits preamble with the acknowledgment that the rights containedin the covenant “derive from the inherent dignity of the humanperson”. And some philosophers say the same thing. Even ifthis is not connection between dignity and law as such, itcertainly purports to identify wholesale connection betweendignity and the branch of law devoted to human rights. One ofthe key facets of twenty-first century democracies is the primaryimportance they give to the protection of human rights. Fromthis perspective, dignity is the expression of basic valueaccepted in broad sense by all people, and thus constitutes thefirst cornerstone in the edifice of human rights. Therefore, thereis certain fundamental value to the notion of human dignity,which some would consider pivotal right deeply rooted in any

[2018] 6 S.C.R.

Anotion of justice, fairness, and society based on basic rights.[Paras 85, 86][352-F-H; 353-A-C]

3.2 Within two years of the adoption of the said UniversalDeclaration of Human Rights that all human beings are born freeand equal in dignity and rights, India attained independence andBimmediately thereafter Members of the Constituent Assemblytook up the task of framing the Constitution of this Country. TheConstitution Makers did so by incorporating Chapter onFundamental Rights in Part III of the Constitution. However,there is no mention of “dignity” specifically in this Chapter onFundamental Rights. So was the position in the AmericanCConstitution. In America, human dignity as part of human rightswas brought in as Judge-made doctrine. Same course of actionfollowed as the Indian Supreme Court read human dignity intoArticles 14 and 21 of the Constitution. [Para 88][353-F-H; 354-

D4.1 Dworkin, being philosopher – jurist, was aware of theidea of Constitution and of constitutional right to humandignity. In his book, Taking Rights Seriously, he noted thateveryone who takes rights seriously must give an answer to thequestion why human rights vis-a-vis the State exist. Accordingto him, in order to give such an answer one must accept, as aEminimum, the idea of human dignity. In his Book, “Is DemocracyPossible Here?” Dworkin develops two principles about theconcept of human dignity. First principle regards the intrinsicvalue of every person, viz., every person has special objectivevalue which value is not only important to that person alone but

Fsuccess or failure of the lives of every person is important to allof us. The second principle, according to Dworkin, is that ofpersonal responsibility. According to this principle, every personhas the responsibility for success in his own life and, therefore,he must use his discretion regarding the way of life that will besuccessful from his point of view. [Paras 90, 91][354-C, E-F]G

4.2 When speaking of rights, it is impossible to envisage itwithout dignity. In his pioneering and all inclusive “Justice forHedgehogs”, he proffered an approach where respect for humandignity, entails two requirements; first, self-respect, i.e., takingthe objective importance of one’s own life seriously; thisHrepresents the free will of the person, his capacity to think for

himself and to control his own life and second, authenticity, i.e.,accepting “special, personal responsibility for identifying whatcounts as success” in one’s own life and for creating that life“through coherent narrative” that one has chosen. Accordingto Dworkin, these principles form the fundamental criteriasupervising what we should do in order to live well. They furtherexplicate the rights that individuals have against their politicalcommunity, and they provide rationale for the moral duties weowe to others. This notion of dignity, which Dworkin gives utmostimportance to, is indispensable to any civilised society. It is whatis constitutionally recognised in our country and for good reason.Living well is moral responsibility of individuals; it is acontinuing process that is not static condition of character but amode that an individual constantly endeavours to imbibe. lifelived without dignity, is not life lived at all for living well impliesa conception of human dignity which Dworkin interprets includesideals of self-respect and authenticity. [Para 92][354-G; 355-A-D]

4.3 In his Article, Life’s Dominion, Ronald Dworkin, whilebuilding the hypothesis on dignity concept, exhorts that peoplemust decide about their own death, or someone else’s in threemain kind of situations, namely, (i) conscious and competent: itis situation where person is suffering from some seriousillness because of which he is incapacitated but he is still consciousand also competent to decide about his fate, he should be given achoice to decide as to whether he wants to continue to get thetreatment; (ii) unconscious: where the patient is unconscious anddying, doctors are often forced to decide whether to continue lifesupport for him or not under certain circumstances relatives haveto take decision. However, at times, unconscious patients arenot about to die. At the same time, they are either in coma or inPVS. In either case, they are conscious. In such situation, whererecovery is impossible, it should be left to the relatives to decideas to whether they want the patient to remain on life support(ventilator, etc.); and (iii) conscious but incompetent.[Para97][358-D-G]

K.S. Puttaswamy and Another v. Union of India andOthers (2017) 10 SCC 1 : [2010] 10 SCR 569 – reliedon.

A5.1 Right to health is part of Article 21 of the Constitution.At the same time, it is also harsh reality that everybody is notable to enjoy that right because of poverty etc. The State is not ina position to translate into reality this right to health for all citizens.Thus, when citizens are not guaranteed the right to health, canthey be denied right to die in dignity? [Para 99][359-B]B

National Legal Services Authority v. Union of India andOrs. (2014) 5 SCC 438 – relied on.

5.2 Dworkin specifically discussed the issues pertaining toabortion and euthanasia with emphasis that both supporters andCcritics accept the idea of sanctity of life. Decisions regarding death– whether by abortion or by euthanasia – affect our human dignity.In Dworkin’s opinion, proper recognition of human dignity leadsto the recognition of the freedom of the individual. Dignity is,thus, the core value of life and dying in dignity stands recognisedin Gian Kaur. It becomes part of right of self determination.DThe important message behind Dworkin’s concept of humandignity can be summarised in the following manner: (1) Hedescribes belief in individual human dignity as the most importantfeature of Western political culture giving people the moral right“to confront the most fundamental questions about the meaningEand value of their own lives”. (2) In an age when people valuetheir independence and strive to live independent and fulfilledlives it is important “that life ends appropriately, that death keepsfaith with the way we want to have lived”. (3) Death is “not onlythe start of nothing but the end of everything” and, therefore, itshould be accomplished in manner compatible with the idealsFsought during life. [Paras 102-104][359-G; 360-B-E]

5.3 The elements of dignity (in the context of death withdignity) are: (i) Encompasses self-determination; implies qualityof life consistent with the ability to exercise self-determinedchoices; (ii) Maintains/ability to make autonomous choices; highGregard for individual autonomy that is pivotal to the perceivedquality of person’s life; (iii) Self-control (retain similar kind ofcontrol over dying as one has exercised during life – way ofachieving death with dignity); (iv) Law of consent: The ability tochoose - orchestrate the timing of their own death; (v) DignityHmay be compromised if the dying process is prolonged and

involves becoming incapacitated and dependent; (vi) Respectfor human dignity means respecting the intrinsic value of humanlife; (vii) Avoidance of dependency; (viii) Indefinite continuationof futile physical life is regarded as undignified; (ix) Dignitycommands emphatic respect; Reason and emotion are bothsignificant in treatment decisions, especially at the end of lifewhere compassion is natural response to appeals made on thebasis of stifled self-determination; Compassion represents acollision of “imaginative insight” and empathy; and Compassionis here distinguished from pity, which is regarded as“inappropriate to the dignity of the autonomous person, especiallyits overtones of paternalism”, because compassion is believedto provoke an active, and by implication positive, response. (x)Dignity engenders sense of serenity and powerfulness, fortifiedby “qualities of composure, calmness, restraint, reserve, andemotions or passions subdued and securely controlled withoutbeing negated or dissolved”; and (x) Observer’s Dignity aspect:a person possessed of dignity at the end of life, might induce inan observer sense of tranquility and admiration which inspiresimages of power and self- assertion through restraint and poisedcomposure; and dignity clearly does play valuable role incontextualizing people’s perceptions of death and dying, especiallyas it appears to embody spirit of self-determination thatadvocates of voluntary euthanasia crave. [Para 105][360-E-G;361-A-G; 362-A-B]6.1 Passive euthanasia and death with dignity areinextricably linked, which can be summed up with the followingpointers: The opportunity to die unencumbered by the intrusionof medical technology and before experiencing loss ofindependence and control, appears to many to extend the promiseof dignified death. When medical technology intervenes toprolong dying like this it does not do so unobtrusively; (ii) Todaymany patients insist on more than just right to health care ingeneral. They seek right to choose specific types of treatment,able to retain control throughout the entire span of their livesand to exercise autonomy in all medical decisions concerningtheir welfare and treatment; (iii) dreadful, painful death on arational but incapacitated terminally ill patient are an affront tohuman dignity. [Para 106][362-B-E]

ABCDE

A6.2 Certain moral dilemma as to what is the exact stagewhen such decision to withdraw medical support, would stillremain. At times, physician would be filled with profound ethicaluncertainties when person is suffering unbearable pain andagony, the question would be as to whether such suffering hasreached the stage where it is incurable and, therefore, decisionBshould be taken to allow such person to pass away in peace anddignity of hastening the process of death or the situation may bereversible, though chances thereof are far remote. [Para107][362-F-G]

Dr. R. R. Kishore MD, LLB – End of Life Issues andC–the Moral Certainty: Discovery through Hinduism referred to.

7.1 Hippocratic Oath, coupled with ethical norms of medicalprofession, stand in the way of euthanasia. It brings about asituation of dilemma insofar as medical practitioner is concerned.DOn the one hand his duty is to save the life of person till he isalive, even when the patient is terminally ill and there are nochances of revival. On the other hand, the concept of dignity andright to bodily integrity, which recognises legal right of autonomyand choice to the patient (or even to his relations in certainEcircumstances, particularly when the patient is unconscious orincapacitated to take decision) may lead to exercising his rightof euthanasia. Dignity implies, apart from right to life enjoymentof right to be free of physical interference. At common law, anyphysical interference with person is, prima facie, tortious. If itinterferes with freedom of movement, it may constitute falseFimprisonment. If it involves physical touching, it may constitutea battery. If it puts person in fear of violence, it may amount toan assault. For any of these wrongs, the victim may be able toobtain damages. When it comes to medical treatment, even therethe general common law principle is that any medical treatmentGconstitutes trespass to the person which must be justified, byreference either to the patient’s consent or to the necessity ofsaving life in circumstances where the patient is unable to decidewhether or not to consent. [Paras 110, 111, 112][365-B-F]

7.2 Rights with regard to medical treatment fall essentiallyHinto two categories: first, rights to receive or be free of treatment

as needed or desired, and not to be subjected involuntarily toexperimentation which, irrespective of any benefit which thesubjects may derive, are intended to advance scientific knowledgeand benefit people other than the subject in the long term;secondly, rights connected incidentally with the provision ofmedical services, such as rights to be told the truth by one’sdoctor. Having regard to this right of the patients in commonlaw, coupled with the dignity and privacy rights, it can be saidthat passive euthanasia, under those circumstances where patientis in PVS and he is terminally ill, where the condition is irreversibleor where he is braindead, can be permitted.[Paras 113, 114][365-F-G; 366-A-B]

Aruna Ramachandra Shanbaug v. Union of India &Ors. (2011) 4 SCC 454 : [2011] 4 SCR 1057 – referredto.

8.1 When considering the matter of euthanasia in the contextof economic principles, it becomes another reason to supportthe aforesaid conclusion. This aspect can be dealt with in twoways. First, because of rampant poverty where majority of thepersons are not able to afford health services, should they beforced to spend on medical treatment beyond their means and inthe process compelling them to sell their house property,household things and other assets which may be means oflivelihood. Secondly, when there are limited medical facilitiesavailable, should major part thereof be consumed on thosepatients who have no chances of recovery? [Paras 116-117][366-C-D]

9. Whether ‘living will’ or ‘advance directive’ should belegally recognised and can be enforced? If so, under whatcircumstances and what precautions are required while permittingit?

9.1 It is undisputed that Doctors’ primary duty is to providetreatment and save life but not in the case when person hasalready expressed his desire of not being subjected to any kindof treatment. It is common law right of people, of any civilizedcountry, to refuse unwanted medical treatment and no personcan force him/her to take any medical treatment which the person

Adoes not desire to continue with. [Para 124][369-E-F]

Refusal of Medical Treatment (1992) 4 All ER 649;(Adult: Refusal of Medical Treatment) (2002) 2 All ER449; Crazan v. Director, Missouri Department of Health497 U.S. 261 (1990); Malette v. Shulam 67 DLR (4[th])B321 – referred to.

9.2 Nature of Living Will or Advance Directive: Advancedirectives are instruments through which persons express theirwishes at prior point in time, when they are capable of makingan informed decision, regarding their medical treatment in theCfuture, when they are not in position to make an informeddecision, by reason of being unconscious or in coma. medicalpower of attorney is an instrument through which personsnominate representatives to make decisions regarding theirmedical treatment at point in time when the persons executingthe instrument are unable to make informed decisions themselves.DClause 11 of the draft Treatment of Terminally-III Patients(Protection of Patients and Medical Practitioners) Bill, 2016 statesthat advance directives or medical power of attorney shall bevoid and of no effect and shall not be binding on any medicalpractitioner. This blanket ban, including the failure even to giveEsome weight to advance directives while making decision aboutthe withholding or withdrawal of life-sustaining treatment isdisproportionate. It does not constitute fair, just or reasonableprocedure, which is requirement for the imposition of arestriction on the right to life (in this case, expressed as the rightto die with dignity) under Article 21. [Para 130][379-E-H]F

9.3 On the one hand autonomy of an individual gives himright to choose his destiny and, therefore, he may decide beforehand, in the form of advance directive, at what stage of his physicalcondition he would not like to have medical treatment, and onthe other hand, there are dangers of misuse thereof as well. AtGthe same time, possibility of misuse cannot be held to be validground for rejecting advance directive, as opined by the LawCommission of India as well in its 196th and 241st Report.Instead, attempt can be made to provide safeguards for exerciseof such advance directive. For example, Section 5 of the MentalHHealthcare Act, 2017 recognises the validity of advance directivesfor the treatment of mental illness under the Mental HealthcareAct, 2017. The draft Mental Healthcare Regulations haverecently been made available for public comment by the Ministryof Health and Family Welfare. These prescribe the form in whichadvance directives may be made. Part II, Chapter 1 of theRegulations allow Nominated Representative to be named inthe Advance Directive. An advance directive is to be in writingand signed by two witnesses attesting to the fact that the Directivewas executed in their presence. Directive to be registeredwith the Mental Health Review Board. It may be changed asmany times as desired by the person executing it and the treatingmental health professional must be informed of such change.Similarly, Section 3 of the Transplantation of Human Organs andTissues Act, 1994 allows persons to authorise the removal ofhuman organs and tissues from their body before death. The formin which this authorisation is to be made is prescribed in Form 7of the Transplantation of Human Organs and Tissues Rules, 2014.This is also to be in writing and in the presence of two witnesses.A copy of the pledge is to be retained at the institution where thepledge is made and the person making the pledge has the optionto withdraw the pledge at any time. Where such authorisationhad been made, the person lawfully in charge of the donor’s bodyafter his death is required to grant the concerned medicalpractitioner all reasonable facilities for the removal of humanorgans or tissues, unless such person has reason to believe thatthe donor had substantially revoked his authority. [Paras 131-132][380-A-B; 381-D-H; 382-A-B]

Vishaka and Others v. State of Rajasthan and Others(1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404; KharakSingh v. State of U.P. & Ors. [1964] 1 SCR 332; C.E.S.E.Limited and Others v. Subhash Chandra Bose andOthers (1992) 1 SCC 441 : [1991] 2 Suppl. SCR 267;Rustom Cavasjee Cooper v. Union of India (1970) 1SCC 248 : [1970] 3 SCR 530; P. Rathinam v. Union ofIndia & Anr. (1994) 3 SCC 394; National Legal ServicesAuthority v. Union of India and Ors. (2014) 5 SCC438; Shivashakti Sugars Ltd. v. Shree Renuka SugarLimited and Other (2017) 7 SCC 729 – referred to.

AAiredale NHS Trust v. Bland (1993) 2 WLR 316 (HL);Lochner v. New York 198 US 45, 76 (1905); Refusal ofMedical Treatment (1992) 4 All ER 649; (Adult: Refusalof Medical Treatment) (2002) 2 All ER 449; Crazan v.Director, Missouri Department of Health 497 U.S. 261(1990); Malette v. Shulam 67 DLR (4[th]) 321 – referred

Bto.

Case Law Reference

[1997] 3 Suppl. SCR 404

relied on

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.215 of 2005.

Under Article 32 of the Constitution of India.

APrashant Bhushan, Rohit Kr. Singh, Amiy Shukla, Shakti Vardhan,Sudhaker T., Cheryl, Advs. for the Petitioner.

P.S. Narasimha, ASG, A. Mariarputham, Advocate General, ArvindDatar, Sanjay R. Hegde, Sr. Advs., S.S. Shamshery, Ms. Madhvi Divan,Ms. Nidhi Khanna, Ayush Puri, B.V. Balaram Das, G.S. Makkher,BMs. Sushma Suri, Ms. Dhvani Mehta, Ms. Nivedita Saksena, Rauf Rahim,Nitin Mishra, Nausher Kohli, Arun Sharma, Pranjal, Jay Kishor Singh,Devansh A. Mohta, A.P. Mayee, Nilakanta Nayak, A. Selvin Raja, ChiragJain, Shuvodeep Roy, Sayooj Mohandas. M., Sapam Biswajit Meitei,Naresh Kumar Gaur, Ashok Kumar Singh, Raja Chatterjee, ChanchalKr. Ganguli, Ms. Runa bhuyan, Merusagar Samantaray, S. SantoshCRebole, Ms. Lhingneivah, Ms. Veddusshi, Avishak Chaturvedi, PraveenKhattar, Sudhir Naagar, K. N. Madhusoodhanan, T. G. N. Nair, C. K. Sasi,Bhupesh Narula, K.V. Jagdishvaran, Mrs. G. Indira, Ms. BhuvneshwariPathak, Ms. Shilpi Satyapriya Satyam, Rahul Kaushik, V. G. Pragasam,S. Prabu Ramasubramanian, Manu Sundaram, S. Udaya Kumar Sagar,DMrityunjai Singh, Gopal Singh, Manish Kumar, Rituraj Biswas,K.V. Vijaya Kumar, Ms. Maitreyee Mishra, Ms. Uttara Babbar,Ms. Akanksha Choudhary, Anil Kumar Jha, R. K. Ojha, Ms. ArunaMathur, Avneesh Arputham, Ms. Anuradha Arputham, Ms. Simran Jeet(For M/s. Arputham Aruna & Co.), Ruchi Kohli, Balaji Srinivasan, GunturPrabhakar, Nirnimesh Dube, B. Balaji, Abhisth Kumar, Sunil Kumar Jain,EDr. R.R. Kishore, Advs. for the appearing parties.

The Judgments of the Court were delivered by

DIPAK MISRA, CJI [for himself and A.M. Khanwilkar,

S. No. Heading Page No. A.Prologue3B. Contentions in the Writ Petition 10

* Ed. note: The pages mentioned in the index above giving the scheme of the judgmentHdenotes the page number of the original judgment.

COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA73[DIPAK MISRA, CJI]AC.Stand in the counter affidavit and the 14applications for intervention D.Background of the Writ Petition18D.1 P. Rathinam’s case – The question 19 of unconstitutionality of Section B309 of the Indian Penal CodeD.2 Gian Kaur’s case – The question of 22 unconstitutionality of Section 306 of the Indian Penal CodeD.3The approach in Aruna Shanbaug 30qua Passive Euthanasia vis-à-vis CIndia D.4The Reference42E.Our analysis of Gian Kaur45F. Our analysis of Aruna Shanbaug qua 51 Dlegislation G. The Distinction between Active and Passive 52 EuthanasiaH. Euthanasia : International Position 58 H.1U.K. Decisions:58EH.1.1 Airedale Case 58 H.1.2Later Cases79H.2 The Legal position in the United 89 States H.3 Australian Jurisdiction 96 FH.4 Legal position in Canada 99 H.5Other Jurisdictions104H.6 International considerations and 107 decisions of the European Court Gof Human Rights (ECHR) I The 241[st] Report of The Law Commission of 114 India on Passive Euthanasia J. Right to refuse treatment 120

[2018] 6 S.C.R.

AK.Passive Euthanasia in the context of Article 12621 of the Constitution. K.1 Individual Dignity as facet of 135 Article 21 L Right of self-determination and individual 149 Bautonomy M.Social morality, medical ethicality and State 155interest N.Submissions of the States157CO.Submissions of the Intervenor (Society for 159the Right to Die with Dignity) P.Advance Directive/Advance Care Directive/ 160Advance Medical Directive (a)Who can execute the Advance 170DDirective and how (b) What should it contain? 171 (c)How should it be recorded and 172preserved E(d)When and by whom can it be given 174effect to (e)What if permission is refused by the 179Medical Board (f)Revocation or inapplicability of 181FAdvance Directive 186Q. Conclusions in seriatim

A. Prologue:

Life and death as concepts have invited many thinker, philosopher,writer and physician to define or describe them. Sometimes attemptshave been made or efforts have been undertaken to gloriously paint thepictures of both in many colour and shade. Swami Vivekananda expectsone to understand that life is the lamp that is constantly burning out andHfurther suggests that if one wants to have life, one has to die every

moment for it. John Dryden, an illustrious English author, considers lifea cheat and says that men favour the deceit. No one considers that thegoal of life is the grave. Léon Montenaeken would like to describe lifeas short, little hoping, little dreaming and then good night. The famouspoet Dylan Thomas would state “do not go gentle into that good night.”One may like to compare life with constant restless moment spent infear of extinction of valued vapour; and another may sincerely believethat it is beyond any conceivable metaphor. metaphysical poet likeJohn Donne, in his inimitable manner, says:-

“One short sleep past, we wake eternally, And death shall be nomore; death, thou shalt die”.

Some would say with profound wisdom that life is to be livedonly for pleasure and others with equal wise pragmatism would proclaimthat life is meant for the realization of divinity within one because that iswhere one feels the “self”, the individuality and one’s own real identity.Dharmaraj Yudhisthira may express that though man sees that deathDtakes place every moment, yet he feels that the silence of death wouldnot disturb him and nothing could be more surprising than the said thought.Yet others feel that one should never be concerned about the uncertaindeath and live life embracing hedonism till death comes. Charvaka, anancient philosopher, frowns at the conception of re-birth and commendsfor living life to the fullest. Thus, death is complicated and life is aEphenomenon which possibly intends to keep away from negatives thattry to attack the virtue and vigour of life from any arena. In spite of allthe statements, references and utterances, be it mystical, philosophicalor psychological, the fact remains, at least on the basis of conceptualmajority, that people love to live – whether at eighty or eighteen – and doFnot, in actuality, intend to treat life like an “autumn leaf”. As AlfredTennyson says:-

“No life that breathes with human breath has ever truly longedfor death.”

2. The perception is not always the same at every stage. Therecomes phase in life when the spring of life is frozen, the rain of circulationbecomes dry, the movement of body becomes motionless, the rainbowof life becomes colourless and the word ‘life’ which one calls dancein space and time becomes still and blurred and the inevitable deathcomes near to hold it as an octopus gripping firmly with its tentacles so

Athat the person “shall rise up never”. The ancient Greet philosopher,Epicurus, has said, although in different context:-

“Why should I fear death?

If I am, then death is not.

BIf death is, then I am not.

Why should I fear that which

can only exist when I do not?”

But there is fallacy in the said proposition. It is because mereexistence does not amount to presence. And sometimes there is aCfeebleness of feeling of presence in semi-reality state when the idea ofconceptual identity is lost, quality of life is sunk and the sanctity of life isdestroyed and such destruction is denial of real living. Ernest Hemingway,in his book ‘The Old Man and the Sea’, expounds the idea that man canbe destroyed, but cannot be defeated. In certain context, it can be said,Dlife sans dignity is an unacceptable defeat and life that meets death withdignity is value to be aspired for and moment for celebration.3. The question that emerges is whether person should be allowedto remain in such stage of incurable passivity suffering from pain andanguish in the name of Hippocratic oath or, for that matter, regarding theEsuffering as only state of mind and relative perception or treating theutterance of death as “word infinitely terrible” to be rhetoric without

any meaning. In contradistinction to the same, the question that arises isshould he not be allowed to cross the doors of life and enter, painlesslyand with dignity, into the dark tunnel of death whereafter it is said thatthere is resplendence. In delineation of such an issue, there emerges theFquestion in law – should he or she be given such treatment which hascome into existence with the passage of time and progress of medicaltechnology so that he/she exists possibly not realizing what happens aroundhim/her or should his/her individual dignity be sustained with concern bysmoothening the process of dying.

4. The legal question does not singularly remain in the setframework of law or, for that matter, morality or dilemma of the doctorsbut also encapsulates social values and the family mindset to make aresolute decision which ultimately is cause of concern for all. There isalso another perspective to it. family may not desire to go ahead with

the process of treatment but is compelled to do so under social pressureespecially in different milieu, and in the case of an individual, thereremains fear of being branded that he/she, in spite of being able toprovide the necessary treatment to the patient, has chosen not to do so.The social psyche constantly makes him/her feel guilty. The collectiveputs him at the crossroads between socially carved out ‘meaningful guilt’and his constant sense of rationality and individual responsibility. Therehas to be legalistic approach which is essential to clear the maze andinstill awareness that gradually melts the idea of “meaningful guilt” andushers in an act of “affirmative human purpose” that puts humanness ona high pedestal.

5. There is yet another aspect. In an action of this nature, therecan be abuse by the beneficiaries who desire that the patient’s heartshould stop so that his property is inherited in promptitude and in such asituation, the treating physicians are also scared of collusion that mayinvite the wrath of criminal law as well as social stigma. The medical,social and ethical apprehensions further cloud their mind to take adecision. The apprehension, the cultural stigma, the social reprehension,the allegation of conspiracy, the ethical dilemma and eventually the shadowbetween the individual desire and the collective expression distances thereality and it is here that the law has to have an entry to alleviate theagony of the individual and dispel the collective attributes and perceptionsso that the imbroglio is clear. Therefore, the heart of the matter is whetherthe law permits for accelerating the process of dying sans sufferingwhen life is on the path of inevitable decay and if so, at what stage andto what extent. The said issue warrants delineation from variousperspectives.

B. Contentions in the Writ Petition:

6. The instant Writ Petition preferred under Article 32 of theConstitution of India by the petitioner, registered society, seeks to declare“right to die with dignity” as fundamental right within the fold of “rightto live with dignity” guaranteed under Article 21 of the Constitution; toissue directions to the respondents to adopt suitable procedure inconsultation with the State Governments, where necessary; to ensurethat persons of deteriorated health or terminally ill patients should beable to execute document titled “My Living Will and AttorneyAuthorisation” which can be presented to the hospital for appropriateaction in the event of the executant being admitted to the hospital with

Aserious illness which may threaten termination of the life of the executant;to appoint committee of experts including doctors, social scientists andlawyers to study into the aspect of issuing guidelines as to the “LivingWills”; and to issue such further appropriate directions and guidelines asmay be necessary.

B7. It is asserted that every individual is entitled to take his/herdecision about the continuance or discontinuance of life when the processof death has already commenced and he/she has reached an irreversiblepermanent progressive state where death is not far away. It is contendedthat each individual has an inherent right to die with dignity which is aninextricable facet of Article 21 of the Constitution. That apart, it is setCforth that right to die sans pain and suffering is fundamental to one’sbodily autonomy and such integrity does not remotely accept any effortthat puts the individual on life support without any ray of hope and on thecontrary, the whole regime of treatment continues in spite of all beingaware that it is Sisyphean endeavour, an effort to light bulb withoutDthe filament or to expect situation to be in an apple pie order when it isactually in state of chaos.

8. It is put forth that the concept of sustenance of individualautonomy inheres in the right of privacy and also comes within thefundamental conception of liberty. To sustain the stand of privacy, relianceEhas been placed on the decisions in Kharak Singh v. State of U.P. andothers[1], Gobind v. State of Madhya Pradesh and another[2] andPeople’s Union for Civil Liberties v. Union of India and another[3].Inspiration has also been drawn from the decision of the United Statesin Cruzan v. Director, Missouri Department of Health[4]. It is averredthat due to the advancement of modern medical technology pertaining toFmedical science and respiration, situation has been created where thedying process of the patient is unnecessarily prolonged causing distressand agony to the patient as well as to the near and dear ones and,consequently, the patient is in persistent vegetative state thereby allowingfree intrusion. It is also contended that the petitioner-society is not claimingGthat the right to die is part of the right to life but asserting the claim thatthe right to die with dignity is an inseparable and inextricable facet of theright to live with dignity. The execution of living will or issuance of 1 (1964) 1 SCR 332 : AIR 1963 SC 1295 2 (1975) 2 SCC 148 3 (1997) 1 SCC 301H 4 111 L Ed 2d 224 : 497 US 261 (1990) : 110 S.Ct. 2841 (1990)

advance directive has become necessity in today’s time keeping inview the prolongation of treatment in spite of irreversible prognosis andowing to penal laws in the field that creates dilemma in the minds ofdoctors to take aid of the modern techniques in case or not. Acomparison has been made between the fundamental rights of anindividual and the State interest focusing on sanctity as well as quality oflife. References have been made to the laws in various countries, namely,United Kingdom, United States of America, Australia, Denmark,Singapore, Canada, etc. The autonomy of the patient has been laid stressupon to highlight the right to die with dignity without pain and sufferingwhich may otherwise be prolonged because of artificial continuance oflife through methods that are really not of any assistance for cure orimprovement of living conditions.

C. Stand in the counter affidavit and the applications forintervention:

9. counter affidavit has been filed by the Union of Indiacontending, inter alia, that serious thought has been given to regulatethe provisions of euthanasia. private member’s Bill and the 241[st]report of the Law Commission of India have been referred to. It hasbeen set forth that the Law Commission had submitted report on TheMedical Treatment of Terminally-ill Patients (Protection of Patients andMedical Practitioners) Bill, 2006 but the Ministry of Health and FamilyWelfare was not in favour of the enactment due to the following reasons:-

“a) Hippocratic oath is against intentional/voluntary killings ofpatient.

b) Progression of medical science to relieve pain, suffering,rehabilitation and treatment of so-called diseases will suffer setback.

c) An individual may wish to die at certain point of time, his/herwish may not be persistent and only fleeting desire out of transientdepression.

d) Suffering is state of mind and perception, which variesfrom individual to individual and depends on various environmentaland social factors.

e) Continuous advancement in medical science has made possiblegood pain management in patients of cancer and other terminal

Aillness. Similarly, rehabilitation helps many spinal injury patients inleading near normal life and euthanasia may not be required.

f) Wish of euthanasia by mentally ill patient/in depression maybe treatable by good psychiatric care.

g) It will be difficult to quantify suffering, which may always beBsubject to changing social pressures and norms.

h) Can doctors claim to have knowledge and experience to saythat the disease is incurable and patient is permanently invalid?

i) Defining of bed-ridden and requiring regular assistance is againCnot always medically possible.

j) There might be psychological pressure and trauma to the medicalofficers who would be required to conduct euthanasia.”

10. The counter affidavit further states that after the judgmentwas delivered by this Court in Aruna Ramachandra Shanbaug v. UnionDof India and others[5], the Ministry of Law and Justice opined that thedirections given by this Court have to be followed in such cases and thesaid directions should be treated as law. The Law Commission in its241[st] Report titled “Passive Euthanasia – Relook” again proposed formaking legislation on “Passive Euthanasia” and also prepared draftBill titled The Medical Treatment of Terminally Ill Patients (ProtectionEof Patients and Medical Practitioners) Bill. The said Bill was referred tothe technical wing of the Ministry of Health and Family Welfare(Directorate General of Health Services-Dte. GHS) for examination inJune 2014. It is the case of the Union of India that two meetings wereheld under the chairmanship of Special Director General of Health ServiceFwhich was attended by various experts. further meeting was heldunder the chairmanship of Secretary, Ministry of Health and FamilyWelfare, on 22.05.2015 to examine the Bill. Thereafter, various meetingshave been held by experts and the expert committee had proposedformulation of legislation on passive euthanasia.

G11. Counter affidavits have been filed by various States. Weneed not refer to the same in detail. Suffice it to mention that in certainaffidavits, emphasis has been laid on Articles 37, 39 and 47 which requirethe States to take appropriate steps as envisaged in the said Articles forapposite governance. That apart, it has been pronouncedly stated that 5 (2011) 4 SCC 454H

the right to life does not include the right to die and, in any case, the rightto live with dignity guaranteed under Article 21 of the Constitution meansavailability of food, shelter and health and does not include the right todie with dignity. It is asseverated that saving the life is the primary dutyof the State and, therefore, there is necessity for health care. It is alsocontended that the introduction of the right to die with dignity as facetof the right under Article 21 will create right that the said constitutionalprovision does not envisage and further it may have the potential effectto destroy the said basic right.

12. An application for intervention has been filed by the “Societyfor the Right to Die with Dignity” whose prayer for intervention hasbeen allowed. The affidavit filed by the said society supports the conceptof euthanasia because it is relief from irrecoverable suffering of whichpain is factor. It has cited many an example from various texts tosupport passive euthanasia and suggested certain criteria to be followed.It has also supported the idea of introduction of living will and durablepower of attorney documents and has filed sample of living will oradvance health directive or advance declaration provided by Luis Kutner.Emphasis has been laid on peaceful exit from life and the freedom ofchoice not to live and particularly so under distressing conditions and ill-health which lead to an irrecoverable state. The management of terminallyill patients has been put at the centre stage. It has been highlighted thatdetermination of the seemly criteria will keep the element of misuse bythe family members or the treating physician or, for that matter, anyinterested person at bay and also remove the confusion.

We have heard Mr. Prashant Bhushan, learned counsel for thepetitioner. Mr. P.S. Narasimha, learned Additional Solicitor General forUnion of India, Mr. Arvind P. Datar learned senior counsel and Mr.Devansh A. Mohta, learned counsel who have supported the cause putforth in the writ petition.

D. Background of the Writ Petition:

13. Before we engage ourselves with the right claimed, it isrequisite to state that the present litigation has history and while narratingthe same, the assertions made in the Writ Petition and the contentionswhich have been raised during the course of hearing, to which we shallrefer in due course, are to be kept in mind.

D.1 P. Rathinam’s case – The question of unconstitutionality of

ASection 309 of the Indian Penal Code:

14. Presently, it is necessary to travel backwards in time, thoughnot very far. Two individuals, namely, P. Rathinam and NagbhushanPatnaik, filed two Writ Petitions under Article 32 of the Constitutionwhich were decided by two-Judge Bench in P. Rathinam v. Union ofBIndia & another[6]. The writ petitions assailed the constitutional validityof Section 309 of the Indian Penal Code (IPC) contending that the sameis violative of Articles 14 and 21 of the Constitution. The Court posed 16questions. The relevant ones read thus:-

“(1) Has Article 21 any positive content or is it merely negative inCits reach?

(2) Has person residing in India right to die?

xxxx

(12) Is suicide against public policy?

D(13) Does commission of suicide damage the monopolistic powerof the State to take life?

(14) Is apprehension of ‘constitutional cannibalism’ justified?

(15) Recommendation of the Law Commission of India and follow-up steps taken, if any.E

(16) Global view. What is the legal position in other leadingcountries of the world regarding the matter at hand?”

15. Answering question No. (1), the Court, after referring to variousauthorities under Article 21, took note of the authority in State ofHimachal Pradesh and another v. Umed Ram Sharma and others[7]Fwherein it has been observed that the right to life embraces not onlyphysical existence but also the quality of life as understood in its richnessand fullness within the ambit of the Constitution. In the said case, theCourt had held that for residents of hilly areas, access to road was accessto life itself and so, necessity of road communication in reasonableGcondition was treated as constitutional imperative. P. Rathinamperceived the elevated positive content in the said ruling. Answeringquestion No. (2), the Court referred to the decision of the Bombay HighCourt in Maruti Shripati Dubal v. State of Maharashtra[8] that placed

6 (1994) 3 SCC 394H 7 (1986) 2 SCC 68 : AIR 1986 SC 847

reliance on R.C. Cooper v. Union of India[9] wherein it had been heldthat what is true of one fundamental right is also true of anotherfundamental right and on the said premise, the Bombay High Court hadopined that it cannot be seriously disputed that fundamental rights havetheir positive as well as negative aspects. Citing an example, it hadstated that freedom of speech and expression includes freedom not tospeak and similarly, the freedom of association and movement includesfreedom not to join any association or move anywhere and, accordingly,it stated that logically it must follow that the right to live would includethe right not to live, i.e., right to die or to terminate one’s life.

16. After so stating, this Court approved the view taken by theBombay High Court in Maruti Shripati Dubal and meeting the criticismof that judgment from certain quarters, the two-Judge Bench opinedthat the criticism was only partially correct because the negative aspectmay not be inferable on the analogy of the rights conferred by differentclauses of Article 19 and one may refuse to live if his life, according tothe person concerned, is not worth living. One may rightly think thathaving achieved all worldly pleasures or happiness, he has something toachieve beyond this life. This desire for communion with God may rightlylead even healthy mind to think that he would forego his right to liveand would rather choose not to live. In any case, person cannot beforced to enjoy the right to life to his detriment, disadvantage or disliking.Eventually, it concluded that the right to live of which Article 21 speaksof can be said to bring in its trail the right not to live forced life.

17. Answering all the questions, the Court declared Section 309IPC ultra vires and held that it deserved to be effaced from the statutebook to humanize our penal laws.

D.2 Gian Kaur’s case – The question of unconstitutionality ofSection 306 of the Indian Penal Code:

18. The dictum laid down by the two-Judge Bench in P. Rathinamdid not remain precedent for long. In Gian Kaur v. State of Punjab[10],the Constitution Bench considered the correctness of the decisionrendered in P. Rathinam. In the said case, the appellants were convictedby the trial Court under Section 306 IPC and the conviction was assailedon the ground that Section 306 IPC is unconstitutional and to sustain the

8 1987 Cri LJ 473 : (1986) 88 Bom LR 589

9 (1970) 2 SCC 298 : AIR 1970 SC 1318

10 (1996) 2 SCC 648

Asaid argument, reliance was placed on the authority in P. Rathinamwherein Section 309 IPC was held to be unconstitutional being violativeof Article 21 of the Constitution. It was urged that once Section 309 IPChad been held to be unconstitutional, any person abetting the commissionof suicide by another is merely assisting in the enforcement of thefundamental right under Article 21 and, therefore, Section 306 IPCBpenalizing abetment of suicide is equally violative of Article 21. Thetwo-Judge Bench before which these arguments were advanced in appealreferred the matter to Constitution Bench for deciding the same. Inthe course of arguments, one of the amicus curiae, Mr. F.S. Nariman,learned senior counsel, had submitted that the debate on euthanasia isCnot relevant for deciding the question of constitutional validity of Section309 and Article 21 cannot be construed to include within it the so-called“right to die” since Article 21 guarantees protection of life and libertyand not its extinction. The Constitution Bench, after noting thesubmissions, stated:-

D“17. … We, therefore, proceed now to consider the question ofconstitutional validity with reference to Articles 14 and 21 of theConstitution. Any further reference to the global debate on thedesirability of retaining penal provision to punish attempted suicideis unnecessary for the purpose of this decision. Undue emphasison that aspect and particularly the reference to euthanasia casesEtends to befog the real issue of the constitutionality of the provisionand the crux of the matter which is determinative of the issue.”

19. Thereafter, the Constitution Bench in Gian Kaur (supra)scrutinized the reasons given in P. Rathinam and opined that the Courtin the said case took the view that if person has right to live, he alsoFhas right not to live. The Court in Gian Kaur (supra) observed that theCourt in P. Rathinam (supra), while taking such view, relied on thedecisions which relate to other fundamental rights dealing with differentsituations and those decisions merely hold that the right to do an act alsoincludes the right not to do an act in that manner. The larger BenchGfurther observed that in all those decisions, it was the negative aspect ofthe right that was involved for which no positive or overt act was to bedone. The Constitution Bench categorically stated that this differencehas to be borne in mind while making the comparison for the applicationof this principle.

H20. Delving into the facet of committing suicide, the larger Bench

observed that when man commits suicide, he has to undertake certainpositive overt acts and the genesis of those acts cannot be traced to orbe included within the protection of the ‘right to life’ under Article 21. Italso held that the significant aspect of ‘sanctity of life’ should not beoverlooked. The Court further opined that by no stretch of imagination,extinction of life can be read to be included in protection of life becauseArticle 21, in its ambit and sweep, cannot include within it the right to dieas part of fundamental right guaranteed therein. The ConstitutionBench ruled:-

“‘Right to life’ is natural right embodied in Article 21 but suicideis an unnatural termination or extinction of life and, therefore,incompatible and inconsistent with the concept of “right to life”.With respect and in all humility, we find no similarity in the natureof the other rights, such as the right to “freedom of speech” etc.to provide comparable basis to hold that the “right to life” alsoincludes the “right to die”. With respect, the comparison isinapposite, for the reason indicated in the context of Article 21.The decisions relating to other fundamental rights wherein theabsence of compulsion to exercise right was held to be includedwithin the exercise of that right, are not available to support theview taken in P. Rathinam qua Article 21.”21. Adverting to the concept of euthanasia, the Court observedthat protagonism of euthanasia on the view that existence in persistentvegetative state (PVS) is not benefit to the patient of terminal illnessbeing unrelated to the principle of “sanctity of life” or the “right to livewith dignity” is of no assistance to determine the scope of Article 21 fordeciding whether the guarantee of “right to life” therein includes the“right to die”. The “right to life” including the right to live with humandignity would mean the existence of such right up to the end of naturallife. The Constitution Bench further explained that the said conceptionalso includes the right to dignified life up to the point of death includinga dignified procedure of death or, in other words, it may include the rightof dying man to also die with dignity when his life is ebbing out. It hasbeen clarified that the right to die with dignity at the end of life is not tobe confused or equated with the “right to die” an unnatural death curtailingthe natural span of life. Thereafter, the Court proceeded to state:-

“25. question may arise, in the context of dying man who is

Aterminally ill or in persistent vegetative state that he may bepermitted to terminate it by premature extinction of his life inthose circumstances. This category of cases may fall within theambit of the “right to die” with dignity as part of right to live withdignity, when death due to termination of natural life is certain andimminent and the process of natural death has commenced.TheseBare not cases of extinguishing life but only of acceleratingconclusion of the process of natural death which has alreadycommenced. The debate even in such cases to permit physician-assisted termination of life is inconclusive. It is sufficient to reiteratethat the argument to support the view of permitting termination ofClife in such cases to reduce the period of suffering during theprocess of certain natural death is not available to interpret Article21 to include therein the right to curtail the natural span of life.”

[Emphasis supplied]

22. In view of the aforesaid analysis and taking into considerationDvarious other aspects, the Constitution Bench declared Section 309 IPCas constitutional.

23. The Court held that the “right to live with human dignity”cannot be construed to include within its ambit the right to terminatenatural life, at least before the commencement of the process of certainEnatural death. It then examined the question of validity of Section 306IPC. It accepted the submission that Section 306 is constitutional. Whileadverting to the decision in Airedale N.H.S. Trust v. Bland[11], the Courtat the outset made it clear that it was not called upon to deal with theissue of physician-assisted suicide or euthanasia cases. The decision inFAiredale’s case (supra), was relating to the withdrawal of artificialmeasures for continuance of life by physician. In the context ofexistence in the persistent vegetative state of no benefit to the patient,the principle of sanctity of life, which is the concern of the State, wasstated to be not an absolute one. To bring home the distinction betweenactive and passive euthanasia, an illustration was noted in the context ofGadministering lethal drug actively to bring the patient’s life to an end.The significant dictum in that decision has been extracted in Gian Kaur(supra) wherein it is observed that it is not lawful for doctor to administera drug to his patient to bring about his death even though that course ispromoted by humanitarian desire to end his suffering and however 11 (1993) 2 WLR 316: (1993) 1 All ER 821, HLHgreat that suffering may be. Further, to act so is to cross the rubiconwhich runs between the care of the living patient on one hand andeuthanasia - actively causing his death to avoid or to end his suffering onthe other hand. It has been noticed in Airedale that euthanasia is notlawful at common law. In the light of the demand of responsible membersof the society who believe that euthanasia should be made lawful, it hasbeen observed in that decision that the same can be achieved by legislation.The Constitution Bench has merely noted this aspect in paragraph 41with reference to the dictum in Airedale case.

24. Proceeding to deal with physician assisted suicide, theConstitution Bench observed:-

“42. The decision of the United States Court of Appeals for theNinth Circuit in Compassion in Dying v. State of Washington[12],which reversed the decision of United States District Court, W.D.Washington reported in 850 Federal Supplement 1454, has alsorelevance. The constitutional validity of the State statute thatbanned physician-assisted suicide by mentally competent,terminally ill adults was in question. The District Court heldunconstitutional the provision punishing for promoting suicideattempt. On appeal, that judgment was reversed and theconstitutional validity of the provision was upheld.”

And again:-

“43. This caution even in cases of physician-assisted suicide issufficient to indicate that assisted suicides outside that categoryhave no rational basis to claim exclusion of the fundamentalprinciples of sanctity of life. The reasons assigned for attacking aprovision which penalises attempted suicide are not available tothe abettor of suicide or attempted suicide. Abetment of suicideor attempted suicide is distinct offence which is found enactedeven in the law of the countries where attempted suicide is notmade punishable. Section 306 IPC enacts distinct offence whichcan survive independent of Section 309 in the IPC. The learnedAttorney General as well as both the learned amicus curiae rightlysupported the constitutional validity of Section 306 IPC.”

Eventually, the Court in Gian Kaur (supra), apart from overruling

AP. Rathinam (supra), upheld the constitutional validity of Section 306IPC.

D.3 The approach in Aruna Shanbaug qua Passive Euthanasiavis-à-vis India:

25. Although the controversy relating to attempt to suicide orBabetment of suicide was put to rest, yet the issue of euthanasia remainedalive. It arose for consideration almost after span of eleven years inAruna Shanbaug (supra). writ petition was filed by the next friendof the petitioner pleading, inter alia, that the petitioner was sufferingimmensely because of an incident that took place thirty six years backon 27.11.1973 and was in Persistent Vegetative State (PVS) and in noCstate of awareness and her brain was virtually dead. The prayer of thenext friend was that the respondent be directed to stop feeding thepetitioner and to allow her to die peacefully. The Court noticed thatthere was some variance in the allegation made in the writ petition andthe counter affidavit filed by the Professor and Head of the hospitalDwhere the petitioner was availing treatment. The Court appointed teamof three very distinguished doctors to examine the petitioner thoroughlyand to submit report about her physical and mental condition. Theteam submitted joint report. The Court asked the team of doctors tosubmit supplementary report by which the meaning of the technicalterms in the first report could be explained. Various other aspects wereEalso made clear. It is also worth noting that the KEM Hospital wherethe petitioner was admitted was appointed as the next friend by theCourt because of its services rendered to the petitioner and the emotionalbonding and attachment with the petitioner.26. In Aruna Shanbaug (supra), after referring to the authorityFin Vikram Deo Singh Tomar v. State of Bihar[13], this Court reproducedparagraphs 24 and 25 from Gian Kaur’s case and opined that the saidparagraphs simply mean that the view taken in Rathinam’s case to theeffect that the ‘right to life’ includes the ‘right to die’ is not correct andpara 25 specifically mentions that the debate even in such cases to permitGphysician-assisted termination of life is inconclusive. The Court furtherobserved that it was held in Gian Kaur that there is no ‘right to die’under Article 21 of the Constitution and the right to life includes the rightto live with human dignity but in the case of dying person who isterminally ill or in permanent vegetative state, he may be allowed

13 1988 Supp. SCC 734 : AIR 1988 SC 1782

premature extinction of his life and it would not amount to crime.Thereafter, the Court took note of the submissions of the learned amicuscuriae to the effect that the decision to withdraw life support is taken inthe best interests of the patient by body of medical persons. TheCourt observed that it is not the function of the Court to evaluate thesituation and form an opinion on its own. The Court further noted that inEngland, the parens patriae jurisdiction over adult mentally incompetentpersons was abolished by statute and the Court has no power now togive its consent and in such situation, the Court only gives declarationthat the proposed omission by doctors is not unlawful.

27. After so stating, the Court addressed the legal issues, namely,active and passive euthanasia. It noted the legislations prevalent inNetherlands, Switzerland, Belgium, U.K., Spain, Austria, Italy, Germany,France and United States of America. It also noted that active euthanasiais illegal in all States in USA, but physician-assisted death is legal in theStates of Oregon, Washington and Montana. The Court also referred tothe legal position in Canada. Dealing with passive euthanasia, the two-Judge Bench opined that passive euthanasia is usually defined aswithdrawing medical treatment with deliberate intention of causing thepatient’s death. An example was cited by stating that if patient requireskidney dialysis to survive, not giving dialysis although the machine isavailable is passive euthanasia and similarly, withdrawing the machinewhere patient is in coma or on heart-lung machine support will ordinarilyresult in passive euthanasia. The Court also put non-administration oflife saving medicines like antibiotics in certain situations on the sameplatform of passive euthanasia. Denying food to person in coma orPVS has also been treated to come within the ambit of passive euthanasia.The Court copiously referred to the decision in Airedale. In Airedalecase, as has been noted in Aruna Shanbaug, Lord Goff observed thatdiscontinuance of artificial feeding in such cases is not equivalent tocutting mountaineer’s rope or severing the air pipe of deep sea diver.The real question has to be not whether the doctor should take coursein which he will actively kill his patient but whether he should continue toprovide his patient with medical treatment or care which, if continued,will prolong his life.

28. Lord Browne–Wilkinson was of the view that removing thenasogastric tube in the case of Anthony Bland cannot be regarded as apositive act causing death. The tube by itself, without the food being

90SUPREME COURT REPORTS

Asupplied through it, does nothing. Its non-removal by itself does notcause death since by itself, it does not sustain life. The learned Judgeobserved that removal of the tube would not constitute the actus reus ofmurder since such an act by itself would not cause death.

29. Lord Mustill observed:-B

“Threaded through the technical arguments addressed to the Housewere the strands of much wider position, that it is in the bestinterests of the community at large that Anthony Bland’s lifeshould now end. The doctors have done all they can. Nothingwill be gained by going on and much will be lost. The distressCof the family will get steadily worse. The strain on the devotionof medical staff charged with the care of patient whosecondition will never improve, who may live for years and whodoes not even recognise that he is being cared for, will continue tomount. The large resources of skill, labour and money now beingdevoted to Anthony Bland might in the opinion of many be moreDfruitfully employed in improving the condition of other patients,who if treated may have useful, healthy and enjoyable lives foryears to come.”

30. The two-Judge Bench further observed that the decision inAiredale by the House of Lords has been followed in number of casesEin U.K. and the law is now fairly well settled that in the case ofincompetent patients, if the doctors act on the basis of notified medicalopinion and withdraw the artificial life support system in the patient’sbest interest, the said act cannot be regarded as crime. The learnedJudges posed the question as to who is to decide what is that patient’sFbest interest where he is in PVS and, in that regard, opined that it isultimately for the Court to decide, as parens patriae, as to what is in thebest interest of the patient, though the wishes of close relatives and nextfriend and the opinion of medical practitioners should be given due weightin coming to its decision. For the said purpose, reference was made tothe opinion of Balcombe J. in Re J (A Minor) (Wardship: MedicalGTreatment)[14] whereby it has been stated that the Court as representativeof the Sovereign and as parens patriae will adopt the same standardwhich reasonable and responsible parent would do.

31. The two-Judge Bench referred to the decisions of the Supreme

14 [1991] 2 WLR 140: [1990] 3 All ER 930: [1991] Fam 33H

Court of United States in Washington v. Glucksberg[15]and Vacco v.Quill[16]which addressed the issue whether there was federalconstitutional road to assisted suicide. Analysing the said decisions andothers, the Court observed that the informed consent doctrine has becomefirmly entrenched in American Tort Law and, as logical corollary, laysfoundation for the doctrine that the patient who generally possesses theright to consent has the right to refuse treatment.

32. In the ultimate analysis, the Court opined that the Airedalecase is more apposite to be followed. Thereafter, the Court adverted tothe law in India and ruled that in Gian Kaur case, this Court had approvedthe decision of the House of Lords in Airedale and observed thateuthanasia could be made lawful only by legislation. After so stating,the learned Judges opined:-

“104. It may be noted that in Gian Kaur case although theSupreme Court has quoted with approval the view of the Houseof Lords in Airedale case, it has not clarified who can decidewhether life support should be discontinued in the case of anincompetent person e.g. person in coma or PVS. This vexedquestion has been arising often in India because there are largenumber of cases where persons go into coma (due to an accidentor some other reason) or for some other reason are unable to giveconsent, and then the question arises as to who should give consentfor withdrawal of life support. This is an extremely importantquestion in India because of the unfortunate low level of ethicalstandards to which our society has descended, its raw andwidespread commercialisation, and the rampant corruption, andhence, the Court has to be very cautious that unscrupulous personswho wish to inherit the property of someone may not get himeliminated by some crooked method.”

33. After so stating, the two-Judge Bench dwelled upon the conceptof brain dead and various other aspects which included withdrawal oflife support of patient in PVS and, in that context, ruled thus:-

“125. In our opinion, if we leave it solely to the patient’s relativesor to the doctors or next friend to decide whether to withdraw thelife support of an incompetent person there is always risk in ourcountry that this may be misused by some unscrupulous persons

15 138 L Ed 2d 772 : 521 US 702 (1997)

16 138 L Ed 2d 834 : 521 US 793 (1997)

Awho wish to inherit or otherwise grab the property of the patient.Considering the low ethical levels prevailing in our society todayand the rampant commercialisation and corruption, we cannot ruleout the possibility that unscrupulous persons with the help of someunscrupulous doctors may fabricate material to show that it is aterminal case with no chance of recovery. There are doctors andBdoctors. While many doctors are upright, there are others whocan do anything for money (see George Bernard Shaw’s playThe Doctor’s Dilemma). The commercialisation of our societyhas crossed all limits. Hence we have to guard against the potentialof misuse (see Robin Cook’s novel Coma). In our opinion, whileCgiving great weight to the wishes of the parents, spouse, or otherclose relatives or next friend of the incompetent patient and alsogiving due weight to the opinion of the attending doctors, we cannotleave it entirely to their discretion whether to discontinue the lifesupport or not. We agree with the decision of Lord Keith inAiredale case[5]that the approval of the High Court should beDtaken in this connection. This is in the interest of the protection ofthe patient, protection of the doctors, relatives and next friend,and for reassurance of the patient’s family as well as the public.This is also in consonance with the doctrine of parens patriaewhich is well-known principle of law.”

E34. After so laying down, the Court referred to the authorities inCharan Lal Sahu v. Union of India[17] and State of Kerala and anotherv. N.M. Thomas and others[18] and further opined that the High Courtcan grant approval for withdrawing life support of an incompetent personunder Article 226 of the Constitution because Article 226 gives abundant

Fpower to the High Court to pass suitable orders on the application filedby the near relatives or next friend or the doctors/hospital staff prayingfor permission to withdraw the life support of an incompetent person.Dealing with the procedure to be adopted by the High Court when suchapplication is filed, the Court ruled that when such an application is filed,the Chief Justice of the High Court should forthwith constitute BenchGof at least two Judges who should decide to grant approval or not andbefore doing so, the Bench should seek the opinion of Committee ofthree reputed doctors to be nominated by the Bench after consultingsuch medical authorities/medical practitioners as it may deem fit. 17 (1990) 1 SCC 613H 18 (1976) 2 SCC 310

COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA[DIPAK MISRA, CJI]

Amongst the three doctors, as directed, one should be Neurologist,one should be Psychiatrist and the third Physician. The Court furtherdirected:-

“134. … The committee of three doctors nominated by the Benchshould carefully examine the patient and also consult the recordof the patient as well as take the views of the hospital staff andsubmit its report to the High Court Bench. Simultaneously withappointing the committee of doctors, the High Court Bench shallalso issue notice to the State and close relatives e.g. parents,spouse, brothers/ sisters, etc. of the patient, and in their absencehis/her next friend, and supply copy of the report of the doctor’scommittee to them as soon as it is available. After hearing them,the High Court Bench should give its verdict.

135. The above procedure should be followed all over India untilParliament makes legislation on this subject.

136. The High Court should give its decision speedily at the earliest,since delay in the matter may result in causing great mental agonyto the relatives and persons close to the patient. The High Courtshould give its decision assigning specific reasons in accordancewith the principle of “best interest of the patient” laid down by theHouse of Lords in Airedale case. The views of the near relativesand committee of doctors should be given due weight by the HighCourt before pronouncing final verdict which shall not besummary in nature.”

35. We must note here that the two-Judge Bench declined togrant the permission after perusing the medical reports. For the sake ofcompleteness, we think it apt to reproduce the reasoning:-

“122. From the above examination by the team of doctors, it cannotbe said that Aruna Shanbaug is dead. Whatever the condition ofher cortex, her brainstem is certainly alive. She does not need aheart-lung machine. She breathes on her own without the help ofa respirator. She digests food, and her body performs otherinvoluntary functions without any help. From the CD (which wehad screened in the courtroom on 2-3-2011 in the presence of thecounsel and others) it appears that she can certainly not be calleddead. She was making some sounds, blinking, eating food put inher mouth, and even licking with her tongue morsels on her mouth.

94SUPREME COURT REPORTS

AHowever, there appears little possibility of her coming out of PVSin which she is in. In all probability, she will continue to be in thestate in which she is in till her death.”

D.4 The Reference:

36. The aforesaid matter was decided when the present WritBPetition was pending for consideration. The present petition was,thereafter, listed before three-Judge Bench which noted the submissionsadvanced on behalf of the petitioner and also that of the learned AdditionalSolicitor General on behalf of the Union of India. Reliance was placedon the decision in Aruna Shanbaug. The three-Judge Bench reproducedCparagraphs 24 and 25 from Gian Kaur and noted that the ConstitutionBench did not express any binding view on the subject of euthanasia,rather it reiterated that the legislature would be the appropriate authorityto bring the change.

37. After so holding, it referred to the understanding of Gian KaurDin Aruna Shanbaug by the two-Judge Bench and reproduced paragraphs21 and 101 from the said judgment:-

“21. We have carefully considered paras 24 and 25 in Gian Kaurcase and we are of the opinion that all that has been said thereinis that the view in Rathinam case that the right to life includes theEright to die is not correct. We cannot construe Gian Kaur case tomean anything beyond that. In fact, it has been specificallymentioned in para 25 of the aforesaid decision that ‘thedebate even in such cases to permit physician-assistedtermination of life is inconclusive’. Thus it is obvious that nofinal view was expressed in the decision in Gian Kaur caseFbeyond what we have mentioned above.

“101. The Constitution Bench of the Supreme Court in Gian Kaurv. State of Punjab held that both euthanasia and assisted suicideare not lawful in India. That decision overruled the earlier two-Judge Bench decision of the Supreme Court in P. Rathinam v.Union of India. The Court held that the right to life under Article21 of the Constitution does not include the right to die (vide SCCpara 33). In Gian Kaur case the Supreme Court approved of

the decision of the House of Lords in Airedale case andobserved that euthanasia could be made lawful only bylegislation.”

(Emphasis supplied)

38. Commenting on the said analysis, the three-Judge Bench wenton to say:-

“13. Insofar as the above paragraphs are concerned, ArunaShanbaug aptly interpreted the decision of the Constitution Benchin Gian Kaur and came to the conclusion that euthanasia can beallowed in India only through valid legislation. However, it isfactually wrong to observe that in Gian Kaur, the ConstitutionBench approved the decision of the House of Lords in AiredaleN.H.S. Trust v. Bland. Para 40 of Gian Kaur, clearly statesthat :

“40. … Even though it is not necessary to deal withphysician-assisted suicide or euthanasia cases, briefreference to this decision cited at the Bar may be made.”

(Emphasis supplied)

Thus, it was mere reference in the verdict and it cannot beconstrued to mean that the Constitution Bench in Gian Kaurapproved the opinion of the House of Lords rendered in Airedale.To this extent, the observation in para 101 of Aruna Shanbaug isincorrect.”

39. From the aforesaid, it is clear that the three-Judge Benchexpressed the view that the opinion of the House of Lords in Airedalehas not been approved in Gian Kaur (supra) and to that extent, theobservation in Aruna Shanbaug (supra) is incorrect. After so stating,the three-Judge Bench opined that Aruna Shanbaug (supra) upholdsthe authority of passive euthanasia and lays down an elaborate procedurefor executing the same on the wrong premise that the Constitution Benchin Gian Kaur (supra) had upheld the same. Thereafter, considering theimportant question of law involved which needs to be reflected in thelight of social, legal, medical and constitutional perspectives, in order tohave clear enunciation of law, it referred the matter for considerationby the Constitution Bench of this Court for the benefit of humanity as awhole. The three-Judge bench further observed that it was refraining

Afrom framing any specific questions for consideration by the ConstitutionBench as it would like the Constitution Bench to go into all the aspectsof the matter and lay down exhaustive guidelines. That is how the matterhas been placed before us.

E. Our analysis of Gian Kaur:B

40. It is the first and foremost duty to understand what has beenstated by the Constitution Bench in Gian Kaur’s case. It has referredto the decision in Airedale (supra) that has been recapitulated in ArunaShanbaug case which was case relating to withdrawal of artificialmeasures of continuance of life by the physician. It is relevant to mentionChere that the Constitution Bench in Gian Kaur categorically noted thatit was not necessary to deal with physician–assisted suicide or euthanasiacases though brief reference to the decisions cited by the Bar wasrequired to be made. The Constitution Bench noted that Airedale heldthat in the context of existence in the persistent vegetative state of nobenefit to the patient, the principle of sanctity of life, which is the concernDof the State, was not an absolute one. The larger bench further noticedthat in Airedale, it had been stated that in such cases also, the existingcrucial distinction between cases in which physician decides not toprovide or to continue to provide, for his patient, treatment or care whichcould or might prolong his life, and those in which he decides, for example,Eby administering lethal drug actively to bring his patient’s life to an end,was indicated. Thereafter, while again referring to Airedale case, thelarger bench observed that it was case relating to withdrawal of artificialmeasures for continuance of life by the physician. After so stating, theCourt reproduced the following passage from the opinion of Lord Goffof Chieveley:-F

“... But it is not lawful for doctor to administer drug to hispatient to bring about his death, even though that course is promptedby humanitarian desire to end his suffering, however great thatsuffering may be : See Reg v. Cox, (unreported), 18 September(1992). So to act is to cross the Rubicon which runs between onGthe one hand the care of the living patient and on the other handeuthanasia - actively causing his death to avoid or to end hissuffering. Euthanasia is not lawful at common law. It is ofcourse well known that there are many responsible membersof our society who believe that euthanasia should be madelawful; but that result could, I believe, only be achieved by

legislation which expresses the democratic will that sofundamental change should be made in our law, and can, ifenacted, ensure that such legalised killing can only be carriedout subject to appropriate supervision and control....”

(Emphasis supplied in Gian Kaur)

41. After reproducing the said passage, the Court opined thus:-

“41. The desirability of bringing about change was consideredto be the function of the legislature by enacting suitable lawproviding therein adequate safeguards to prevent any possibleabuse.”

42. At this stage, it is necessary to clear the maze whether theConstitution Bench in Gian Kaur had accepted what has been held inAiredale. On careful and anxious reading of Gian Kaur, it is noticeablethat there has been narration, reference and notice of the view taken inAiredale case. It is also worth noting that the Court was concernedwith the constitutional validity of Section 309 IPC that deals with attemptto commit suicide and Section 306 IPC that provides for abetment tocommit suicide. As noted earlier, the Constitution Bench, whiledistinguishing the case of dying man who is terminally ill or in persistentvegetative state and his termination or premature extinction of life,observed that the said category of cases may fall within the ambit ofright to die with dignity as part of right to life with dignity when deathdue to termination of natural life is inevitable and imminent and the processof natural death has commenced. The Constitution Bench further opinedthat the said cases do not amount to extinguishing the life but only amountto accelerating the process of natural death which has alreadycommenced and, thereafter, the Constitution Bench stated that the debatewith regard to physician assisted suicide remains inconclusive. The largerBench has reiterated that the cases pertaining to premature extinctionof life during the process of certain natural death of patients who areterminally ill or in persistent vegetative state were of assistance tointerpret Article 21 of the Constitution to include therein the right tocurtail the natural span of life. On seemly understanding of the judgmentin Gian Kaur, we do not find that it has decried euthanasia as concept.On the contrary, it gives an indication that in such situations, it is theacceleration of the process of dying which may constitute part of rightto life with dignity so that the period of suffering is reduced. We are

DEFG

Aabsolutely conscious that judgment is not to be construed as statutebut our effort is to understand what has been really expressed in GianKaur. Be it clarified, it is understood and appreciated that there is adistinction between positive or overt act to put an end to life by theperson living his life and termination of life so that an individual does notremain in vegetative state or, for that matter, when the death is certainBbecause of terminal illness and he remains alive with the artificiallyassisted medical system. In Gian Kaur, while dealing with the attemptto commit suicide, the Court clearly held that when man commits suicide,he has to undertake certain positive overt acts and the genesis of thoseacts cannot be tested to or be included within the protection of theCexpression “right to life” under Article 21 of the Constitution. It wasalso observed that dignified procedure of death may include the rightof dying man to also die with dignity when the life is ebbing out. Thisis how the pronouncement in Gian Kaur has to be understood. It is alsonot the ratio of the authority in Gian Kaur that euthanasia has to beintroduced only by legislation. What has been stated in paragraph 41Dof Gian Kaur is what has been understood to have been held in Airedale’scase. The Court has neither expressed any independent opinion nor hasit approved the said part or the ratio as stated in Airedale. There hasbeen only reference to Airedale’s case and the view expressed thereinas regards legislation. Therefore, the perception in Aruna ShanbaugEthat the Constitution Bench has approved the decision in Airedale is notcorrect. It is also quite clear that Gian Kaur does not lay down thatpassive euthanasia can only be thought of or given effect to by legislation.Appositely understood, it opens an expansive sphere of Article 21 of theConstitution. Therefore, it can be held without any hesitation that GianKaur has neither given any definite opinion with regard to euthanasiaFnor has it stated that the same can be conceived of only by legislation.

F. Our analysis of Aruna Shanbaug qua legislation:

43. Having said this, we shall focus in detail what has been statedin Aruna Shanbaug. In paragraph 101 which has been reproducedGhereinbefore, the two-Judge Bench noted that Gian Kaur has approvedthe decision of the House of Lords in Airedale and observed thateuthanasia could be made lawful only by legislation. This perception,according to us, is not correct. As already stated, Gian Kaur does notlay down that passive euthanasia could be made lawful only by legislation.In paragraph 41 of the said judgment, the Constitution Bench was onlyH

adverting to what has been stated by Lord Goff of Chieveley in Airedale’scase. However, this expression of view of Aruna Shanbaug which hasnot been accepted by the referral Bench makes no difference to ourpresent analysis. We unequivocally express the opinion that Gian Kauris not binding precedent for the purpose of laying down the principlethat passive euthanasia can be made lawful “only by legislation.”

G. The Distinction between Active and Passive Euthanasia:

44. As first step, it is imperative to understand the concept ofeuthanasia before we enter into the arena of analysis of the expandedright of Article 21 in Gian Kaur and the understanding of the same.Euthanasia is basically an intentional premature termination of anotherperson’s life either by direct intervention (active euthanasia) or bywithholding life-prolonging measures and resources (passive euthanasia)either at the express or implied request of that person (voluntaryeuthanasia) or in the absence of such approval/consent (non-voluntaryeuthanasia). Aruna Shanbaug has discussed about two categories ofeuthanasia - active and passive. While dealing with active euthanasia,also known as “positive euthanasia” or “aggressive euthanasia”, it hasbeen stated that the said type of euthanasia entails positive act oraffirmative action or act of commission entailing the use of lethalsubstances or forces to cause the intentional death of person by directintervention, e.g., lethal injection given to person with terminal cancerwho is in terrible agony. Passive euthanasia, on the other hand, alsocalled “negative euthanasia” or “non-aggressive euthanasia”, entailswithdrawing of life support measures or withholding of medical treatmentfor continuance of life, e.g., withholding of antibiotics in case of patientwhere death is likely to occur as result of not giving the said antibioticsor removal of the heart lung machine from patient in coma. The two-Judge Bench has also observed that the legal position across the worldseems to be that while active euthanasia is illegal unless there is alegislation permitting it, passive euthanasia is legal even without legislation,provided certain conditions and safeguards are maintained. The Courthas drawn further distinction between voluntary euthanasia and non-voluntary euthanasia in the sense that voluntary euthanasia is where theconsent is taken from the patient and non-voluntary euthanasia is wherethe consent is unavailable, for instances when the patient is in coma or isotherwise unable to give consent. Describing further about activeeuthanasia, the Division Bench has observed that the said type of

Aeuthanasia involves taking specific steps to cause the patient’s deathsuch as injecting the patient with some lethal substance, i.e., sodiumpentothal which causes, in person, state of deep sleep in fewseconds and the person instantly dies in that state. That apart, the Courthas drawn distinction between euthanasia and physician assisted dyingand noted that the difference lies in the fact as to who administers theBlethal medication. It has been observed that in euthanasia, physicianor third party administers it while in physician assisted suicide, it is thepatient who does it though on the advice of the doctor. Elaboratingfurther, the two-Judge Bench has opined that the predominant differencebetween “active” and “passive” euthanasia is that in the former, specificCact is done to end the patient’s life while the latter covers situationwhere something is not done which is necessary in preserving the patient’slife. The main idea behind the distinction, as observed by the Bench, isthat in passive euthanasia, the doctors are not actively killing the patient,they are merely not saving him and only accelerating the conclusion ofthe process of natural death which has already commenced.D45. The two-Judge Bench, thereafter, elaborated on passiveeuthanasia and gave more examples of cases within the ambit of passiveeuthanasia. The learned Judges further categorized passive euthanasiainto voluntary passive euthanasia and non-voluntary passive euthanasia.The learned Judges described voluntary passive euthanasia as situationEwhere person who is capable of deciding for himself decides that hewould prefer to die because of various reasons whereas non-voluntarypassive euthanasia has been described to mean that person is not in aposition to decide for himself, e.g., if he is in coma or PVS.

46. While scrutinizing the distinction between active and passiveFeuthanasia, the paramount aspect is “foreseeing the hastening of death”.The said view has been propagated in several decisions all over theworld. The Supreme Court of Canada, in the case of Rodriguez v. BritishColumbia (Attorney General)[19], drew the distinction between thesetwo forms of euthanasia on the basis of intention. Echoing similarGview, the Supreme Court of the United States affirmed the said distinctionon the basis of “intention” in the case of Vacco (supra) wherein ChiefJustice Rehnquist observed that the said distinction coheres with thefundamental legal principles of causation and intention. In case whenthe death of patient occurs due to removal of life-supporting measures,

19 85 C.C.C. (3d) 15 : (1993) 3 S.C.R. 519H

the patient dies due to an underlying fatal disease without any interveningact on the part of the doctor or medical practitioner, whereas in thecases coming within the purview of active euthanasia, for example, whenthe patient ingests lethal medication, he is killed by that medication.

47. This distinction on the basis of “intention” further finds supportin the explanation provided in the case In the matter of Claire C.Conroy[20] wherein the Court made an observation that people who refuselife-sustaining medical treatment may not harbour specific intent todie, rather they may fervently wish to live but do so free of unwantedmedical technology, surgery or drugs and without protracted suffering.

48. Another distinction on the basis of “action and non-action”was advanced in the Airedale case. Drawing crucial distinction betweenthe two forms of euthanasia, Lord Goff observed that passive euthanasiaincludes cases in which doctor decides not to provide, or to continue toprovide, for his patient, treatment or care which could prolong his lifeand active euthanasia involves actively ending patient’s life, for example,by administering lethal drug. As per the observations made by LordGoff, the former can be considered lawful either because the doctorintends to give effect to his patient’s wishes by withholding the treatmentor care, or even in certain circumstances in which the patient isincapacitated from giving his consent. However, active euthanasia, evenvoluntary, is impermissible despite being prompted by the humanitariandesire to end the suffering of the patient.

49. It is perhaps due to the distinction evolved between these twoforms of euthanasia, which has gained moral and legal sanctity all over,that most of the countries today have legalized passive euthanasia eitherby way of legislations or through judicial interpretation but there remainsuncertainty whether active euthanasia should be granted legal status.

H. Euthanasia : International Position:

H.1 U.K. Decisions:

H.1.1 Airedale Case:

50. In the obtaining situation, we shall now advert to the opinionsstated in Airedale case. In the said case, one Anthony Bland, supporterof Liverpool Football Club, who had gone to Hillsborough Ground,

20 98 N.J. 321 (1985) : (1985) 486 A.2d 1209 (N.J.)

Asuffered severe injuries as result of which supply to his brain wasinterrupted. Eventually, he suffered an irreversible damage to the brainas consequence of which he got into condition of persistent vegetativestate (PVS). He became incapable of voluntary movement and couldfeel no pain. He was not in position to feel or communicate. To keephim alive, artificial means were taken recourse to. In such state ofBaffairs, the treating doctors and the parents of Bland felt that no fruitfulpurpose would be served by continuing the medical aid. As there weredoubts with regard to stoppage of medical care which may incur criminalliability, declaration from the British High Court was sought to resolvethe doubts. The Family Division of the High Court granted the declarationCwhich was affirmed by the Court of Appeal. The matter travelled to theHouse of Lords.

51. Lord Keith of Kinkel opined that regard should be had to thewhole artificial regime which kept Anthony Bland alive and it was incorrectto direct attention exclusively to the fact that nourishment was beingDprovided. In his view, the administration of nourishment by the meansadopted involved the application of medical technique.

52. Lord Keith observed that in general, it would not be lawful fora medical practitioner who assumed responsibility for the care of anunconscious patient simply to give up treatment in circumstances whereEcontinuance of it would confer some benefit on the patient. On the otherhand, medical practitioner is under no duty to continue to treat such apatient where large body of informed and responsible medical opinionis to the effect that no benefit at all would be conferred by continuanceof treatment. Existence in vegetative state with no prospect of recoveryis, by that opinion, regarded as not being benefit, and that, if notFunarguably correct, at least forms proper basis for the decision todiscontinue treatment and care. He was of the further opinion thatsince existence in PVS is not benefit to the patient, the principle ofsanctity of life is no longer an absolute one. It does not compel medicalpractitioner to treat patient, who will die if not treated, contrary to theGexpress wishes of the patient. It does not compel the temporary keepingalive of patients who are terminally ill where to do so would merelyprolong their suffering. On the other hand, it forbids the taking of activemeasures to cut short the life of terminally ill patient.

53. Lord Keith further stated that it does no violence to the principle

of sanctity of life to hold that it is lawful to cease to give medical treatmentand care to PVS patient who has been in that state for over threeyears considering that to do so involves invasive manipulation of thepatient’s body to which he has not consented and which confers nobenefit upon him. He also observed that the decision whether or not thecontinued treatment and care of PVS patient confers any benefit onhim is essentially one for the practitioners in charge.

54. Lord Goff of Chieveley also held that the principle of sanctityof life is not an absolute one and there is no absolute rule that the patient’slife must be prolonged by such treatment or care, if available, regardlessof the circumstances.

55. Lord Goff observed that though he agreed that the doctor’sconduct in discontinuing life support can properly be categorised as anomission, yet discontinuation of life support is, for the present purposes,no different from not initiating life support in the first place as in such acase, the doctor is simply allowing his patient to die in the sense that heis desisting from taking step which might, in certain circumstances,prevent his patient from dying as result of his pre-existing condition;and as matter of general principle, an omission such as this will not beunlawful unless it constitutes breach of duty to the patient.56. The learned Law Lord further observed that the doctor’sconduct is to be differentiated from that of, for example, an interloperwho maliciously switches off life support machine in the sense thatalthough the interloper performs the same act as the doctor whodiscontinues life support, yet the doctor, in discontinuing life support, issimply allowing his patient to die of his pre-existing condition, whereasthe interloper is actively intervening to stop the doctor from prolongingthe patient’s life, and such conduct cannot possibly be categorised as anomission. This distinction as per Lord Goff appears to be useful in thecontext as it can be invoked to explain how discontinuance of life supportcan be differentiated from ending patient’s life by lethal injection.Lord Goff stated that the reason for this difference is that the lawconsiders discontinuance of life support to be consistent with the doctor’sduty to care for his patient, but it does not, for reasons of policy, considerthat it forms any part of his duty to give his patient lethal injection toput the patient out of his agony.

57. Emphasising on the patient’s best interest principle, Lord Goff

Areferred to v. West Berkshire Health Authority[21] wherein the Houseof Lords stated the legal principles governing the treatment of patientwho, for the reason that he was of unsound mind or that he had beenrendered unconscious by accident or by illness, was incapable of statingwhether or not he consented to the treatment or care. In suchcircumstances, doctor may lawfully treat such patient if he acts inBhis best interests, and indeed, if the patient is already in his care, he isunder duty so to treat him.

58. Drawing an analogy, Lord Goff opined that decision by adoctor whether or not to initiate or to continue to provide treatment orcare which could or might have the effect of prolonging such patient’sClife should also be governed by the same fundamental principle of thepatient’s best interest. The learned Law Lord further stated that thedoctor who is caring for such patient cannot be put under an absoluteobligation to prolong his life by any means available to the doctor, regardlessof the quality of the patient’s life. Common humanity requires otherwiseDas do medical ethics and good medical practice accepted in the UnitedKingdom and overseas. Lord Goff said that the doctor’s decision to takeor not to take any step must be made in the best interests of the patient(subject to his patient’s ability to give or withhold his consent).

59. Lord Goff further stated that in such cases, the question is notEwhether it is in the best interests of the patient that he should die, ratherthe correct question for consideration is whether it is in the best interestsof the patient that his life should be prolonged by the continuance ofsuch form of medical treatment or care. In Lord Goff’s view, the correctformulation of the question is of particular importance in such cases asthe patient is totally unconscious and there is no hope whatsoever of anyFamelioration of his condition. Lord Goff opined that if the question isasked whether it is in the best interests of the patient to continue thetreatment which has the effect of artificially prolonging his life, thatquestion can sensibly be answered to the effect that the patient’s bestinterests no longer require such treatment to be continued.G

60. Lord Goff opined that medical treatment is neither appropriatenor requisite simply to prolong patient’s life when such treatment hasno therapeutic purpose of any kind and such treatment is futile becausethe patient is unconscious and there is no prospect of any improvementin his condition. Thereafter, the learned Law Lord observed that regard 21 [1989] 2 All ER 545 : [1990] 2 AC 1H

should also be had to the invasive character of the treatment and to theindignity to which patient is subjected by prolonging his life by artificialmeans which, in turn, causes considerable distress to his family. In suchcases, Lord Goff said that it is the futility of the treatment which justifiesits termination and in such circumstances, doctor is not required toinitiate or to continue life- prolonging treatment or care keeping in mindthe best interests of the patient.

61. Lord Goff, referring to West Berkshire Health Authority(supra), said that it was stated therein that where doctor providestreatment to person who is incapacitated from saying whether or nothe consents to it, the doctor must, when deciding on the form of treatment,act in accordance with responsible and competent body of relevantprofessional opinion on the principles set down in Bolam v. FriernHospital Management Committee[22]. Lord Goff opined that this principlemust equally be applicable to decisions to initiate or to discontinue lifesupport as it is to other forms of treatment. He also referred to aDiscussion Paper on Treatment of Patients in Persistent Vegetative Stateissued in September, 1992 by the Medical Ethics Committee of the BritishMedical Association pertaining to four safeguards in particular which, inthe Committee’s opinion, should be observed before discontinuing lifesupport for such patients, which were: (1) every effort should be madeat rehabilitation for at least six months after the injury; (2) the diagnosisof irreversible PVS should not be considered confirmed until at least 12months after the injury with the effect that any decision to withhold life-prolonging treatment will be delayed for that period; (3) the diagnosisshould be agreed by two other independent doctors; and (4) generally,the wishes of the patient’s immediate family will be given great weight.

62. According to him, the views expressed by the Committee onthe subject of consultation with the relatives of PVS patients areconsistent with the opinion expressed by the House of Lords in WestBerkshire Health Authority (supra) that it is good practice for thedoctor to consult relatives. Lord Goff observed that the Committee wasfirmly of the opinion that the relatives’ views would not be determinativeof the treatment inasmuch as if that would have been the case, therelatives would be able to dictate to the doctors what is in the best interestsof the patient which cannot be right. Even so, decision to withhold life-prolonging treatment such as artificial feeding must require close

22 [1957] 1 W.L.R. 582 : [1957] 2 All ER 118

Aco-operation with those close to the patient and it is recognised that, inpractice, their views and the opinions of doctors will coincide in manycases.

63. Thereafter, Lord Goff referred to American cases, namely,Re Quinlan[23] and Superintendent of Belchertown State School v.BSaikewicz[24] wherein the American Courts adopted what is called thesubstituted judgment test which involves detailed inquiry into the patient’sviews and preferences. As per the substituted judgment test, when thepatient is incapacitated from expressing any view on the question whetherlife-prolonging treatment should be withheld, an attempt is made todetermine what decision the patient himself would have made had heCbeen able to do so. In later American cases concerning PVS patients, ithas been held that in the absence of clear and convincing evidence ofthe patient’s wishes, the surrogate decision-maker has to implement asfar as possible the decision which the incompetent patient would havemade if he was competent.D64. However, Lord Goff acknowledged that any such test(substituted judgment test) does not form part of English law in relationto incompetent adults on whose behalf nobody has power to give consentto medical treatment. In contrast, England followed straightforwardtest based on the best interests of the patient coined by the House ofELords in West Berkshire Health Authority (supra). He opined that thesame test (patient’s best interest) should be applied in the case of PVSpatients where the question is whether life-prolonging treatment shouldbe withheld. The learned Law Lord further observed that consistentwith the best interests test, anything relevant to the application of thetest may also be taken into account and if the personality of the patientFis relevant to the application of the test (as it may be in cases where thevarious relevant factors have to be weighed), it may be taken into accountas was done in Re J. (A Minor) (Wardship: Medical Treatment)(supra). But where the question is whether life support should be withheldfrom PVS patient, it is difficult to see how the personality of the patientGcan be relevant, though it may be of comfort to his relatives if theybelieve, as in the present case, and indeed may well be so in many othercases, that the patient would not have wished his life to be artificiallyprolonged if he was totally unconscious and there was no hope of 23 355 A. 2d 647 : (1976) 70 NJ 10 24 (1977) 373 Mass 728 : 370 N.E. 2d 417 (1977)H

improvement in his condition.

65. As regards the extent to which doctors should, as matter ofpractice, seek the guidance of the court by way of an application fordeclaratory relief before withholding life-prolonging treatment from aPVS patient, Lord Goff took note of the judgment of Sir Stephen BrownP, the President of the Family Division, wherein he held that the opinionof the court should be sought in all cases of similar nature. Lord Goffalso noted that Sir Thomas Bingham M.R. in the Court of Appealexpressed his agreement with Sir Stephen Brown P. in the followingwords:-

“This was in my respectful view wise ruling, directed to theprotection of patients, the protection of doctors, the reassuranceof patients’ families and the reassurance of the public. The practiceproposed seems to me desirable. It may very well be that with thepassage of time body of experience and practice will build upwhich will obviate the need for application in every case, but forthe time being I am satisfied that the practice which the Presidentdescribed should be followed.”

66. It is worthy to mention that Lord Goff was of the view thatthere was considerable cost involved in obtaining guidance from thecourt in cases of such nature. He took note of the suggestions forwardedby Mr. Francis, the counsel for the respondents, to the effect thatreference to the court was required in certain specific cases, i.e., (1)where there was known to be medical disagreement as to the diagnosisor prognosis, and (2) problems had arisen with the patient’s relatives-disagreement by the next of kin with the medical recommendation; actualor apparent conflict of interest between the next of kin and the patient;dispute between members of the patient’s family; or absence of anynext of kin to give consent. Lord Goff said that the President of theFamily Division should be able to relax the present requirement so as tolimit applications for declarations only to those cases in which there is aspecial need for the procedure to be invoked.

67. Lord Mustill observed that an argument had been advancedthat it was in the best interest of the community at large that AnthonyBland’s life should end. The doctors had done all they could have done.It was lose-lose situation as nothing would be gained by continuingBland’s treatment and much would be lost. The distress of Bland’s

Afamily members would steadily get worse and so would be the strain ofthe medical staff charged with the care of Bland despite the fact thatBland’s condition would never improve and he would never recognizethat he was being cared for. Further, the learned Law Lord observedthat large resources in terms of skill, labour and money had been appliedfor maintaining Bland in his present condition which, in the opinion ofBmany, could be fruitfully employed in improving the conditions of otherpatients who, if treated, may have useful, healthy and enjoyable lives foryears to come.

68. Lord Lowry, agreeing with the reasoning of Lord Goff ofChieveley with whom the other learned Law Lords were also in generalCagreement, dismissed the appeal. In coming to this conclusion, LordLowry opined that the court, in reaching decision according to law,ought to give weight to informed medical opinion both on the point whetherto continue the artificial feeding regime of patient in PVS and also onthe question of what is in the best interests of patient. Lord LowryDrejected the idea that informed medical opinion in these respects wasmerely disguise which, if accepted, would legalise euthanasia. LordLowry also rejected the Official Solicitor’s argument that the doctorswere under “duty to feed” their patients in PVS as in the instant case,the doctors overwhelmingly held the opposite view which had been upheldby the courts below. The doctors considered that it was in the patient’sEbest interests that they should stop feeding him. Lord Lowry observedthat the learned Law Lords had gone further by saying that the doctorsare not entitled to feed patient in PVS without his consent which cannotbe obtained.69. Lord Lowry further opined that there is no proposed guilty actFin stopping the artificial feeding regime inasmuch as if it is not in theinterests of an insentient patient to continue the life- supporting care andtreatment, the doctor would be acting unlawfully if he continued thecare and treatment and would perform no guilty act by discontinuing it.There is gap between the old law on the one hand and new medicineGand new ethics on the other. It is important, particularly in the area ofcriminal law which governs conduct, that the society’s notions of whatthe law is and what is right should coincide. One role of the legislator, asper Lord Lowry, is to detect any disparity between these notions and totake appropriate action to close the gap.

H70. Lord Browne-Wilkinson observed that the ability to sustain

life artificially is relatively recent phenomenon. Existing law may notprovide an acceptable answer to the new legal questions which it raises.

71. In the opinion of the learned Law Lord, there exists no doubtthat it is for the Parliament and not the courts to decide the broaderissues raised by cases of such nature. He observed that recentdevelopments in medical science have fundamentally changed themeaning of death. In medicine, the cessation of breathing or of heartbeatis no longer death because by the use of ventilator, lungs which in theunaided course of nature stop breathing can be made to breathe artificiallythereby sustaining the heartbeat. Thus, people like Anthony Bland, whowould have previously died through inability to swallow food, can bekept alive by artificial feeding. This has led the medical profession, inLord Browne-Wilkinson’s view, to redefine death in terms of brain stemdeath, i.e., the death of that part of the brain without which the bodycannot function at all without assistance. He further said that if thejudges seek to develop new law to regulate the new circumstances, thelaw so laid down will reflect the judges’ views on the underlying ethicalquestions, questions on which there is legitimate division of opinion.He proceeded to state that where case raises wholly new moral andsocial issues, it is neither for the judges to develop new principles of lawnor would it be legitimate for the Judges to arrive at conclusion as towhat is for the benefit of one individual whose life is in issue.

72. For the said reasons, the learned Law Lord observed that it isimperative that the moral, social and legal issues raised by the case athand should be considered by the Parliament and only if the Parliamentfails to act, the judge-made law will, by necessity, provide legal answerto each new question as and when it arises.

73. The function of the court, in Lord Browne-Wilkinson’s view,in such circumstances is to determine particular case in accordancewith the existing law and not to develop new law laying down newregimen. He held that it is for the Parliament to address the widerproblems which such case raises and lay down principles of lawgenerally applicable to the withdrawal of life support systems. Heexplained why the removal of the nasogastric tube in the present casecould not be regarded as positive act causing death since the tubeitself, without the food being supplied through it, does nothing. Theremoval of the tube by itself does not cause death since it does notsustain life by itself. Therefore, the removal of the tube would not

Aconstitute the actus reus of murder since such positive act would not bethe cause of death.

74. Thus, Lord Browne-Wilkinson observed that in case of anadult who is mentally competent, the artificial feeding regime would beunlawful unless the patient consented to it as mentally competent patientBcan, at any time, put an end to life support systems by refusing his consentto their continuation. He also observed that the House of Lords in WestBerkshire Health Authority (supra) developed the principle based onthe concept of necessity under which doctor can lawfully treat patientwho cannot consent to such treatment if it is in the best interests of thepatient to receive such treatment. The learned Law Lord opined that theCcorrect answer to the case at hand depends on the extent of the right tolawfully continue to invade the bodily integrity of Anthony Bland withouthis consent. To determine the extent of the said right, Lord Browne-Wilkinson observed that it can be deduced from West Berkshire HealthAuthority (supra) wherein both Lord Brandon of Oakbrook and LordDGoff made it clear that the right to administer invasive medical care iswholly dependent upon such care being in the best interests of the patientand moreover, doctor’s decision whether to continue invasive care isin the best interests of the patient has to be assessed with reference tothe test laid down in Bolam (supra).

E75. Lord Browne-Wilkinson held that if there comes stage wherea responsible doctor comes to the reasonable conclusion (which accordswith the views of responsible body of medical opinion) that furthercontinuance of an intrusive life support system is not in the best interestsof the patient, the doctor can no longer lawfully continue that life supportsystem as to do so would constitute the crime of battery and the tort ofFtrespass.

76. In Lord Browne-Wilkinson’s view, the correct legal questionin such cases is not whether the court thinks it is in the best interests ofthe patient in PVS to continue to receive intrusive medical care butwhether the doctor responsible has arrived at reasonable and bonaGfide belief that it is not in the best interests of the patient to continue toreceive artificial medical regime.

77. Accordingly, Lord Browne-Wilkinson observed that on anapplication to the court for declaration that the discontinuance of medicalcare will be lawful, the sole concern of the courts is to be satisfied thatH

the doctor’s decision to discontinue is in accordance with respectablebody of medical opinion and that it is reasonable. Adverting to variouspassages, Lord Browne-Wilkinson dismissed the appeal.

78. It is pertinent to mention here that in adopting the “bestinterests” principle in Airedale, the House of Lords followed its earlierdecision in In re (Mental Patient : Sterilisation][25]and in adoptingthe omission/commission distinction, it followed the approach of the Courtof Appeal in In re (A Minor) (Wardship : Medical Treatment)[26]and In re J (A Minor) (Wardship : Medical Treatment)[27]which raisedthe question of medical treatment for severely disabled children. In thecontext of cases where the patients are unable to communicate theirwishes, it is pertinent to mention the observations made by Lord Goff inthe Airedale case. As observed by Lord Goff, the correct question incases of this kind would be “whether it is in his best interests that treatmentwhich has the effect of artificially prolonging his life should be continued”.Thus, it was settled in the case of Airedale that it was lawful for thedoctors to discontinue treatment if the patient refuses such treatment.And in case the patient is not in situation permitting him to communicatehis wishes, then it becomes the responsibility of the doctor to act in the“best interest” of the patient.

H.1.2 Later cases:

79. With reference to the ongoing debate pertaining to assisteddying, Lord Steyn in the case of R (on the application of Pretty) v.Director of Public Prosecutions[28] explained that on one hand is theview which finds support in the Roman Catholic Church, Islam and otherreligions that human life is sacred and the corollary is that euthanasiaand assisted suicide are always wrong, while on the other hand, asobserved by Lord Steyn, is the belief defended by millions that the personalautonomy of individuals is predominant and it is the moral right ofindividuals to have say over the time and manner of their death. Takingnote of the imminent risk in legalizing assisted dying, Lord Steyn tooknote of the utilitarian argument that the terminally ill patients and thosesuffering great pain from incurable illnesses are often vulnerable andnot all families, whose interests are at stake, are wholly unselfish andloving and there exists the probability of abuse in the sense that such

25 [1990] 2 AC 1 : [1989] 2 WLR 1025 : [1989] 2 All ER 545

26 [1981] 1 WLR 1424 : [1990] 3 All ER 927

27 [1991] Fam 33 : [1990] 3 All ER 930 : [1991] 2 WLR 140

28 [2002] 1 All ER 1 : [2001] UKHL 61

Apeople may be persuaded that they want to die or that they ought towant to die. Further, Lord Steyn observed that there is also the viewthat if the genuine wish of terminally ill patient to die is expressed bythe patient, then they should not be forced against their will to endure alife that they no longer wish to endure. Without expressing any view onthe unending arguments on either side, Lord Steyn noted that these wide-Branging arguments are ancient questions on which millions have takendiametrically opposite views and still continue to do. In the case of Inre (Consent to Treatment – Capacity)[29], the primacy of patientautonomy, that is, the competent patient’s right to decide for herselfwhether to submit to medical treatment over other imperatives, such asCher best interests objectively considered, was recognized therebyconfirming the right of the competent patient to refuse medical treatmenteven if the result is death and thus, competent, ventilator-dependentpatient sought and won the right to have her ventilator turned off.

80. Taking slightly divergent view from Airedale, LordDNeuberger in R (on the application of Nicklinson and another) v.Ministry of Justice[30] observed that the difference between administeringfatal drug to person and setting up machine so that the person canadminister the drug to himself is not merely legal distinction but also amoral one and, indeed, authorizing third party to switch off person’slife support machine, as in Airedale, is more drastic interference andEa more extreme moral step than authorizing third party to set up alethal drug delivery system to enable person, only if he wishes, toactivate the system to administer lethal drug. Elaborating further onthis theory, the Law Lord explained that in those cases which are classifiedas “omission”, for instance, switching off life support machine as inFAiredale and Re (Treatment), the act which immediately causesdeath is that of third party which may be wrong whereas if the finalact is that of person who himself carries it out pursuant to voluntary,clear, settled and informed decision, that may be the permissible side ofthe line as in the latter case, the person concerned had not been “killed”

by anyone but had autonomously exercised his right to end his life. TheGLaw Lord, however, immediately clarified that it is not intended to castany doubt on the correctness of the decisions in Airedale and Re B(Treatment).81. Suffice it to say, he concurred with the view in Airedale case 29 [2002] 1 FLR 1090 : [2002] 2 All ER 449H 30 [2014] UKSC 38

which he referred to as Bland case. Lord Mance agreed with LordNeuberger and Lord Sumption. In his opinion, he referred to Airedalecase and thereafter pointed out that blanket prohibition was unnecessaryand stated in his observations that persons in tragic position represent adistinct and relatively small group, and that by devising mechanismenabling careful prior review (possibly involving the Court as well asmedical opinion), the vulnerable can be distinguished from those capableof forming free and informed decision to commit suicide. Lord Manceacknowledged that the law and courts are deeply engaged in the issuesof life and death and made reference to the observations of LordNeuberger.

82. We may note with profit that the prayer of Mr. Nicklinson andMr. Lamb were rejected by the Court of Appeal.

83. Lord Mance referred to the expression by Rehnquist CJ inWashington (supra) in slightly different context that there is “an earnestand profound debate about the morality, legality, and practicality of ….assisted suicide” and “our holding permits this debate to continue as itshould in democratic society”.

84. Lord Wilson concurred with the judgment rendered by LordNeuberger, referred to Airedale case and said:-

“As Hoffmann LJ suggested in his classic judgment in the Courtof Appeal in Airedale NHS Trust v Bland [1993] AC 789 at 826,a law will forfeit necessary support if it pays no attention to theethical dimension of its decisions. In para 209 below Lord Sumptionquotes Hoffmann LJ’s articulation of that principle but it is worthremembering that Hoffmann LJ then proceeded to identify twoother ethical principles, namely those of individual autonomy andof respect for human dignity, which can run the other way.”

And further:-

“In the Pretty case, at para 65, the ECHR was later to describethose principles as of the very essence of the ECHR. It was inthe light (among other things) of the force of those two principlesthat in the Bland case the House of Lords ruled that it was lawfulin certain circumstances for doctor not to continue to providelife-sustaining treatment to person in persistent vegetativestate…”

A200. I agree with the observation of Lord Neuberger at para 94that, in sanctioning course leading to the death of person aboutwhich he was unable to have voice, the decision in the Blandcase was arguably more extreme than any step which might betaken towards enabling person of full capacity to exercise whatmust, at any rate now, in the light of the effect given to article 8 ofBthe ECHR in the Haas case at para 51, cited at para 29 above, beregarded as positive legal right to commit suicide. Lord Sumptionsuggests in para 212-213 below that it remains morally wrong andcontrary to public policy for person to commit suicide. Blackstone,in his Commentaries on the Laws of England, Book 4, ChapterC14, wrote that suicide was also spiritual offence “in evading theprerogative of the Almighty, and rushing into his immediatepresence uncalled for”. If expressed in modern religious terms,that view would still command substantial support and moralargument against committing suicide could convincingly be castin entirely non-religious terms. Whether, however, it can beDelevated into an overall conclusion about moral wrong and publicpolicy is much more difficult.”85. Lord Sumption commenced the judgment stating that Englishjudges tend to avoid addressing the moral foundations of law. It is nottheir function to lay down principles of morality and the attempt leads tolarge generalisations which are commonly thought to be unhelpful. Hefurther observed that in some cases, however, it is unavoidable and thisis one of them. He referred to the opinion of Hoffmann LJ in Airedalecase and the concept of sanctity of life and, eventually, reproduced apassage from Hoffmann LJ and opined:-

“215. Why should this be so? There are at least three reasonswhy the moral position of the suicide (whom I will call “the patient”from this point on, although the term may not always be apt) isdifferent from that of third party who helps him to kill himself.In the first place, the moral quality of their decisions is different.A desire to die can only result from an overpowering negativeimpulse arising from perceived incapacity, failure or pain. This isan extreme state which is unlikely to be shared by the third partywho assists. Even if the assister is moved by pure compassion, heinevitably has greater degree of detachment. This must in

particular be true of professionals such as doctors, from whom ahigh degree of professional objectivity is expected, even insituations of great emotional difficulty. Secondly, whatever right aperson may have to put an end to his own life depends on theprinciple of autonomy, which leaves the disposal of his life to him.The right of third party to assist cannot depend on that principle.It is essentially based on the mitigating effect of his compassionatemotive. Yet not everyone seeking to end his life is equally deservingof compassion. The choice made by person to kill himself ismorally the same whether he does it because he is old or terminallyill, or because he is young and healthy but fed up with life. In bothcases his desire to commit suicide may be equally justified by hisautonomy. But the choice made by third party who intervenesto help him is very different. The element of compassion is muchstronger in the former category than in the latter. Third, theinvolvement of third party raises the problem of the effect onother vulnerable people, which the unaided suicide does not. If itis lawful for third party to encourage or assist the suicide of aperson who has chosen death with clear head, free of externalpressures, the potential arises for him to encourage or assist otherswho are in less good position to decide. Again, this is moresignificant factor in the case of professionals, such as doctors orcarers, who encounter these dilemmas regularly, than it is in thecase of, say, family members confronting them for what willprobably be the only time in their lives.”

86. Dealing with the appeal by Nicklinson, Lord Sumption referredto the view of the Canadian Supreme Court in Rodriguez (supra) andopined:-

“….the issue is an inherently legislative issue for Parliament, asthe representative body in our constitution, to decide. The questionwhat procedures might be available for mitigating the indirectconsequences of legalising assisted suicide, what risks suchprocedures would entail, and whether those risks are acceptable,are not matters which under our constitution court shoulddecide.”

87. Dealing with Martin’s appeal, Lord Sumption dismissed thesame. While doing so, he said:-

CDE

A“256. This state of English law and criminal practice does not ofcourse resolve all of the problems arising from the pain and indignityof the death which was endured by Tony Nicklinson and is nowfaced by Mr Lamb and Martin. But it is worth reiterating thesewell-established propositions, because it is clear that many medicalprofessionals are frightened by the law and take an unduly narrowBview of what can lawfully be done to relieve the suffering of theterminally ill under the law as it presently stands. Much needlesssuffering may be occurring as result. It is right to add that thereis tendency for those who would like to see the existing lawchanged, to overstate its difficulties. This was particularly evidentCin the submissions of Dignity and Choice in Dying. It would beunfortunate if this were to narrow yet further the options open tothose approaching death, by leading them to believe that the currentlaw and practice is less humane and flexible than it really is.”

88. Lord Hughes agreed with the reasoning of Lord SumptionDand dismissed the private appeals and allowed the Appeals preferred bythe Director of Public Prosecutions. Lord Clarke concurred with thereasoning given by Lord Sumption, Lord Reed and Lord Hughes. LordReed agreed with the view with regard to the dismissal of the appealsbut observed some aspects with regard to the issue of compatibility.

E89. Lord Lady Hale entirely agreed with the judgment of LordNeuberger. Lord Kerr in his opinion stated:-

“358. I agree with Lord Neuberger that if the store put on thesanctity of life cannot justify ban on suicide by the able-bodied,it is difficult to see how it can justify prohibiting physicallyFincapable person from seeking assistance to bring about the endof their life. As one of the witnesses for one of the interveners,the British Humanist Association, Professor Blackburn, said, thereis ‘no defensible moral principle’ in denying the appellants themeans of achieving what, under article 8 and by all the requirementsGof compassion and humanity, they should be entitled to do. Toinsist that these unfortunate individuals should continue to endurethe misery that is their lot is not to champion the sanctity of life; itis to coerce them to endure unspeakable suffering.”

And again:-

“360. If one may describe the actual administration of the fataldose as active assistance and the setting up of system whichcan be activated by the assisted person as passive assistance,what is the moral objection to person actively assisting someone’sdeath, if passive assistance is acceptable? Why should activeassistance give rise to moral corruption on the part of the assister(or, for that matter, society as whole), but passive assistancenot? In both cases the assister’s aid to the person who wishes todie is based on the same conscientious and moral foundation. Thatit is that they are doing what the person they assist cannot do;providing them with the means to bring about their wished-fordeath. I cannot detect the moral distinction between the individualwho brings fatal dose to their beloved’s lips from the personwho sets up system that allows their beloved to activate therelease of the fatal dose by the blink of an eye.”

Eventually, Lady Hale dismissed the appeal and allowed theappeals of the Director of Public Prosecutions.

H.2 The legal position in the United States:

90. In the United States of America, active euthanasia is illegalbut physician-assisted death is legal in the States of Oregon, Washingtonand Montana. distinction has been drawn between euthanasia andphysician-assisted suicide. In both Oregon and Washington, only self-assisted dying is permitted. Doctor-administered assisted dying and anyform of assistance to help person commit suicide outside the provisionsof the legislation remains criminal offence.

91. As far as the United States of America is concerned, we thinkit appropriate to refer to Cruzan (supra). The said case involved 30year old Missouri woman who was lingering in permanent vegetativestate as result of car accident. Missouri requires ‘clear and convincingevidence’ of patients’ preferences and the Missouri Supreme Court,reversing the decision of the state trial court, rejected the parents’ requestto impose duty on their daughter’s physician to end life-support. TheUnited States Supreme Court upheld that States can require ‘clear andconvincing evidence’ of patient’s desire in order to oblige physicians torespect this desire. Since Nancy Cruzan had not clearly expressed herdesire to terminate life support in such situation, physicians were notobliged to follow the parents’ request.

A92. Chief Justice Rehnquist, in his opinion, stated:-

“Every human being of adult years and sound mind has right todetermine what shall be done with his own body, and surgeonwho performs an operation without his patient’s consent commitsan assault, for which he is liable in damages.”

He further proceeded to state:-

“The logical corollary of the doctrine of informed consent is thatthe patient generally possesses the right not to consent, that is, torefuse treatment. Until about 15 years ago and the seminal decisionin In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied subnom. Garger v. New Jersey, 429 U.S. 922 (1976), the number ofright-to-refuse-treatment decisions were relatively few. Most ofthe earlier cases involved patients who refused medical treatmentforbidden by their religious beliefs, thus implicating FirstAmendment rights as well as common law rights of self-determination. More recently, however, with the advance ofmedical technology capable of sustaining life well past the pointwhere natural forces would have brought certain death in earliertimes, cases involving the right to refuse life-sustaining treatmenthave burgeoned.”

93. Meeting the submissions on behalf of the petitioner, the learnedChief Justice opined:-

“The difficulty with petitioners’ claim is that, in sense, it begsthe question: an incompetent person is not able to make an informedand voluntary choice to exercise hypothetical right to refusetreatment or any other right. Such “right” must be exercised forher, if at all, by some sort of surrogate. Here, Missouri has ineffect recognized that, under certain circumstances, surrogatemay act for the patient in electing to have hydration and nutritionwithdrawn in such way as to cause death, but it has establisheda procedural safeguard to assure that the action of the surrogateconforms as best it may to the wishes expressed by the patientwhile competent. Missouri requires that evidence of theincompetent’s wishes as to the withdrawal of treatment be provedby clear and convincing evidence. The question, then, is whetherthe United States Constitution forbids the establishment of thisprocedural requirement by the State. We hold that it does not.”

94. The learned Chief Justice came to hold that there was noclear and convincing evidence to prove that the patient’s desire was notto have hydration and nutrition. In the ultimate analysis, it was stated:-

“No doubt is engendered by anything in this record but that NancyCruzan’s mother and father are loving and caring parents. If theState were required by the United States Constitution to repose aright of “substituted judgment” with anyone, the Cruzans wouldsurely qualify. But we do not think the Due Process Clause requiresthe State to repose judgment on these matters with anyone butthe patient herself. Close family members may have strongfeeling — feeling not at all ignoble or unworthy, but not entirelydisinterested, either — that they do not wish to witness thecontinuation of the life of loved one which they regard ashopeless, meaningless, and even degrading. But there is noautomatic assurance that the view of close family members willnecessarily be the same as the patient’s would have been had shebeen confronted with the prospect of her situation while competent.All of the reasons previously discussed for allowing Missouri torequire clear and convincing evidence of the patient’s wishes leadus to conclude that the State may choose to defer only to thosewishes, rather than confide the decision to close family members.”

The aforesaid decision has emphasized on “bodily integrity” and“informed consent”.

95. The question that was presented before the Court was whetherNew York’s prohibition on assisted suicide violates the Equal ProtectionClause of the Fourteenth Amendment. The Court held that it did not andin the course of the discussion, Chief Justice Rehnquist held:-

“The Court of Appeals, however, concluded that some terminallyill people—those who are on life-support systems— are treateddifferently from those who are not, in that the former may “hastendeath” by ending treatment, but the latter may not “hasten death”through physician-assisted suicide. 80 F. 3d, at 729. This conclusiondepends on the submission that ending or refusing lifesavingmedical treatment “is nothing more nor less than assisted suicide.”Ibid. Unlike the Court of Appeals, we think the distinction betweenassisting suicide and withdrawing life-sustaining treatment, adistinction widely recognized and endorsed in the medical

[2018] 6 S.C.R.

profession 6 and in our legal traditions, is both important and logical;it is certainly rational.”

Dealing with the conclusion in Cruzan (supra), it was held:-

“This Court has also recognized, at least implicitly, the distinctionbetween letting patient die and making that patient die. In Cruzanv. Director, Mo. Dept. of Health, 497 U. S. 261, 278 (1990), weconcluded that “[t]he principle that competent person has aconstitutionally protected liberty interest in refusing unwantedmedical treatment may be inferred from our prior decisions,” andwe assumed the existence of such right for purposes of thatcase, id., at 279. But our assumption of right to refuse treatmentwas grounded not, as the Court of Appeals supposed, on theproposition that patients have general and abstract “right to hastendeath,” 80 F. 3d, at 727–728, but on well-established, traditionalrights to bodily integrity and freedom from unwanted touching,Cruzan, 497 U. S., at 278–279; id., at 287– 288 (O’Connor, J.,concurring). In fact, we observed that “the majority of States inthis country have laws imposing criminal penalties on one whoassists another to commit suicide.” Id., at 280. Cruzan thereforeprovides no support for the notion that refusing life-sustainingmedical treatment is “nothing more nor less than suicide.”

From the aforesaid passages, it is crystal clear that the U.S.Supreme Court has recognized that there is distinction, in the contextof the prevalent law, between letting patient die and making that patientdie. Right to refuse treatment is not grounded on the proposition that thepatients have general and abstract right to hasten death. The learnedChief Justice has also endorsed the view of the American MedicalFAssociation emphasizing the fundamental difference between refusinglife-sustaining treatment and demanding life-ending treatment.

96. In Vacco (supra), while ruling that New York ban on physicianassisted suicide was constitutional, the Supreme Court of the UnitedStates applied the standard of intent to the matter finding that doctorwho withdraws life support at the request of his patient intends only torespect his patient’s wishes. This, the Court said, is in sharp contrast toa doctor who honours patient’s request to end life which necessarilyrequires more than an intent to respect the patient’s wishes, i.e., it requiresthe intent to kill the patient. major difference, the Court determined, in

the two scenarios is that the former may cause the patient to die fromunderlying causes while the latter will cause the patient to die. The Courtnoted that the law plainly recognized the difference between “killing”and “letting die”. It also recognised that the State of New York had, asa matter of policy, compelling interest in forbidding assisted suicide,while allowing patient to refuse life support was simply an act ofprotecting common law right which was the right to retain bodily integrityand preserve individual antonomy since the prevention of “unwantedtouching” was, in the opinion of the Court, very legitimate right toprotect.

H.3 Australian Jurisdiction:

97. Moving to Australian jurisdiction, in Hunter and New EnglandArea Health Service v. A[31], the Supreme Court of New South Walesconsidered the validity of common law advance directive (there beingno legislative provisions for such directives in NSW) given by Mr. Arefusing kidney dialysis. One year after making the directive, Mr. Awas admitted to hospital emergency department in critical state withdecreased level of consciousness. His condition deteriorated to the pointthat he was being kept alive by mechanical ventilation and kidney dialysis.The hospital sought judicial declaration to determine the validity of hisadvance directive. The Court, speaking through McDougall J., confirmedthe directive and held that the hospital must respect the advance directive.Applying the common law principle, the Court observed:-

“A person may make an ‘advance care directive’: statementthat the person does not wish to receive medical treatment, ormedical treatment of specified kinds. If an advance care directiveis made by capable adult, and it is clear and unambiguous, andextends to the situation at hand, it must be respected. It would bea battery to administer medical treatment to the person of kindprohibited by the advance care directive.”

98. In Brightwater Care Group (Inc.) v. Rossiter[32], the Courtwas concerned with an anticipatory refusal of treatment by Mr. Rossiter,a man with quadriplegia who was unable to undertake any basic humanfunction including taking nutrition or hydration orally. Mr. Rossiter wasnot terminally ill, dying or in vegetative state and had full mental capacity.He had ‘clearly and unequivocally’ indicated that he did not wish to 31 [2009] NSWSC 761 32 [2009] WASC 229 : 40 WAR 84

Acontinue to receive medical treatment which, if discontinued, wouldinevitably lead to his death. Martin, CJ, considering the facts and thecommon law principle, held :-

“At common law, the answers to the questions posed by this caseare clear and straightforward. They are to the effect that MrBRossiter has the right to determine whether or not he will continueto receive the services and treatment provided by Brightwaterand, at common law, Brightwater would be acting unlawfully bycontinuing to provide treatment [namely the administration ofnutrition and hydration via tube inserted into his stomach] contraryto Mr Rossiter’s wishes.”C

99. In Australian Capital Territory v. JT[33], an application tostop medical treatment, other than palliative care, was rejected. Theman receiving treatment suffered from paranoid schizophrenia and was,therefore, held not mentally capable of making decision regarding histreatment. Chief Justice Higgins found that it would be unlawful for theDservice providers to stop providing treatment. The Chief Justicedistinguished this situation from Rossiter as the patient lacked ‘bothunderstanding of the proposed conduct and the capacity to give informedconsent to it’. It is clear that mental capacity is the determining factor incases relating to self-determination. Since the right of self-determinationErequires the ability to make an informed choice about the future, therequirement of mental capacity would be an obvious prerequisite. ChiefJustice Higgins undertook detailed analysis and rightly distinguishedAuckland Area Health Board v. Attorney-General [34] in which courtsimilarly bound to apply the human right to life and the prohibition oncruel and degrading treatment found that futile treatment could beFwithdrawn from patient in persistent vegetative state. He agreedwith Howie J. in Messiha v. South East Health[35] that futility of treatmentcould only be determined by consideration of the best interests of thepatient and not by reference to the convenience of medical cares ortheir institutions.G100. The above decision basically considered the circumstancesin which technically futile treatment may be withdrawn from patients attheir direct or indirect request or in their best interests.

33 [2009] ACTSC 105 34 [1993] NZLR 235 35 [2004] NSWSC 1061H

H.4 Legal Position in Canada:

101. In Canada, physician-assisted suicide is illegal as per Section241(b) of the Criminal Code of Canada. The Supreme Court of Canadain Rodriguez (supra) has drawn distinction between “intentional actor”and “merely foreseeing”. Delivering the judgment on behalf of themajority, Justice Sopinka rejected the argument that assisted suicide wassimilar to the withdrawal of life-preserving treatment at the patient’srequest. He also rejected the argument that the distinction betweenassisted suicide and accepted medical treatment was even moreattenuated in the case of palliative treatment which was known to hastendeath. He observed:-

“The distinction drawn here is one based upon intention - in thecase of palliative care the intention is to ease pain, which has theeffect of hastening death, while in the case of assisted suicide,the intention is undeniably to cause death.”

He added:-

“In my view, distinctions based on intent are important, and in factform the basis of our criminal law. While factually the distinctionmay, at times, be difficult to draw, legally it is clear.”

102. The Supreme Court of Canada in Carter v. Canada(Attorney General)[36]held that the prohibition on physician-assisted deathin Canada (in Sections 14 and 241(b) of the Canadian Criminal Code)unjustifiably infringed the right to life, liberty and security of the personin Article 7 of the Charter of Rights and Freedoms in the CanadianConstitution.

103. The Supreme Court declared the infringing provisions of theCriminal Code void insofar as they prohibit physician-assisted death fora competent adult person who (1) clearly consents to the termination oflife; and (2) has grievous and irremediable medical condition (includingan illness, disease or disability) that causes enduring suffering that isintolerable to the individual in the circumstances of his or her condition.‘Irremediable’, it should be added, does not require the patient toundertake treatments that are not acceptable to the individual.

104. After the Supreme Court’s decision, the CanadianGovernment appointed Special Joint Committee on Physician-Assisted 36 2015 SCC 5

ADying to ‘make recommendations on the framework of federal responseon physician assisted dying in consonance with the Constitution, theCharter of Rights and Freedoms, and the priorities of Canadians’. TheSpecial Joint Committee released its report in February 2016recommending legislative framework which would regulate ‘medicalassistance in dying’ by imposing both substantive and proceduralBsafeguards, namely:-

Substantive Safeguards:

• grievous and irremediable medical condition (including anillness, disease or disability) is required;C

•Enduring suffering that is intolerable to the individual in thecircumstances of his or her condition is required;

•Informed consent is required;

D•Capacity to make the decision is required at the time of eitherthe advance or contemporaneous request; and

•Eligible individuals must be insured persons eligible for publiclyfunded health care services in Canada.

Procedural Safeguards:E

• Two independent doctors must conclude that person is eligible;

•A request must be in writing and witnessed by two independentwitnesses;

F•A waiting period is required based, in part, on the rapidity ofprogression and nature of the patient’s medical condition asdetermined by the patient’s attending physician;

•Annual report analyzing medical assistance in dying cases areto be tabled in Parliament;G and

•Support and services, including culturally and spirituallyappropriate end-of-life care services for indigenous patients,should be improved to ensure that requests are based on freeHchoice, particularly for vulnerable people.

105. It should be noted that physician assisted dying has alreadybeen legalized in the province of Quebec. Quebec passed an Actrespecting end-of-life care (the Quebec Act) in June 2014 with most ofthe Act coming into force on 10 December, 2015. The Quebec Actprovides ‘framework for end-of-life care’ which includes ‘continuouspalliative sedation’ and ‘medical aid in dying’ defined as ‘administrationby physician of medications or substances to an end-of-life patient, atthe patient’s request, in order to relieve their suffering by hastening death.In order to be able to access medical aid in dying under the Quebec Act,a patient must:-

(1) be an insured person within the meaning of the HealthInsurance Act (Chapter A-29);

(2) be of full age and capable of giving consent to care;

(3) be at the end of life;

(4) suffer from serious and incurable illness;

(5) be in an advanced state of irreversible decline in capability;and

(6) experience constant and unbearable physical or psychologicalsuffering

(7) which cannot be relieved in manner the patient deemstolerable.

106. The request for medical aid in dying must be signed by twophysicians. The Quebec Act also established Commission on end-of-life care to provide oversight and advice to the Minister of Health andSocial Services on the implementation of the legislation regarding end-of-life care.

H.5 Other Jurisdictions:

107. Presently, we think it appropriate to deal with certainlegislations in other countries and the decisions in other jurisdictions. InAruna Shanbaug, the Court has in detail referred to the legislations inNetherlands, i.e., the Termination of Life on Request and Assisted Suicide(Review Procedures) Act, 2002 that regulates euthanasia. The provisionsof the said Act lay down that euthanasia and physician-assisted suicideare not punishable if the attending physician acts in accordance with the

Acriteria of due care. As the two-Judge Bench has summarized, thiscriteria concern the patient’s request, the patient’s suffering (unbearableand hopeless), the information provided to the patient, the presence ofreasonable alternatives, consultation of another physician and the appliedmethod of ending life. To demonstrate their compliance, the Act requiresphysicians to report euthanasia to Review Committee. It has beenBobserved that the said Act legalizes euthanasia and physician-assistedsuicide in very specific cases under three specific conditions andeuthanasia remains criminal offence in cases not meeting the laid downspecific conditions with the exception of several situations that are notsubject to restrictions of law at all because they are considered normalCmedical practice. The three conditions are : stopping or not starting amedically useless (futile) treatment, stopping or not starting treatmentat the patient’s request and speeding up death as side effect of treatmentnecessary for alleviating serious suffering.

108. Reference has been made to the Swiss Criminal Code whereDactive euthanasia has been regarded as illegal. Belgium has legalizedthe practice of euthanasia with the enactment of the Belgium Act onEuthanasia of May 28[th], 2002 and the patients can wish to end their lifeif they are under constant and unbearable physical or psychological painresulting from an accident or an incurable illness. The Act allows adultswho are in ‘futile medical condition of constant and unbearable physicalEor mental suffering that cannot be alleviated’ to request voluntaryeuthanasia. Doctors who practise euthanasia commit no offence if theprescribed conditions and procedure is followed and the patient has thelegal capacity and the request is made voluntarily and repeatedly withno external pressure.F

109. Luxembourg too has legalized euthanasia with the passing ofthe Law of 16[th] March, 2009 on Euthanasia and Assisted Suicide (Lux.).The law permits euthanasia and assisted suicide in relation to those withincurable conditions with the requirements including repeated requestsand the consent of two doctors and an expert panel.G

110. The position in Germany is that active assisted suicide isillegal. However, this is not the case for passive assisted suicide. Thus,in Germany, if doctors stop life-prolonging measures, for instance, onthe written wishes of patient, it is not considered as criminal offence.That apart, it is legal for doctors in Germany to administer painkillers to

COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA[DIPAK MISRA, CJI]

dying patient to ease pain. The said painkillers, in turn, cause lowbreathing that may lead to respiratory arrest and, ultimately, death.

H.6 International considerations and decisions of theEuropean Court of Human Rights (ECHR):

111. Certain relevant obligations when discussing voluntaryeuthanasia are contained in the International Covenant on Civil andPolitical Rights (ICCPR). The following rights in the ICCPR havebeen considered by the practice of voluntary euthanasia:

• right to life (Article 6)

• freedom from cruel, inhuman or degrading treatment (Article 7)

• right to respect for private life (Article 17)

• freedom of thought, conscience and religion (Article 18).

112. Right to life under Article 6(1) of the ICCPR provides: Everyhuman being has the inherent right to life. This right shall be protectedby law. No one shall be arbitrarily deprived of his life. The secondsentence of Article 6(1) imposes positive obligation on the States toprovide legal protection of the right to life. However, the subsequentreference to life not being ‘arbitrarily deprived’ operates to limit thescope of the right (and therefore the States’ duty to ensure the right).Comments from the UN Human Rights Committee suggest that lawsallowing for voluntary euthanasia are not necessarily incompatible withthe States’ obligation to protect the right to life.

113. The UN Human Rights Committee has emphasised that lawsallowing for euthanasia must provide effective procedural safeguardsagainst abuse if they are to be compatible with the State’s obligation toprotect the right to life. In 2002, the UN Committee considered theeuthanasia law introduced in the Netherlands. The Committee statedthat:-

“where State party seeks to relax legal protection with respectto an act deliberately intended to put an end to human life, theCommittee believes that the Covenant obliges it to apply the mostrigorous scrutiny to determine whether the State party’s obligationsto ensure the right to life are being complied with (articles 2 and 6of the Covenant).”

A114. The European Court of Human Rights (ECHR) has adopteda similar position to the UN Human Rights Committee when consideringeuthanasia laws and the right to life in Article 2 of the EuropeanConvention for the Protection of Human Rights and FundamentalFreedoms (European Convention). According to the ECHR, the right tolife in Article 2 cannot be interpreted as conferring right to die or aBright to self determination in terms of choosing death rather than life.However, the ECHR has held that State’s obligation to protect lifeunder that Article does not preclude it from legalising voluntary euthanasia,provided adequate safeguards are put in place and adhered to. In Prettyv. United Kingdom (application no. 2346/02)[37], the ECHR ruled thatCthe decision of the applicant to avoid what she considered would be anundignified and distressing end to her life was part of the private spherecovered by the scope of Article 8 of the Convention. The Court affirmedthat the right of an individual to decide how and when to end her life,provided that the said individual was in position to make up her ownmind in that respect and to take the appropriate action, was one aspectDof the right to respect for private life under Article 8 of the Convention.The Court, thus, recognised, with conditions, sort of right to self-determination as to one’s own death, but the existence of this right issubject to two conditions, one linked to the free will of the personconcerned and the other relating to the capacity to take appropriateEaction. However, respect for the right to life compels the nationalauthorities to prevent person from putting an end to life if such decisionis not taken freely and with full knowledge.115. In Hass v. Switzerland (application no. 31322/07)[38], theECHR explained that:-F“creates for the authorities duty to protect vulnerable persons,even against actions by which they endanger their own lives…this latter Article obliges the national authorities to prevent anindividual from taking his or her own life if the decision has notbeen taken freely and with full understanding of what is involved”.

GAccordingly, the ECHR concluded that:-

“the right to life guaranteed by Article 2 of the Convention obligesStates to establish procedure capable of ensuring that decision

37 [2002] ECHR 423 (29 April, 2002) 38 [2011] ECHR 2422: (2011) 53 EHRR 33H

to end one’s life does indeed correspond to the free will of theindividual concerned.”

116. In recent decision regarding end of life issues, Lambertand others v. France (application no. 46043/14)[39], the ECHRconsidered whether the decision to withdraw artificial nutrition andhydration of Vincent Lambert violated the right to life in Article 2. VincentLambert was involved in serious road accident which left him tetraplegicand with permanent brain damage. He was assessed in expert medicalreports as being in chronic vegetative state that required artificialnutrition and hydration to be administered via gastric tube.

117. Mr. Lambert’s parents applied to the ECHR alleging that thedecision to withdraw his artificial nutrition and hydration breached, interalia, the State’s obligations under Article 2 of the European Convention.The ECHR highlighted that Article 2 imposes on the States both negativeobligation (to refrain from the ‘intentional’ taking of life) and positiveobligation (to ‘take appropriate steps to safeguard the lives of thosewithin its jurisdiction’). The Court held that the decision of doctor todiscontinue life-sustaining treatment (or ‘therapeutic abstention’) did notinvolve the State’s negative obligation under Article 2 and, therefore, theonly question for the Court under Article 2 was whether it was consistentwith the State’s positive obligation.

118. The ECHR emphasized that ‘the Convention has to be readas whole’, and, therefore:-

“in case such as the present one reference should be made, inexamining possible violation of Article 2, to Article 8 of theConvention and to the right to respect for private life and thenotion of personal autonomy which it encompasses.”

119. The Court noted that there was consensus among Europeanmember States ‘as to the paramount importance of the patient’s wishesin the decision-making process, however those wishes are expressed’.It identified that in dealing with end of life situations, States have somediscretion in terms of striking balance between the protection of thepatients’ right to life and the protection of the right to respect their privatelife and their personal autonomy. The Court considered that the provisionsof the Law of 22 April 2005 ‘on patients’ rights and the end of life’promulgated in France making changes in the French Code of Public 39 [2015] ECHR 185

AHealth, as interpreted by the Conseil d’Etat, constituted legalframework which was sufficiently clear to regulate with precision thedecisions taken by doctors in situations such as in Mr. Lambert’s case.The Court found the legislative framework laid down by domestic law,as interpreted by the Conseil d’État, and the decision-making processwhich had been conducted in meticulous fashion, to be compatible withBthe requirements of the State’s positive obligation under Article 2. Withrespect to negative obligations, the ECHR observed that the “therapeuticabstention” (that is, withdrawal and withholding of medical treatment)lacks the intention to end the patient’s life and rather, doctordiscontinuing medical treatment from his or her patient merely intends toC“allow death to resume its natural course and to relieve suffering”.Therefore, as long as therapeutic abstention as authorised by the FrenchPublic Health Code is not about taking life intentionally, the ECHR opinedthat France had not violated its negative obligation to “refrain from theintentional taking of life”.D120. When considering the State’s positive obligations to protect

D120. When considering the State’s positive obligations to protecthuman life, the ECHR noted that the regulatory framework developedin the Public Health Code and the decision of the Conseil d’ Etatestablished several “important safeguards” with respect to therapeuticabstention and the regulation is, therefore, “apt to ensure the protectionof patients’ lives.”E

121. All this compelled the ECHR to conclude that there was noviolation of the State’s positive obligation to protect human life which,together with the absence of violation of negative obligations, resulted inthe conclusion that “there would be no violation of Article 2 of theConvention in the event of implementation of the Conseil d’ EtatFjudgment.” Thus, the ECHR in the Lambert (supra) case struck thebalance between the sanctity of life on the one hand and the notions ofquality of life and individual autonomy on the other.

I. The 241stReport of The Law Commission of India onPassive Euthanasia:

122. After the judgment of Aruna Shanbaug was delivered, theLaw Commission of India submitted its 241[st] report which dealt with‘Passive Euthanasia – Relook’. The report in its introduction hasdealt with the origin of the concept of euthanasia. It states that the word“Euthanasia” is derived from the Greek words “eu” and “thanotos” whichHliterally mean “good death” and is otherwise described as “mercy killing”.

The word euthanasia, as pointed out in the Report, was used by FrancisBacon in the 17[th] Century to refer to an easy, painless and happy deathas it is the duty and responsibility of the physician to alleviate the physicalsuffering of the body of the patient. reference has also been made inthe Report to the meaning given to the term by the House of Lords. TheSelect Committee on “Medical Ethics” in England defined Euthanasiaas “a deliberate intervention undertaken with the express intention ofending life to relieve intractable suffering”. Impressing upon the voluntarynature of euthanasia, the report has rightly highlighted the clarificationas provided by the European Association of Palliative Care (EAPC)Ethics Task Force in discussion on Euthanasia in 2003 to the effectthat “medicalised killing of person without the person’s consent, whethernon-voluntary (where the person is unable to consent) or involuntary(against the person’s will) is not euthanasia: it is murder.”

123. The Commission in its report referred to the observationsmade by the then Chairman of the Law Commission in his letter dated28[th] August, 2006 addressed to the Hon’ble Minister which was extracted.It is pertinent to reproduce the same:-

“A hundred years ago, when medicine and medical technologyhad not invented the artificial methods of keeping terminally illpatient alive by medical treatment, including by means of ventilatorsand artificial feeding, such patients were meeting their death onaccount of natural causes. Today, it is accepted, terminally illperson has common law right to refuse modern medicalprocedures and allow nature to take its own course, as was donein good old times. It is well-settled law in all countries that aterminally ill patient who is conscious and is competent, can takean ‘informed decision’ to die natural death and direct that he orshe be not given medical treatment which may merely prolonglife. There are currently large number of such patients whohave reached stage in their illness when according to well-informed body of medical opinion, there are no chances of recovery.But modern medicine and technology may yet enable such patientsto prolong life to no purpose and during such prolongation, patientscould go through extreme pain and suffering. Several such patientsprefer palliative care for reducing pain and suffering and do notwant medical treatment which will merely prolong life or postponedeath.”

A124. The report rightly points out that rational and humanitarianoutlook should have primacy in such complex matter. Recognizingthat passive euthanasia, both in the case of competent and incompetentpatients, is being allowed in most of the countries subject to the doctoracting in the best interests of the patient, the report summarized thebroad principles of medical ethics which shall be observed by the doctorBin taking the decision. The said principles as obtained in the report arethe patient’s autonomy (or the right to self- determination) and beneficencewhich means following course of action that is best for the patientuninfluenced by personal convictions, motives or other considerations.The Report also refers to the observations made by Lord Keith inCAiredale case providing for course to safeguard the patient’s bestinterest. As per the said course, which has also been approved by thisCourt, the hospital/medical practitioner should apply to the Family Divisionof the High Court for endorsing or reversing the decision taken by themedical practitioners in charge to discontinue the treatment of PVSpatient. With respect to the ongoing debates on “legalizing euthanasia”,Dthe Report reiterates the observations made in Airedale that euthanasia(other than passive euthanasia) can be legalized by means of legislationonly.

125. The Report, in upholding the principle of the patient’s autonomy,went on to state:-E

“…the patient (competent) has right to refuse medical treatmentresulting in temporary prolongation of life. The patient’s life is atthe brink of extinction. There is no slightest hope of recovery.The patient undergoing terrible suffering and worst mental agonydoes not want his life to be prolonged by artificial means. She/heFwould not like to spend for his treatment which is practicallyworthless. She/he cares for his bodily integrity rather than bodilysuffering. She/he would not like to live 28 like ‘cabbage’ in anintensive care unit for some days or months till the inevitable deathoccurs. He would like to have the right of privacy protected whichGimplies protection from interference and bodily invasion. Asobserved in Gian Kaur’s case, the natural process of his deathhas already commenced and he would like to die with peace anddignity. No law can inhibit him from opting such course. This isnot situation comparable to suicide, keeping aside the view point

in favour of decriminalizing the attempt to suicide. The doctor orrelatives cannot compel him to have invasive medical treatmentby artificial means or treatment.”

126. The Report supports the view of several authorities especiallyLord Browne-Wilkinson (in Airedale case) and Justice Cardozo that incase of any forced medical intervention on the body of patient, thesurgeon/doctor is guilty of ‘assault’ or ‘battery’. The Report also laidemphasis on the opinion of Lord Goff placing the right of self-determinationon high pedestal. The said relevant observations of Lord Goff, as alsocited in the Report, are as follows:-

“I wish to add that, in cases of this kind, there is no question of thepatient having committed suicide, nor therefore of the doctor havingaided or abetted him in doing so. It is simply that the patient has,as he is entitled to do, declined to consent to treatment whichmight or would have the effect of prolonging his life, and the doctorhas, in accordance with his duty, complied with his patient’swishes.”

127. We have referred to the report of the Law Commission postAruna Shanbaug only to highlight that there has been affirmative thoughtin this regard. We have also been apprised by Mr. Narasimha, learnedAdditional Solicitor General appearing for the Union of India, that thereis going to be law with regard to passive euthanasia.

J. Right to refuse treatment:

128. Deliberating on the issue of right to refuse treatment, JusticeCardozo in Schloendorff v. Society of New York Hospital[40] observed:-

“Every human being of adult years and sound mind has right todetermine what shall be done with his own body; and surgeonwho performs the operation without his patient’s consent commitsan assault for which he is liable in damages.”

129. In somewhat different context, King C.J. in v. R[41]identified “the paramount consideration that person is entitled to makehis own decisions about his life”. The said statement was cited withapproval by Mason CJ, Brennan, Dawson, Toohey and McHugh, JJ. inRogers v. Whitaker[42]. Cardozo’s statement has been cited and applied

40 (1914) 105 NE 92 : (1914) 211 NY 125

41 (1983) 33 SASR 189 at 193

42 [1992] HCA 58 : (1992) 175 CLR 479 at 487

Ain many cases. Thus, in Malette v. Shulman[43], Robins J.A., speakingwith the concurrence of Catzman and Canthy JJA, said:-

“A competent adult is generally entitled to reject specifictreatment or all treatment, or to select an alternative form oftreatment even if the decision may entail risks as serious as deathBand may appear mistaken in the eyes of the medical profession orof the community …. it is the patient who has the final say onwhether to undergo the treatment.”

130. The recognition of the freedom of competent adults to makechoices about their medical care necessarily encompasses recognitionCof the right to make choices since individual free choice and self-determination are themselves fundamental constituents of life. RobinsJ.A. further clarified in Malette at page 334:-

“To deny individuals freedom of choice with respect to their healthcare can only lessen and not enhance the value of life.”

131. In the 21[st] century, with the advancement of technology inmedical care, it has become possible, with the help of support machines,to prolong the death of patients for months and even years in somecases. At this juncture, the right to refuse medical treatment comes intothe picture. patient (terminally ill or in persistent vegetative state)Eexercising the right to refuse treatment may ardently wish to live but, atthe same time, he may wish to be free from any medical surgery, drugsor treatment of any kind so as to avoid protracted physical suffering.Any such person who has come of age and is of sound mind has rightto refuse medical treatment. This right stands on different pedestal ascompared to suicide, physician assisted suicide or even euthanasia. WhenFa terminally ill patient refuses to take medical treatment, it can neitherbe termed as euthanasia nor as suicide. Albeit, both suicide and refusalto take treatment in case of terminal ailment shall result in the sameconsequences, that is, death, yet refusal to take treatment by itself cannotamount to suicide. In case of suicide, there has to be self initiatedGpositive action with specific intention to cause one’s own death. Onthe other hand, patient’s right to refuse treatment lacks his specificintention to die, rather it protects the patient from unwanted medicaltreatment. patient refusing medical treatment merely allows the diseaseto take its natural course and if, in this process, death occurs, the cause 43 67 DLR (4th) 321 (1990) : 72 OR (2d) 417

for it would primarily be the underlying disease and not any self initiatedact.

132. In Rodriguez (supra), Justice Sopinka, speaking for theSupreme Court of Canada, held:-

“Canadian Court has recognized common law right of patientsto refuse to consent to medical treatment or to demand that thetreatment, once commenced, be withdrawn or discontinued. Thisright has been specially recognized to exist even if the withdrawalfrom or refusal of treatment may result in death.”

133. In Secretary, Department of Health and CommunityServices (NT) v. JWB and SMB[44], the High Court of Australiaacknowledged the fundamental right of personal inviolability. JusticeMcHugh observed that the voluntary decision of an adult person of soundmind as to what should be done to his or her body must be respected. Itwas further observed that under the doctrine of trespass, the commonlaw respects and protects the autonomy of adult persons and also acceptsthe right to self-determination in respect of his or her body which can bealtered only with the consent of the person concerned.134. There is presumption of capacity whereby an adult ispresumed to have the capacity to consent to or to refuse medical treatmentunless and until that presumption is rebutted. Butler-Sloss LJ, in Re MB(Medical Treatment)[45], stated that in deciding whether person hasthe capacity to make particular decision, the ultimate question is whetherthat person suffers from some impairment or disturbance of mentalfunctioning so as to render him or her incapable of making the decision.The consent may be vitiated if the individual concerned may not havebeen competent in law to give or refuse that consent; or even if theindividual was competent in law, the decision has been obtained by undueinfluence or some other vitiating means; or the apparent consent or refusaldoes not extend to the particular situation; or the terms of the consent orrefusal are ambiguous or uncertain; or if the consent or refusal is basedon incorrect information or incorrect assumption. In circumstanceswhere it is practicable for medical practitioner to obtain consent totreatment, then, for the consent to be valid, it must be based on fullinformation, including as to its risks and benefits.

44 (1992) 66 AJLR 300 : (1992) 175 CLR 218

45 [1997] EWCA Civ 3093 : [1997] 2 FLR 426

A135. Where it is not practicable for medical practitioner to obtainconsent for treatment and where the patient’s life is in danger ifappropriate treatment is not given, then the treatment may be administeredwithout consent. This is justified by what is sometimes called the“emergency principle” or “principle of necessity”. Usually, the medicalpractitioner treats the patient in accordance with his clinical judgment ofBwhat is in the patient’s best interests. Lord Goff of Chieveley has rightlypointed out in v. West Berkshire Health Authority (supra) that forthe principle of necessity to apply, two conditions must be met:-

(a) There must be “a necessity to act when it is not practicable tocommunicate with the assisted person”; andC

(b) “the action taken must be such as reasonable person wouldin all the circumstances take, acting in the best interests of the assistedperson.”

136. However, Lord Goff pointed out that the principle of necessityDdoes not apply where the proposed action is contrary to the known wishesof the assisted person to the extent that he/she is capable of rationallyforming such wish. It follows that the principle of necessity cannot berelied upon to justify particular form of medical treatment where thepatient has given an advance care directive specifying that he/she doesnot wish to be so treated and where there is no reasonable basis forEdoubting the validity and applicability of that directive.

K. Passive Euthanasia in the context of Article 21 of theConstitution:

137. We have to restrict our deliberation to the issue whethereuthanasia can come within the ambit and sweep of Article 21. ArticleF21 reads as follows:-

“21. Protection of life and personal liberty.—No person shall bedeprived of his life or personal liberty except according toprocedure established by law.”

G138. The word ‘liberty’ is the sense and realization of choice ofthe attributes associated with the said choice; and the term ‘life’ is theaspiration to possess the same in dignified manner. The two areintrinsically interlinked. Liberty impels an individual to change and lifewelcomes the change and the movement. Life does not intend to live

sans liberty as it would be, in all possibility, meaningless survival. Thereis no doubt that no fundamental right is absolute, but any restraint imposedon liberty has to be reasonable. Individual liberty aids in developing one’sgrowth of mind and assert individuality. She/he may not be in positionto rule others but individually, she/he has the authority over the body andmind. The liberty of personal sovereignty over body and mind strengthensthe faculties in person. It helps in their cultivation. Roscoe Pound, inone of his lectures, has aptly said:-“… although we think socially, we must still think of individualinterests, and of that greatest of all claims which human beingmay make, the claim to assert his individuality, to exercise freelythe will and the reason which God has given him. We mustemphasize the social interest in the moral and social life of theindividual, but we must remember that it is the life of free-willing being.”

139. Liberty allows freedom of speech, association anddissemination without which the society may face hurdles in attainingthe requisite maturity. History is replete with narratives how the thoughtsof individuals, though not accepted by the contemporaneous society, lateron gained not only acceptance but also respect. One may not agreewith Kantian rigorism, but one must appreciate that without the saiddoctrine, there could not have been dissemination of further humanisticprinciples. There is danger in discouraging free thinking and curtailingthe power of imagination. Holmes in Adkins v. Children’s Hospital [46]has observed:-

“It is merely an example of doing what you want to do, embodiedin the word “liberty”.”

140. The concept of liberty perceives hazard when it feels it islikely to become hollow. This necessarily means that there would beliberty available to individuals subject to permissible legal restraint and itshould be made clear that in that restraint, free ideas cannot be imprisonedby some kind of unknown terror. Liberty cannot be slave because itconstitutes the essential marrow of life and that is how we intend tounderstand the conception of liberty when we read it in association withthe term ‘life’ as used in Article 21 of the Constitution. The great Americanplaywright Tennessee Williams has said:-

46 261 US 525, 568(1923)

A“To be free is to have achieved your life.”

141. Life as envisaged under Article 21 has been very broadlyunderstood by this Court. In Board of Trustees of the Port of Bombayv. Dilipkumar Raghavendranath Nadkarni and others[47], the Courthas held that the expression “life” does not merely connote animalBexistence or continued drudgery through life. The expression ‘life’has much wider meaning and, therefore, where the outcome of adepartmental enquiry is likely to adversely affect the reputation orlivelihood of person, some of the finer graces of human civilizationwhich make life worth living would be jeopardized and the same can beput in jeopardy only by law which inheres fair procedures.

142. In Maneka Gandhi v. Union of India and another[48],Krishna Iyer J., in his own inimitable style, states that among the greatguaranteed rights, life and liberty are the first among equals carrying auniversal connotation cardinal to decent human order and protected byconstitutional armour. Once liberty under Article 21 is viewed in aDtruncated manner, several other freedoms fade out automatically. Tosum up, personal liberty makes for the worth of the human person. Travelmakes liberty worthwhile. ‘Life’ is terrestrial opportunity for unfoldingpersonality, rising to higher status, moving to fresh woods and reachingout to reality which makes our earthly journey true fulfilment – not aEtale told by an idiot full of sound and fury signifying nothing, but finefrenzy rolling between heaven and earth. The spirit of man is at the rootof Article 21. In the absence of liberty, other freedoms are frozen.143. In State of Andhra Pradesh v. Challa Ramkrishna Reddyand others[49], this Court held that right to life is one of the basic humanFrights and it is guaranteed to every person by Article 21 of the Constitutionand not even the State has the authority to violate that right. prisoner,whether convict or under-trial or detenu, does not cease to be ahuman being. Even when lodged in jail, he continues to enjoy all hisfundamental rights including the right to life guaranteed to him under theConstitution. The Court further ruled that on being convicted of crimeGand deprived of their liberty in accordance with the procedure establishedby law, prisoners still retain the residue of constitutional rights.

47 (1983) 1 SCC 124 48 (1978) 1 SCC 248 49 AIR 2000 SC 2083 : (2000) 5 SCC 712H

144. Having said so, we are required to advert to the issue whetherpassive euthanasia can only be conceived of through legislation or thisCourt can, for the present, provide for the same. We have alreadyexplained that the ratio laid down in Gian Kaur does not convey that theintroduction of passive euthanasia can only be by legislation. In ArunaShanbaug, the two-Judge Bench has placed reliance on the ConstitutionBench judgment in Gian Kaur to lay down the guidelines. If, eventually,we arrive at the conclusion that passive euthanasia comes within thesweep of Article 21 of the Constitution, we have no iota of doubt thatthis Court can lay down the guidelines.

145. We may clearly state here that the interpretation of theConstitution, especially fundamental rights, has to be dynamic and it isonly such interpretative dynamism that breathes life into the writtenwords. As far as Article 21 is concerned, it is imperative to mention thatdynamism can, of course, infuse life into life and liberty as used in thesaid Article.

146. In this regard, we may reproduce couple of paragraphsfrom Central Inland Water Transport Corporation Limited andanother v. Brojo Nath Ganguly and another[50]. They read as under:-

“25. The story of mankind is punctuated by progress andretrogression. Empires have risen and crashed into the dust ofhistory. Civilizations have nourished, reached their peak and passedaway. In the year 1625, Carew, C.J., while delivering the opinionof the House of Lords in Re the Earldom of Oxford in disputerelating to the descent of that Earldom, said:

“... and yet time hath his revolution, there must be period andan end of all temporal things, finis rerum, an end of names anddignities, and whatsoever is terrene....”

The cycle of change and experiment, rise and fall, growth anddecay, and of progress and retrogression recurs endlessly in thehistory of man and the history of civilization. T.S. Eliot in the FirstChorus from “The Rock” said:

“O perpetual revolution of configured stars,

O perpetual recurrence of determined seasons,

AO world of spring and autumn, birth and dying;

The endless cycle of idea and action,

Endless invention, endless experiment.”

26. The law exists to serve the needs of the society which isBgoverned by it. If the law is to play its allotted role of serving theneeds of the society, it must reflect the ideas and ideologies ofthat society. It must keep time with the heartbeats of the societyand with the needs and aspirations of the people. As the societychanges, the law cannot remain immutable. The early nineteenthcentury essayist and wit, Sydney Smith, said: “When I hear anyCman talk of an unalterable law, I am convinced that he is anunalterable fool.” The law must, therefore, in changing societymarch in tune with the changed ideas and ideologies”

[Emphasis added]

147. We approve the view in the aforesaid passages. Havingapproved the aforesaid principle, we are obliged to state that thefundamental rights in their connotative expanse are bound to engulfcertain rights which really flow from the same. In M. Nagaraj andothers v. Union of India and others[51], the Constitution Bench has ruled:-

“19. The Constitution is not an ephemeral legal documentEembodying set of legal rules for the passing hour. It sets outprinciples for an expanding future and is intended to endure forages to come and consequently to be adapted to the various crisesof human affairs. Therefore, purposive rather than strict literalapproach to the interpretation should be adopted. constitutionalFprovision must be construed not in narrow and constricted sensebut in wide and liberal manner so as to anticipate and take accountof changing conditions and purposes so that constitutionalprovision does not get fossilised but remains flexible enough tomeet the newly emerging problems and challenges.”

GAnd again:-

“29. … constitutionalism is about limits and aspirations. Accordingto Justice Brennan, interpretation of the Constitution as writtentext is concerned with aspirations and fundamental principles. Inhis article titled “Challenge to the Living Constitution” by HermanH 51 (2006) 8 SCC 212

Belz, the author says that the Constitution embodies aspiration tosocial justice, brotherhood and human dignity. It is text whichcontains fundamental principles. …”

148. In this context, we may make reference to three-JudgeBench decision in V.C. Rangadurai v. D. Gopalan and others[52] whereinthe majority, while dealing with Section 35(3) of the Advocates Act,1961, stated:-

“8. … we may note that words grow in content with time andcircumstance, that phrases are flexible in semantics, that the printedtext is set of vessels into which the court may pour appropriatejudicial meaning. That statute is sick which is allergic to change insense which the times demand and the text does not countermand.That court is superficial which stops with the cognitive and declinesthe creative function of construction. So, we take the view that‘quarrying’ more meaning is permissible out of Section 35(3) andthe appeal provisions, in the brooding background of social justice,sanctified by Article 38, and of free legal aid enshrined by Article39A of the Constitution.”

The learned Judges went on to say:-

“11. … Judicial ‘Legisputation’ to borrow telling phrase of J.Cohen, is not legislation but application of given legislation tonew or unforeseen needs and situations broadly falling within thestatutory provision. In that sense, ‘interpretation is inescapably akind of legislation’ (The Interpretation and Application of Statutes,Read Dickerson, p. 238). Ibid. p. 238. This is not legislation strictosensu but application, and is within the court’s province.”

149. The aforesaid authorities clearly show the power that fallswithin the province of the Court. The language employed in theconstitutional provision should be liberally construed, for such provisioncan never remain static. It is because stasticity would mar the corewhich is not the intent.

K.1 Individual Dignity as facet of Article 21:

150. Dignity of an individual has been internationally recognizedas an important facet of human rights in the year 1948 itself with theenactment of the Universal Declaration of Human Rights. Human dignity

52 (1979) 1 SCC 308

Anot only finds place in the Preamble of this important document but alsoin Article 1 of the same. It is well known that the principles set out inUDHR are of paramount importance and are given utmost weightagewhile interpreting human rights all over the world. The first and foremostresponsibility fixed upon the State is the protection of human dignitywithout which any other right would fall apart. Justice Brennan in hisBbook The Constitution of the United States: Contemporary Ratificationhas referred to the Constitution as “a sparkling vision of the supremacyof the human dignity of every individual.”

151. In fact, in the case of Christine Goodwin v. the UnitedKingdom[53] the European Court of Human Rights, speaking in the contextCof the Convention for the Protection of Human Rights and FundamentalFreedoms, has gone to the extent of stating that “the very essence of theConvention is respect for human dignity and human freedom”. In theSouth African case of S v. Makwanyane[54] O’ Regan J. stated in theConstitutional Court that “without dignity, human life is substantiallyDdiminished.”

152. Having noted the aforesaid, it is worthy to note that our Courthas expanded the spectrum of Article 21. In the latest nine-Judge Benchdecision in K.S. Puttaswamy and another v. Union of India andothers[55], dignity has been reaffirmed to be component under the saidEfundamental right. Human dignity is beyond definition. It may at timesdefy description. To some, it may seem to be in the world of abstractionand some may even perversely treat it as an attribute of egotism oraccentuated eccentricity. This feeling may come from the roots ofabsolute cynicism. But what really matters is that life without dignity islike sound that is not heard. Dignity speaks, it has its sound, it is naturalFand human. It is combination of thought and feeling, and, as statedearlier, it deserves respect even when the person is dead and describedas ‘body’. That is why, the Constitution Bench in M. Nagaraj (supra)lays down:-

“….It is the duty of the State not only to protect the human dignityGbut to facilitate it by taking positive steps in that direction. Noexact definition of human dignity exists. It refers to the intrinsicvalue of every human being, which is to be respected. It cannot

53 [2002] ECHR 588 54 1995 (3) SA 391H 55 (2017) 10 SCC 1

be taken away. It cannot give (sic be given). It simply is. Everyhuman being has dignity by virtue of his existence. …”

153. The concept and value of dignity requires further elaborationsince we are treating it as an inextricable facet of right to life that respectsall human rights that person enjoys. Life is basically self-assertion. Inthe life of person, conflict and dilemma are expected to be normalphenomena. Oliver Wendell Holmes, in one of his addresses, quoted aline from Latin poet who had uttered the message, “Death plucks myear and says, Live- I am coming”. That is the significance of living. Butwhen patient really does not know if he/she is living till death visitshim/her and there is constant suffering without any hope of living, shouldone be allowed to wait? Should she/he be cursed to die as life graduallyebbs out from her/his being? Should she/he live because of innovativemedical technology or, for that matter, should he/she continue to livewith the support system as people around him/her think that science inits progressive invention may bring about an innovative method of cure?To put it differently, should he/she be “guinea pig” for some kind ofexperiment? The answer has to be an emphatic “No” because suchfutile waiting mars the pristine concept of life, corrodes the essence ofdignity and erodes the fact of eventual choice which is pivotal to privacy.Recently, in K.S. Puttaswamy (supra), one of us (Dr. Chandrachud J.),while speaking about life and dignity, has observed:-

“118. Life is precious in itself. But life is worth living because ofthe freedoms which enable each individual to live life as it shouldbe lived. The best decisions on how life should be lived are entrustedto the individual. They are continuously shaped by the social milieuin which individuals exist. The duty of the State is to safeguardthe ability to take decisions — the autonomy of the individual —and not to dictate those decisions. “Life” within the meaning ofArticle 21 is not confined to the integrity of the physical body. Theright comprehends one’s being in its fullest sense. That whichfacilitates the fulfilment of life is as much within the protection ofthe guarantee of life.

119. To live is to live with dignity. The draftsmen of the Constitutiondefined their vision of the society in which constitutional valueswould be attained by emphasising, among other freedoms, libertyand dignity. So fundamental is dignity that it permeates the coreof the rights guaranteed to the individual by Part III. Dignity is the

Acore which unites the fundamental rights because the fundamentalrights seek to achieve for each individual the dignity of existence.Privacy with its attendant values assures dignity to the individualand it is only when life can be enjoyed with dignity can liberty beof true substance. Privacy ensures the fulfilment of dignity and isa core value which the protection of life and liberty is intended toBachieve.”154. In Mehmood Nayyar Azam v. State of Chhattisgarh andothers[56], two-Judge Bench held thus:-

“Albert Schweitzer, highlighting on Glory of Life, pronounced withCconviction and humility, “the reverence of life offers me myfundamental principle on morality”. The aforesaid expression mayappear to be an individualistic expression of great personality,but, when it is understood in the complete sense, it really denotes,in its conceptual essentiality, and connotes, in its macrocosm, thefundamental perception of thinker about the respect that lifeDcommands. The reverence of life is insegragably associated withthe dignity of human being who is basically divine, not servile. Ahuman personality is endowed with potential infinity and it blossomswhen dignity is sustained. The sustenance of such dignity has tobe the superlative concern of every sensitive soul. The essenceEof dignity can never be treated as momentary spark of light or,for that matter, ‘a brief candle’, or ‘a hollow bubble’. The sparkof life gets more resplendent when man is treated with dignitysans humiliation, for every man is expected to lead an honourablelife which is splendid gift of “creative intelligence””

F155. The aforesaid authority emphasizes the seminal value of lifethat is inherent in the concept of life. Dignity does not recognize oraccept any nexus with the status or station in life. The singular principlethat it pleasantly gets beholden to is the integral human right of person.Law gladly takes cognizance of the fact that dignity is the most sacredpossession of man. And the said possession neither loses its sanctityGin the process of dying nor evaporates when death occurs. In this context,reference to passage from Vikas Yadav v. State of Uttar Pradeshand others[57]is note worthy. The two Judge Bench of this Court, whiledealing with the imposition of fixed term sentence under Section 302 56 (2012) 8 SCC 1 57 (2016) 9 SCC 541H

COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA[DIPAK MISRA, CJI]

IPC, took note of the fact that the High Court had observed the magnitudeof vengeance of the accused and the extent to which they had gone todestroy the body of the deceased. Keeping in view the findings of theHigh Court, this Court stated:-

“From the evidence brought on record as well as the analysismade by the High Court, it is demonstrable about the criminalproclivity of the accused persons, for they have neither the respectfor human life nor did they have any concern for the dignity of adead person. They had deliberately comatosed the feeling thateven in death person has dignity and when one is dead deservesto be treated with dignity. That is the basic human right. Thebrutality that has been displayed by the accused persons clearlyexposes the depraved state of mind.”

The aforesaid passage shows the pedestal on which the Courthas placed the dignity of an individual.

156. Reiterating that dignity is the most fundamental aspect ofright to life, it has been held in the celebrated case of Francis CoralieMullin v. The Administrator, Union Territory of Delhi [58]:-

“We think that the right to life includes the right to live with humandignity and all that goes along with it, namely, the bare necessariesof life such as adequate nutrition, clothing and shelter and facilitiesfor reading, writing and expressing one-self in diverse forms, freelymoving about and mixing and commingling with fellow humanbeings. Of course, the magnitude and content of the componentsof this right would depend upon the extent of the economicdevelopment of the country, but it must, in any view of the matter,include the right to the basic necessities of life and also the rightto carry on such functions and activities as constitute the bareminimum expression of the human-self. Every act which offendsagainst or impairs human dignity would constitute deprivationprotanto of this right to live and it would have to be in accordancewith reasonable, fair and just procedure established by law whichstands the test of other fundamental rights. Now obviously, anyform of torture or cruel, inhuman or degrading treatment wouldbe offensive to human dignity and constitute an inroad into thisright to live and it would, on this view, be prohibited by Article 21

58 (1981) 1 SCC 608

Aunless it is in accordance with procedure prescribed by law, butno law which authorises and no procedure which leads to suchtorture or cruel, inhuman or degrading treatment can ever standthe test of reasonableness and non-arbitrariness: it would plainlybe unconstitutional and void as being violative of Articles 14 and21. It would thus be seen that there is implicit in Article 21 theBright to protection against torture or cruel, inhuman or degradingtreatment which is enunciated in Article 5 of the UniversalDeclaration of Human Rights and guaranteed by Article 7 of theInternational Covenant on Civil and Political Rights.”

157. In National Legal Services Authority v. Union of IndiaCand others [59], the Apex Court has held that there is growing recognitionthat the true measure of development of nation is not economic growth;it is human dignity.

158. In Shabnam v. Union of India and another [60], it has beenfurther held that:-D

“This right to human dignity has many elements. First and foremost,human dignity is the dignity of each human being ‘as humanbeing’. Another element, which needs to be highlighted, in thecontext of the present case, is that human dignity is infringed if aperson’s life, physical or mental welfare is armed. It is in thisEsense torture, humiliation, forced labour, etc. all infringe on humandignity.”

159. In Gian Kaur (supra), the Constitution Bench indicatesacceleration of the conclusion of the process of death which hascommenced and this indication, as observed by us, allows room forFexpansion. In the said case, the Court was primarily concerned with thequestion of constitutional validity of Sections 306 and 309 of IPC. TheCourt was conscious of the fact that the debate on euthanasia was notrelevant for deciding the question under consideration. The Court,however, in no uncertain terms expounded that the word “life” in ArticleG21 has been construed as life with human dignity and it takes within itsambit the “right to die with dignity” being part of the “right to live withdignity”. Further, the “right to live with human dignity” would meanexistence of such right upto the end of natural life which would includethe right to live dignified life upto the point of death including the dignified

59 (2014) 5 SCC 438H 60 (2015) 6 SCC 702

procedure of death. While adverting to the situation of dying man whois terminally ill or in persistent vegetative state where he may bepermitted to terminate it by premature extinction of his life, the Courtobserved that the said category of cases may fall within the ambit of“right to die with dignity” as part of the right to live with dignity whendeath due to the termination of natural life is certain and imminent andthe process of natural death has commenced, for these are not cases ofextinguishing life but only of accelerating the conclusion of the processof natural death which has already commenced. The sequitur of thisexposition is that there is little doubt that dying man who is terminally illor in persistent vegetative state can make choice of prematureextinction of his life as being facet of Article 21 of the Constitution. Ifthat choice is guaranteed being part of Article 21, there is no necessityof any legislation for effectuating that fundamental right and more so hisnatural human right. Indeed, that right cannot be an absolute right butsubject to regulatory measures to be prescribed by suitable legislationwhich, however, must be reasonable restrictions and in the interests ofthe general public. In the context of the issue under consideration, wemust make it clear that as part of the right to die with dignity in case ofa dying man who is terminally ill or in persistent vegetative state, onlypassive euthanasia would come within the ambit of Article 21 and notthe one which would fall within the description of active euthanasia inwhich positive steps are taken either by the treating physician or someother person. That is because the right to die with dignity is an intrinsicfacet of Article 21. The concept that has been touched deserves to beconcretised, the thought has to be realized. It has to be viewed fromvarious angles, namely, legal permissibility, social and ethical ethos andmedical values.

160. The purpose of saying so is only to highlight that the lawmust take cognizance of the changing society and march in consonancewith the developing concepts. The need of the present has to be servedwith the interpretative process of law. However, it is to be seen howmuch strength and sanction can be drawn from the Constitution toconsummate the changing ideology and convert it into reality. Theimmediate needs are required to be addressed through the process ofinterpretation by the Court unless the same totally falls outside theconstitutional framework or the constitutional interpretation fails torecognize such dynamism. The Constitution Bench in Gian Kaur, as

Astated earlier, distinguishes attempt to suicide and abetment of suicidefrom acceleration of the process of natural death which has commenced.The authorities, we have noted from other jurisdictions, have observedthe distinctions between the administration of lethal injection or certainmedicines to cause painless death and non-administration of certaintreatment which can prolong the life in cases where the process of dyingBthat has commenced is not reversible or withdrawal of the treatmentthat has been given to the patient because of the absolute absence ofpossibility of saving the life. To explicate, the first part relates to anovert act whereas the second one would come within the sphere ofinformed consent and authorized omission. The omission of such natureCwill not invite any criminal liability if such action is guided by certainsafeguards. The concept is based on non-prolongation of life wherethere is no cure for the state the patient is in and he, under nocircumstances, would have liked to have such degrading state. Thewords “no cure” have to be understood to convey that the patient remainsin the same state of pain and suffering or the dying process is delayed byDmeans of taking recourse to modern medical technology. It is statewhere the treating physicians and the family members know fully wellthat the treatment is administered only to procrastinate the continuum ofbreath of the individual and the patient is not even aware that he isbreathing. Life is measured by artificial heartbeats and the patient has toEgo through this undignified state which is imposed on him. The dignity oflife is denied to him as there is no other choice but to suffer an avoidableprotracted treatment thereby thus indubitably casting cloud and creatinga dent in his right to live with dignity and face death with dignity, whichis preserved concept of bodily autonomy and right to privacy. In sucha stage, he has no old memories or any future hopes but he is in stateFof misery which nobody ever desires to have. Some may also silentlythink that death, the inevitable factum of life, cannot be invited. To meetsuch situations, the Court has duty to interpret Article 21 in furtherdynamic manner and it has to be stated without any trace of doubt thatthe right to life with dignity has to include the smoothening of the processGof dying when the person is in vegetative state or is living exclusivelyby the administration of artificial aid that prolongs the life by arrestingthe dignified and inevitable process of dying. Here, the issue of choicealso comes in. Thus analysed, we are disposed to think that such rightwould come within the ambit of Article 21 of the Constitution.

L. Right of self-determination and individual autonomy:

161. Having dealt with the right to acceleration of the process ofdying natural death which is arrested with the aid of modern innovativetechnology as part of Article 21 of the Constitution, it is necessary toaddress the issues of right of self-determination and individual autonomy.

162. John Rawls says that the liberal concept of autonomy focuseson choice and likewise, self-determination is understood as exercisedthrough the process of choosing[61]. The respect for an individual humanbeing and in particular for his right to choose how he should live his ownlife is individual autonomy or the right of self- determination. It is theright against non-interference by others, which gives competent personwho has come of age the right to make decisions concerning his or herown life and body without any control or interference of others. LordHoffman, in Reeves v. Commissioner of Police of the Metropolis[62]has stated:-

“Autonomy means that every individual is sovereign over himselfand cannot be denied the right to certain kinds of behaviour, evenif intended to cause his own death.”

163. In the context of health and medical care decisions, person’sexercise of self-determination and autonomy involves the exercise ofhis right to decide whether and to what extent he/she is willing to submithimself/herself to medical procedures and treatments, choosing amongstthe available alternative treatments or, for that matter, opting for notreatment at all which, as per his or her own understanding, is inconsonance with his or her own individual aspirations and values.

164. In Airedale (supra), Lord Goff has expressed that it isestablished that the principle of self-determination requires that respectmust be given to the wishes of the patient so that if an adult patient ofsound mind refuses, however unreasonably, to consent to treatment orcare by which his/her life would or might be prolonged, the doctorsresponsible for his/her care must give effect to his/her wishes, eventhough they do not consider it to be in his/her best interests to do so andto this extent, the principle of sanctity of human life must yield to theprinciple of self-determination. Lord Goff further says that the doctor’sduty to act in the best interests of his patient must likewise be qualified 61 Rawls, John, Political Liberalism 32, 33, New York: Columbia University Press,1993.

62[2000] 1 AC 360, 379

Awith the patient’s right of self determination. Therefore, as far as theUnited Kingdom is concerned, it is generally clear that whenever thereis conflict between capable adult’s exercise of the right of self-determination and the State’s interest in preserving human life by treatingit as sanctimonious, the right of the individual must prevail.

B165. In the United States, the aspect of self-determination andindividual autonomy is concretised in law as all fifty States along withthe District of Columbia, the capital, which is commonly referred asWashington D.C., have passed legislations upholding different forms ofAdvance Directives. In the United States, even before the enactment ofthe said laws, terminally ill person was free to assert the right to die asCan ancillary right to the constitutionally protected right to privacy. In InRe Quinlan (supra), where 21 year old girl in chronic PVS was onventilator support, the Court, while weighing Quinlan’s right to privacyqua the State’s interest in preserving human life, found that as the degreeof bodily invasion increases and the prognosis for the patient’s recoveryDdims, the patient’s right to privacy increases and the State’s interestweakens. The Supreme Court of New Jersey finally ruled that theunwritten constitutional right of privacy was broad enough to encompassa patient’s decision to decline medical treatment in certain circumstances.Again, in Re Jobes[63], which was also case concerned with PVSpatient, the Court, following the decision in In Re Quinlan, upheld theEprinciple of self determination and autonomy of an incompetent person.

166. The Canadian Criminal Code asserts and protects the sanctityof life in number of ways which directly confront the autonomy of theterminally ill in their medical decision making. However, the SupremeCourt of Canada in Reibl v. Hughes[64] approved an oft-quoted statementFof Cardozo J. in Scholoendorf (supra) that “every human being of adultyears and sound mind has right to determine what shall be done withhis own body” and Chief Justice Laskin in Reibl (supra) has furtheradded that battery would lie where surgery or treatment was performedwithout consent or where apart from emergency situations, surgery orGmedical treatment was given beyond that to which there was consent.Thus, the Supreme Court of Canada suggested that competent adultshave the right to make their own medical decisions even if such decisionsare unwise.

63 (1987) 108 N.J. 394 64 [1980] 2 SCR 880 at 890-891H

167. In Aruna Shanbaug (supra), this Court has observed thatautonomy means the right to self-determination where the informedpatient has right to choose the manner of his treatment. To beautonomous the patient should be competent to make decisions andchoices. In the event that he is incompetent to make choices, his wishesexpressed in advance in the form of Living Will, or the wishes ofsurrogates acting on his behalf (‘substituted judgment’) are to berespected. The surrogate is expected to represent what the patient mayhave decided had he/she been competent or to act in the patient’s bestinterest. It is expected that surrogate acting in the patient’s best interestfollows course of action because it is best for the patient, and is notinfluenced by personal convictions, motives or other considerations.

168. Thus, enquiring into common law and statutory rights ofterminally ill persons in other jurisdictions would indicate that all adultswith the capacity to consent have the common law right to refuse medicaltreatment and the right of self determination.

169. We may, however, add word of caution that doctors wouldbe bound by the choice of self-determination made by the patient who isterminally ill and undergoing prolonged medical treatment or is survivingon life support, subject to being satisfied that the illness of the patient isincurable and there is no hope of his being cured. Any other considerationcannot pass off as being in the best interests of the patient.

M. Social morality, medical ethicality and State interest:

170. Having dwelt upon the issue of self-determination, we maypresently delve into three aspects, namely, social morality, medicalethicality and the State interest. The aforesaid concepts have to beaddressed in the constitutional backdrop. We may clearly note that thesociety at large may feel that patient should be treated till he breatheshis last breath and the treating physicians may feel that they are boundby their Hippocratic oath which requires them to provide treatment andsave life and not to put an end to life by not treating the patient. Themembers of the family may remain in constant state of hesitation beingapprehensive of many social factor which include immediate claim ofinheritance, social stigma and, sometimes, the individual guilt. TheHippocratic oath taken by doctor may make him feel that there hasbeen failure on his part and sometimes also make him feel scared ofvarious laws. There can be allegations against him for negligence orcriminal culpability.

A171. In this regard, two aspects are to be borne in mind. First,withdrawal of treatment in an irreversible situation is different from nottreating or attending to patient and second, once passive euthanasia isrecognized in law regard being had to the right to die with dignity whenlife is ebbing out and when the prolongation is done sans purpose, neitherthe social morality nor the doctors’ dilemma or fear will have any place.BIt is because the sustenance of dignity and self-respect of an individualis inhered in the right of an individual pertaining to life and liberty andthere is necessity for this protection. And once the said right comeswithin the shelter of Article 21 of the Constitution, the social perceptionand the apprehension of the physician or treating doctor regarding facingClitigation should be treated as secondary because the primacy of theright of an individual in this regard has to be kept on high pedestal.172. It is to be borne in mind that passive euthanasia fundamentallyconnotes 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 familyDmembers. It is avoidance of unnecessary intrusion in the physical frameof person, for the inaction is meant for smooth exit from life. It isparamount for an individual to protect his dignity as an inseparable partof the right to life which engulfs the dignified process of dying sans pain,sans suffering and, most importantly, sans indignity.

E173. There are philosophers, thinkers and also scientists who feelthat life is not confined to the physical frame and biologicalcharacteristics. But there is no denial of the fact that life in its connotativeexpanse intends to search for its meaning and find the solution of theriddle of existence for which some lean on atheism and some vouchsafefor faith and yet some stand by the ideas of an agnostic. However, theFlegal fulcrum has to be how Article 21 of the Constitution is understood.If man is allowed to or, for that matter, forced to undergo pain, sufferingand state of indignity because of unwarranted medical support, themeaning of dignity is lost and the search for meaning of life is in vain.

N. Submissions of the StatesG

174. In this context, we may reflect on the submissions advancedon behalf of certain States. As stated earlier, there is categoricalassertion that protection of human life is paramount and it is obligatoryon behalf of the States to provide treatment and to see that no one diesbecause of lack of treatment and to realise the principles enshrined inHChapter IV of the Constitution. Emphasis has been laid on the State

interest and the process of abuse that can take place in treating passiveeuthanasia as permissible in law. To eliminate the possibility of abuse,safeguards can be taken and guidelines can be framed. But on the pleaof possibility of abuse, the dignity in the process of dying being facet ofArticle 21 should not be curbed.

Mr. Datar, learned senior counsel in the course of arguments, hasadvanced submissions in support of passive euthanasia and also givensuggestions spelling out the guidelines for advance directive and alsoimplementation of the same when the patient is hospitalized. The saidaspect shall be taken into consideration while giving effect to the advancedirective and also taking steps for withdrawal of medical support.

O. Submissions of Intervenor (Society for the Right to Diewith Dignity):

175. Mr. Mohta, learned counsel appearing for the intervenor,that is, Society for the Right to Die with Dignity, has drawn our attentionto certain articles and submitted that from the days of Plato to the timeof Sir Thomas More and other thinkers, painless and peaceful death hasbeen advocated. He would also submit that ancient wisdom of Indiataught people not to fear death but to aspire for deathlessness andconceive it as “Mahaprasthana”. It is his submission that in the modernState, the State interest should not over-weigh the individual interest inthe sphere of desire to die peaceful death which basically conveysrefusal of treatment when the condition of the individual suffering froma disease is irreversible. The freedom of choice in this sphere, as Mr.Mohta would put it, serves the cause of humanitarian approach which isnot the process to put an end to life by taking positive action but toallow dying patient to die peaceably instead of prolonging the processof dying without purpose that creates dent in his dignity.176. The aforesaid argument, we have no hesitation to say, hasforce. It is so because it is in accord with the constitutional precept andfosters the cherished value of dignity of an individual. It saves helplessperson from uncalled for and unnecessary treatment when he isconsidered as merely creature whose breath is felt or measuredbecause of advanced medical technology. His “being” exclusively restson the mercy of the technology which can prolong the condition forsome period. The said prolongation is definitely not in his interest. Onthe contrary, it tantamounts to destruction of his dignity which is the core

Avalue of life. In our considered opinion, in such situation, an individualinterest has to be given priority over the State interest.

P. Advance Directive/Advance Care Directive/AdvanceMedical Directive:

177. In order to overcome the difficulty faced in case of patientsBwho are unable to express their wishes at the time of taking the decision,the concept of Advance Medical Directives emerged in various countries.The proponents of Advance Medical Directives contend that the conceptof patient autonomy for incompetent patients can be given effect to, bygiving room to new methods by which incompetent patients canCbeforehand communicate their choices which are made while they arecompetent. Further, it may be argued that failure to recognize AdvanceMedical Directives would amount to non-facilitation of the right to havea smoothened dying process. That apart, it accepts the position that acompetent person can express her/his choice to refuse treatment at thetime when the decision is required to be made.D

178. Advance Directives for health care go by various names indifferent countries though the objective by and large is the same, that is,to specify an individual’s health care decisions and to identify personswho will take those decisions for the said individual in the event he isunable to communicate his wishes to the doctor.E

179. The Black’s Law Dictionary defines an advance medicaldirective as, “a legal document explaining one’s wishes about medicaltreatment if one becomes incompetent or unable to communicate”. Aliving will, on the other hand, is document prescribing person’s wishesregarding the medical treatment the person would want if he was unableFto share his wishes with the health care provider.

180. Another type of advance medical directive is medical powerof attorney. It is document which allows an individual (principal) toappoint trusted person (agent) to take health care decisions when theprincipal is not able to take such decisions. The agent appointed to dealGwith such issues can interpret the principal’s decisions based on theirmutual knowledge and understanding.

181. Advance Directives have gained lawful recognition in severaljurisdictions by way of legislation and in certain countries through judicialpronouncements. In vast majority of the States in USA, it is mandatory

for the doctors to give effect to the wishes of the patients as declared bythem in their advance directives. California was the first State to legallysanction living will. The United States Congress in 1990, with the objectiveof protecting the fundamental principles of self-autonomy and self-determination, enacted the Patient Self-Determination Act (PSDA) whichacknowledged the rights of the patient to either refuse or accept treatment.Following this, all 50 States enacted legislations adopting advancedirectives. Apart from this, several States of USA also permit the patientsto appoint health care proxy which becomes effective only when thepatient is unable to make decisions.182. In order to deal with the technicalities and intricaciesassociated with an instrument as complex as an Advance Directive,several derivatives/versions have evolved over time. The National Rightto Life Committee (NRLC) in the United States came up with versionof living will which was called ‘Will to Live” which is safeguard ofthe lives of patients who wish to continue treatment and not refuse life-sustaining treatment. This form of active declaration gains importancein cases where the will of the patient cannot be deciphered with certaintyand the Courts order withdrawal of life supporting treatment where theydeem the life of the patient as not worthwhile.

183. Yet another measure for finding and accessing the patient’sadvance directive was the setting up of the U.S. Living Will Registry. Asper this model, it was obligatory on the part of the hospital administrationto ask patient, who would be admitted, if he/she had an advancedirective and store the same on their medical file. special power tothe Advance Directives introduced by Virginia was the “Ulysses Clause”which accords protection in situations when the patient goes into relapsein his/her condition, that is, schizophrenia and refuses treatment whichthey would not refuse if not for the said relapse.

184. new type of advance directive is the “Do Not ResuscitateOrder” (DNRO) in Florida which is form of patient identification devicedeveloped by the Department of Health to identify people who do notwish to be resuscitated in the event of respiratory or cardiac arrest. InFlorida State of United States, where an unconscious patient with thephrase “Do Not Resuscitate” tattooed on his chest was brought inparamedics, the doctors were left in conundrum whether the messagewas not to provide any medical treatment to the patient and ultimately,

Athe doctors opted not to perform any medical procedure and the patient,thereafter, died. This case highlights the dynamics involved in the conceptof advanced directives due to the intricacies surrounding the concept.185. The Mental Capacity Act governs the law relating to advancedirectives in the UK. Specific guidelines as to the manner in which theBadvance directive should be drafted and the necessary conditions thatneed to be fulfilled in order to give effect to the directives have beencategorically laid out in the said piece of legislation. few specificrequirements in case of refusal of life sustaining treatment is theverification of the decision-maker that the refusal operates even if life isat risk and that the directive should be in the written form and signed andCwitnessed. However, an advance directive refusing food and water hasnot been recognized under this statute. Further, the Act recognizes therights of the patient to appoint health care proxy who is referred to as“lasting power of attorney”. In order for the proxy decision-maker soappointed to be competent to consent or refuse life-sustaining treatmentDof the decision-maker, an express provision delegating the said authorityshould be part of the advance directive. In general, as per the settledlaw vide the decision in Airedale, life sustaining treatment includingartificial nutrition and hydration can be withdrawn if the patient consentsto it and in case of incompetent patients, if it is in their best interest to doso.E186. Australia too, by way of legislation, has well establishedprinciples governing Advance Health Directives. Except Tasmania, allstates have provision for Advance Directives. The Advance Directivesas postulated by the different legislations in each State in Australia differin nature and their binding effect but the objective of every type remainsFthe same, that is, preservation of the patient’s autonomy. There are severalcircumstances when the advance health care directives or certainprovisions contained therein become inoperative.187. InQueensland, the directive becomes inoperative if themedical health practitioner is of the opinion that giving effect to theGdirective is inconsistent with good medical practice or in case of changein circumstances, including new advances in medicine, medical practiceand technology, to the extent that giving effect to the directive isinappropriate.

188. In the State of Victoria, an advance directive ceases to applyHdue to change in the condition of the patient to the extent that the

condition in relation to which the advance directive was given no longerexists. Further, South Australia permits medical practitioner to refuseto comply with certain provision in an advance directive in case he/shehas enough reason to believe that the patient did not intend the provisionto apply in certain conditions or the provision would not reflect the presentwishes of the patient. In Western Australia, the occurrence of changein circumstances which either the decision maker could have neveranticipated at the time of making the directive or which could have theeffect on reasonable person in the position of the decision maker tochange his/her mind regarding the treatment decision would invalidatethe said treatment decision in the directive. In Northern Territory, anadvance consent direction is disregarded in case giving effect to it wouldresult in such unacceptable pain and suffering to the patient or would beso unjustifiable and rather it is more reasonable to override the wishes ofthe patient. Furthermore, if the medical practitioner is of the opinion thatthe patient would have never intended the advance consent direction toapply in the circumstances, then the advance consent direction need notbe complied with.

189. Canada does not have federal legislation exclusively toregulate advance directives. Rather, there are eleven different provincialapproaches governing the law on passive euthanasia and advancedirectives in Canada. The provinces of Alberta, Saskatchewan, Manitoba,Prince Edward Island, Newfoundland and Labrador and NorthwestTerritories have provision for both proxy and instructional directives,whereas, the States of British Columbia, Ontario, Quebec and Yukonprovide only for appointment of proxy while simultaneously recognizingthe binding nature of previously given instructions. The respectivelegislations of the provinces/territories differ from one another on severalcriteria, for instance, minimum age requirement and other formalities tobe complied with, such as written nature of the advance directive, etc.Furthermore, some of the provinces mandate prior consultation with alawyer. Wishes orally expressed have also been recognized by someprovinces.

190. Having dealt with the principles in vogue across the globe,we may presently proceed to deal with the issue of advance medicaldirective which should be ideal in our country. Be it noted, though thelearned counsel for the petitioner has used the words “living will”, yetwe do not intend to use the said terminology. We have already stated

Athat safeguards and guidelines are required to be provided. First, weshall analyse the issue of legal permissibility of the advance medicaldirective. In other jurisdictions, the concepts of “living will” andinvolvement of Attorney are stipulated. There is no legal framework inour country as regards the Advance Medical Directive but we are obligedto protect the right of the citizens as enshrined under Article 21 of theBConstitution. It is our constitutional obligation. As noticed earlier, thetwo-Judge Bench in Aruna Shanbaug (supra) has provided forapproaching the High Court under Article 226 of the Constitution. Thedirections and guidelines to be given in this judgment would becomprehensive and would also cover the situation dealt with ArunaCShanbaug case.191. In our considered opinion, Advance Medical Directive wouldserve as fruitful means to facilitate the fructification of the sacrosanctright to life with dignity. The said directive, we think, will dispel many adoubt at the relevant time of need during the course of treatment of theDpatient. That apart, it will strengthen the mind of the treating doctors asthey will be in position to ensure, after being satisfied, that they areacting in lawful manner. We may hasten to add that Advance MedicalDirective cannot operate in abstraction. There has to be safeguards.They need to be spelt out. We enumerate them as follows:-

E(a) Who can execute the Advance Directive and how?

(i) The Advance Directive can be executed only by an adultwho is of sound and healthy state of mind and in positionto communicate, relate and comprehend the purpose andconsequences of executing the document.

(ii) It must be voluntarily executed and without any coercionor inducement or compulsion and after having fullknowledge or information.

(iii) It should have characteristics of an informed consent givenwithout any undue influence or constraint.

(iv) It shall be in writing clearly stating as to when medicaltreatment may be withdrawn or no specific medicaltreatment shall be given which will only have the effect ofdelaying the process of death that may otherwise causehim/her pain, anguish and suffering and further put him/herHin state of indignity.

(b) What should it contain?

(i) It should clearly indicate the decision relating to thecircumstances in which withholding or withdrawal ofmedical treatment can be resorted to.

(ii) It should be in specific terms and the instructions must beabsolutely clear and unambiguous.

(iii) It should mention that the executor may revoke theinstructions/authority at any time.

(iv) It should disclose that the executor has understood theconsequences of executing such document.

(v) It should specify the name of guardian or close relativewho, in the event of the executor becoming incapable oftaking decision at the relevant time, will be authorized togive consent to refuse or withdraw medical treatment in amanner consistent with the Advance Directive.

(vi)In the event that there is more than one valid AdvanceDirective, none of which have been revoked, the mostrecently signed Advance Directive will be considered asthe last expression of the patient’s wishes and will be giveneffect to.

(c) How should it be recorded and preserved?

(i) The document should be signed by the executor in thepresence of two attesting witnesses, preferably independent,and countersigned by the jurisdictional Judicial Magistrateof First Class (JMFC) so designated by the concernedDistrict Judge.

(ii) The witnesses and the jurisdictional JMFC shall record theirsatisfaction that the document has been executed voluntarilyand without any coercion or inducement or compulsion andwith full understanding of all the relevant information andconsequences.

(iii) The JMFC shall preserve one copy of the document in hisoffice, in addition to keeping it in digital format.

A(iv) The JMFC shall forward one copy of the document to theRegistry of the jurisdictional District Court for beingpreserved. Additionally, the Registry of the District Judgeshall retain the document in digital format.

(v) The JMFC shall cause to inform the immediate familyBmembers of the executor, if not present at the time ofexecution, and make them aware about the execution ofthe document.

(vi) copy shall be handed over to the competent officer ofthe local Government or the Municipal Corporation orMunicipality or Panchayat, as the case may be. Theaforesaid authorities shall nominate competent official inthat regard who shall be the custodian of the said document.

(vii) The JMFC shall cause to handover copy of the AdvanceDirective to the family physician, if any.

D(d) When and by whom can it be given effect to?

(i) In the event the executor becomes terminally ill and isundergoing prolonged medical treatment with no hope ofrecovery and cure of the ailment, the treating physician,when made aware about the Advance Directive, shallEascertain the genuineness and authenticity thereof from thejurisdictional JMFC before acting upon the same.

(ii) The instructions in the document must be given due weightby the doctors. However, it should be given effect to onlyafter being fully satisfied that the executor is terminally illand is undergoing prolonged treatment or is surviving onlife support and that the illness of the executor is incurableor there is no hope of him/her being cured.

(iii) If the physician treating the patient (executor of thedocument) is satisfied that the instructions given in theGdocument need to be acted upon, he shall inform the executoror his guardian / close relative, as the case may be, aboutthe nature of illness, the availability of medical care andconsequences of alternative forms of treatment and theconsequences of remaining untreated. He must also ensure

that he believes on reasonable grounds that the person inquestion understands the information provided, has cogitatedover the options and has come to firm view that the optionof withdrawal or refusal of medical treatment is the bestchoice.

(iv) The physician/hospital where the executor has beenadmitted for medical treatment shall then constitute aMedical Board consisting of the Head of the treatingDepartment and at least three experts from the fields ofgeneral medicine, cardiology, neurology, nephrology,psychiatry or oncology with experience in critical care andwith overall standing in the medical profession of at leasttwenty years who, in turn, shall visit the patient in thepresence of his guardian/close relative and form an opinionwhether to certify or not to certify carrying out theinstructions of withdrawal or refusal of further medicaltreatment. This decision shall be regarded as preliminaryopinion.

(v) In the event the Hospital Medical Board certifies that theinstructions contained in the Advance Directive ought to becarried out, the physician/hospital shall forthwith inform thejurisdictional Collector about the proposal. The jurisdictionalCollector shall then immediately constitute Medical Boardcomprising the Chief District Medical Officer of theconcerned district as the Chairman and three expert doctorsfrom the fields of general medicine, cardiology, neurology,nephrology, psychiatry or oncology with experience in criticalcare and with overall standing in the medical profession ofat least twenty years (who were not members of theprevious Medical Board of the hospital). They shall jointlyvisit the hospital where the patient is admitted and if theyconcur with the initial decision of the Medical Board of thehospital, they may endorse the certificate to carry out theinstructions given in the Advance Directive.

(vi) The Board constituted by the Collector must beforehandascertain the wishes of the executor if he is in position tocommunicate and is capable of understanding the

BCD

consequences of withdrawal of medical treatment. In theevent the executor is incapable of taking decision or developsimpaired decision making capacity, then the consent of theguardian nominated by the executor in the AdvanceDirective should be obtained regarding refusal or withdrawalof medical treatment to the executor to the extent of andconsistent with the clear instructions given in the AdvanceDirective.

(vii) The Chairman of the Medical Board nominated by theCollector, that is, the Chief District Medical Officer, shallconvey the decision of the Board to the jurisdictional JMFCbefore giving effect to the decision to withdraw the medicaltreatment administered to the executor. The JMFC shallvisit the patient at the earliest and, after examining all aspects,authorise the implementation of the decision of the Board.

(viii) It will be open to the executor to revoke the document atany stage before it is acted upon and implemented.

(e) What if permission is refused by the Medical Board?

(i) If permission to withdraw medical treatment is refused bythe Medical Board, it would be open to the executor of theEAdvance Directive or his family members or even thetreating doctor or the hospital staff to approach the HighCourt by way of writ petition under Article 226 of theConstitution. If such application is filed before the HighCourt, the Chief Justice of the said High Court shallconstitute Division Bench to decide upon grant of approvalFor to refuse the same. The High Court will be free toconstitute an independent Committee consisting of threedoctors from the fields of general medicine, cardiology,neurology, nephrology, psychiatry or oncology withexperience in critical care and with overall standing in themedical profession of at least twenty years.

(ii) The High Court shall hear the application expeditiously afteraffording opportunity to the State counsel. It would be opento the High Court to constitute Medical Board in terms ofits order to examine the patient and submit report about the

feasibility of acting upon the instructions contained in theAdvance Directive.

(iii) Needless to say that the High Court shall render its decisionat the earliest as such matters cannot brook any delay andit shall ascribe reasons specifically keeping in mind theprinciples of “best interests of the patient”.

(f) Revocation or inapplicability of Advance Directive

(i) An individual may withdraw or alter the Advance Directiveat any time when he/she has the capacity to do so and byfollowing the same procedure as provided for recording ofAdvance Directive. Withdrawal or revocation of anAdvance Directive must be in writing.

(ii) An Advance Directive shall not be applicable to thetreatment in question if there are reasonable grounds forbelieving that circumstances exist which the person makingthe directive did not anticipate at the time of the AdvanceDirective and which would have affected his decision hadhe anticipated them.

(iii) If the Advance Directive is not clear and ambiguous, theconcerned Medical Boards shall not give effect to the sameand, in that event, the guidelines meant for patients withoutAdvance Directive shall be made applicable.

(iv) Where the Hospital Medical Board takes decision not tofollow an Advance Directive while treating person, thenit shall make an application to the Medical Board constitutedby the Collector for consideration and appropriate directionon the Advance Directive.

192. It is necessary to make it clear that there will be cases wherethere is no Advance Directive. The said class of persons cannot bealienated. In cases where there is no Advance Directive, the procedureand safeguards are to be same as applied to cases where AdvanceDirectives are in existence and in addition there to, the followingprocedure shall be followed:-

(i) In cases where the patient is terminally ill and undergoingprolonged treatment in respect of ailment which is incurable or

Awhere there is no hope of being cured, the physician may informthe hospital which, in turn, shall constitute Hospital MedicalBoard in the manner indicated earlier. The Hospital MedicalBoard shall discuss with the family physician and the familymembers and record the minutes of the discussion in writing.During the discussion, the family members shall be apprised ofBthe pros and cons of withdrawal or refusal of further medicaltreatment to the patient and if they give consent in writing,then the Hospital Medical Board may certify the course ofaction to be taken. Their decision will be regarded as apreliminary opinion.C(ii) In the event the Hospital Medical Board certifies the option ofwithdrawal or refusal of further medical treatment, the hospitalshall immediately inform the jurisdictional Collector. Thejurisdictional Collector shall then constitute Medical Boardcomprising the Chief District Medical Officer as the ChairmanDand three experts from the fields of general medicine,cardiology, neurology, nephrology, psychiatry or oncology withexperience in critical care and with overall standing in themedical profession of at least twenty years. The Medical Boardconstituted by the Collector shall visit the hospital for physicalexamination of the patient and, after studying the medicalEpapers, may concur with the opinion of the Hospital MedicalBoard. In that event, intimation shall be given by the Chairmanof the Collector nominated Medical Board to the JMFC andthe family members of the patient.

(iii) The JMFC shall visit the patient at the earliest and verify theFmedical reports, examine the condition of the patient, discusswith the family members of the patient and, if satisfied in allrespects, may endorse the decision of the Collector nominatedMedical Board to withdraw or refuse further medical treatmentto the terminally ill patient.

G(iv) There may be cases where the Board may not take decisionto the effect of withdrawing medical treatment of the patienton the Collector nominated Medical Board may not concurwith the opinion of the hospital Medical Board. In such asituation, the nominee of the patient or the family member or

the treating doctor or the hospital staff can seek permissionfrom the High Court to withdraw life support by way of writpetition under Article 226 of the Constitution in which case theChief Justice of the said High Court shall constitute DivisionBench which shall decide to grant approval or not. The HighCourt may constitute an independent Committee to depute threedoctors from the fields of general medicine, cardiology,neurology, nephrology, psychiatry or oncology with experiencein critical care and with overall standing in the medicalprofession of at least twenty years after consulting thecompetent medical practitioners. It shall also afford anopportunity to the State counsel. The High Court in such casesshall render its decision at the earliest since such matters cannotbrook any delay. Needless to say, the High Court shall ascribereasons specifically keeping in mind the principle of “bestinterests of the patient”..

193. Having said this, we think it appropriate to cover vital aspectto the effect the life support is withdrawn, the same shall also be intimatedby the Magistrate to the High Court. It shall be kept in digital format bythe Registry of the High Court apart from keeping the hard copy whichshall be destroyed after the expiry of three years from the death of thepatient.

194. Our directions with regard to the Advance Directives andthe safeguards as mentioned hereinabove shall remain in force till theParliament makes legislation on this subject.

Q. Conclusions in seriatim:

195. In view of the aforesaid analysis, we record our conclusionsin seriatim:-

(i) careful and precise perusal of the judgment in Gian Kaur(supra) case reflects the right of dying man to die with dignitywhen life is ebbing out, and in the case of terminally ill patientor person in PVS, where there is no hope of recovery,accelerating the process of death for reducing the period ofsuffering constitutes right to live with dignity.

(ii) The Constitution Bench in Gian Kaur (supra) has not approvedthe decision in Airedale (supra) inasmuch as the Court hasonly made brief reference to the Airedale case.

A(iii) It is not the ratio of Gian Kaur (supra) that passive euthanasiacan be introduced only by legislation.

(iv) The two-Judge bench in Aruna Shanbaug (supra) has erredin holding that this Court in Gian Kaur (supra) has approvedthe decision in Airedale case and that euthanasia could beBmade lawful only by legislation.

(v) There is an inherent difference between active euthanasiaand passive euthanasia as the former entails positiveaffirmative act, while the latter relates to withdrawal of lifesupport measures or withholding of medical treatment meantCfor artificially prolonging life.

(vi) In active euthanasia, specific overt act is done to end thepatient’s life whereas in passive euthanasia, something is notdone which is necessary for preserving patient’s life. It isdue to this difference that most of the countries across theDworld have legalised passive euthanasia either by legislation orby judicial interpretation with certain conditions and safeguards.

(vii) Post Aruna Shanbaug (supra), the 241[st] report of the LawCommission of India on Passive Euthanasia has also recognizedpassive euthanasia, but no law has been enacted.E(viii) An inquiry into common law jurisdictions reveals that all adultswith capacity to consent have the right of self- determinationand autonomy. The said rights pave the way for the right torefuse medical treatment which has acclaimed universalrecognition. competent person who has come of age has theright to refuse specific treatment or all treatment or opt for anFalternative treatment, even if such decision entails risk ofdeath. The ‘Emergency Principle’ or the ‘Principle ofNecessity’ has to be given effect to only when it is notpracticable to obtain the patient’s consent for treatment andhis/her life is in danger. But where patient has already madeGa valid Advance Directive which is free from reasonable doubtand specifying that he/she does not wish to be treated, thensuch directive has to be given effect to.

(ix) Right to life and liberty as envisaged under Article 21 of theConstitution is meaningless unless it encompasses within itsH

sphere individual dignity. With the passage of time, this Courthas expanded the spectrum of Article 21 to include within itthe right to live with dignity as component of right to life andliberty.

(x) It has to be stated without any trace of doubt that the right tolive with dignity also includes the smoothening of the processof dying in case of terminally ill patient or person in PVSwith no hope of recovery.

(xi) failure to legally recognize advance medical directives mayamount to non-facilitation of the right to smoothen the dyingprocess and the right to live with dignity. Further, study of theposition in other jurisdictions shows that Advance Directiveshave gained lawful recognition in several jurisdictions by wayof legislation and in certain countries through judicialpronouncements.

(xii) Though the sanctity of life has to be kept on the high pedestalyet in cases of terminally ill persons or PVS patients wherethere is no hope for revival, priority shall be given to the AdvanceDirective and the right of self-determination.

(xiii) In the absence of Advance Directive, the procedure providedfor the said category hereinbefore shall be applicable.

(xiv) When passive euthanasia as situational palliative measurebecomes applicable, the best interest of the patient shall overridethe State interest.

196. We have laid down the principles relating to the procedurefor execution of Advance Directive and provided the guidelines to giveeffect to passive euthanasia in both circumstances, namely, where thereare advance directives and where there are none, in exercise of thepower under Article 142 of the Constitution and the law stated in Vishakaand Others v. State of Rajasthan and Others[65]. The directive andguidelines shall remain in force till the Parliament brings legislation inthe field.

197. The Writ Petition is, accordingly, disposed of. There shall beno order as to costs.

65 (1997) 6 SCC 241

ADR. D. Y. CHANDRACHUD, J.

Introduction: On Death and Dying

1. Life and death are inseparable. Every moment of our lives, ourbodies are involved in process of continuous change. Millions of ourcells perish as nature regenerates new ones. Our minds are rarely, ifBever, constant. Our thoughts are fleeting. In physiological sense, ourbeing is in state of flux, change being the norm. Life is not disconnectedfrom death. To be, is to die. From philosophical perspective, there is noantithesis between life and death. Both constitute essential elements inthe inexorable cycle of existence.

2. Living in the present, we are conscious of our own mortality.Biblical teaching reminds us that:

“There is time for everything, and season for every activityunder the heavens : time to be born and time to die, time toplant, and time to uproot, time to kill and time to heal, timeDto wear down and time to build, time to weep and time tolaugh, time to mourn and time to dance.” (Ecclesiastes 3)

3. The quest of each individual to find meaning in life reflects ahuman urge to find fulfilment in the pursuit of happiness. The pursuit ofhappiness is nurtured in creative pleasures and is grounded in things asEfundamental as the freedom to think, express and believe, the right toself-determination, the liberty to follow distinctive way of life, the abilityto decide whether or not to conform and the expression of identity.

4. Human beings through the ages have been concerned withdeath as much as with dying. Death represents culmination, the terminalFpoint of life. Dying is part of process: the process of living, whicheventually leads to death. The fear of death is universal feature ofhuman existence. The fear is associated as much with the uncertaintyof when death will occur as it is, with the suffering that may precede it.The fear lies in the uncertainty of when an event which is certain willoccur. Our fears are enhanced by the experience of dying that we shareGwith those who were part of our lives but have gone before us. Ashuman beings, we are concerned with the dignity of our existence. Theprocess through which we die bears upon that dignity. dignified existencerequires that the days of our lives which lead up to death must be lived indignity; that the stages through which life leads to death should be freeHof suffering; and that the integrity of our minds and bodies should surviveso long as life subsists. The fear of an uncertain future confronts theseaspirations of dignified life. The fear is compounded by the fact that aswe age, we lose control over our faculties and over our ability to takedecisions on the course of our future. Our autonomy as persons is foundedon the ability to decide: on what to wear and how to dress, on what toeat and on the food that we share, on when to speak and what wespeak, on the right to believe or not to believe, on whom to love andwhom to partner, and to freely decide on innumerable matters ofconsequence and detail to our daily lives. Ageing leaves individuals witha dilution of the ability to decide. The fear of that loss is ultimately, fearof the loss of freedom. Freedom and liberty are the core of meaningfullife. Ageing brings dependency and loss of control over our ability toshape what we wish to happen to us.

5. The progression of life takes its toll on the human body and themind. As we age, simple tasks become less simple and what seemed tobe matter of course may become less so. Human beings then turnever more to the substance that matters. As events, relationships,associations and even memories fall by the way, we are left with alonesome remnant of the person, which defines the core of our existence.The quest of finding meaning in that core is often matter of confrontingour fears and tragedies.

6. The fear of pain and suffering is perhaps even greater than theapprehension of death. To be free of suffering is liberation in itself.Hence the liberty to decide how one should be treated when the end oflife is near is part of an essential attribute of personhood. Ourexpectations define how we should be treated in progressing towardsthe end, even when an individual is left with little or no comprehensionnear the end of life.

7. Dilemmas relating to the end of life have been on the frontlineof debate across the world in recent decades. The debate has presented“a complex maze of dilemmas for all - the doctor, the lawyer, the patientand the patient’s relatives”[1] and straddles issues of religion, morality,bio-medical ethics and constitutional law. It has involved “issues rangingfrom the nature and meaning of human life itself, to the most fundamentalprinciples on which our societies are and should be based”[2].

1 “The Dilemmas of Euthanasia”, Bio-Science (August 1973), Vol. 23, No. 8, at page459

2 Margaret A. Somerville, “Legalising euthanasia: why now?”, The Australian Quarterly(Spring 1996), Vol. 68, No. 3, at page 1

A8. There is an “ongoing struggle between technology and the law”;as “medical technology has become more advanced, it has achieved thecapability both to prolong human life beyond its natural endpoint and tobetter define when that endpoint will occur”.[3] Medical science hascontributed in significant way to enhancing the expectancy of life.Diseases once considered fatal have now become treatable. MedicalBresearch has redefined our knowledge of ailments – common anduncommon; of their links with bodily functions and the complexrelationship between mental processes and physical well-being. Sciencewhich affects the length of life also has an impact on the quality of theyears in our lives. Prolonging life should, but does not necessarily resultCin, reduction of suffering. Suffering has bearing on the quality of life.The quality of life depends upon the life in our years. Adding to thelength of life must bear functional nexus with the quality of life. Humansuffering must have significance not only in terms of how long we livebut also in terms of how well we live.D9. Modern medicine has advanced human knowledge about thebody and the mind. Equipped with the tools of knowledge, science hasshown the ability to reduce human suffering. Science has also shown anability to prolong life. Yet in its ability to extend life, medical science hasan impact on the quality of life, as on the nature and extent of humansuffering. Medical interventions come with costs, both emotional andEfinancial. The ability of science to prolong life must face an equallyimportant concern over its ability to impact on the quality of life. Whilemedical science has extended longevity, it has come with associatedcosts of medical care and the agony which accompanies an artificiallysustained life. Medical ethics must grapple with the need to bring about

Fa balance between the abilityof science to extend life with the needforscience to recognise that all knowledge must enhance meaningfulexistence.

10. There is “no consensus as to the rights and wrongs of helpingsomeone to die”[4], as the legal status of euthanasia has been subjected toGsocial, ethical and moral norms that have been handed down to us.

3 Christopher N. Manning, “Live And Let Die: Physician-Assisted Suicide And TheRight To Die”, Harvard Journal of Law and Technology (1996), Vol. 9, No. 2, at page513

4 Alan Norrie, “Legal Form and Moral Judgement: Euthanasia and Assisted Suicide” inR.A. Duff, et al (ed), The Structures of the Criminal Law (Oxford University Press,2011), at page 134H

Decisions regarding the end of life can be ethically more problematicwhen the individual is no longer mentally competent to make his or herown decisions.[5] The existential and metaphysical issues involved in thisdebate, include the fear of the unknown, the uncertainty of when deathwill occur, the scarcity of health care, freedom or coercion in choosingto receive or not to receive medical treatment, the dignity and degradationof ageing and being able to care for oneself independently.[6]

11. Does the law have role in these complex questions of lifeand death? If it does, what are the boundaries which judges – asinterpreters of law – must observe while confronting these issues ofliving and dying? The law, particularly constitutional law, intervenes whenmatters governing freedom, liberty, dignity and individual autonomy areat stake. To deny role for constitutional law would be to ignore ourown jurisprudence and the primary role which it assigns to freedom anddignity. This case presents itself before the Court as canvass bearingon the web of life: on the relationship between science, medicine andethics and the constitutional values of individual dignity and autonomy.Among the issues which we confront are:

(i) Does an individual have constitutionally recognized right torefuse medical treatment or to reject particular form ofmedical treatment;

(ii) If an individual does possess such right, does right inhere inthe individual to determine what course of action should befollowed in the future if she or he were to lose control over thefaculties which enable them to accept or refuse medicaltreatment;

(iii) Does the existence of right in the individual impose acorresponding duty on medical professional who attends tothe individual, to respect the right and what, if any, are thequalifications of that duty;

(iv) Does the law permit medical practitioner to withhold orrefuse medical treatment towards the end of life to an individualwho is no longer in control of his or her faculties in deferenceto desire expressed while in fit state of mind; and

5 Elizabeth Wicks, The Right to Life and Conflicting Interests (Oxford UniversityPress, 2010), at page 199

6 Elizabeth M. Andal Sorrentino, “The Right To Die?”, Journal of Health and HumanResources Administration (Spring,1986), Vol. 8, No. 4, page 361

172SUPREME COURT REPORTS

A(v) Would withholding or refusal of medical treatment bepermissible so as to allow life to take its natural course, bereftof an artificial intervention, when there is no realistic hope ofreturn to normal life.

12. This Court has to consider euthanasia and its impact “not onlyBat an individual level”, but also at the “institutional, governmental andsocietal levels”.[7] The impact has to be analyzed not only in the contextof the present era, but has to be contemplated for the future as well. Thejudge is not soothsayer. Nor does the law have predictive tools at itscommand which can approximate those available to scientist.Constitutional principle must have an abiding value. It can have thatCvalue if it is firmly grounded in the distilled experience of the past, isflexible to accommodate the concerns of the present and allows roomfor the unforeseeable future. The possibility of the abuse of euthanasiaand the effect that legalising euthanasia would have on intangible societalfabrics and institutions is of utmost concern.

13. Contemporary writing on the subject reminds us about howserious these issues are and of how often they pose real dilemmas inmedicine. They are poignantly brought out by Dr Atul Gawande in hisacclaimed book, “Being Mortal”:

“If to be human is to be limited, then the role of caring professionsEand institutions - from surgeons to nursing homes - ought to beaiding people in their struggle with those limits. Sometimes wecan offer cure, sometimes only salve, sometimes not eventhat. But whatever we can offer, our interventions, and the risksand sacrifices they entail, are justified only if they serve the largeFaims of person’s life. When we forget that, the suffering weinflict can be barbaric. When we remember it, the good we docan be breathtaking.”[8]

He reminds us of how much people value living with dignity overmerely living longer:

“A few conclusions become clear when we understand this: thatour most cruel failure in how we treat the sick and the aged is thefailure to recognize that they have priorities beyond merely beingsafe and living longer; that the chance to shape one’s story is 7 Ibid

8 Atul Gawande, Being Mortal: Medicine and What Matters in the End (Hamish Hamilton,H2014), at page 260

essential to sustaining meaning in life; that we have the opportunityto refashion our institutions, our culture, and our conversations inways that transform the possibilities for the last chapters ofeveryone’s lives.”[9]

14. Dr Henry Marsh, neurosurgeon in the UK has significantlytitled his provocative memoir “Admissions”(2017). Speaking ofeuthanasia, he observes:

“We have to choose between probabilities, not certainties, andthat is difficult. How probable is it that we will gain how manyextra years of life, and what might the quality of those years be,if we submit ourselves to the pain and unpleasantness of treatment?And what is the probability that the treatment will cause severeside effects that outweigh any possible benefits? When we areyoung it is usually easy to decide – but when we are old, andreaching the end of our likely lifespan? We can choose, at least intheory, but our inbuilt optimism and love of life, our fear of deathand the difficulty we have in looking at it steadily, make this verydifficult. We inevitably hope that we will be one of the lucky ones,one of the long-term survivors, at the good and not the bad tail-end of the statisticians’ normal distribution. And yet it has beenestimated that in the developed world, 75 per cent of our lifetimemedical costs are incurred in the last six months of our lives. Thisis the price of hope, hope which, by the laws of probability, is sooften unrealistic. And thus we often end up inflicting both greatsuffering on ourselves and unsustainable expense on society.” [10]

These are but few of the examples of emerging literature on thesubject.

15. The central aspect of the case is the significance which theConstitution attaches to the ability of every individual in society to makepersonal choices on decisions which affect our lives. Randy Pausch, aProfessor at Stanford had this to say in book titled “The Last Lecture”(2008),[11] discourse delivered by him in the shadow of terminal illness.

“We cannot change the cards we are dealt, just how we play thehand”.

9 Ibid, at page 243

10 Henry Marsh, Admissions: Life in Brain Surgery, (Weidenfeld & Nicolson, 2017),at page 265-266

11 Randy Pausch and Jeffrey Zaslow, The Last Lecture, (Hodder & Stoughton, 2008),at page 17

AWe may not be masters of our destiny. Nor can we control whatlife has in store. What we can determine is how we respond to our trialsand tribulations.

The reference

16. On 25 February 2014, three Judges of this Court opined thatBthe issues raised in this case need to be considered by ConstitutionBench. The referring order notes that the case involves “social, legal,medical and constitutional” perspectives which should be considered byfive judges. At the heart of the proceeding, is declaration whichCommon Cause seeks that the right to die with dignity is fundamentalCrightwhich arises from the right to live with dignity. Article 21 of theConstitution is guarantee against the deprivation of life or personalliberty except according to the procedure established by law. As our lawhas evolved, the right against the violation of life and personal liberty hasacquired much more than formal content. It can have true meaning, ifonly it includes the right to live with dignity. It is on this premise that theDcourt is urged to hold that death with dignity is an essential part of lifeof dignity. direction is sought to the Union Government to adopt suitableprocedures to ensure that persons with “deteriorated health” or thosewho are terminally ill should be able to execute document in the formof “a living will and attorney authorization” which can be presented to aEhospital for appropriate action if the person who has made it, is hospitalizedwith serious illness which may cause the end of life. The petitioneralso seeks, in the alternative, that this Court should issue guidelines andappoint an expert committee consisting of doctors, social scientists andlawyers who will govern the making of ‘living wills’.

F17. Individuals who suffer from chronic disease or approach theend of the span of natural life often lapse into terminal illness or apermanent vegetative state. When medical emergency leads tohospitalization, individuals in that condition are sometimes deprived oftheir right to refuse unwanted medical treatment such as feeding throughhydration tubes or being kept on ventilator and other life supportGequipment. Life is prolonged artificially resulting in human suffering.The petition is founded on the right of each individual to make an informedchoice. Documenting wish in advance,not to be subjected to artificialmeans of prolonging life, should the individual not be in position later tocomprehend or decline treatment, is manifestation of individual choiceHand autonomy. The process of ageing is marked by sense of helplessness.

Human faculties decline as we grow older. Social aspects of ageing,such as the loss of friendships and associations combine with the personaland intimate to enhance sense of isolation. The boundaries and eventhe limits of constitutional law will be tested as the needs of the ageingand their concerns confront issues of ethics, morality and of dignity indeath.

18. In support of its contention, the petitioner relies upon twodecisions: decision rendered in 1996 by Constitution Bench in GianKaur v State of Punjab[12] (“Gian Kaur”) and decision of 2011rendered by two judges in Aruna Ramachandra Shanbaug v Union ofIndia[13](“Aruna Shanbaug”). The decision in Gian Kaur arose from aconviction for the abetment of suicide. In an earlier decision renderedby two judges in 1994 - P Rathinam v Union of India[14] (“Rathinam”),penalising an attempt to commit suicide was held to violate Article 21 onthe foundation that the right to life includes the right to die. The decisionin Rathinam was held not to have laid down the correct principle, inGian Kaur. Hence the decision in Aruna Shanbaug noted that Article21 does not protect the right to die and an attempt to commit suicide is acrime. However, in Aruna Shanbaug, the court held that since GianKaur rulesthat the right to life includes living with human dignity, “in thecase of dying person who is terminally ill or in permanent vegetativestate, he may be permitted to terminate by premature extinction of hislife”, and this would not be crime. The Bench which decided ArunaShanbaug was of the view that Gian Kaur had “quoted with approval”the view of the House of Lords in the UK in Airedale NHS TrustvBland[15] (“Airedale”).

19. When these judgments were placed before Bench of threejudges in the present case, the court observed that there were “inherentinconsistencies” in the judgment in Aruna Shanbaug. The referringorder accordingly opined that:

“Aruna Shanbaug (supra) aptly interpreted the decision of theConstitution Bench in Gian Kaur (supra) and came to the conclusionthat euthanasia can be allowed in India only through validlegislation. However, it is factually wrong to observe that in Gian

12 (1996) 2 SCC 648

13 (2011) 15 SCC 480

14 (1994) 3 SCC 394

15 (1993) 2 WLR 316 (H.L)

AKaur (supra), the Constitution Bench approved the decision ofthe House of Lords in Airedale v. Bland: (1993) 2 W.L.R. 316(H.L.). Para 40 of Gian Kaur (supra), clearly states that “eventhough it is not necessary to deal with physician assisted suicideor euthanasia cases, brief reference to this decision cited at theBar may be made...” Thus, it was mere reference in the verdictBand it cannot be construed to mean that the Constitution Bench inGian Kaur (supra) approved the opinion of the House of Lordsrendered in Airedale (supra). To this extent, the observation inPara 101 is incorrect.”

The referring order goes on to state that:C

“In Paras 21 & 101, the Bench [in Aruna Shanbaug] was of theview that in Gian Kaur (supra), the Constitution Bench held thateuthanasia could be made lawful only by legislation. Whereas inPara 104, the Bench contradicts its own interpretation of GianKaur (supra) in Para 101 and states that although this CourtDapproved the view taken in Airedale (supra), it has not clarifiedwho can decide whether life support should be discontinued in thecase of an incompetent person e.g., person in coma or PVS.When, at the outset, it is interpreted to hold that euthanasia couldbe made lawful only by legislation where is the question of decidingEwhether the life support should be discontinued in the case of anincompetent person e.g., person in coma or PVS.”

The reason why the case merits evaluation by the ConstitutionBench is elaborated in the Order dated 25 February 2014. Simply put,the basis of the reference to the Constitution Bench is that:

F(i) Gian Kaur affirms the principle that the right to live with dignityincludes the right to die with dignity;

(ii) Gian Kaur has not ruled on the validity of euthanasia, activeor passive;

(iii) Aruna Shanbaug proceeds on the erroneous premise thatGGian Kaur approved of the decision of the House of Lords inAiredale;

(iv) While Aruna Shanbaug accepts that euthanasia can be madelawful only through legislation, yet the court accepted the

permissibility of passive euthanasia and set down the procedurewhich must be followed; and

(v) Aruna Shanbaug is internally inconsistent and proceeds on amisconstruction of the decision in Gian Kaur.

20. This being the basis of the reference, it is necessary to considerthe decisions in Gian Kaur and Aruna Shanbaug.

Gian Kaur

21. Gian Kaur and Harbans Singh were spouses. They wereconvicted of abetting the suicide of Kulwant Kaur and were held guiltyof an offence under Section 306 of the Penal Code. They were sentencedto six years’ imprisonment. The conviction was upheld by the High Court.The conviction was assailed before this Court on the ground that Section306 is unconstitutional. It was argued that the constitutionality of Section306 rested on the two judge Bench decision in Rathinam,where Section309 (penalising the attempt to commit suicide) was held to beunconstitutional. While Rathinam had rejected the challenge to the validityof Section 309 on the ground that it was arbitrary (and violated Article14), the provision was held to be unconstitutional on the ground that itviolated Article 21. The right to die was found to inhere in the right tolife, as result of which Section 309 was found to be invalid. The challengein Gian Kaur was premised on the decision in Rathinam:abetment ofsuicide by another (it was urged) is merely assisting in the enforcementof the fundamental right under Article 21 and hence Section 306 (likeSection 309) would violate Article 21.

22. The Constitution Bench in Gian Kaur disapproved of thefoundation of Rathinam, holding that it was flawed. The ConstitutionBench held thus:

“When man commits suicide he has to undertake certain positiveovert acts and the genesis of those acts cannot be traced to, or beincluded within the protection of the ‘right to life’ under Article21. The significant aspect of ‘sanctity of life’ is also not to beoverlooked. Article 21 is provision guaranteeing protection oflife and personal liberty and by no stretch of imagination can‘extinction of life’ be read to be included in ‘protection of life’.Whatever may be the philosophy of permitting person toextinguish his life by committing suicide, we find it difficult toconstrue Article 21 to include within it the ‘right to die’ as part

Aof the fundamental right guaranteed therein. ‘Right to life’ is anatural right embodied in Article 21 but suicide is an unnaturaltermination or extinction of life, and therefore, incompatible andinconsistent with the concept of ‘right to life’. With respect and inall humility, we find no similarity in the nature of the other rights,such as the right to ‘freedom of speech’ etc. to provide aBcomparable basis to hold that the ‘right to life’ also includes the‘right to die’. With respect, the comparison is inapposite, for thereason indicated in the context of Article 21. The decisions relatingto other fundamental rights wherein the absence of compulsion toexercise right was held to be included within the exercise ofCthat right, are not available to support the view taken in P. Rathinamqua Article 21.”

The Court further held that:

“To give meaning and content to the word ‘life’ in Article 21, ithas been construed as life with human dignity. Any aspect of lifewhich makes it dignified may be read into it but not that whichextinguishes it and is, therefore, inconsistent with the continuedexistence of life resulting in effacing the right itself. The ‘right todie’, if any, is inherently inconsistent with the ‘right to life’ as is‘death’ with ‘life’.”

Gian Kaur holds that life within the meaning of Article 21 meansa life of dignity. Extinguishment of life is (in that view) inconsistent withits continued existence. Hence, as matter of textual construction, theright to life has been held not to include the right to die. In coming to thatconclusion, it appears that Gian Kaur emphasises two strands (whichFthe present judgment will revisit at later stage). The first strand is thesanctity of life, which Article 21 recognises. Extinction of life, would inthis view, in the manner which Rathinam allowed, violate the sanctity oflife. The second strand that emerges from Gian Kaur is that the right tolife is natural right. Suicide as an unnatural extinction of life isincompatible with it. The court distinguishes the right to life under ArticleG21 from other rights which are guaranteed by Article 19 such as thefreedom of speech and expression. While free speech may involve theabsence of compulsion to exercise the right (the right not to speak) thiscould not be said about the right to life. The Constitution Bench noticedthe debate on euthanasia in the context of individuals in permanent

vegetative state. scholarly article on the decision notes that theConstitution Bench “seemed amenable to an exception being made foreuthanasia in cases of patients in condition of PVS[16]. This view of thedecision in Gian Kaur does find support in the following observations ofthe Constitution Bench:

“Protagonism of euthanasia on the view that existence in persistentvegetative state (PVS) is not benefit to the patient of terminalillness being unrelated to the principle of ‘Sanctity of life’ or the‘right to live with dignity’ is of no assistance to determine thescope of Article 21 for deciding whether the guarantee of ‘rightto life’ therein includes the ‘right to die’. The ‘right to life’ includingthe right to live with human dignity would mean the existence ofsuch right up to the end of natural life. This also includes theright to dignified life up to the point of death including dignifiedprocedure of death. In other words, this may include the right of adying man to also die with dignity when his life is ebbing out. Butthe ‘right to die’ with dignity at the end of life is not to be confusedor equated with the ‘right to die’ an unnatural death curtailing thenatural span of life.” (Para 24)

However, in the paragraph which followed, the Constitution Benchdistinguished between cases where premature end to life may bepermissible, when death is imminent, from the right to commit suicide:

“A question may arise, in the context of dying man, who is,terminally ill or in persistent vegetative state that he may bepermitted to terminate it by premature extinction of his life inthose circumstances. This category of cases may fall within theambit of the ‘right to die’ with dignity as part of right to live withdignity, when death due to termination of natural life is certain andimminent and the process of natural death has commenced. Theseare not cases of extinguishing life but only of acceleratingconclusion of the process of natural death which has alreadycommenced. The debate even in such cases to permit physicianassisted termination of life is inconclusive. It is sufficient to reiteratethat the argument to support the view of permitting termination oflife in such cases to reduce the period of suffering during theprocess of certain natural death is not available to interpret Article 16 Sushila Rao, “India and Euthanasia: The Poignant Case of Aruna Shanbaug”, OxfordMedical Law Review, Volume 19, Issue 4 (1 December 2011), at pages 646–656

A21 to include therein the right to curtail the natural span of life.”(Para 25)

On this foundation, the Constitution Bench held that Article 21does not include the right to die. The right to live with human dignity, inthis view, could not be construed to include the right to terminate naturalBlife “atleast before commencement of the natural process of certaindeath”.

This Court’s holding in Gian Kaur that the right to life does notinclude the right to die in the context of suicide may require to be revisitedin future in view of domestic and international developments[17 ]pointingCtowards decriminalisation of suicide. In India, the Mental HealthcareAct 2017 has created “presumption of severe stress in cases of attemptto commit suicide”. Section 115(1) provides thus:

“Notwithstanding anything contained in section 309 of the IndianPenal Code any person who attempts to commit suicide shall beDpresumed, unless proved otherwise, to have severe stress andshall not be tried and punished under the said Code.”

Under Section 115(2), the Act also mandates the Government toprovide care, treatment and rehabilitation to person, having severestress and who attempted to commit suicide, to reduce the risk ofErecurrence. Section 115 begins with non-obstante provision, specificallywith reference to Section 309 of the Penal Code. It mandates (unlessthe contrary is proved by the prosecution) that person who attempts tocommit suicide is suffering from severe stress. Such person shall notbe tried and punished under the Penal Code. Section 115 removes theelement of culpability which attaches to an attempt to commit suicideFunder Section 309. It regards person who attempts suicide as victimof circumstances and not an offender, at least in the absence of proof tothe contrary, the burden of which must lie on the prosecution. Section115 marks pronounced change in our law about how society must treatand attempt to commit suicide. It seeks to align Indian law with emergingGknowledge on suicide, by treating person who attempts suicide beingneed of care, treatment and rehabilitation rather than penal sanctions.

17 “Humanization and Decriminalization of Attempt to Suicide”, Law Commission ofIndia (Report No. 210, 2008); Rajeev Ranjan, et al, “(De-) Criminalization of AttemptedSuicide in India: Review”, Industrial Psychiatry Journal (2014), Vol. 23, issue 1, atpage 4–9

It may also be argued that the right to life and the right to die arenot two separate rights, but two sides of the same coin. The right to lifeis the right to decide whether one will or will not continue living.[18] If theright to life were only right to decide to continue living and did not alsoinclude right to decide not to continue living, then it would be duty tolive rather than right to life. The emphasis on life as right and not asa duty or obligation has also been expressed by several other legalscholars:

“When, by electing euthanasia, the individual has expresslyrenounced his right to life, the state cannot reasonably assert aninterest in protecting that right as basis for overriding theindividual’s private decision to die. To hold otherwise makes littlemore sense than urging prohibition against destroying or givingaway one’s private property simply because the Constitutionprotects property as well as life. Although the Constitutionrecognizes that human life is, to most persons, of inestimable valueand protects against its taking without due process of law, nothingin that document compels person to continue living whodoes not desire to do so. Such an interpretation effectivelyconverts right into an obligation, result the constitutionalframers manifestly did not intend.”[19] (Emphasis supplied)

For the present case, we will leave the matter there, since neitherside has asked for reconsideration of Gian Kaur, it being perhaps notquite required for the purposes of the reference.

23. At this stage, it is also necessary to note that the decision inGian Kaur contained passing reference to the judgment of the Houseof Lords in Airedale which dealt with the withdrawal of artificialmeasures for thecontinuance of life by physician. In that context, itwas held that persistent vegetative state was of no benefit to the patientand hence, the principle of sanctity of life is not absolute. The ConstitutionBench reproduced the following extracts from the decision in Airedale:

“...But it is not lawful for doctor to administer drug to hispatient to bring about his death, even though that course is promptedby humanitarian desire to end his suffering, however great that

18 Benatar, “Should there be legal right to die?” Current Oncology (2010), Vol. 17,Issue 5, at pages 2-3

19 Richard Delgado, “Euthanasia Reconsidered-The Choice of Death as an Aspect ofthe Right of Privacy”, Arizona Law Review(1975), Vol. 17, at page 474

Asuffering may be : See Reg v. Cox, (unreported), 18 September(1992). So to act is to cross the Rubicon which runs between onthe one hand the care of the living patient and on the other handeuthanasia - actively causing his death to avoid or to end hissuffering. Euthanasia is not lawful at common law. It is ofcourse well known that there are many responsibleBmembers of our society who believe that euthanasia shouldbe made lawful; but that result could, I believe, only beachieved by legislation which expresses the democratic willthat so fundamental change should be made in our law,and can, if enacted, ensure that such legalised killing canConly be carried out subject to appropriate supervision andcontrol.... (emphasis supplied by the Bench). Making emphasisas above, this Court held that it is in the realm of the legislature toenact suitable law to provide adequate safeguards regardingeuthanasia”.

DThe Constitution Bench noted that the desirability of bringing aboutsuch change was considered (in Airedale) to be function of thelegislature by enacting law with safeguards, to prevent abuse.

Aruna Shanbaug

24. Aruna Shanbaug was nurse in public hospital when sheEwas sexually assaulted in 1973. During the incident, she was strangledby the attacker with chain. The assault resulted in depriving the supplyof oxygen toher brain. Over period of thirty seven years, she had notrecovered from the trauma and damage to the brain. She was forsakenby family and was cared for over this period by the staff of the hospital.FA petition under Article 32 was instituted before this Court. The petitionerhad authored book on her sagaand instituted the proceedings claimingto be her “next friend”. The direction which was sought was to stopfeeding the patient and allow her to die natural death. Aruna Shanbaugwas examined by team of doctors constituted by this Court whoobserved that while she was in permanent vegetative state, she wasGclearly not in coma.

25. two Judge Bench of this Court held that Gian Kaur did notlay down final view on euthanasia:

“21. We have carefully considered paras 24 and 25 in Gian Kaurcase [(1996) 2 SCC 648 : 1996 SCC (Cri) 374] and we are of theH

opinion that all that has been said therein is that the viewin Rathinam case [(1994) 3 SCC 394 : 1994 SCC (Cri) 740] thatthe right to life includes the right to die is not correct. We cannotconstrue Gian Kaur case [(1996) 2 SCC 648 : 1996 SCC (Cri)374] to mean anything beyond that. In fact, it has been specificallymentioned in para 25 of the aforesaid decision that “the debateeven in such cases to permit physician-assisted termination of lifeis inconclusive”. Thus it is obvious that no final view was expressedin the decision in Gian Kaur case [(1996) 2 SCC 648 : 1996 SCC(Cri) 374] beyond what we have mentioned above.”(Id at page487)

26. The decision in Aruna Shanbaug distinguishes between activeand passive euthanasia. Active euthanasia is defined as the administrationof lethal substance or force to kill person, such as for instance, alethal injection given to person suffering from agony in terminal stateof cancer. Passive euthanasia is defined to mean the withholding orwithdrawing of medical treatment necessary for continuance of life.This may consist of withholding antibiotics without which the patientmay die or the removing of the patient from artificial heart/lung support.According to the court, comparative context of the position prevailingin other countries would indicate that:

“39…The general legal position all over the world seems to bethat while active euthanasia is illegal unless there is legislationpermitting it, passive euthanasia is legal even without legislationprovided certain conditions and safeguards are maintained.”(Idat page 491)

Voluntary euthanasia envisages the consent of the patient beingtaken whereas non-voluntary euthanasia deals with situation wherethe patient is in condition where he or she is unable to give consent.The Court noted that distinction is drawn between euthanasia andphysician assisted death in the form of physician or third party whoadministers it. Physician assisted suicide involves situation where thepatient carries out the procedure, though on the advice of the doctor.The court in Aruna Shanbaug distinguished between active and passiveeuthanasia:

“43. The difference between “active” and “passive” euthanasiais that in active euthanasia, something is done to end the patient’s

Alife while in passive euthanasia, something is not done that wouldhave preserved the patient’s life. An important idea behind thisdistinction is that in “passive euthanasia” the doctors are notactively killing anyone; they are simply not saving him.” (Id atpage 492)

BThe above extract indicates that the decision is premised on theperformance of an act (in active euthanasia) and an omission (in passiveeuthanasia).

Active euthanasia, in the view of the court, would be an offenceunder Section 302 or atleast under Section 304 while physician assistedCsuicide would be an offence under Section 306 of the Penal Code. Thedecision adverted to the judgment of the House of Lords in Airedaleand then observed that:

“104. It may be noted that in Gian Kaur case [(1996) 2 SCC 648: 1996 SCC (Cri) 374] although the Supreme Court has quotedDwith approval the view of the House of Lords in Airedalecase [1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821(CA and HL)] , it has not clarified who can decide whether lifesupport should be discontinued in the case of an incompetentperson e.g. person in coma or PVS.” (Id at page 512)

EExplaining the concept of brain death, the court held that passiveeuthanasia depends upon two circumstances:

“117…(a) When person is only kept alive mechanically i.e. whennot only consciousness is lost, but the person is only able to sustaininvoluntary functioning through advanced medical technology—such as the use of heart-lung machines, medical ventilators, etc.F

(b) When there is no plausible possibility of the person ever beingable to come out of this stage. Medical “miracles” are notunknown, but if person has been at stage where his life is onlysustained through medical technology, and there has been nosignificant alteration in the person’s condition for long period ofGtime—at least few years—then there can be fair case madeout for passive euthanasia.” (Id at page 517)

Noting that there is no statutory provision regulating the procedurefor withdrawing life support to person in PVS or who is incompetent totake decision, the court ruled that passive euthanasia should be permittedH

in certain situations.Until Parliament decides on the matter, the modalitiesto regulate passive euthanasia would (according to the court) be asfollows:

“124…(i) decision has to be taken to discontinue life supporteither by the parents or the spouse or other close relatives, or inthe absence of any of them, such decision can be taken even bya person or body of persons acting as next friend. It can alsobe taken by the doctors attending the patient. However, the decisionshould be taken bona fide in the best interest of the patient…

(ii) Hence, even if decision is taken by the near relatives ordoctors or next friend to withdraw life support, such decisionrequires approval from the High Court concerned as laid downin Airedale case [1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 AllER 821 (CA and HL)].”(Id at page 518-519)

27. The approval of the High Court was mandated to obviate thedanger that “this may be misused by some unscrupulous persons whowish to inherit or otherwise grab the property of the patient”. Moreover,the court directed that when an application is filed before the High Court,a committee of three doctors (a neurologist, psychiatrist and physician)should be constituted, to submit its opinion to enable the High Court totake considered decision in the case. On the facts of the case, thecourt held that the petitioner who had visited Aruna Shanbaug only ona few occasions and had written book on her could not be recognisedas her next friend.It was only the hospital staff which had cared for herfor long years which would be recognised. The doctors and nursingstaff had evinced an intent to allow her to live in their care.28. The decision in Aruna Shanbaug has proceeded on thehypothesis that the Constitution Bench in Gian Kaur had”quoted withapproval” the decision of the House of Lords in Airedale. This hypothesisis incorrect. There was only passing reference to the decision of theHouse of Lords.Infact, Gian Kaur prefaces its reference to Airedalewith the following observation:

“40…Even though it is not necessary to deal with physician-assistedsuicide or euthanasia cases, brief reference to this decision citedat the Bar may be made.”(Id at page 665)

The decision in Gian Kaur referred to the distinction made inAiredale between cases in which physician decides not to provide or

Ato continue to provide treatment which would prolong life and cases inwhich physician decides to actively bring an end to the life of thepatient by administering lethal drug. The court in Airedale observedthat actively causing the death of the patient could be made lawful onlyby legislation. It was this aspect which was emphasised by the judgmentin Gian Kaur. Hence, the position adopted in Aruna Shanbaug, that theBConstitution Bench in Gian Kaur quoted Airedale with approval (asthe basis of allowing passive euthanasia) is seriously problematic. Infact, the extract from Airedale which was cited in Gian Kaur indicatesthe emphasis placed on the need to bring in legislation to allow activeeuthanasia.C[[20]]

29. In an incisive analysis[[20]], Ratna Kapur argues that whilefocussing on euthanasia, discussions on Aruna Shanbaug have ignoredother considerations regarding gender, sexual assault, what constitutes“caring”, the right to bodily integrity and workplace protection. centralissue is, according to Kapur, the “politics of caring”, - who can care, hasDthe capacity to care and who is less caring or less capable of caring.The Supreme Court did not accept Pinki Virani as the “next friend” butawarded guardianship to KEM hospital staff on the ground that they had“an emotional bonding and attachment” to Aruna Shanbaug and wereher “real family.” Kapur observes that an emotional bond is not validcriterion for “next friend” and the expression “real family” hasEdangerous implications for those who may not fall within the normativeremit of that phrase though they have relationship with the concernedperson. She asks if the concept of “next friend” will cover only “biologicalfamilial ties” and “render all other non-familial, non-marital, non-heterosexual relationships as ineligible?” She argues that decisions aboutFlife and death should “rest on the anvil of dignity, and dignity is not afamily value, or linked to some essential gendered trait. It is societalvalue and hence needs to be delinked from the traditional frameworksof family and gender stereotypes.” Kapur expresses concerns abouthow the focus on “care” seemed to obscure deeper and more important

consideration regarding women’s safety in the workplace. The attackGon Aruna Shanbaug in KEM hospital was indicative of how the workplacewas unsafe for women, and yet the staff of the same hospital weregiven her guardianship. This is especially concerning given the fact thatthe dean of the hospital at the time refused to allow complaint of 20 RatnaKapur, “The Spectre of Aruna Shanbaug”, The Wire (18 May 2015), availableHat https://thewire.in/2005/the-spectre-of-aruna-shanbaug/

sodomy to go forward as he was more concerned about the reputationof the institution. Kapur laments the fact that Aruna’s case was not usedto bring out the reform that it should have - stating that it should ‘havebeen leading case on women’s rights where “caring” extended beyondthe physical support for the individual who was harmed, to taking activesteps to improve the working conditions for women, including addressingpervasive and systemic sex discrimination and sexism.’ Lastly, Kapurcompels us to think about the choices Aruna Shanbaug may have made -“Had Shanbaug not been reduced to PVS, would she have chosen toremain in KEM for her treatment after the violent and brutal sexualassault that she experienced in her work place? Or would she havechosen to be treated elsewhere? Would she have sued the hospital forfailing to provide her safe working environment?” Thus, Kapurquestions the very basis of making the hospital the guardians byquestioning why the hospital did not “care” when it mattered the most -when the case of sexual assault and sodomy should have been pursuedby the hospital on behalf of its employee. By denying Aruna Shanbaugthe right to bodily integrity in life and the right to self-determination indeath, and by viewing her life from all lenses but from her own, rangingfrom the “carers”, to the medical and legal profession and their views oneuthanasia, she “became nothing more than spectre in her own story.”

30. Aruna Shanbaug also presents another problem - one ofinconsistency. Gian Kaur is construed as laying down only that the rightto life does not include the right to die and that the decision in Rathinamwas incorrect. In that context, it has been noticed that the ConstitutionBench observed that the debate overseas even in physician assistedtermination of life is inconclusive. Aruna Shanbaug finds, on the onehand,that “no final view was expressed” in Gian Kaur beyond statingthat the right to life does not include the right to die. Yet, on the otherhand, having inferred the absence of final view on euthanasia in GianKaur, that decision is subsequently construed as having allowed thetermination of life by premature extinction in the case of “dyingperson who is terminally ill or in permanent vegetative state”. Bothlines of reasoning cannot survive together.

31. The procedure which was followed by this Court in ArunaShanbaug of arranging for screening of CD submitted by the teamof doctors pertaining to her examinationin live court proceeding opento the public has been criticised as being fundamentally violative of

Aprivacy. What transpired in the court is set out in the following observationsfrom the decision:

“11. On 2-3-2011, the matter was listed again before us and wefirst saw the screening of the CD submitted by the team of doctorsalong with their report. We had arranged for the screening of theBCD in the courtroom, so that all present in the Court could see thecondition of Aruna Shanbaug. For doing so, we have relied on theprecedent of the Nuremburg trials in which screening was donein the courtroom of some of the Nazi atrocities during the SecondWorld War.” (Id at page 476)

CThis aspect of the case is indeed disquieting.To equate patientin PVS for thirty-seven years following sexual assault, with the trialsof Nazi war criminals is seriously disturbing.

32. Aruna Shanbaug rests on the distinction between an act andan omission. The court seems to accept that the withdrawal of life supportDor decision not to provide artificial support to prolong life is an omission.In the view of the court, an omission is what is “not done”. On the otherhand, what is actively done to end life is held to stand on separatefoundation. At this stage, it would be necessary to note that the validityof the distinction between what is passive and what is active has beenthe subject of considerable degree of debate. This would be dealt withEin subsequent part of this judgment.

33. The issue before the Constitution Bench in Gian Kaur relatedto the constitutionality of Section 306 of the Penal Code which penalisesthe abetment of suicide. The challenge proceeded on the foundation thatpenalising an attempt to commit suicide had been held to be unconstitutionalFsince the right to live included the right to die. The Constitution Benchemphasised the value ascribed to the sanctity of life and came to theconclusion that the right to die does not emanate from the right to lifeunder Article 21. Having held that the right to die is “inherentlyinconsistent” with the right to life “as is death with life”, the ConstitutionGBench opined that the debate on euthanasia was “of no assistance todetermine the scope of Article 21” and to decide whether the right to lifeincludes the right to die. The court noted that the right to life embodiesthe right to live with human dignity which postulates the existence ofsuch right “up to the end of natural life”. This, the court observedincluded the right to lead dignified life up to the point of death and

included dignified procedure of death. Thus, in the context of the debateon euthanasia, the Constitution Bench was careful in observing that theright to dignified life “may include” the right of an individual to die withdignity. premature termination of life of person facing imminent deathin terminal illness or in permanent vegetative state was in the view ofthe court situation which “may fall” within the ambit of the right to diewith dignity. The debate on physician assisted termination of life wasnoted to be “inconclusive”. The court observed that the argumenttosupport the termination of life in such cases to reduce the period ofsuffering during the process of “certain natural death” was not availableto interpret Article 21 as embodying the right to curtail the natural spanof life. These observations in Gian Kaur would indicate that theConstitution Bench has not made final or conclusive determination oneuthanasia. Indeed, the scope of the controversy before the court didnot directly involve that question. Aruna Shanbaug evidently proceedson construction of the decision in Gian Kaur which does not emergefrom it. Aruna Shanbaug has inherent internal inconsistencies. Hence,the controversy which has been referred to the Constitution Bench wouldhave to be resolved without regarding Aruna Shanbaug as having laiddown an authoritative principle of constitutional law.

EThe distinction between the legality of active and passiveeuthanasia

34. In examining the legality of euthanasia, clarification ofterminology is essential. The discourse on euthanasia is rendered complexby the problems of shifting and uncertain descriptions of key concepts.Central to the debate are notions such as “involuntary”, “non-voluntary”and “voluntary”. Also “active” and “passive” are used, particularly incombination with “voluntary” euthanasia. In general, the following mightbe said: ·

• involuntary euthanasia refers to the termination of life againstthe will of the person killed;

• non-voluntary euthanasia refers to the termination of life withoutthe consent or opposition of the person killed; ·

• voluntary euthanasia refers to the termination of life at therequest of the person killed; ·

A• active euthanasia refers to positive contribution to theacceleration of death;

• passive euthanasia refers to the omission of steps which mightotherwise sustain life.BWhat is relatively straightforward is that involuntary euthanasia isillegal and amounts to murder. However, the boundaries between activeand passive euthanasia are blurred since it is quite possible to argue thatan omission amounts to positive act.

35. The expression ‘passive’ has been used to denote theCwithdrawal or withholding of medical treatment. Implicit in this definitionis the assumption that both the withdrawal of or withholding treatmentstand on the same ethical or moral platform. This assumption, as weshall see in later part of this section, is not free of logical difficulty. Thevoluntary or non-voluntary character of the euthanasia is determined by

the presence or absence of consent. Consent postulates that the individualDis in mental condition which enables her to choose and to decide on acourse of action and convey this decision. Its voluntary nature is premisedon its consensual character. Euthanasia becomes non-voluntary wherethe individual has lost those faculties of mind which enable her to freelydecide on the course of action or lost the ability to communicate theEchosen course of action.

36. The distinctions between active and passive euthanasia arebased on the manner in which death is brought about. They closely relate(in the words of Hazel Biggs in seminal work on the subject) to theunderstanding and consequences of the legal concepts of act andomission.[21]F

37. As early as 1975, American philosopher and medical ethicistJames Rachels offered radical critique of distinction that was widelyaccepted by medical ethicists at that time, that passive euthanasia or“letting die” was morally acceptable while active euthanasia or “killing”Gwas not.[22] Even though his paper did not change the prevalence of thisdistinction at the time it was published, it paved the way by providingcredibility for arguments to legalise assisted suicide in the 1990s.In what 21 Hazel Biggs, “Euthanasia, Death with Dignity and the Law”, Hart Publishing (2001),at page 12

22 James Rachels, “Active and Passive Euthanasia”, New England Journal of Medicine

(January 9, 1975), at page 78-80H

he calls the ‘Equivalence Thesis’, Rachels states “there is no morallyimportant difference between killing and letting die; if one is permissible(or objectionable), then so is the other and to the same degree.”[23] Hedoes not offer view on whether the practice of euthanasia is acceptableor not. His central thesis is that both active and passive euthanasia aremorally equivalent- either both are acceptable or both are not.Reichenbach for instance, asks: Supposing all else is equal, can moraljudgment about euthanasia be made on the basis of it being active orpassive alone?[24]. The ‘Equivalence thesis’ postulates that if doctorlets patient die (commonly understood as passive euthanasia) forhumane reasons, he is in the same moral position as if he decided to killthe patient by giving lethal injection (commonly understood as activeeuthanasia) for humane reasons.38. The correctness of this precept may be questioned by pointingout that there is qualitative difference between positive medicalintervention (such as lethal injection) which terminates life and decisionto not put patient on artificial life support, which will not artificiallyprolong life. The former brings premature extinction of life. The latterdoes not delay the end of life beyond its natural end point. But, if thedecision to proceed with euthanasia is the right one based on compassionand the humanitarian impulse to reduce pain and suffering, then the methodused is not in itself important. Moreover, it is argued that passiveeuthanasia often involves more suffering since simply withholdingtreatment means that the patient may take longer to die and thus suffermore. Passive euthanasia may become questionable where the withholdingor withdrawal of medical intervention may lead to condition of painand suffering, often lingering and cruel death. The avoidance ofsuffering, which is the object and purpose of euthanasia, may hence notbe the result of passive euthanasia and the converse may result. Besidesraising troubling moral questions – especially where it is non-voluntary, itquestions the efficacy of passive euthanasia. Moreover, it raises atroubling issue of the validity of the active-passive divide.

39. The moral and legal validity of the active-passive distinctionbased on the exculpation of omissions has been criticised. One of thereasons for the exculpation of omissions is based on the idea that our

23 James Rachels, End of Life: Euthanasia and Morality (Oxford University Press,1986)

24 Bruce R. Reichenbach, “Euthanasia and the Active-Passive Distinction”, Bioethics(January 1987), Volume 1, at pages 51–73

Aduty not to harm people is generally stricter than our duty to help them.[25]James Rachels offers compelling counter-argument to the argumentthat killing someone is violation of our duty not to do harm, whereasletting someone die is merely failure to help. He argues that our duty tohelp people is less stringent than the duty not to harm them only in caseswhere it would be very difficult to help them or require great amountBof effort or sacrifice. However, when we think of cases where it wouldbe relatively simple to help someone and there would be no great personalsacrifice required, the morally justifiable response would be different.He provides hypothetical example of child drowning in bathtub,anyone standing next to the tub would have strict moral duty to helpCthe child.[26] Due to the equation between the child and the person standingnext to the bathtub (the proximity may be in terms of spatial distance orrelationship) the “alleged asymmetry” between the duty to help and theduty not to do harm vanishes. person standing next to bathtub wouldhave no defence to say that this was merelya failure to help and did not

violate the duty to do no harm. In cases of euthanasia since the patient isDclose at hand and it is within the professional skills of the medicalpractitioner to keep him alive, the alleged asymmetry has little relevance.The distinction is rendered irrelevant even in light of the duty of carethat doctors owe to their patients. Against the background of the duty to

care, the moral and legal status of not saving life due to failure toEprovide treatment, can be the same as actively taking that life.[27] doctorwho knowingly allows patient who could be saved to bleed to deathmight be accused of murder and medical negligence. The nature of thedoctor-patient relationship which is founded on the doctor’s duty of caretowards the patient necessitates that omissions on the doctor’s part willalso be penalised. When doctors take off life support, they can foreseeFthat death will be the outcome even though the timing of the death cannotbe determined. Thus, what must be deemed to be morally and legallyimportant must not be the emotionally appealing distinction betweenomission and commission but the justifiability or otherwise of the clinicaloutcome. Indeed, the distinction between omission and commission mayGbe of little value in some healthcare settings.[28]

25 James Rachels (Supra note 23), at pages 101-120

26 Ibid

27 Len Doyal and Lesley Doyal, “Why Active Euthanasia and Physician AssistedSuicide Should Be Legalised/ If Death Is in Patient’s Best Interest Then DeathConstitutes Moral Good”, British Medical Journal (2001), at pages 1079–1080.H 28 Ibid

40. This distinction leads to the result that even though euthanasiais grounded in compassion and to relieve the patient of suffering, onlycertain types of deaths can be lawful. If active euthanasia amounts to“killing”, the operation of criminal law can lead to medical practitionersbeing exposed to the indignity of criminal prosecutions and punishments.[29]While passive euthanasia can appear to save the dignity of medicalpractitioners, it is perhaps at the expense of the patient’s dignity.[30]

41. recent article by Rohini Shukla in the Indian Journal ofMedical Ethics (2016) points out two major flaws in Aruna Shanbaugregarding the distinction between active and passive euthanasia.[31] First,it fails to prioritise the interest of the patient and is preoccupied with theeffect of euthanasia on everyone but the patient, and second, that it doesnot distinguish between the terms “withholding and withdrawing anduses them interchangeably.”Throughout the above judgment, the words“withholding” and “withdrawing” are used interchangeably. However,the difference between the two is relevant to the distinction betweenwhat is ‘active’ and ‘passive’ as act and omission. Withholding life supportimplies that crucial medical intervention is restrained or is not provided –an act of omission on the part of the doctor. Withdrawing life supportimplies suspending medical intervention that was already in use to sustainthe patient’s life- an act of commission. If the basis of distinction betweenactive and passive euthanasia is that in passive euthanasia the doctoronly passively commits acts of omission, while in active euthanasia thedoctor commits acts of commission then withdrawing medical treatmentis an act of commission and therefore amounts to active euthanasia.

In both these cases, the doctor is aware that his/her commissionsor omissions will in all likelihood lead to the patient’s death. However, inpassive euthanasia death may not be the only consequence and thesuffering that passive euthanasia often entails such as suffocation todeath or starvation till death, raises the question of whether passiveeuthanasia, in such circumstances, militates against the idea of deathwith dignity – the very basis of legalising euthanasia.[32] Shukla’s criticismneeds careful attention since it raises profound questions about the doctor-patient relationship and the efficacy of the distinction in the context of

29 Hazel Biggs (Supra note 21), at Page 162

30 Ibid

31 Rohini Shukla, “Passive Euthanasia in India: critique”, Indian Journal of MedicalEthics (Jan-Mar 2016), at pages 35-38

32 Ibid

Adeath with dignity. If the divide between active-passive is questioned,should both forms be disallowed or, in converse should both be allowed?More significantly, are both equally amenable to judicially manageablestandards?

Even with Aruna Shanbaug’s starting position that passiveBeuthanasia is permitted under Indian law until expressly prohibited, theCourt did not traverse the vast Indian legal framework to determinewhether there was prohibition to this effect. Instead the court madean analogy (perhaps incorrect) between doctor conducting passiveeuthanasia and person who watches building burning:

C“An important idea behind this distinction is that in passiveeuthanasia, the doctors are not actively killing anyone; they aresimply not saving him. While we usually applaud someone whosaves another person’s life, we do not normally condemn someonefor failing to do so. If one rushes into burning building and carriessomeone out to safety, he will probably be called hero. But, ifDsomeone sees burning building and people screaming for help,and he stands on the sidelines – whether out of fear for his ownsafety, or the belief that an inexperienced and ill-equipped personlike himself would only get in the way of the professionalfirefighters, or whatever – if one does nothing, few would judgeEhim for his action. One would surely not be prosecuted for homicide(Atleast, not unless one started the fire in the first place)…[T]here can be no debate about passive euthanasia: You cannotpersecute someone for failing to save life. Even if you think itwould be good for people to do X, you cannot make it illegal forpeople to not do X, or everyone in the country who did not do XFtoday would have to be arrested.”

The example is inapposite because it begs the relationship betweenthe person who is in distress and the individual whose position as acaregiver (actual or prospective) is being considered. The above examplemay suggest distinct outcome if the by-stander who is ill equipped toGenter burning building is substituted by fire-fighter on duty. Wherethere is duty to care, the distinction between an act and an omissionmay have questionable relevance. Acts and omissions are not disjunctiveor isolated events. Treatment of the human body involves continuousassociation between the caregiver and receiver. The expert caregiver is

involved in continuous process where medical knowledge and thecondition of the patient as well as the circumstances require the doctorto evaluate choices - choices on the nature and extent of medicalintervention, the wisdom about course of action and about what shouldor should not be done.

42. An erroneous premise in the judgment is that omissions arenot illegal under Indian law.[33] Section 32 of the Indian Penal Code dealswith illegalomissions and states that “In every part of this Code, exceptwhere contrary intention appears from the context, words which referto acts done, extend to illegal omissions.” Whether and to what extentthis omission would be illegal under Indian law will be discussed in asubsequent part of the judgment.

43. Since the judgment legalised passive euthanasia, withdrawingmedical support was the only option in the case of Aruna Shanbaugand if this had been done, she would have in all likelihood suffocated todeath. We must ponder over whether this could be the best possibledeath in consonance with the right to live with dignity (which extends todignity when death approaches) and the extent to which it upholds theprinciple of prioritising the patient’s autonomy and dignity over mereprolongation of life. Had the Court taken into account these consequencesof passive euthanasia for the patient, it would be apparent that passiveeuthanasia is not simple panacea for an individual faced with end oflife suffering.This brings us to the second and more crucial flaw, which was theunjustified emphasis on doctor’s agency in administering different typesof euthanasia which led to ignoring the patient’s autonomy and suffering.Respecting patient autonomy and reducing suffering are fundamentalethical values ascribed to euthanasia. It is also the foremost principle ofbioethics.[34] The effects of euthanasia on everyone (particularly hercaregivers) were given greater importance than the patient’s own wishesand caregiver:

“In case hydration or food is withdrawn/withheld from ArunaRamchandra Shanbaug, the efforts which have been put in by

33 Aparna Chandra and Mrinal Satish, “Misadventures of the Supreme Court in ArunaShanbaug v Union of India”, Law and other Things (Mar 13, 2011), available at http://lawandotherthings.com/2011/03/misadventures-of-supreme-court-in-aruna/

34 RoopGurusahani and Raj Kumar Mani, “India: Not country to die in”, IndianJournal of Medical Ethics (Jan- Mar 2016), at pages 30-35.

Abatches after batches of nurses of KEM Hospital for the last 37years will be undermined. Besides causing deep sense ofresentment in the nursing staff as well as other well-wishers ofAruna Ramchandra Shanbaug in KEM Hospital including themanagement, such act/omissions will lead to disheartenment inthem and large-scale disillusionment.”B

44. Aruna Shanbaug was in no position to communicate herwishes. But the above extract from the judgment relegates her caregiverto the background. The manner in which the constitutional dialogue isframed by the court elevates the concerns of the caregiver on highpedestal without focusing on the dignity and personhood of the individualCin permanent vegetative state. In doing so, the judgment subordinatesthe primary concern of bio-ethics and constitutional law, which ispreserving the dignity of human life.

45. An article[35] in the Oxford Medical Law Review notes thatthere are strong grounds to believe that the active-passive distinction inDAruna Shanbaug was not grounded so much in morality as in ‘reasonsof policy’.

Even while there are pertinent questions regarding the moralvalidity of the active-passive distinction, there appears to be significantdifference between active and passive euthanasia when viewed fromEthe lens of the patient’s consent. Consent gives an individual the abilityto choose whether or not to accept the treatment that is offered. Butconsent does not confer on patient the right to demand that particularform of treatment be administered, even in the quest for death withdignity.[36] Voluntary passive euthanasia, where death results from selectiveFnon-treatment because consent is withheld, is therefore legally permissiblewhile voluntary active euthanasia is prohibited. Moreover, passiveeuthanasia is conceived with purpose of not prolonging the life of thepatient by artificial medical intervention. Both in the case of withdrawalof artificial support as well as in non-intervention, passive euthanasiaallows for life to ebb away and to end in the natural course. In contrast,Gactive euthanasia results in the consequence of shortening life by positiveact of medical intervention. It is perhaps this distinction which necessitateslegislative authorisation for active euthanasia, as differentiated from thepassive.

35 Sushila Rao (Supra note 16), at pages 646-656

36 Hazel Biggs (Supra note 21), at page 30H

46. The question of legality of these two forms of euthanasia hassignificant consequences. Death when it is according to the wishes andin the caregiver of the patient must be viewed as moral good. The factthat active euthanasia is an illegal act (absent legislative authorisation)also prevents many professional and emotional carers from performingit even if they perceive it as compassionate and otherwise appropriateresponse in line with the patient’s wishes and caregiver, thereby prolongingthe patient’s suffering and indignity. These complex issues cannot beaddressed when active euthanasia is not legalised and regulated. Themeeting point between bio-ethics and law does not lie on straight course.

FSanctity of Life

47. Diverse thinkers have debated and deliberated upon the valueaccorded to human life.[37 ]The “sanctity of life” principle has historicallybeen the single most basic and normative concept in ethics and the law.[38]The phrase has emerged as key principle in contemporary bioethics,especially in debates about end-of-life issues.[39]

48. The traditional and standard view is that life is invaluable.[40 ]Ithas persisted as an idea in various cultures through the centuries. Asacred value has been prioritized for human life. This “rhetoric of thevalue in human life”[41] has been highlighted in various traditions.[42] Theprotection of the right to life derives from “the idea that all human life isof equal value” - the idea being drawn from religion, philosophy andscience.[43]

49. The principle or doctrine of the “sanctity of life”, sometimesalso referred to as the “inviolability of human life”[44], is based on“overarching moral considerations”, the first of which has been statedas:

37 Elizabeth Wicks (Supra note 5), at page 29

38 Anne J. Davis, “Dilemmas in Practice: To Make Live or Let Die”, The AmericanJournal of Nursing(March 1981), Vol. 81, No. 3, at page 582

39 Heike Baranzke, “”Sanctity-of-Life”—A Bioethical Principle for Right to Life?”,Ethic Theory Moral Practice (2012), Vol. 15, Issue 3, at page 295

40 Elizabeth Wicks (Supra note 5), at page 1

41 Ibid, at page 240

42 PG Lauren argues that it is “essential to recognise that the moral worth of eachperson is belief that no single civilization, or people, or nation, or geographical area,or even century can claim as uniquely its own” See P.G. Lauren, The Evolution ofInternational Human Rights: Visions Seen (University of Pennsylvania Press, 2003,2nd edn.), at page 12.), as quoted in Elizabeth Wicks (Supra note 5), at pages 25-29

43 Elizabeth Wicks (Supra note 5), at page 47

44 John Keown, The Law and Ethics of Medicine: Essays on the Inviolability of HumanLife (Oxford University Press, 2012), at page 3

A“Human life is sacred, that is inviolable, so one should never aimto cause an innocent person’s death by act or omission”.[45]

50. Distinct from religious beliefs, the special value inherent inhuman life has been recognised in secular ideas of natural law - “man asan end in himself, and human investment in life”.[46] Locke has been ofBthe view that every human being “is bound to preserve himself, and notto quit his station wilfully”.[47 ]In his book “Life’s Dominion”, RonaldDworkin explains the sanctity of human life thus:

“The hallmark of the sacred as distinct from the incrementallyvaluable is that the sacred is intrinsically valuable because—andCtherefore only once—it exists. It is inviolable because of what itrepresents or embodies. It is not important that there be morepeople. But once human life has begun, it is very important thatit flourish and not be wasted.”[48]

Life today, according to Dworkin, is not just created by the scienceDof evolution but by past choices—by the investment that an individual,and others, have put into his or her life.[49]

51. Elizabeth Wicks in her book titled “The Right to Life andConflicting Interests” (2010) has succinctly summarized the moral andethical justifications for the sanctity of life thus:

E“The life of an individual human being matters morally not becausethat organism is sentient or rational (or free of pain, or values itsown existence) but because it is human life. This point issupported by the ethical and legal principle of equality which iswell established in the field of human rights…From an end of lifeperspective, this means that life ends only when the human organismFdies. This cannot sensibly require the death of all of the body’scells but rather the death of the organism as whole. In otherwords, life comes to an end when the integrative action betweenthe organs of the body is irreversibly lost. It is the life of theorganism which matters, not its living component parts, and thus it

45 Ibid

46 Elizabeth Wicks (Supra note 5), at pages 34-35

47 John Locke, Two Treatises of Government (ed. P. Laslett) (Cambridge UniversityPress, 1988)

48 Ronald Dworkin, Life’s Dominion: An Argument about Abortion andEuthanasia(Harper Collins, 1993), at pages 73-74

49 Elizabeth Wicks (Supra note 5), at page 32

is the permanent destruction of that integrative organism whichsignifies the end of the organism’s life.”[50]

52. The value of human life has been emphasized by Finnis in thefollowing words:

“[H]uman bodily life is the life of person and has the dignity ofthe person. Every human being is equal precisely in having thathuman life which is also humanity and personhood, and thus thatdignity and intrinsic value. Human bodily life is not mere habitation,platform, or instrument for the human person or spirit. It istherefore not merely instrumental good, but is an intrinsic andbasic human good. Human life is indeed the concrete reality ofthe human person. In sustaining human bodily life, in howeverimpaired condition, one is sustaining the person whose life it is.In refusing to choose to violate it, one respects the person in themost fundamental and indispensable way. In the life of the personin an irreversible coma or irreversibly persistent vegetative state,the good of human life is really but very inadequately instantiated.Respect for persons and the goods intrinsic to their wellbeingrequires that one make no choice to violate that good by terminatingtheir life.”[51]

53. In his book “The Law and Ethics of Medicine: Essays on theInviolability of Human Life” (2012), John Keown has explained theprinciple of the sanctity or inviolability of human life and its continuingrelevance to English law governing aspects of medical practice at thebeginning and end of life. Keown has distinguished the principle fromthe other two “main competing approaches to the valuation of humanlife”[52 ]- ”vitalism” on the one hand and “qualitative” evaluation ofhuman life on the other.The approach of “vitalism” assumes that “humanlife is the supreme good and one should do everything possible to preserveit”. The core principle of this approach is “try to maintain the life of eachpatient at all costs”.[53]

54. In the “quality of life” approach, Keown has argued that “thereis nothing supremely or even inherently valuable about the life of human

50 Ibid, at pages 16-17

51 John Finnis, Human Rights and Common Good (Oxford University Press, 2011), atpage 221

52 John Keown (Supra note 44), at page 4

53 Ibid

Abeing”. The value of human life”resides in meeting particular “quality”threshold”, above which the dignity of life would be “worthwhile”. Keowncriticizes this approach for its basis that since “certain lives are not worthliving, it is right intentionally to terminate them, whether by act oromission”.[54]

B55. Keown sums up that the doctrine of the sanctity or inviolabilityof life holds that “we all share, by virtue of our common humanity, anineliminable dignity” - this dignity grounds the “right to life”.[55] The essenceof the principle is that “it is wrong to try to extinguish life”.[56 ]Intentionalkilling is prohibited by any act or omission. Keown thereby emphasisesthe sanctity and inviolability of life in the following words:C

“Human life is basic, intrinsic good… The dignity of humanbeings inheres because of the radical capacities, such as forunderstanding, rational choice, and free will, inherent in humannature… All human beings possess the capacities inherent in theirnature even though, because of infancy, disability, or senility, theyDmay not yet, not now, or no longer have the ability to exercisethem. The right not to be killed is enjoyed regardless of inability ordisability. Our dignity does not depend on our having particularintellectual ability or having it to particular degree...”[57]

56. The principle of the sanctity of life considers autonomy as aE“valuable capacity, and part of human dignity”[58]. However, autonomy’scontribution to dignity is “conditional, not absolute”[59]. The limitations ofautonomy under the sanctity of life doctrine can be summarized as follows:

“Exercising one’s autonomy to destroy one’s (or another’s) life isalways wrong because it is always disrespectful of human dignity.FSo: it is always wrong intentionally to assist/encourage patientto commit suicide and, equally, there is no “right to commit suicide,”let alone right to be assisted to commit suicide, either by act oromission… The principle of “respect for autonomy” has in recentyears become for many core if not dominant principle ofGbiomedical ethics and law. It is not, however, unproblematic. Its

54 Ibid, at page 5 55 Ibid, at page 6 56 Ibid, at page 6 57 Ibid, at pages 5-6

58 Ibid, at page 18 59 IbidH

advocates often fail to agree on precisely what constitutes an“autonomous” choice or to offer any convincing account of whyrespect for someone else’s choice as such should be regarded asa moral principle at all, let alone core or dominant moralprinciple.”[60]

John Keown, however, while distinguishing the principle of sanctityof life from vitalism, has also argued that though this principle “prohibitswithholding or withdrawing treatment with intent to shorten life”, but italso “permits withholding/withdrawing life-prolonging treatment whichis not worthwhile because it is futile or too burdensome”. It does notrequire doctors to try to preserve life at all costs.[61] This consideration,despite all the assumptions and discussions about the sanctity of life, in away, makes the doctrine an open-ended phenomenon.

57. This open-endedness is bound to lead to conflicts andconfusions. For instance, the issue of the sacred value of life is potentiallya conflicting interest between right to life and autonomy, which Wicksexplains as follows:

“If we accept that human life has some inherent value, is it solelyto the individual who is enjoying that life or is there some broaderstate or societal benefit in that life? If life is of value only to theperson living it, then this may elevate the importance of individualautonomy. It may even suggest that it is an individual’s desire forrespect for his or her own life that provides the inherent value inthat life. On the other hand, it might be argued that the protectionof human life is, at least partly, matter of public interest. Whetherit is to the state, or other members of society, or only an individual’sown family and friends, there is an argument that human life isa thing of value to others beyond the individual living that life…[I]f life is legally and ethically protected in deference to theindividual’s wish for respect for that life, the protection wouldlogically cease when an autonomous choice is made to bring thelife to an end. If, however, the life is protected, at least partly, dueto the legitimate interest in that life enjoyed by the state or other(perhaps select) members of society, then the individual’sautonomous choice to end his or her life is not necessarily the

60 Ibid

61 Ibid, at page 13

Adecisive factor in determining whether legal and ethical protectionfor that life should continue.”[62]

58. The disagreement between “sanctity of life” and the “qualityof life” is another conflict, which can be summarized as follows:“ If westart with sanctity of life position, this affirms the value of human lifeBin way that trumps even claims to self-determination… [P]eople whosuffer from terminal or degenerative illness… who want to die mustremain alive in great pain or discomfort until death comes ‘naturally’ tothem. Similarly, people who suffer from long-term disability or paralysiswhich grossly diminishes their capacities for life and who cannot taketheir own lives, are not permitted to die. In such circumstances, theCargument for sanctity of life may seem somewhat sanctimonious to theperson who is not allowed the assistance to end their own life. Therehave been cases in the media in recent years where the moral difficultyin insisting on the sanctity of life in such situations has been made clear.Though such cases will not disturb the position of she who believesDfundamentally in the sanctity of life, they do lead others to accept thatthere may be exceptional cases where sanctity gives way to quality oflife issues.”[63]

Therefore, intractable questions about morality and ethics arise.What is the core of life that might be protected by law? Will poorEquality of life (in the shadow of the imminence of death) impact upon thevalue of that life to such an extent that it reduces the protection for thatlife offered by the sanctity of life doctrine? Are there limits to the principleof sanctity? This needs to be reflected upon in the next part of thejudgment.FG Nuances of the sanctity of life principle

59. The sanctity of life has been central to the moral and ethicalfoundations of society for many centuries. Yet,it has been suggestedthat “across the range of opinions most people would seem to agreethat life is valuable to some degree, but the extent to which any ‘value’is founded in intrinsic worth or instrumental opportunity is contentious”.[64]GGlanville Williams, strong proponent of voluntary euthanasia, was of

62 Elizabeth Wicks (Supra note 5), at p 176-177

63 Alan Norrie (Supra note 4), at pages 141-142

64 Alexandra Mullock, End-Of-Life Law And Assisted Dying In The 21st Century: TimeFor Cautious Revolution? (PhD Thesis, University of Manchester, 2011), at page24H

the view that “there was human freedom to end one’s life”. Accordingto him, “the law could not forbid conduct that, albeit undesirable, did notadversely affect the social order”.[65]That view, as argued by Luis Kutnerin his article “Euthanasia: Due Process for Death with Dignity; TheLiving Will”[66], was similar to that advanced by John Stuart Mill. Mill, inhis classic work “On Liberty” stated:

“Mankind are great gainers by suffering each other to live asseems good to themselves, than by compelling each to live asseems good to the rest.”[67]

Are there limits to or nuances of the sanctity principle? This mustbe discussed for fuller understanding of the debate around euthanasia.

60. Though the sanctity principle pro-hibits “the deliberatedestruction of hu-man life, it does not demand that life should always beprolonged for as long as possible”.[68] While providing for an intrinsicsacred value to life “irrespective of the person’s capacity to enjoy lifeand notwithstanding that person may feel their life to be great burden”,the principle holds that “life should not always be maintained at any andall cost”.[69 ]Ethical proponents of the sanctity of life tend to agree thatwhen “medical treatment, such as ventilation and probably also antibiotics,can do nothing to restore those in permanent vegetative state to stateof health and well-functioning, it is futile and need not be provided”.[70]Rao has thus suggested that “the law’s recognition that withdrawal oflife-prolonging treatment is sometimes legitimate” is not generally anexception to the sanctity principle, but is actually “an embodiment ofit”.[71]

61. Philosopher and medical ethicist James Rachels has in aseminal work[72] titled “The End of Life: Euthanasia and Morality (Studies

65 Luis Kutner, “Euthanasia: Due Process for Death with Dignity; The Living Will”,Indiana Law Journal (Winter 1979), Vol. 54, Issue, 2, at page 225

66 Ibid, at pages 201-228

67 Ibid, at pages 225-226

68 Sushila Rao, “The Moral Basis for Right to Die”, Economic & Political Weekly(April30, 2011), at page 14

69 Alexandra Mullock, End-Of-Life Law And Assisted Dying In The 21st Century:Time For Cautious Revolution? (PhD Thesis, University of Manchester, 2011), atpage 25

70 John Keown, “The Legal Revolution: From “Sanctity of Life” to “Quality of Life”and “Autonomy”, Journal of Contemporary Health Law & Policy (1998), Vol. 14,Issue 2, at page 281

71 Sushila Rao (Supra note 68), at page 14

72 James Rachels, (Supra note 23)

Ain Bioethics)” in the year 1986 propounded that we must embrace anidea of the sanctity of life which is firmly based in ethics (the idea ofright and wrong) and not based in religion. The separation of religionfrom morality and ethics does not necessarily mean rejection of religion,but that the doctrine of “sanctity of life” must be accepted or rejected onits merits, by religious and non-religious people alike. The value of life isBnot the value that it has for God or the value that it may have from anyreligious perspective. The truth of moral judgments and exercising reasonto decide what is right and wrong does not depend on the truth oftheological claims. The value of life is the value that it has for the humanbeings who are subjects of lives. Thus, the value of life must be understoodCfrom the perspective of the person who will be harmed by the loss, thesubject of life. It is also important to understand the true meaning behindthe moral rule against killing. The rationale behind such law is to protectthe interests of individuals who are the subject of lives. If the point of therule against killing is the protection of lives, then we must acknowledgethat in some cases killing does not involve the destruction of “life” in theDsense that life is sought to be protected by law. For example, person inan irreversible coma or suffering serious terminal illness is alive in astrictly biological sense but is no longer able to live life in way that maygive meaning to this biological existence. The rule against killing protectsindividuals that have lives and not merely individuals who are alive. WhenEan individual is alive only to the extent of being conscious in the mostrudimentary sense, the capacity to experience pleasure and pain (if any)does not necessarily have value if that is the only capacity one has.These sensations will not be endowed with any significance by the oneexperiencing them since they do not arise from any human activities orprojects and they will not be connected with any coherent view of theFworld.

62. It is instructive to analyse how the principle of the sanctity oflife impacts upon views in regard to capital punishment. (This comparison,it needs to be clarified in the present judgment, is not to indicate anopinion on the constitutionality of the death penalty which is not in issueGhere). Advocates of the sanctity of life would even allow capitalpunishment[73], implying that they do not oppose all killing of human beings.This suggests that “while they are anti-euthanasia, they are not uniformlypro-life”[74]. In seminal article titled “The Song of Death: The Lyrics of

73 Elizabeth Wicks (Supra note 5), at pages 102-149H 74 Margaret A. Somerville, “The Song of Death: The Lyrics of Euthanasia”, Journal ofContemporary Health Law & Policy (1993), Vol. 9, Issue 1, at page 67.

Euthanasia”[75], Margaret A. Somerville has laid down “four possiblepositions that persons could take:

(i) that they are against capital punishment and against euthanasia;

(ii) that they agree with capital punishment, but are againsteuthanasia;

(iii) that they agree with capital punishment and euthanasia; or

(iv) that they are against capital punishment, but agree witheuthanasia”.[76]

She explained the underlying philosophy that these positionsrepresent and its implications:

“The first is true pro-life position, in that, it demonstrates moralbelief that all killing (except, usually, as last resort in self-defence)is wrong. The second position represents the view of somefundamentalists, namely, that to uphold the sanctity of life valuerequires prohibition of euthanasia, but capital punishment is justifiedon the grounds that this punishment is deserved and just accordingto God’s law. The third position is that of some conservatives,who see capital punishment as fit penalty on the basis that onecan forfeit one’s life through very serious crime, but that onecan also consent to the taking of one’s own life in the form ofeuthanasia. The fourth view is that of some civil libertarians, thatone can consent to the taking of one’s own life but cannot takethat of others. Through such analyses, one can see where thevarious groups agree with each other and disagree. For example,the true pro-life persons and the fundamentalists agree with eachother in being against euthanasia, and some conservatives andcivil libertarians agree with each other in arguing for the availabilityof euthanasia. On the other hand, the true pro-life and civillibertarians join in their views in being against capital punishment,whereas the fundamentalists and some conservatives agree thatthis is acceptable.”[77]

The above explanation suggests that there are variations inintellectual opinion on the concept of sanctity of life. When it comes to

75 Ibid, at pages 1-76

76 Ibid, at page 67

77 Ibid, at pages 67-68

DEFG

Ataking of person’s life, various groups while agreeing in certain terms,may be “radically divergent in others”.[78]

63. Contrary to the vitalism or the sanctity of life principle, somescholars and bioethicists have argued that “life is only valuable when ithas certain quality which enables the subject to derive enjoyment fromBtheir existence so that life is viewed as being, on balance, more beneficialthan burdensome”. It has been argued that the sanctity of life principleshould be interpreted to protect lives in the biographical sense and notmerely in biological sense.[79] There is difference in the fact of beingalive and the experience of living. From the point of view of the livingindividual, there is no value in being alive except that it enables one toChave life.[80]

64. There is wide-ranging academic research suggestive of anuanced approach to the sanctity principle. During the last four decades,“there has been subtle change in the way” people perceive human lifeand that “the idea of quality of life has become more prevalent in recentDtimes”.[81]. The moral premium, as Magnusson has remarked, is shifting“from longevity and onto quality of life”[82].

In his article titled the “Sanctity of Life or Quality of Life?”[83],Singer argued that the sanctity of life principle has been under erosion -the “philosophical foundations” of the principle being “knocked asunder”.[84]E“The first major blow” to the principle, Singer stressed,”was the spreadingacceptance of abortion throughout the Western world”. Late abortionsdiluted the defence of the “[alleged] universal sanctity of innocent humanlife”.[85] Singer has further remarked:

“Ironically, the sanctity with which we endow all human life oftenFworks to the detriment of those unfortunate humans whose liveshold no prospect except suffering…

78 Ibid

79 James Rachels (Supra note 23), at page 26

80 Ibid

81 Jessica Stern, Euthanasia and the Terminally Ill(2013), retrieved from Florida StateGUniversity Libraries

82 Roger S. Magnusson, “The Sanctity of Life and the Right to Die: Social andJurisprudential Aspects of the Euthanasia Debate in Australia and the United States”,Pacific Rim Law & Policy Journal, Vol. 6, No. I, at page 40

83 Peter Singer, “Sanctity of Life or Quality of Life”, Pediatrics (1983), Vo. 72, Issue1, at pages 128-129

84 Ibid, at page 129H 85 Ibid, at page 128

One difference between humans and other animals that is relevantirrespective of any defect is that humans have families who canintelligently take part in decisions about their offspring. This doesnot affect the intrinsic value of human life, but it often shouldaffect our treatment of humans who are incapable of expressingtheir own wishes about their future. Any such effect will not,however, always be in the direction of prolonging life…

If we can put aside the obsolete and erroneous notion of the sanctityof all human life, we may start to look at human life as it really is:at the quality of life that each human being has or can achieve.Then it will be possible to approach these difficult questions of lifeand death with the ethical sensitivity that each case demands,rather than with the blindness to individual differences…”[86]

65. The quality of life approach has its basis in the way life isbeing lived. “An overriding concern”, under this approach, “is theconditions under which people live rather than whether they live”.[87]Thisdoes not mean that someone “who chooses to end their life througheuthanasia” does not value their lives as much as others.[88] Breck in hisarticle titled “Euthanasia and the Quality of Life Debate”[89] has statedthat:

“Ethicists of all moral and religious traditions recognize that medicaldecisions today inevitably involve quality of life considerations.Very few would be inclined to sustain limited physiologicalfunctioning in clearly hopeless cases, as with anencephaly or whole-brain death, simply because the technology exists to do so. Thatsuch case is indeed hopeless, however, is quality of life judgment:it weighs the relationship between the patient’s condition and thetreatment options and concludes that attempts to sustain biologicalexistence would be unnecessarily burdensome or simply futile.Judgments made in light of “futility” or the “burden-benefitcalculus” are necessarily based on evaluations of the “quality” of

86 Ibid, at page 129

87 “Sanctity of life vs. quality of life”, Los Angeles Times (June 7, 2015), available athttp://www.latimes.com/opinion/readersreact/la-le-0607-sunday-assisted-suicide-20150607-story.html

88 Jessica Stern, Euthanasia and the Terminally Ill (2013), available at https://fsu.digital.flvc.org/islandora/object/fsu:209909/datastream/PDF/view

89 John Breck, “Euthanasia and the Quality of Life Debate”, Christian Bioethics (1995),Vol. 1, No.3, at pages 322-337

Athe patient’s life. Such quality, however, must always be determinedin light of the patient’s own personal interests and well-being, andnot on grounds of the burden imposed on other parties (the family,for example) or the medical care system with its economicconsiderations and limited resources.”[90]

BWeingarten is of the view that the emphasis on the sanctity oflife”should be replaced by ‘value of life’, which exposes the individualcase to critical scrutiny. Medicine can better cope with its current andfuture ethical dilemmas by case-by-case approach.”[91]

Norrie explains why quality of life should be placed ahead ofCsanctity of life in the debate on euthanasia:

“[W]hile there are good moral reasons of either direct (thathuman life should be generally valued as of intrinsic worth) or anindirect (that allowing exceptions would lead to slippery slope)kind for supporting sanctity of life view in the case of the terminallyDill and ancillary cases, there are also good moral reasons forallowing exceptions to it. The latter stem from quality of lifeview and, linked to that, the possibility of choosing the time andplace of one’s own death. The possibility of agency as centralelement in what it means to be human is premised on the notion ofhuman freedom, and freedom implies number of differentEelements. These include simple freedom to be left alone withone’s life, as well as positive freedom to become what we haveit within ourselves to be. Such freedom then entails furtherconceptions of autonomy, emancipation, and flourishing, insofaras human life reflects the potentialities in human being. The abilityFto choose one’s own death reflects many of these aspects ofhuman freedom, from the simple sense that one should be leftalone to do what one likes with one’s life to the more complexsense that an autonomous life would include amongst itscomponents control over one’s death, and then on to the sense—that is surely there in the term ‘euthanasia’ (a ‘good death’)—Gthat flourishing life is one in which one is genuinely able to registerthe time to go. These are moral arguments placing choice andquality of life ahead of sanctity of life… good life means agood death too, and it is this kind of argument that leads one to

90 Ibid, at pages 325-326

91 Michael Weingarten, “On the sanctity of life”, British Journal of General PracticeH(April 2007), Vol. 57(537), at page 333

think that categorical prohibition on voluntary euthanasia…isproblematic.”[92]

Life and natural death

66. The defenders of the sanctity principle place sacred value tohuman life from “conception to natural death”.[93 ]The word “natural”implies that “the only acceptable death is one that occurs from naturalcauses”. Life is only “sacred insofar as it ends by natural means”[94].Medical advancements,however, have brought uncertainty about thedefinition of death - “what constitutes death, in particular “natural”death”. This uncertainty can be expressed through the following questions:

“If person stays alive thanks to medical advances, is that really“natural”?...

When is the benefit of using technology and treatments to sustainlife no longer worth the pain that comes along with it?”[95]

67. Medical advances have “complicated the question of whenlife ends”. There exists no natural death where artificial technology isconcerned. Technology by artificial means can prolong life. In doing so,technology has re-shaped both human experience as well as our valuesabout life in natural stateand its end by natural causes:

“[T]he process of dying is an in-evitable consequence of life, theright to life necessarily implies the right to have nature take itscourse and to die natural death. It also encompasses right,unless the individual so wishes, not to have life artificiallymaintained by the provision of nourishment by abnormal artificialmeans which have no curative effect and which are intendedmerely to prolong life.”[96]

68. Modern medicine has found ways to prolong life and to delaydeath. But, it does not imply that modern medicine “necessarily prolongsour living full and robust life because in some cases it serves only toprolong mere biological existence during the act of dying”.This may, in

92 Alan Norrie (Supra note 4), at page 143

93 Alecia Pasdera, The Rhetoric of the Physician-Assisted Suicide Movement: ChoosingDeath Over Life(2014), available at https://ou.monmouthcollege.edu/_resources/pdf/academics/mjur/2014/Rhetoric-of-the-Physician-Assisted-Suicide-Movement-Choosing-Death-Over-Life.pdf, at page 68

94 Ibid, at page 69

95 Ibid, at page 68

96 Sushila Rao (Supra note 68), at page 15

Acertain situations result in mere “prolongation of heart-beat thatactivates the husk of mindless, degenerating body that sustains anunknowing and pitiable life-one without vitality, health or any opportunityfor normal existence-an inevitable stage in the process of dying”.[97]Prolonging life in vegetative state by artificial means or allowing painand suffering in terminal state would lead to questioning the belief thatBany kind of life is so sanctified as to be preferred absolutely over death”.[98]

69. Kuhse and Hughes have stated that “the really critical issuesin medicine are often hidden” by “the hulking darkness” of the sanctityprinciple. According to them:

C“Today the advances of science are occurring every minute.Lasers are used to crush kidney stones; mechanical hearts aretransplanted to prolong life; and organ transplants are beingincreasingly used, particularly livers and eyes and, nowexperimentally, legs. Microprocessor ventilators are used tomaintain breathing in patients unable to breathe on their own;Dchemotherapy/radiology is being used to prolong the lives of cancerpatients; long-term hemodialysis is being used for those who havenon-functional kidneys; and cardiac pacemakers are beingimplanted in patients whose hearts are unable to beat normally.While society has supported research and development inEmedicine, the issues regarding the termination of such treatmentand, more importantly, the withholding of such treatment have notbeen fully addressed.”[99]70. The debate around human life will be driven by technology.“Sophisticated modern medical technology”, even if ultimately not beingFable to conquer death, “has lot to say about the conditions and time ofits occurrence”. Singer has envisioned future where the debate aroundhuman life is closely linked to the impact of technology on our existence:

“As the sophistication of techniques for producing images of softtissue increases, we will be able to determine with high degreeGof certainty that some living, breathing human beings have sufferedsuch severe brain damage that they will never regain 97 Arval A. Morris, “Voluntary Euthanasia”, Washington Law Review (1970), Vol. 45,at page 240

98 Ibid, at page 243

99 Elizabeth M. Andal Sorrentino, “The Right To Die?”, Journal of Health and HumanResources Administration (Spring,1986), Vol. 8, No. 4, at pages 361-373H

consciousness. In these cases, with the hope of recovery gone,families and loved ones will usually understand that even if thehuman organism is still alive, the person they loved has ceased toexist. Hence, decision to remove the feeding tube will be lesscontroversial, for it will be decision to end the life of humanbody, but not of person.”[100]

71. Lady Justice Arden recently delivered lecture in India on atopic dealing with the intersection of law and medicine titled “What doespatient autonomy mean for Courts?”[101]. The judge explained thatadvancement in medical technology has contributed towards growingimportance of patient autonomy and an increasing social trend towardsquestioning clinical judgment, which is causing conflict among courts inthe UK- particularly in end of life treatment decisions. To highlight thisconflict, Judge Arden cites the example of baby Charlie Gard, ‘caregivercase’[102] that engendered debate on medical ethics world over.

Born in August 2016 in London, Charlie suffered from anextremely rare genetic condition known as MDDS, which causesprogressive brain damage and muscle failure, usually leading to death ininfancy. His parents wanted him to undergo experimental treatmentknown as nucleoside which was available in the USA and raised largeamount of money to enable him to travel there. However, the doctors atthe hospital in London who were treating him did not think it was in hiscaregiver to have this treatment as instead they believed his caregiverdemanded that his life-support be withdrawn as they considered thetreatment to be futile. Due to the conflicting views between the parentsand the doctors, the core issue to be decided i.e. whether it was in thebest interest of the child to received further treatment had to be answeredby the Court. The case went through the judicial system- including theHigh Court, the Supreme Court, the ECHR and finally back to the HighCourt, which on the basis of medical reports concluded that it was not inthe child’s caregiver to have further treatment and passed an orderpermitting the doctors to allow Charlie to die. In addition to the issue ofcaregiver, Lady Justice Arden also mentioned the issue of resources in

100 Peter Singer, “The Sanctity of Life”, Foreign Policy(October 20, 2009), available athttp://foreignpolicy.com/2009/10/20/the-sanctity-of-life/

101 Lady Justice Arden, Law of medicine and the individual: current issues, What doespatient autonomy mean for the courts?,(Justice KT Desai Memorial Lecture 2017) 102 Great Ormond Street Hospital v. Constance Yates, Christopher Gard, CharlieGard (by his guardian), [2017] EWHC 1909 (Fam)

Asuch cases. In the present case, the parents were able to raise largeamounts of financial resources required for the treatment of the child,but lack of resources could lead to difficulties in other cases wheretreatment is unaffordable in public health system.

72. Modern technology has in fundamental manner re-shapedBthe notion of life. As technology continuously evolves into more complexplanes, it becomes even more necessary to re-evaluate its relationshipwith the meaning and quality of life.

Euthanasia and the Indian Constitution

73. The sanctity of life principle appears in declarations on humanCrights as the “right to life”.[103] Under the Indian Constitution, right to lifehas been provided under Article 21. In Pt. Parmanand Katarav Unionof India[104], it was pointed out:

“[P]reservation of life is of most importance, because if one’s lifeis lost, the status quo ante cannot be restored as resurrection isDbeyond the capacity of man”.

The sanctity of human life lies in its intrinsic value. It inheres innature and is recognised by natural law. But human lives also haveinstrumental functions. Our lives enable us to fulfil our needs andaspirations. The intrinsic worth of life is not conditional on what it seeksEto or is capable to achieve. Life is valuable because it is. The IndianConstitution protects the right to life as the supreme right, which isinalienable and inviolable even in times of Emergency.[105] It clearlyrecognises that every human being has the inherent right to life, which isprotected by law, and that “No person shall be deprived of his life…except according to procedure established by law”[106]. It, thus, envisagesFonly very limited circumstances where person can be deprived of life.

According to Stephania Negri, the debate around euthanasia has“essentially developed within the framework of the universal rights tolife and to human dignity”[107]. This leads us to the relationship betweenend of life decisions and human dignity under the Indian Constitution.G

103 John Keown (Supra note 44), at page 4 104 AIR 1989 SC 2039 105 Article 359 106 Article 21 107 Stefania Negri, “Universal Human Rights and End-of-Life Care” in S. Negri et al.(eds.), Advance Care Decision Making in Germany and Italy: Comparative,HEuropean and International Law Perspective, Springer (2013), at page 18

Dignity

74. Human dignity has been “considered the unique universal valuethat inspires the major common bioethical principles, and it is thereforeconsidered the noyau dur of both international bio law and internationalhuman rights law”[108]. Ronald Dworkin observes that “the notion of aright to dignity has been used in many senses by moral and politicalphilosophers”.[109]

75. The first idea considers dignity as the foundation of humanrights - “that dignity relates to the intrinsic value of persons (such that itis wrong to treat persons as mere things rather than as autonomous endsor agents)”[110]. According to this premise, every person, from conceptionto natural death, possesses inherent dignity:

“The sanctity of life view is often accompanied by set of claimsabout human dignity, namely, that human beings possess essential,underived, or intrinsic dignity. That is, they possess dignity, orexcellence, in virtue of the kind of being they are; and this essentialdignity can be used summarily to express why it is impermissible,for example, intentionally to kill human beings: to do so is to actagainst their dignity.”[111]

The other interpretation of dignity is by the supporters ofeuthanasia.[112] For them, right to lead healthy life also includes leavingthe world in peaceful and dignified manner. Living with dignity, in thisview, means the right to live meaningful life having certain quality. Thisinterpretation endorses the “quality of life” proposition.

Dignity has thus been invoked in support of contradictory claimsand arguments. It could justify respect for life under the principle of the“sanctity of life”, as well as the right to die in the name of the principleof “quality of life”. In order to remove ambiguities in interpretation and

108 Ibid, at pages 21-22

109 Ronald Dworkin, Life’s Dominion (London: HarperCollins, 1993) as quoted inDeryck Beyleveld and Roger Brownsword, “Human Dignity, Human Rights, andHuman Genetics”, Modern Law Review (1998), Vol. 61, at pages 665-666

110 Deryck Beyleveld and Roger Brownsword, “Human Dignity, Human Rights, andHuman Genetics”, Modern Law Review (1998), Vol. 61, at page 666

111 Christopher O. Tollefsen, “Capital Punishment, Sanctity of Life, and HumanDignity”, Public Discourse(September 16, 2011), available at http://www.thepublicdiscourse.com/2011/09/3985/

112 Stefania Negri, “Ending Life and Death” in A. den Exter (eds.), European HealthLaw, MAKLU Press (2017), at page 241

Aapplication of the right to human dignity, Negri has suggested that dignityshould be given minimum core of interpretation:

“To be meaningful in the end-of-life discourse, and henceto avoid being invoked as mere rhetoric, dignity should beconsidered as substantive legal concept, at whose basicBminimum core is the legal guarantee assuring the protectionof every human being against degradation and humiliation.Besides this, as international and national case law demonstrate,it can also play an important role as an interpretive principle,assisting judges in the interpretation and application of other humanrights, such as the right to life and the right to respect for privateClife, both crucial in the end-of-life debate.”[113](Emphasis supplied)

Recognition of human dignity is an important reason underlyingthe preservation of life. It has important consequences. Is that dignitynot compromised by pain and suffering and by the progressive loss ofDbodily and mental functions with the imminence of the end of life? Dignityhas important consequences for life choices.76. Morris, in his article, “Voluntary Euthanasia”, regards crueltyas violation of human dignity:

“All civilized men will agree that cruelty is an evil to be avoided.EBut few people acknowledge the cruelty of our present laws whichrequire man be kept alive against his will, while denying hispleas for merciful release after all the dignity, beauty, promise andmeaning of life have vanished, and he can only linger for weeksor months in the last stages of agony, weakness and decay.” Inaddition, the fact that many people, as they die, are fully consciousFof their tragic state of deterioration greatly magnifies the crueltyinherent in forcing them to endure this loss of dignity against theirwill.”[114]

He has further stated “it is exceedingly cruel to compel the spouseand children of dying man to witness the ever-worsening stages of hisGdisease, and to watch the slow, agonizing death of their loved one,degenerating before their eyes, being transformed from vital and robustparent and spouse into pathetic and humiliated creature, devoid ofhuman dignity”.[115] 113 Ibid 114 Arval A. Morris (Supra note 97), at pages 251-252H 115 Ibid

77. Liberty and autonomy promote the cause of human dignity.Arguments about autonomy are often linked to human dignity.[116 ]Gostinevaluates the relationship between the dignity of dying with autonomythus:

“The dying process, after all, is the most intimate, private andfundamental of all parts of life. It is the voice that we, as humans,assert in influencing this autonomous part of our life. At the momentof our death, this right of autonomy ought not to be taken from ussimply because we are dying. An autonomous person should notbe required to have good reason for the decision that he or shewill make; that is the nature of autonomy. We do not judge forother competent human beings what may be in their best interest,but instead allow them to determine that for themselves. As such,an autonomous person does not need to have good understandingor even good reasons. All they need is an understanding of whatthey are confronting. There is no reason to believe that when aperson faces imminent death that they have less humanunderstanding, or less ability to fathom what they will face, thanother people. Of course, death is mystery. But death is what wewill all confront sooner or later, and we all may wish to assert ourinterests in how we may die.”[117]

78. Sumner in his work titled “Dignity through Thick and Thin”[118]discusses the dignity associated with patients:

“[P]atients associate dignity with concepts such as respect andesteem, presumably including self-respect and self-esteem,whereas they experience its opposite—indignity—as degrading,shameful, or embarrassing… Abstractly speaking, person’sdignity seems to be matter of assurance of her fully humanstatus, both in her own eyes and in the eyes of others. Dignity ismaintained when one can face others with pride and withconfidence of being worthy of their respect; it is lost or impairedwhen being seen by others occasions feelings of shame, inferiority,

116 Sebastian Muders, Autonomy and the Value of Life as Elements of HumanDignity(Oxford University Press, 2017)

117 Lawrence O. Gostin, “The Constitutional Right to Die: Ethical Considerations”, StJohn’s Journal of Legal Commentary (1997), Vol. 12, at pages 602-603

118 LW Sumner, “Dignity through Thick and Thin”, in Sebastian Muders, HumanDignity and Assisted Death (Oxford University Press, 2017)

Aor embarrassment. The element of degradation that is implicatedin indignity seems matter of feeling demoted or diminished froma higher standing to lower, perhaps from the status of fullyfunctioning person to something lesser.”[119]

While stating that dignity and indignity are “basically subjectiveBnotions”[120] depending upon how individual patients experience them, hehas further stated:

“One condition that patients report as degrading— as an indignity—is loss of control over the course of their own health care. Loss ofautonomy matters in its own right, but it matters even more if it isCthe source for patients of shame and humiliation. This suggeststhat autonomy and well-being are themselves interconnected:Patients typically experience loss of the former as decline inthe latter, as something that makes their dying process go worsefor them by causing them feelings of indignity. Appeals to dignitythus flesh out what is at stake for patients in terms of theirDautonomy and well-being, but they do not introduce any factorsthat fall outside the limits of these values.”[121]

79. An article titled “Euthanasia: Social Science Perspective”[122]in the Economic & Political Weekly has suggested that the discourseson death with dignity “need to be situated within processes of living withEdignity in everyday contexts”.[123] The end of life must not be seen as“human disposal”, but, as “the enhancement of human dignity bypermitting each man’s last act to be an exercise of his free choice betweena tortured, hideous death and painless, dignified one.”[124]

80. Under our Constitution, the inherent value which sanctifiesFlife is the dignity of existence. Recognising human dignity is intrinsic topreserving the sanctity of life. Life is truly sanctified when it is livedwith dignity. There exists close relationship between dignity and thequality of life. For, it is only when life can be lived with true sense of

119 Ibid, at page 61G 120 Ibid, at page 64

121 Ibid, at page 68

122 Aneeta Minocha, Arima Mishra and Vivek R Minocha, “Euthanasia: SocialScience Perspective”, Economic & Political Weekly(December 3, 2011), at pages25-28

123 Ibid, at page 27 124 Arval A. Morris (Supra note 97), at page 247H

quality that the dignity of human existence is fully realized. Hence, thereshould be no antagonism between the sanctity of human life on the onehand and the dignity and quality of life on the other hand. Quality of lifeensures dignity of living and dignity is but process in realizing the sanctityof life.

81. Human dignity is an essential element of meaningfulexistence. life of dignity comprehends all stages of living including thefinal stage which leads to the end of life. Liberty and autonomy areessential attributes of life of substance. It is liberty which enables anindividual to decide upon those matters which are central to the pursuitof meaningful existence. The expectation that the individual should notbe deprived of his or her dignity in the final stage of life gives expressionto the central expectation of fading life: control over pain and sufferingand the ability to determine the treatment which the individual shouldreceive. When society assures to each individual protection againstbeing subjected to degrading treatment in the process of dying, it seeksto assure basic human dignity. Dignity ensures the sanctity of life. Therecognition afforded to the autonomy of the individual in matters relatingto end of life decisions is ultimately step towards ensuring that lifedoes not despair of dignity as it ebbs away.

82. From Maneka Gandhi[125] to Puttaswamy[126], dignity is theelement which binds the constitutional quest for meaningful existence.In Francis Coralie Mullin v Administrator, Union Territory ofDelhi[127], this Court held that:

“The right to life enshrined in Article 21 cannot be restricted tomere animal existence. It means something muchmore than justphysical survival…

We think that the right to life includes the right to live with humandignity.”

Explaining the ambit of dignity, this Court further held that:

“[A]ny form of torture or cruel, inhuman or degrading treatmentwould be offensive to human dignity and constitute an inroad intothis right to live… [T]here is implicit in Article 21 the right toprotection against torture or cruel, inhuman or degrading treatment

125 Maneka Gandhi v Union of India, (1978) 1 SCC 248

126 Justice KS Puttaswamy (Retd.) v Union of India, (2017) 10 SCC 1

127 (1981) 1 SCC 608

218SUPREME COURT REPORTS

Awhich is enunciated in Article 5 of the Universal Declaration ofHuman Rights and guaranteed by Article 7 of the InternationalCovenant on Civil and Political Rights.”

Dignity is the core value of life and personal liberty which infusesevery stage of human existence. Dignity in the process of dying as wellBas dignity in death reflects long yearning through the ages that thepassage away from life should be bereft of suffering. These individualyearnings are enhanced by the experiences of sharing, observing andfeeling with others: the loss of parent, spouse, friend or an acquaintanceto the cycle of life. Dignity in death has sense of realism that permeatesthe right to life. It has basic connect with the autonomy of the individualCand the right to self-determination. Loss of control over the body andthe mind are portents of the deprivation of liberty. As the end of lifeapproaches, loss of control over human faculties denudes life of itsmeaning. Terminal illness hastens the loss of faculties. Control overessential decisions about how an individual should be treated at the endDof life is hence an essential attribute of the right to life. Corresponding tothe right is legitimate expectation that the state must protect it andprovide just legal order in which the right is not denied. In matters asfundamental as death and the process of dying, each individual is entitledto reasonable expectation of the protection of his or her autonomy bya legal order founded on the rule of law. constitutional expectation ofEproviding dignity in death is protected by Article 21 and is enforceableagainst the state.

Privacy

83. The nine-judge Bench decision of this Court in Justice K SFPuttaswamy v Union of India[128] held privacy to be the constitutionalcore of human dignity. The right to privacy was held to be an intrinsicpart of the right to life and liberty under Article 21 and protected underPart III of the Constitution. Each of the six decisions has vital bearingon the issues in the present case. Excerpts from the judgment arereproduced below:G

Justice DY Chandrachud

“The right to privacy is an element of human dignity. The sanctityof privacy lies in its functional relationship with dignity. Privacyensures that human being can lead life of dignity by securing

128 2017 (10) SCC 1

the inner recesses of the human personality from unwantedintrusion. Privacy recognises the autonomy of the individual andthe right of every person to make essential choices which affectthe course of life. In doing so privacy recognises that living lifeof dignity is essential for human being to fulfil the liberties andfreedoms which are the cornerstone of the Constitution.”

Justice Chelameswar

“Forced feeding of certain persons by the State raises concernsof privacy. An individual’s right to refuse life prolonging medicaltreatment or terminate his life is another freedom which falls withinthe zone of the right of privacy.”

Justice S Bobde

“Privacy, with which we are here concerned, eminently qualifiesas an inalienable natural right, intimately connected to two valueswhose protection is matter of universal moral agreement: theinnate dignity and autonomy of man… Both dignity and privacyare intimately intertwined and are natural conditions for the birthand death of individuals, and for many significant events in lifebetween these events.”

Justice RF Nariman

“… Constitution has to be read in such way that words deliverup principles that are to be followed and if this is kept in mind, it isclear that the concept of privacy is contained not merely in personalliberty, but also in the dignity of the individual.”

Justice AM Sapre

“The incorporation of expression “Dignity of the individual” in thePreamble was aimed essentially to show explicit repudiation ofwhat people of this Country had inherited from the past. Dignityof the individual was, therefore, always considered the primeconstituent of the fraternity, which assures the dignity to everyindividual. Both expressions are interdependent and intertwined.”

Justice SK Kaul

“A person-hood would be protection of one’s personality,individuality and dignity.”

A“Privacy, for example is nothing but form of dignity, which itselfis subset of liberty.”

84. The protective mantle of privacy covers certain decisions thatfundamentally affect the human life cycle.[129] It protects the most personaland intimate decisions of individuals that affect their life andBdevelopment.[130] Thus, choices and decisions on matters such asprocreation, contraception and marriage have been held to be protected.While death is an inevitable end in the trajectory of the cycle of humanlife of individuals are often faced with choices and decisions relating todeath. Decisions relating to death, like those relating to birth, sex, andmarriage, are protected by the Constitution by virtue of the right of privacy.CThe right to privacy resides in the right to liberty and in the respect ofautonomy.[131] The right to privacy protects autonomy in making decisionsrelated to the intimate domain of death as well as bodily integrity. Fewmoments could be of as much importance as the intimate and privatedecisions that we are faced regarding death.[132 ]Continuing treatmentDagainst the wishes of patient is not only violation of the principle ofinformed consent, but also of bodily privacy and bodily integrity thathave been recognised as facet of privacy by this Court.

85. Just as people value having control over decisions during theirlives such as where to live, which occupation to pursue, whom to marry,Eand whether to have children, so people value having control over whetherto continue living when the quality of life deteriorates.[133]

86. In the case of In re Quinlan (1976),[134] the New JerseySupreme Court dealt with case of patient, Karen Quinlan, who hadsuffered irreversible brain damage and was in persistent vegetativeFstate and had no prospect of recovery. The patient’s father sought judicialauthority to withdraw the life-sustaining mechanisms temporarilypreserving his daughter’s life, and his appointment as guardian of herperson to that end. The father’s lawyer contended that the patient wasbeing forced to function against all natural impulses and that her right to

129 Richard Delgado, “Euthanasia Reconsidered-The Choice of Death as an Aspect ofGthe Right of Privacy”, Arizona Law Review (1975), Vol. 17, at page474 130 Ibid

131 TL Beauchamp, “The Right to Privacy and the Right to Die”, Social Philosophy andPolicy (2000), Vol. 17, at page 276 132 Ibid

133 Benatar (Supra note 18)H 134 70 N.J. 10; 355 A.2d 647 (1976)

make private decision about her fate superseded the state’s right tokeep her alive. The New Jersey Supreme Court held that the patienthad right of privacy grounded in the US Constitution to terminatetreatment and in celebrated statement said that:

“the State’s interest contra [the right to privacy] weakens andthe individual’s right to privacy grows as the degree of bodilyinvasion increases and the prognosis dims. Ultimately there comesa point at which the individual’s rights overcome the State interest.It is for that reason that we believe [the patient’s] choice, if shewere competent to make it, would be vindicated by law.”

Since Karen Quinlan was not competent to assert her right toprivacy, the Court held that Karen’s right of privacy may be asserted onher behalf by her guardian due to the reason that Karen Quinlan did nothave the capacity to assert her right to privacy indicating that the right ofprivacy is so fundamental that others, who had been intimately involvedwith the patient, should be able to exercise it in circumstances when thepatient is unable to do so. However, subsequently scholars have arguedthat when euthanasia is founded in the right to privacy, only voluntaryeuthanasia can be permitted. The right to privacy can only be exerted bythe patient and cannot be exercised vicariously.[135] The substitutedjudgment and caregiver criterion cannot be logically based on the rightto privacy of the patient.[136]

87. In the landmark case of Pretty v United Kingdom[137], theEuropean Court of Human Rights analysed Article 8 of the EuropeanConvention on Human Rights (respect for private life). It held that theterm “private life” is broad term not susceptible to exhaustive definitionand covers the physical and psychological integrity of person. In relationto the withdrawing of treatment, it was held that the way in which anindividual “chooses to pass the closing moments of her life is part of theact of living, and she has right to ask that this too must be respected.”The right to privacy protects even those choices that may be consideredharmful for the individual exercising the choice:

“The extent to which State can use compulsory powers or thecriminal law to protect people from the consequences of their

135 Peter J. Riga, “Privacy and the Right to Die,” The Catholic Lawyer (2017) Vol.26: No. 2 , Article 2 136 Ibid

137 Application no. 2346/02

chosen lifestyle has long been topic of moral and jurisprudentialdiscussion, the fact that the interference is often viewed astrespassing on the private and personal sphere adding to the vigourof the debate. However, even where the conduct poses dangerto health or, arguably, where it is of life-threatening nature, thecase-law of the Convention institutions has regarded the State’simposition of compulsory or criminal measures as impinging onthe private life of the applicant within the meaning of Article 8 §1... In the sphere of medical treatment, the refusal to accept aparticular treatment might, inevitably, lead to fatal outcome, yetthe imposition of medical treatment, without the consent of amentally competent adult patient, would interfere with person’sphysical integrity.”

The Court further observed that:

“Without in any way negating the principle of sanctity of lifeprotected under the Convention, the Court considers that it is underDArticle 8 that notions of the quality of life take on significance. Inan era of growing medical sophistication combined with longerlife expectancies, many people are concerned that they shouldnot be forced to linger on in old age or in states of advancedphysical or mental decrepitude which conflict with strongly heldEideas of self and personal identity.”

Thus, the Court concluded that the “choice to avoid what sheconsiders will be an undignified and distressing end to her life” isguaranteed under the right to respect for private life under Article 8(1)of the Convention.

88. Subsequently in the case of Haas v Switzerland[138], theEuropean Court of Human Rights has further held that the right to decidein which way and at which time an individual’s life should end, providedthat he or she was in position freely to form her own will and to actaccordingly, was one of the aspects of the right to respect for private lifeGwithin the meaning of Article 8 of the Convention.

89. The right to privacy as held by this Court mandates that wesafeguard the integrity of individual choice in the intimate sphere ofdecisions relating to death, subject to the restrictions to the right to privacy,as laid down by us. However, since privacy is not an absolute right and 138 Application no. 31322/07, para 51

is subject to restrictions, the restrictions must fulfil the requirements aslaid down by this Court in Puttaswamy.

90. The protection of these rights by the legal order is as much anemanation of the right to privacy which shares functional relationshipwith the fundamental right to life and personal liberty guaranteed by theConstitution. Privacy recognises that the body and mind are inviolable.An essential attribute of this inviolability is the ability of the individual torefuse medical treatment.

Socio-Economic Concerns

91. One of the limitations of contemporary debates on euthanasiais that they do not take into consideration “certain socio-economicconcerns that must necessarily be factored into any discourse”[139]. Thishas been criticised as making the debate around ending life “incomplete”as well as “elitist”.

92. In an article titled “Euthanasia: cost factor is worry”[140]Nagral(2011) seeks to construct “critical linkage” between euthanasia and“the economic and social dimension” in the Indian context. Stating thatmany Indian doctors have been practising passive euthanasia silentlyand practically, Nagral contemplates the cost of treatment to be criticalfactor in influencing the medical decision:

“[O]ne of the reasons for ‘passive’ euthanasia is that the patientor his family could be running out of money. In some cases, thisoverlaps with the incurability of the disease. In others, it may not.Costly medication and intervention is often withdrawn as the firststep of this passive euthanasia process. Sometimes patients are‘transferred’ to smaller (read cheaper) institutions or even theirhomes, with the tacit understanding that this will hasten theinevitable. If third party is funding the patient’s treatment, chancesare that the intervention and support will continue. Shocking andarbitrary as this may sound, this is the reality that needs flaggingbecause it is relevant to the proposed legitimization of passiveeuthanasia. In system where out-of pocket payment is the normand healthcare costs are booming, there has to be way of

139 Sushila Rao (Supra note 16), at page 654

140 S Nagral, “Euthanasia: Cost Factor is Worry”, The Times of India (June 19, 2011),available at http://www.timesofindia.com/home/sunday/Euthanasia-cost-factor-is-a-worry/articleshow/7690155.cms

Adifferentiating plea made on genuine medical grounds from onethat might be an attempt to avoid financial ruin.”[141]

Rao (2011) has observed:

“In the absence of adequate medical insurance, specialisedtreatments like ventilator support, kidney dialysis, and expensiveBlifesaving drugs administered in private hospitals can turnmiddle-class families into virtual paupers. Poorly equippedgovernment hospitals simply do not have enough life-supportmachines compared to the number of patients who need them....This also leads to the inevitable possibility of comatose patient’sCfamily and relatives potentially exploiting the euthanasia law tobenefit from premature death, by way of inheritance, etc.”[142]Norrie (2011) has placed the social and economic dimensionssuccinctly:

“This concerns the problem of the differential social impact thatDsuch position would have on the poor and the well-to-do… Wealth,poverty, and class structure have profound effect on the choicespeople make.”[143]

The inadequacies of the range and reach of Indian healthcaremay, it is observed, lead to situation where euthanasia/active euthanasiaEmay become “an instrument of cost containment”[144].

Restraints on Judicial Power

93. An earlier part of this judgment has dwelt on the criticism ofthe distinction between passive and active euthanasia, founded as it ison the act – omission divide. The criticism is that as matter of substance,Fthere is no valid distinguishing basis between active and passiveeuthanasia. The criticism takes one of two forms: either both should berecognised or neither should be allowed. The view that passive euthanasiainvolves an omission while active euthanasia involves positive act isquestioned on the ground that the withdrawal of artificial life support (asGan incident of passive euthanasia) requires positive act. While noticing

141 Ibid

142 Sushila Rao (Supra note 16), at page 654-655

143 Alan Norrie (Supra note 4), at page 144

144 S Nagral, “Euthanasia: Cost Factor is Worry”, The Times of India (June 19, 2011),available at http://www.timesofindia.com/home/sunday/Euthanasia-cost-factor-is-a-worry/articleshow/7690155.cmsH

this criticism, it is necessary to distinguish between active and passiveeuthanasia in terms of the underlying constitutional principles as well asin relation to the exercise of judicial power. Passive euthanasia – whetherin the form of withholding or withdrawing treatment – has the effect ofremoving, or as the case may be, not providing supportive treatment. Itseffect is to allow the individual to continue to exist until the end of thenatural span of life. On the other hand, active euthanasia involveshastening of death: the life span of the individual is curtailed by specificact designed to bring an end to life. Active euthanasia would on the stateof the penal law as it stands constitute an offence. Hence, it is onlyParliament which can in its legislative wisdom decide whether activeeuthanasia should be permitted. Passive euthanasia on the other handwould not implicate criminal offence since the decision to withhold orwithdraw artificial life support after taking into account the best interestof the patient would not constitute an illegal omission prohibited by law.

94. Moreover, it is necessary to make distinction between activeand passive euthanasia in terms of the incidents of judicial power. Wemay refer in this context to the felicitous words of Lord Justice Sales,speaking for the Queen’s Bench Division in recent decision deliveredon 5 October 2017 in Noel Douglas Conway v The Secretary ofState for Justice[145]. Dealing with the plea that physician assisted suicideshould be accepted as principle by the court, the learned Judge observedthus:

“Parliament is the body composed of representatives of thecommunity at large with what can be called democratic mandateto make the relevant assessment in case where there is animportant element of social policy and moral value-judgmentinvolved with much to be said on both sides of the debate (229)and (233). There is not single, clear, uniquely rational solutionwhich can be identified; the decision cannot fail to be influencedby the decision-makers’ opinions about the moral case for assistedsuicide, including in deciding what level of risk to others isacceptable and whether any safeguards are sufficiently robust;and it is not appropriate for professional judges to impose theirpersonal opinions on matters of this kind (229)-(230) and (234).In Nicklinson in the Court of Appeal, Lord Judge CJ aptly referredto Parliament as representing “the conscience of the nation” for 145 (2017) EWHC 2447 (Admin)

decisions which raise “profoundly sensitive questions about thenature of our society, and its values and standards, on whichpassionate but contradictory opinions are held” (Court of Appeal,(155). Parliament has made the relevant decision; opponents ofsection 2 have thus far failed to persuade Parliament to changethe law despite active consideration given to the issue, in particularin relation to the Falconer Bill which contained essentially thesame proposals as Mr Conway now puts before the court; andthe democratic process would be liable to be subverted if, on aquestion of moral and political judgment, opponents of the legislationcould achieve through the courts what they could not achieve inParliament (231) per Lord Sumption, referring to R (CountrysideAlliance) v Attorney General (2008) AC 719, (45) per LordBingham and AXA General Insurance Ltd v HM Advocate (2012)1 SC 868, (49) per Lord Hope)”.

Emphasising the limitations on the exercise of the judicial power,DLord Justice Sales observed:

“We also agree that his case on necessity becomes still strongerwhen the other legitimate aims are brought into account. As theconscience of the nation, Parliament was and is entitled to decidethat the clarity of such moral position could only be achieved byEmeans of such rule. Although views about this vary in society,we think that the legitimacy of Parliament deciding to maintainsuch clear line that people should not seek to intervene to hastenthe death of human is not open to serious doubt. Parliament isentitled to make the assessment that it should protect moralstandards in society by issuing clear and unambiguous laws whichFreflect and embody such standards”.

In taking theview which has been taken in the present judgment,the court has been conscious of the need to preserve to Parliament, thearea which properly belongs to its legislative authority. Our view musthence be informed by the impact of existing legislation on the field ofGdebate in the present case.

I Penal Provisions

95. The legality of and constitutional protection which is affordedto passive euthanasia cannot be read in isolation from the provisions ofthe Penal Code. Physicians are apprehensive about their civil or criminal

liability when called upon to decide whether to limit life-supportingtreatment.[146] decision on the constitutional question cannot be renderedwithout analyzing the statutory context and the impact of penal provisions.The decision in Aruna Shanbaug did not dwell on the provisions of thePenal Code (apart from Sections 306 and 309) which have vital bearingon the issue of euthanasia. Undoubtedly, constitutional positions are notcontrolled by statutory provisions, because the Constitution rises aboveand controls legislative mandates. But, in the present reference whereno statutory provision is called into question, it is necessary for the courtto analyse the relationship between what the statute penalizes and whatthe Constitution protects. The task of interpretation is to allow for theirco-existence while interpreting the statute to give effect to constitutionalprinciple. This is particularly so in an area such as the present wherecriminal law may bear significant relationship to the fundamentalconstitutional principles of liberty, dignity and autonomy.

The first aspect which needs to be noticed is that our law ofcrimes deals with acts and omissions. Section 32 of the Penal Codeplaces acts and omissions on the same plane. An illegalomission (unlessa contrary intent appears in the Code) is proscribed when the act isunlawful. Section 32 states:

“Words referring to acts include illegal omissions. — In everypart of this Code, except where contrary intention appears fromthe context, words which refer to acts done extend also to illegalomissions.”

The language of the statute which refers to acts applies, unless acontrary intent appears in the text, to omissions.

The next aspect is about when an act or omission is illegal. Section43 explains the concept of illegality. It provides thus:

“”Illegal”. “Legally bound to do”. — The word “illegal” isapplicable to everything which is an offence or which is prohibitedby law, or which furnishes ground for civil action; and personis said to be “legally bound to do” whatever it is illegal in him toomit.”

Here again, being legally bound to do something is the mirror imageof what is illegal to omit doing.

146 S Balakrishnan and RK Mani, “The constitutional and legal provisions in Indian lawfor limiting life support”, Indian Journal of Critical Care Medicine(2005), Vol. 9, Issue2, at page 108

Section 43 comprehends within the meaning of illegality, that (i)which is an offence; or (ii) which is prohibited by law; or (iii) whichfurnishes ground for civil action. Omissions and acts are mirror images.When it is unlawful to omitto do something, the individual is legallyboundto do it.

BThis raises the question of whether an omission to provide life-sustaining treatment constitutes an illegal omission.

Section 81 protects acts which are done without criminal intentto cause harm, in good faith, to prevent or avoid other harm to person orproperty. The law protects the action though it was done with theCknowledge that it was likely to cause harm if three-fold requirement isfulfilled. It comprehends an absence of criminal intent to cause harm,the presence of good faith and the purpose of preventing other harm.Section 81 provides thus:

“81.Act likely to cause harm, but done without criminalintent, and to prevent other harm.—Nothing is an offencemerely by reason of its being done with the knowledge that it islikely to cause harm, if it be done without any criminal intention tocause harm, and in good faith for the purpose of preventing oravoiding other harm to person or property.

EExplanation—It is question of fact in such case whether theharm to be prevented or avoided was of such nature and soimminent as to justify or excuse the risk of doing the act with theknowledge that it was likely to cause harm.”

Knowledge of the likelihood of harm is not culpable when criminalintent to cause harm is absent and there exists an element of good faithFto prevent or avoid other harm.

Section 92 of the IPC states:

“Act done in good faith for benefit of person withoutconsent.—Nothing is an offence by reason of any harm which itGmay cause to person for whose benefit it is done in good faith,even without that person’s consent, if the circumstances are suchthat it is impossible for that person to signify consent, or if thatperson is incapable of giving consent, and has no guardian or otherperson in lawful charge of him from whom it is possible to obtainconsent in time for the thing to be done with benefit: Provided—

Provisos. First.—That this exception shall not extend to theintentional causing of death, or the attempting to cause death”

Section 92 protects an individual from consequence which arisesfrom the doing of an act for the benefit of another in good faith, thougha harm is caused to the other. What was done is protected because itwas done in good faith. Good faith is distinguished from an evil design.When person does something to protect another from harm or injury,the law protects what was done in good faith, treating the harm that mayresult as consequence unintended by the doer of the act. This protectionis afforded by the law even in the absence of consentwhen thecircumstances are such that it is impossible for the person for whosebenefit the act was done to consent to it. This may arise where theimminence of the apprehended danger makes it impossible to obtainconsent. Another eventuality is where the individual is incapable ofconsenting (by being incapacitated in mind) and there is no person in theposition of guardian or person in lawful charge from whom consentcan be obtained in time to perform the act for the benefit of that person.However, the first proviso to Section 92 makes it clear that the exceptiondoes not extend to the intentionalcausing of death or attempt to causedeath to the individual, howsoever it may be for the benefit of the other.Absence of intent to cause death is the crucial element in the protectionextended by Section 92.

Section 107 deals with abetment. It provides thus:

“Abetment of thing.—A person abetsthe doing of thing,who—

… (Thirdly) — Intentionally aids, by any act or illegal omission,the doing of that thing.”

Abetment embodies three-fold requirement: first an intentionalaiding, second the aiding of an act or illegal omission and third, that thismust be toward the doing of that thing.

Explanation 2 of this Section states:

“Whoever, either prior to or at the time of the commission of anact, does anything in order to facilitate the commission of that act,and thereby facilitates the commission thereof, is said to aidthedoing of that act.”

A96. For abetting an offence, the person abetting must haveintentionally aided the commission of the crime. Abetment requires aninstigation to commit or intentionally aiding the commission of crime. Itpresupposes course of conduct or action which (in the context of thepresent discussion) facilitates another to end life. Hence abetment ofsuicide is an offence expressly punishable under Sections 305 and 306Bof the IPC.

97. It is now necessary to dwell upon the provisions bearing uponculpable homicide and murder. Section 299 of the IPC states:

“Culpable homicide.—Whoever causes death by doing an actCwith the intention of causing death, or with the intention of causingsuch bodily injury as is likely to cause death, or with the knowledgethat he is likely by such act to cause death, commits the offenceof culpable homicide.”

Section 300 states:D“Murder

“Murder.—Except in the cases hereinafter excepted, culpablehomicide is murder, if the act by which the death is caused is donewith the intention of causing death, or—

Secondly.—If it is done with the intention of causing such bodilyinjury as the offender knows to be likely to cause the death of theEperson to whom the harm is caused, or—

Thirdly.—If it is done with the intention of causing bodily injury toany person and the bodily injury intended to be inflicted is sufficientin the ordinary course of nature to cause death, or—

Fourthly.—If the person committing the act knows that it is soFimminently dangerous that it must, in all probability, cause death,or such bodily injury as is likely to cause death, and commits suchact without any excuse for incurring the risk of causing death orsuch injury as aforesaid.”

Active euthanasia involves an intention on the part of the doctorGto cause the death of the patient. Such cases fall under the first clauseof Section 300.

Exception 5 to Section 300 states:

“Culpable homicide is not murder when the person whose death

is caused, being above the age of eighteen years, suffers death ortakes the risk of death with his own consent.”

Section 304 provides:

“Whoever commits culpable homicide not amounting to murder,shall be punished with [imprisonment for life], or imprisonment ofeither description for term which may extend to ten years, andshall also be liable to fine, if the act by which the death is causedis done with the intention of causing death, or of causing suchbodily injury as is likely to cause death; or with imprisonment ofeither description for term which may extend to ten years, orwith fine, or with both, if the act is done with the knowledge thatit is likely to cause death, but without any intention to cause death,or to cause such bodily injury as is likely to cause death.”

There also exists distinction between active and passiveeuthanasia. This is brought out in the application of the doctrine of ‘doubleeffect’. The Stanford Encyclopedia of Philosophy elucidates the positionthus:

“The doctrine (or principle) of double effect is often invoked toexplain the permissibility of an action that causes serious harm,such as the death of human being, as side effect of promotingsome good end. According to the principle of double effect,sometimes it is permissible to cause harm as side effect (or“double effect”) of bringing about good result even though itwould not be permissible to cause such harm as means tobringing about the same good end.”[147]

It has been observed further:

“A doctor who intends to hasten the death of terminally ill patientby injecting large dose of morphine would act impermissiblybecause he intends to bring about the patient’s death. However, adoctor who intended to relieve the patient’s pain with that samedose and merely foresaw the hastening of the patient’s death wouldact permissibly.”[148]

98. distinction arises between active and passive euthanasiafrom the provisions of the Penal Code. Active euthanasia involves an 147 “Doctrine of Double Effect”, Stanford Encyclopedia of Philosophy(July 28, 2004),available at https://plato.stanford.edu/entries/double-effect/ 148 Ibid

Aintention to cause the death of the patient. Mens rea requires guiltymind; essentially an intent to cause harm or injury.Passive euthanasiadoes not embody an intent to cause death.A doctor may withhold lifesupport to ensure that the life of patient who is in the terminal stage ofan incurable illness or in permanent vegetative state, is not prolongedartificially. The decision to do so is not founded upon an intent to causeBdeath but to allow the life of the patient to continue till and cease at theend of its natural term. Placing such person on life support would havebeen an intervention in the natural process of death. decision not toprolong life by artificial means does not carry an intention to cause death.The crucial element in Section 299 is provided by the expression “causesCdeath”. In case involving passive euthanasia, the affliction of the patientis not brought about either by an act or omission of the doctor. There isneither an animus nor an intent to cause death. The creation of thecondition of the patient is outside the volition of the doctor and has comeabout without covert or overt act by the doctor. The decision to withholdmedical intervention is not intended to cause death but to prevent pain,Dsuffering and indignity to human being who is in the end stage of aterminal illness or of vegetative state with no reasonable prospect ofcure. Placing patient on artificial life support would, in such situation,merely prolong the agony of the patient. Hence, decision by the doctorbased on what is in the best interest of the patient precludes an intent toEcause death. Similarly, withdrawal of artificial life support is not motivatedby an intent to cause death. What withdrawal of life support does isnot to artificially prolong life. The end of life is brought about by theinherent condition of the patient. Thus, both in case of withdrawal oflife supporting intervention and withholding it, the law protects bonafide assessment of medical professional. There being no intent to causeFdeath, the act does not constitute either culpable homicide or murder.

Moreover, the doctor does not inflict bodily injury. The conditionof patient is on account of factor independent of the doctor and is notan outcome of his or her actions. Death emanates from the pre-existingmedical condition of the patient which enables life to chart naturalGcourse to its inexorable end. The law protects decision which has beenmade in good faith by medical professional not to prolong the indignityof life placed on artificial support in situation where medical knowledgeindicates point of no return. Neither the act nor the omission is donewith the knowledge that it is likely to cause death. This is for the reason

that the likelihood of death is not occasioned by the act or omission butby the medical condition of the patient. When doctor takes considereddecision in the case of patient in terminal stage of illness or in apermanently vegetative state, not to provide artificial life support, thelaw does not attribute to the doctor the knowledge that it is likely tocause death.

99. Section 43 of the Penal Code defines the expression illegal tomean “…everything which is an offence or which is prohibited by law,or which furnishes ground in civil action”. Withdrawing life support toa person in permanently vegetative state or in terminal stage ofillness is not ‘prohibited by law’. Such an act would also not fall outsidethe purview of Section 92 for the reason that there is no intentionalcausing of death or attempt to cause death. Where decision to withdrawartificial life support is made in the caregiver of the patient, it fulfils theduty of care required from doctor towards the patient. Where doctorhas acted in fulfilment of duty of care owed to the patient, the medicaljudgment underlying the decision protects it from charge of illegality.Such decision is not founded on an intention to cause death or on theknowledge that it is likely to cause death. An act done in pursuance ofthe duty of care owed by the doctor to patient is not prohibited by law.100. In situation where passive euthanasia is non-voluntary, thereis an additional protection which is also available in circumstances whichgive rise to the application of Section 92. Where an act is done for thebenefit of another in good faith, the law protects the individual. It doesso even in the absence of the consent of the other, if the other individualis in situation where it is impossible to signify consent or is incapable ofgiving consent. Section 92 also recognises that there may be no guardianor other person in lawful charge from whom it is possible to obtainconsent. However, the proviso to Section 92 stipulates that this exceptionshall not extend to intentionally causing death or attempting to causedeath. The intent in passive euthanasia is not to cause death. decisionnot to prolong life beyond its natural span by withholding or withdrawingartificial life support or medical intervention cannot be equated with anintent to cause death. The element of good faith, coupled with anobjective assessment of the caregiver of the patient would protect themedical professional in situation where bona fide decision has beentaken not to prolong the agony of human being in terminal or vegetativestate by futile medical intervention.

A101. In 2006, the Law Commission of India submitted its 196thReport titled “Medical Treatment to Terminally Ill Patients (Protectionof Patients and Medical Practitioners)”. The report by Justice MJagannadha Rao as Chairperson contains succinct elucidation of legalprinciples governing criminal law on the subject. Some of them areexplained below:B

(i) An informed decision of patient to refuse medical treatmentis accepted at common law and is binding on treating doctor.While doctor has duty of care, doctor who obeys theinstructions of competent patient to withhold or withdrawmedical treatment does not commit breach of professionalCduty and the omission to treat will not be an offence;

(ii) The decision of patient to allow nature to take its courseover the human body and, in consequence, not to be subjectedto medical intervention, does not amount to deliberatetermination of physical existence. Allowing nature to take itsDcourse and decision to not receive medical treatment doesnot constitute an attempt to commit suicide within the meaningof Section 309 of the Penal Code;

(iii) Once competent patient has decided not to accept medicalintervention, and to allow nature to take its course, the actionEof the treating doctor in abiding by those wishes is not anoffence, nor would it amount to an abetment under Section306. Under Section 107, an omission has to be illegal to constitutean abetment. doctor bound by the instructions of patient towithhold or withdraw medical treatment is not guilty of an illegalact or an abetment. The doctor is bound by the decision of theFpatient to refuse medical intervention;

(iv) doctor who withholds or withdraws medical treatment inthe best interest of patient, such as when patient is in apermanent vegetative state or in terminal state of an incurableillness, is not guilty under Section 299 because there is noGintention to cause death or bodily injury which is likely to causedeath. The act of withholding or withdrawing life supportsystem in the case of competent patient who has refusedmedical treatment and, in the case of an incompetent personwhere the action is in the best interest of the patient would beprotected by good faith protections available under SectionsH

76, 79, 81 or, as the case may be, by Section 88, even if it isconstrued that the doctor had knowledge of the likelihood ofdeath; and

(v) The decision of the doctor, who is under duty at commonlaw to obey the refusal of competent patient to take medicaltreatment, would not constitute culpable act of negligenceunder Section 304A. When the doctor has taken such decisionto withhold or withdraw treatment in the best interest of thepatient, the decision would not constitute an act of grossnegligence punishable under Section 304A.

102. Introducing structural safeguard, in the form of MedicalBoard of experts can be contemplated to further such an objective. TheTransplantation of Human Organs and Tissues Act 1994 provides forthe constitution of Authorisation Committees under Section 9(4).Authorisation Committees arecontemplated at the state and district levelsand hospital board.[149 ]Once the process of decision making has beenarrived at by fulfilling mandated safeguard (the prior approval of acommittee), the decision to withdraw life support should not constitutean illegal act or omission. The setting up of broad-based board isprecisely with view to lend assurance that the duty of care owed bythe doctor to the patient has been fulfilled. Once due safeguards havebeen fulfilled, the doctor is protected against the attribution of culpableintent or knowledge. It will hence fall outside the definition of culpablehomicide (Section 299), murder (Section 300) or causing death by rashor negligent act (Section 304A). The composition of this broad-basedcommittee has been dealt with in the last segment of this judgment.

J Advance Directives

103. patient, in sound state of mind, possesses the ability tomake decisions and choices and can legitimately refuse medicalintervention. Justice Cardozo had this to say in seminal statement ofprinciple in the 1914 decision in Schloendorff v Society of NYHospital[150]:

“Even human being of adult years and sound mind has right todetermine what shall be done with his own body; and surgeonwho performs an operation without his patient’s consent commitsan assault.”

149 Rule 6A, Transplantation of Human Organs and Tissues Act 1995 150 105 N.E. 92, 93 (N.Y. 1914)

ALuis Kutner gave expression to the relationship of privacy withthe inviolability of the person and the refusal of medical treatment:

“…The attitude of the law is to recognise the inviolability of thehuman body. The patient’s consent must be voluntary and informed.These notions are buttressed by the constitutionally recognizedBright to privacy. Clearly, then, patient may refuse treatmentwhich would extend his life. Such decision must rest with thepatient.”[151]

The difficulty, as Kutner notes, arises when patient is unconsciousor is not in position to furnish his or her consent. The author notes thatCin such case “the law assumes constructive consent to such treatmentas will save his life”. Kutner’s thesis contemplates what should happen,if the patient is incapable of giving consent:

“…The law, however, does recognize that patient has right torefuse to be treated, even when he is in extremis, provided he is inDan adult and capable of giving consent. Compliance with thepatient’s wishes in such circumstances is not the same as voluntaryeuthanasia. Where, however, the patient is incapable of givingconsent, such as when he is in coma, constructive consent ispresumed and the doctor is required to exercise reasonable carein applying ordinary means to preserve the patient’s life. However,Ehe is not allowed to resort to extraordinary care especially wherethe patient is not expected to recover from the comatose state…”104. Recognition of the right to accept or refuse medical treatmentis founded upon autonomy. The Stanford Encyclopaedia ofPhilosophy[152] postulates that there is “a rough consensus in medicalFethics on the requirement of respect for patient autonomy”. However, apatient may not always have the opportunity to grant or withhold consentto medical treatment. An unforeseen event may deprive the individual ofthe ability to indicate desire to either receive or not to have medicaltreatment. An occasion necessitating treatment in sudden cases whereGa person suffers an accident, stroke or coronary[153] episode may provide

151 Luis Kutner, “Due Process of Euthanasia: The Living Will, proposal”, IndianaLaw Journal (1969), Vol. 44, Issue 4, at page 539

152 “Advance Directives and Substitute Decision-Making”, Stanford Encyclopaedia of-Philosophy (24 March 2009), available at https://plato.standford.edu/entries/advancedirectives/H 153 Luis Kutner (Supra note 151), at page 551

no time for reflection. In anticipation of such situations, “where anindividual patient has no desire to be kept in state of complete andindefinite vegetated animation with no possibility of recovering his mentaland physical faculties, that individual, while still in control of all his/herfaculties and his ability to express himself/herself”[154], could still retainthe right to refuse medical treatment by way of “advance directives”.

105. Broadly, there are two forms of advance directives:

- Living Will which indicates person’s views and wishesregarding medical treatment

- Durable Power of Attorney for Health Care or Healthcare Proxy which authorises surrogate decision maker tomake medical care decisions for the patient in the event she orhe is incapacitated

Although there can be an overlap between these two forms ofadvance directives, the focus of durable power is on who makes thedecision while the focus of living will is on what the decision should be.A “living will” has also been referred as “a declaration determining thetermination of life,” “testament permitting death,” “declaration for bodilyautonomy,” “declaration for ending treatment,” “body trust,” or othersimilar reference.[155] Living wills are not new entity and were firstsuggested by US attorney, Luis Kutner, in late 1960s.[156]

106. Advance directives have evolved conceptually to deal withcases where patient who subsequently faces loss of the mental facultyto decide has left instructions, when he or she was possessed ofdecision-making capacity, on how future medical decisions should bemade. The Stanford Encyclopaedia[157] explains the concept thus:

“… For patients who lack the relevant decision-making capacityat the time the decision is to be made, need arises for surrogatedecision-making: someone else must be entrusted to decide ontheir behalf. Patients who formerly possessed the relevantdecision-making capacity might have anticipated the loss ofcapacity and left instructions for how future medical decisions

154 Luis Kutner (Supra note 65) at page 226

155 Luis Kutner (Supra note 151), at page 551

156 Ibid

157 “Advance Directives and Substitute Decision-Making”, Stanford Encyclopaedia of-Philosophy (24 March 2009), available athttps://plato.standford.edu/entries/advancedirectives/

ought to be made. Such instructions are called an advancedirective. One type of advance directive simply designates whothe surrogate decision-maker should be. more substantiveadvance directive, often called living will, specifies particularprinciples or considerations meant to guide the surrogate’s decisionsin various circumstances…”

Hazel Biggs[158] explains the meaning of “living wills” and advancedirectives:

“Usually living will is thought of as statement indicating aperson’s preferred treatment options at the end of life, but theCterm “living will” is also “sometimes used for advance directiveswhich are concerned with other situations or which can be usedto express willingness to receive particular treatments”. Somestipulate that speciûc treatments are acceptable while others arenot, while others insist that all available appropriate medicalresources should be utilised to maintain life. Living wills are notDtherefore exclusively associated with end-of-life decisions,although generally the purpose of living will is to promoteindividual autonomy and choice for the patient; characteristicswhich have long been associated with euthanasia as means ofachieving death with dignity”.

EJames Turner[159] explains the concept of living will thus:

“The living will is document by which competent adult signifiesa desire that if there ever comes time when there is no reasonableexpectation of his recovery from physical or mental disability thathe be allowed to die rather than be kept alive by artificial meansFor heroic measures. What the typical living will does, in effect, isto sanction passive euthanasia, or, as it has been called,antidysthanasia..

The living will is document which directs one’s physician tocease affirmative treatment under certain specified conditions. ItGcan presumably apply to both the situation in which person witha terminal disease lapses into the final stage of his illness and alsothe situation in which victim of serious accident deterioratesinto state of indefinite vegetated animation…”

158 Hazel Biggs (Supra note 21), at page 115

159 James Turner, “Living Wills – Need for legal recognition”, West Virginia LawHReview (1976), Vo. 78, Issue 3, at page 370

107. The principles of patient autonomy and consent are thefoundation of advance medical directives. competent and consentingadult is entitled to refuse medical treatment. By the same postulate, adecision by competent adult will be valid in respect of medical treatmentin future. As Biggs states:

“…Founded upon respect for individual autonomy this is rightthat operates through the law of consent to protect patients fromunfettered medical paternalism. Common law holds that patientswith the capacity to give consent are also competent to refuse orwithhold consent, “even if refusal may risk personal injury tohealth or even lead to premature death”. Furthermore, “refusalof treatment can take the form of declaration of intent never toconsent to that treatment in the future, or never to consent insome future circumstances”. Accordingly, any consent or refusalof consent made by competent adult patient can also be valid inrespect of the same treatment at any time in the future.”

108. Advance directives are thus documents person completeswhile still in possession of decisional capacity about how treatmentdecisions should be made in the event she or he loses decision makingcapacity in future. They cover three conditions: (i) terminal condition;(ii) persistently unconscious condition; and (iii) an end-stage condition.

109. terminal condition is an incurable or irreversible conditionwhich even with the administration of life-sustaining treatment will resultin death in the foreseeable future. persistently unconscious conditionisan irreversible condition, in which thought and awareness of self andenvironment are absent. An end-stage condition is condition causedby injury, disease or illness which results in severe and permanentdeterioration indicated by incompetency and complete physicaldependency for which treatment of the irreversible condition would bemedically ineffective.

110. The reason for recognising an advance directive is based onindividual autonomy. As an autonomous person, every individual has aconstitutionally recognised right to refuse medical treatment. The rightnot to accept medical treatment is essential to liberty. Medical treatmentcannot be thrust upon an individual, however, it may have been conceivedin the interest of the individual. The reasons which may lead person ina sound state of mind to refuse medical treatment are inscrutable. Those

Adecisions are not subject to scrutiny and have to be respected by the lawas an essential attribute of the right of the individual to have control overthe body. The state cannot compel an unwilling individual to receivemedical treatment. While an individual cannot compel medicalprofessional to provide particulartreatment (this being in the realm ofprofessional medical judgment), it is equally true that the individual cannotBbe compelled to undergo medical intervention. The principle of sanctityof life thus recognises the fundamental liberty of every person to controlhis or her body and as its incident, to decline medical treatment. Theability to take such decision is an essential element of the privacy ofthe being. Privacy also ensures that decision as personal as whetherCor not to accept medical treatment lies exclusively with the individual asan autonomous being. The reasons which impel an individual to do soare part of the privacy of the individual. The mental processes whichlead to decision making are equally part of the constitutionally protectedright to privacy.

D111. Advance directives are founded on the principle that anindividual whose state of mind is not clouded by an affliction whichprevents him or her from taking decisions is entitled to decide whetherto accept or not accept medical intervention. If decision can be madefor the present, when the individual is in sound state of mind, such aperson should be allowed to decide the course of action which should beEfollowed in the future if he or she were to be in situation which affectsthe ability to take decisions. If decision on whether or not to receivemedical treatment is valid for the present such decision must be equallyvalid when it is intended to operate in the future. Advance directives are,in other words, grounded in recognition by the law of the importanceFof consent as an essential attribute of personal liberty. It is the consensualnature of the act underlying the advance directive which imparts sanctityto it in future in the same manner as decision in the present on whetheror not to accept medical treatment.

112. When patient is brought for medical treatment in state ofGmind in which he or she is deprived of the mental capacity to makeinformed choices, the medical professional needs to determine the lineof treatment. One line of enquiry, which seeks to protect patient autonomyis how the individual would have made decision if he or she haddecision-making capacity. This is called the substituted judgment standard.An advance medical directive is construed as facilitative mechanismH

in the application of the substituted judgment standard, if it provides tothe physician communication by the patient (when she or he was in afit state of mind) of the desire for or restraint on being provided medicaltreatment in future.

113. Conceptually, there is second standard, which is thecaregiver standard. This is founded on the principle of beneficence. Thesecond standard seeks to apply an objective notion of line of treatmentwhich reasonable individual would desire in the circumstances.

The Stanford Encyclopaedia contains an elucidation of thesetwo standards:

“The Substituted Judgment standard:

The surrogate’s task is to reconstruct what the patient himselfwould have wanted, in the circumstances at hand, if the patienthad decision-making capacity. Substantive advance directivesare here thought of as helpful mechanism for aiding theapplication of Substituted Judgment. The moral principleunderlying this legal standard is the principle of respect forautonomy, supplemented by the idea that when patient is notcurrently capable of making decision for himself, we cannonetheless respect his autonomy by following or reconstructing,as best we can, the autonomous decision he would have made ifhe were able. In subset of cases, substituted judgment canimplement an actual earlier decision of the patient, made inanticipation of the current circumstances; this is known asprecedent autonomy.

The Caregiver standard:

The surrogate is to decide based on what, in general, would begood for the patient. The moral principle underlying this standardis the principle of beneficence. This legal standard has traditionallyassumed quite generic view of interests, asking what a“reasonable” person would want under the circumstances andfocusing on general goods such as freedom from pain, comfort,restoration and/or development of the patient’s physical and mentalcapacities. This is because the Caregiver standard has mainlybeen employed when there is little or no information about thepatient’s specific values and preferences. However, the concept

Aof caregiver is simply the concept of what is best for the person.There is no reason why, in principle, the Caregiver judgment couldnot be as nuanced and individual as the best theory of well-beingdictates.”

The difference between these two standards is that the first seeksBto reconstruct the subjective point of view of the patient. The secondallows for “a more generic view of interests”, without having to rely on

the “idiosyncratic values and preference of the patient in question”.

114. The Encyclopaedia explains that the “orthodox view”contained the following ordering of priorities:

“1. Honour substantive advance directive, as an aid to SubstitutedJudgment, whenever such directive is available.

2. Absent an advance directive, apply the Substituted Judgmentstandard based on available information about the patient’s pastdecisions and values.

3. If you cannot apply the Substituted Judgment standard – eitherbecause the patient has never been competent or becauseinformation about the patient’s former wishes and values isunavailable – use the Caregiver standard.”

The above ordering of priorities in the orthodox view has beenEquestioned. In prioritising advance directives and substituted judgments,the orthodox view “overlooks the possibility that the earlier competentself and the current incompetent self may have conflicting interests”.Advance directives and the substituted judgment standard werepropounded to deal with afflictions such as persistent vegetative stateFwhere the interests of the patient in such state are not potentiallydifferent from what they used to be. The Stanford Encyclopaedia,however, notes that loss of decision-making capacity may give rise toless drastic conditions in which the presently incompetent patient mayhave developed “powerful new interests” in new phase of life. Patientsfacing Alzheimer’s or dementia face progressive mental deterioration.GWhen such patient was still in competent state of mind, she mayhave regarded state of dementia to be degrading. However, as thedisease progresses, the interests of the patient change and her life maybe enriched by the simple activities of life. The patient may cease toidentify with his or her intellect and revisit an earlier desire not to prolongHlife. The Stanford Encyclopaedia states that in such an eventuality, “the

conflict is between the autonomy of the earlier self and the well-being ofthe current self”.

115. One way of seeking philosophical resolution is to postulatethat the former self and its interests will have priority, or “specialauthority” over the current self. Such an approach prioritises autonomyover beneficence. This line of approach is, however, not free of difficulty.A patient may have lost the ability to take complex decisions. Yet thetreating physician may not have “a license to discount the current well-being of the individual in favour of what mattered to him earlier”. Thisillustration emphasises the potential conflict between pure applicationof the substituted judgment standard and the caregiver standard. Theformer seeks to preserve individual autonomy at all costs. The latterjuxtaposes the role of the medical professional in determining what is inthe best interest of the patient. The best interest standard is hence foundedon the principle that patient who has progressed from competentmental state to an increasing lack of mental capacity faces change ofpersonal identity. An autonomous decision suited to an earlier identitymay not always be valid rationale for determining the course of actionin respect of new identity which patient acquires in the course ofillness:“According to the threshold views, the earlier self has authority todetermine the overall interests of the patient because the currentself has lost crucial abilities that would allow it to ground theseoverall interests anew. This picture assumes that the earlier andcurrent self are stages in the life of one entity, so that, despite thetalk of local interests associated with each life-stage, there is anunderlying continuity of interests between the two. But this is avery substantial assumption, and it has been contested by appealto an influential account of the metaphysics of personal identityover time, the psychological continuity account. Roughly, the ideais that, in the wake of drastic transformation of one’s psychologysuch as Alzheimer’s disease, one does not survive as numericallythe same individual, so whatever interests one’s predecessor inone’s body may have had are not suitable basis for decisions onbehalf of the new individual who has emerged after thetransformation (Dresser 1986). The lack of identity between theearlier and current self undercuts the authority of the former overthe latter.”

A116. In such situation the doctor’s duty to care assumessignificance. The relationship between doctor and her patient with anevolving mental condition needs balance between the desiresof thepatient in different mental state and the needsof the patient in thepresent condition. Neither can be ignored in preference to the other.The first recognises the patient as an autonomous individual whose desiresBand choices must be respected by law and medicine. The desire not tobe subject to endless medical intervention, when one’s condition of mindor body have reached an irreversible state is profound reflection of thevalue to be left alone. Constitutional jurisprudence protects it as part ofthe right to privacy. On the other hand, the need to procure the dignity ofCthe individual in deteriorating and irreversible state of body or mind isas crucial to the value of existence. The doctor must respect the formerwhile being committed as professional to protect the latter.

117. Human experience suggests that there is chasm ofimponderables which divide the present from the future. Such divideDmay have bearing on whether and if so, the extent to which an advancedirective should bind in the future. As stated above, the sanctity of anadvance directive is founded upon the expression of the will of anindividual who is in sound state of mind when the directive is executed.Underlying the consensual character of the declaration is the notion ofthe consent being informed. Undoubtedly, the reasons which haveEweighed with an individual in executing the advance directive cannot bescrutinized (in the absence of situations such as fraud or coercion whichimplicate the very basis of the consent). However, an individual whoexpresses the desire not to be subjected to particular line of treatmentin the future, should she or he be ailing in the future, does so on anFassessment of treatment options available when the directive is executed.For instance, decision not to accept chemotherapy in the event that theindividual is detected with cancer in the future, is based on today’sperception of the trauma that may be suffered by the patient throughthat treatment. Advances in medical knowledge between the date of the

execution of the document and an uncertain future date when theGindividual may possibly confront treatment for the disease may have ledto re-evaluation by the person of the basis on which desire wasexpressed several years earlier. Another fundamental issue is whetherthe individual can by means of an advance directive compel the withholdingof basic care such as hydration and nourishment in the future. ProtectingHthe individual from pain and suffering as well as the indignity of debility

may similarly raise important issues. Advance directives may henceconceivably raise ethical issues of the extent to which the perception ofthe individual who executes it must prevail in priority to the best interestof the patient.

118. The substituted judgment standard basically seeks to determinewhat the individual would have decided. This gives primacy to theautonomy of the individual. On the other hand, as seen earlier, the bestinterest standard is based on the principle of beneficence. There is anevident tension between these two standards. What an individual woulddecide as an autonomous entity is matter of subjective perception.What is in the best interest of the patient is an objective standard: objective,with the limitation that even experts differ. The importance of an advancedirective lies in bringing to the fore the primacy of individual choice.Such directive ensures that the individual retains control over the mannerin which the body is treated. It allows the individual to decide not toaccept artificial treatment which would prolong life in the terminal stageof an ailment or in vegetative state. In doing so, recognition is grantedto the effect of the advance directive upon the happening of contingencyin the future, just as the individual would in the present have right torefuse medical treatment. The advance directive is an indicator to medicalprofessionals of the underlying desire of the person executing it.

119. In society such as ours where family ties have an importantplace in social existence, advance directives also provide sense ofsolace to the family. Decisions such as whether to withhold or withdrawartificial life saving treatment are difficult for families to take. Advancedirectives provide moral authority for the family of the patient that thedecision which has been taken to withdraw or withhold artificial lifesupport is in accord with the stated desire of the patient expressed earlier.But the ethical concerns which have been referred to earlier may warranta nuanced application of the principle. The circumstances which havebeen adverted to earlier indicate that the decision on whether to withholdor withdraw medical treatment should be left to competent bodycomprising of, but not restricted to medical professionals. Assigning asupervisory role to such body is also necessary in order to protectagainst the possibility of abuse and the dangers surrounding the misuseof an advance directive. One cannot be unmindful of prevailing socialreality in the country. Hence, it is necessary to ensure that an advancedirective is not utilized as subterfuge to fulfil unlawful or unethicalpurposes such as facilitating succession to property.

A120. The view which this judgment puts forth is that the recognitionof advance directives as part of regime of constitutional jurisprudenceis an essential attribute of the right to life and personal liberty underArticle 21. That right comprehends dignity as its essential foundation.Quality of life is integral to dignity. As an essential aspect of dignity andthe preservation of autonomy of choice and decision-making, eachBindividual must have the right on whether or not to accept medicalintervention. Such choice expressed at point in time when the individualis in sound and competent state of mind should have sanctity in thefuture if the individual were to cease to have the mental capability totake decisions and make choices. Yet, balance between the applicationCof the substituted judgment standard and the best interest standard isnecessary as matter of public interest. This can be achieved by allowinga supervisory role to an expert body with whom shall rest oversight inregard to whether patient in the terminal stage of an illness or in apermanent vegetative state should be withheld or withdrawn from artificiallife support.D

121. In 1995, the British Medical Association (BMA) published areport on advance statements about medical treatment with the intentionto reflect “good clinical practice in encouraging dialogue about individuals’wishes concerning their future treatment”.[160] The report theoreticallydiscussed six different types of advance statements[161]:E

• requesting statement reflecting an individual’s aspirationsand preferences

• statement of general beliefs and aspects of life that theindividual values

• statement naming proxy

• directive giving clear instructions refusing some or alltreatment(s)

• statement specifying degree of irreversible deteriorationGafter which no life-sustaining treatment should be given

• combination of the above

160 S Kessel and J Meran, “Advance directives in the UK: legal, ethical, and practicalconsiderations for doctors”, British Journal of General Practice(1998), at page1263H 161 Ibid

122. decade later, the Mental Capacity Act (MCA), 2005 wasenacted, which came into force in October 2007. The statute “enabledindividuals to write an advance directive or appoint lasting power ofattorney to make their views on health care known should they losecapacity”[162]. The Act enshrined in statute law the right of an adult withcapacity to make an advance directive to refuse specific treatment at apoint in the future when they lack capacity.

123. Before turning to MCA, it is of importance to state the positionof the common law before the enactment of the legislation. English Lawhas recognised the entitlement of an individual possessed of the ability totake decisions to refuse medical treatment[163]. The law has had to confrontproblems in applying this standard in difficult, practical situations. Forinstance, in judgment in Re (Adult: Refusal of Medical Treatment)[164],a patient who was suffering from tetraplegia declined to consent toartificial ventilation. Though the patient was found initially to suffer fromdepression and to lack decision making capacity, subsequent evaluationfound that she was mentally competent. For period of nine months, thehospital refused to respect the wishes of the patient not to place her onartificial ventilation, necessitating judicial intervention. When the casetravelled to court, the President of the Family Division, Dame Butler-Sloss emphasised that “the right of the patient to demand cessation oftreatment must prevail “over the natural desire of the medical and nursingprofessions to try to keep her alive”. The Judge recognised the seriousdanger of “a benevolent paternalism which does not embrace recognitionof the personal autonomy of the severely disabled patient”.

124. Commenting on the above decision, Elizabeth Wicks in herrecently published book titled “The State and The Body – LegalRegulation of Bodily Autonomy”[165] observes that:

“… the desire to preserve life is strong and choices to end life,especially in circumstances where the life is not without an elementof quality, are often seen as swimming against strong tide of thevalue of life.”

162 “Are advance directives legally binding or simply the starting point for discussionon patients’ best interests?”, BMJ(28 November 2009), Volume 339, page 1231 163 Re T (Adult: Refusal of Treatment) [1942] 4 All ER 649; Re (Adult: Refusal ofMedical Treatment)[1994] 1 All ER 819; St George’s Healthcare NHS Trust v S[1998] 3 WLR 936

164 [2002] 2 All ER 449

165 Elizabeth Wicks, The State and the Body: Legal Regulation of Bodily Autonomy,Hart Publishing (2016)

A125. In Re AK (Adult Patient) (Medical Treatment:Consent)[166], Justice Hughes (as he then was) in the High Court ofJustice, reviewed the authorities, and summarised the common law positionthus:

“Accordingly, the first principle of law which I am satisfied iscompletely clear, is that in the case of an adult patient of fullcapacity his refusal to consent to treatment or care must in lawbe observed. It is clear that in an emergency doctor is entitled inlaw to treat by invasive means if necessary patient who byreason of the emergency is unable to consent, on the grounds thatthe consent can in those circumstances be assumed. It is, however,also clearly the law that the doctors are not entitled so to act if itis known that the patient, provided he was of sound mind and fullcapacity, has let it be known that he does not consent and thatsuch treatment is against his wishes. To this extent an advanceindication of the wishes of patient of full capacity and soundmind are effective. Care will of course have to be taken to ensurethat such anticipatory declarations of wishes still represent thewishes of the patient. Care must be taken to investigate how longago the expression of wishes was made. Care must be taken toinvestigate with what knowledge the expression of wishes wasmade. All the circumstances in which the expression of wishes

Ewas given will of course have to be investigated.”

In HE v Hospital NHS Trust[167],Justice Munby of the HighCourt of Justice (Family Division) considered an “Advance MedicalDirective/Release” signed by young woman, which sought to refusethe transfusion of blood or primary blood components in absolute andFirrevocable terms. The Court had to decide whether the advance directivewas valid and applicable. It was noted that:

“A competent adult patient has an absolute right to refuse consentto any medical treatment or invasive procedure, whether thereasons are rational, irrational, unknown or non-existent, and evenif the result of refusal is the certainty of death… Consistentlywith this, competent adult patient’s anticipatory refusal of consent(a so-called ‘advance directive’ or ‘living will’) remains bindingand effective notwithstanding that the patient has subsequently 167 [2001] 1 FLR 129 167 [2003] 2 FLR 408

become and remains incompetent. An adult is presumed to havecapacity, so the burden of proof is on those who seek to rebut thepresumption and who assert lack of capacity. It is therefore forthose who assert that an adult was not competent at the time hemade his advance directive to prove that fact.”

The Court then analyzed the specific aspects of the law governingadvance directives:

“1. There are no formal requirements for valid advance directive.An advance directive need not be either in or evidenced by writing.An advance directive may be oral or in writing.

2. There are no formal requirements for the revocation of anadvance directive. An advance directive, whether oral or in writing,may be revoked either orally or in writing. written advancedirective or an advance directive executed under seal can berevoked orally.

3. An advance directive is inherently revocable. Any condition inan advance directive purporting to make it irrevocable, any evenself-imposed fetter on patient’s ability to revoke an advancedirective, and any provision in an advance directive purporting toimpose formal or other conditions upon its revocation, is contraryto public policy and void. So, stipulation in an advance directive,even if in writing, that it shall be binding unless and until revokedin writing is void as being contrary to public policy.

4. The existence and continuing validity and applicability of anadvance directive is question of fact. Whether an advancedirective has been revoked or has for some other reason ceasedto be operative is question of fact.

5. The burden of proof is on those who seek to establish theexistence and continuing validity and applicability of an advancedirective.

6. Where life is at stake the evidence must be scrutinised withespecial care. Clear and convincing proof is required. Thecontinuing validity and applicability of the advance directive mustbe clearly established by convincing and inherently reliableevidence.

A7. If there is doubt that doubt falls to be resolved in favour of thepreservation of life.”

126. The common law has been “refined” by passage of the MCA2005, which makes statutory provision for advance decisions to refusetreatment.[168] The Mental Capacity Act has certain underlyingBprinciples[169], which can be stated as follows:

• person must be assumed to have capacity unless it isestablished that she lacks capacity.

• person is not to be treated as unable to make decision unlessCall practicable steps to help her to do so have been taken withoutsuccess.

• person is not to be treated as unable to make decision merelybecause she makes an unwise decision.

• An act done, or decision made, under the Act for or on behalf ofDa person who lacks capacity must be done, or made, in hercaregiver.

• Before the act is done, or the decision is made, regard must behad to whether the purpose for which it is needed can be asEeffectively achieved in way that is less restrictive of theperson’s rights and freedom of action.

127. Advance decisions are legally binding in England and Wales,as long as they meet certain requirements. Section 24 of the Act dealswith the criteria for legally valid advance decisions to refuse treatment.FSection 25 deals with the validity and applicability of advance decisions.The advance directive does not affect the liability which person mayincur for carrying out or continuing treatment in relation to the personmaking the decision, unless the decision is at the material time— (a)valid, and (b) applicable to the treatment.

G128. The law in UK empowers the Court of Protection to make adeclaration as to whether an advance decision— (a) exists; (b) is valid;(c) is applicable to treatment.[170] Moreover, person will not incur any

168 Alexander Ruck Keene, “Advance Decisions: getting it right?”, available at http://www.39essex.com/docs/articles/advance_decisions_paper_ark_december_2012.pdf

169 Section 1, Mental Capacity Act 2005

170 Section 26(4), Mental Capacity Act 2005

liability for the consequences of withholding or withdrawing treatmentfrom an individual, if she at the material time, reasonably believes that avalid advance decision applicable to the treatment, made by that individual,exists.[171]

Until the implementation of the Mental Capacity Act 2005 inOctober 2007, nobody was able legally to make medical decisions onbehalf of another adult in England and Wales. The Act imposes dutieson the person who has to make determination as to what is in anindividual’s caregiver. All the relevant circumstances must be taken intoconsideration, which are as follows[172]:

• Considering whether it is likely that the person will at some timehave capacity in relation to the matter in question, and if itappears likely that he or she will, when that is likely to be;

• Permitting and encouraging, so far as reasonably practicable,the person to participate, or to improve the ability to participate,as fully as possible in any act done for and any decision affectingthe person;

• Where the determination relates to life-sustaining treatment heor she must not, in considering whether the treatment is in thecaregiver of the person concerned, be motivated by desire tobring about death;

• Considering so far as is reasonably ascertainable, the person’spast and present wishes and feelings (and, in particular, anyrelevant written statement made when he or she had capacity);the beliefs and values that would be likely to influence the decisionif the person had capacity; and the other factors that he or shewould be likely to consider if able to do so; and

• Taking into consideration, if it is practicable and appropriate toconsult them, the views of anyone named by the person assomeone to be consulted on the matter in question or on mattersof that kind; anyone engaged in caring for the person or interestedin his or her welfare; any donee of lasting power of attorneygranted by the person; and any deputy appointed for the personby the court, as to what would be in the person’s caregiver.

171 Section 26(3), Mental Capacity Act 2005

172 Section 4, Mental Capacity Act 2005

A129. Even after the enforcement of the Mental Capacity Act 2005,there have been examples of life sustaining treatment being continueddespite the desire of the patient to the contrary. In W v M[173], patientwho was in minimally conscious state had previously expressed desireagainst artificial intervention. An application was made to withdrawartificial nutrition and hydration. The application was refused by the judgeBon the basis that her life had some benefit, in spite of the wishes of thefamily and the previously expressed desire of the patient when she wascompetent that she would not like to continue living in such condition.The judge took the view that the wishes of the patient were not bindingand did not carry substantial weight, not being formally recorded so as toCconstitute an advance decision under the Mental Capacity Act, 2005.Adverting to this decision,Wicksnotes that despite the emphasis in theAct of 2005, on the previously expressed desires of the patient, “theseare just one relevant factor and may well not be regarded as the crucialone if they point towards death rather than continued life”[174].

DYet, subsequent decision of the UK Supreme Court in AintreeUniversity Hospitals NHS Foundation Trust v James andOthers[175]" does signify greater acceptance of the centrality of the dyingperson’s choices”[176]. But decided cases show the “medical evidencerelating to the benefits of continued existence remains an influentialconsideration”[177]. The result has been greater emphasis in providingEpalliative care towards the end of life. The palliative care approach givespriority to providing dignity to dying patient over an approach whichonly seeks to prolong life:“A civilised society really ought to be able to respect the dignityand autonomy of the dying in way that both gives value to theirFlives and dignity to their death. The withdrawal of medicaltreatment from dying patient can, in some circumstances, bejustified; the withdrawal of basic care and compassion cannot.”[178]

130. The Mental Healthcare Act 2017, which was assented to bythe President of India on 7 April 2017, enacts specific provisions forGrecognising and enforcing advance directives for persons with mentalillness. The expression “mental illness” is defined by Section 2(s) thus: 173 [2011] EWHC 2443 (Fam) 174 Elizabeth Wicks (Supra note 165), at page 69 175 [2013] UK SC 6 176 Elizabeth Wicks (Supra note 165), at page 69 177 IbidH 178 Ibid, at page 71

“mental illness” means substantial disorder of thinking, mood,perception, orientation or memory that grossly impairs judgment,behaviour, capacity to recognise reality or ability to meet theordinary demands of life, mental conditions associated with theabuse of alcohol and drugs, but does not include mental retardationwhich is condition of arrested or incomplete development ofmind of person, specially characterised by subnormality ofintelligence”.

The Act recognises an advance directive. An advance directivehas to be in writing. The person subscribing to it must be major. Whilemaking an advance directive, the maker indicates

(i) The manner in which he or she wishes or does not wish to becared for and treated for mental illness; and

(ii) The person he or she appoints as nominated representative[179].

An advance directive is to be invoked only when the person whomade it ceases to have the capacity to make mental healthcare treatmentdecisions. It remains effective until the maker regains the capacity to doso[180].

131. The Central Mental Health Authority constituted under theAct is empowered to make regulations governing the making of advancedirectives[181].

132. The Mental Health Review Board constituted under the Acthas to maintain an online register of all advance directives and to makethem available to mental health professional when required[182].

133. Advance directives are capable of being revoked, amendedor modified by the maker at any time[183]. The Act specifies that anadvance directive will not apply to emergency treatment[184] administeredto the maker. Otherwise, duty has been cast upon every medical officerin charge of mental health establishment and psychiatrist in chargeof treatment to propose or give treatment to person with mental

179 Section 5(1), Mental Healthcare Act, 2017 (India) 180 Section 5(3), Mental Healthcare Act, 2017 (India)

181 Section 6, Mental Healthcare Act, 2017 (India)

182 Section 7, Mental Healthcare Act, 2017 (India)

183 Section 8(1), Mental Healthcare Act, 2017 (India)

184 Section 9, Mental Healthcare Act, 2017 (India)

Aillness, in accordance with valid advance directive, subject to Section11[185]. Section 11 elucidates procedure which is to be followed where amental health professional, relative or care-giver does not desire to followthe advance directive. In such case, an application has to be made tothe Board to review, alter, cancel or modify the advance directive. Indeciding whether to allow such an application the Board must considerBwhether

(i) The advance directive is truly voluntary and made without force,undue influence or coercion;

(ii) The advance directive should apply in circumstances whichCare materially different;

(iii) The maker had made sufficiently well informed decision;

(iv) The maker possessed the capacity to make decisions relatingto mental health care or treatment at the time when it wasmade; andD

(v) The directive is contrary to law or to constitutionalprovisions[186].

duty has been cast to provide access to the advance directiveto medical practitioner or mental health professional, as the case maybe[187]. In the case of minor, an advance directive can be made by aElegal guardian[188]. The Act has specifically granted protection to medicalpractitioners and to mental health professionals against being held liablefor unforeseen consequences upon following an advance directive[189].

134. Chapter IV of the Mental Healthcare Act 2017 containsdetailed provisions for the appointment and revocation of nominatedFrepresentatives. The provisions contained in Chapter IV stipulatequalifications for appointment of nominated representatives; an order ofprecedence in recognising nominated representative when none hasbeen appointed by the individual concerned; revocation of appointmentsand the duties of nominated representatives. Among those duties, aGnominated representative is to consider the current and past wishes, thelife history, values, culture, background and the caregiver of the person 185 Section 10, Mental Healthcare Act, 2017 (India) 186 Section 11(2), Mental Healthcare Act, 2017 (India) 187 Section 11(3), Mental Healthcare Act, 2017 (India)

188 Section 11(4), Mental Healthcare Act, 2017 (India)H 189 Section 13(1), Mental Healthcare Act, 2017 (India)

with mental illness; give effective credence to the views of the personwith mental illness to the extent of his or her understanding the nature ofthe decisions under consideration; to provide support in making treatmentdecisions; have the right to seek information on diagnosis and treatment,among other things.

135. In the context of mental illness, Parliament has now expresslyrecognised the validity of advance directives and delineated the role ofnominated representatives in being associated with healthcare andtreatment decisions.

136. comparative analysis of advance directives in variousjurisdictions indicates some common components. They include thepatient’s views and wishes regarding: (i) Cardio-pulmonary Resuscitation(CPR) - treatment that attempts to start breathing and blood flow inpeople who have stopped breathing or whose heart has stopped beating;(ii) Breathing Tubes; (iii) Feeding/Hydration; (iv) Dialysis; (v) Pain Killers;(vi) Antibiotics; (vii) Directions for organ donation; and (viii) Appointmentof Proxy/Health care agent/ Surrogate, etc.

137. Legal recognition of advance directives is founded upon thebelief that an individual’s right to have dignified life must be respected.In Vishaka v State of Rajasthan[190], the Court, in the absence of enactedlaw against sexual harassment at work places, had laid down the guidelinesand norms for due observance at all work places or other institutions,until legislation is enacted for the purpose. Certain precepts can bededuced from the existing global framework on advance directives.Theseinclude the following:

A) Advance directives reflect the right of an adult with capacityto make decision to refuse specific treatment at point in thefuture when they lack capacity. person can be said to lackcapacity when “in relation to matter if at the material time heis unable to make decision for himself in relation to the matterbecause of an impairment of, or disturbance in the functioningof, the mind or brain”[191]. He/she must be deemed to havecapacity to make decisions regarding his treatment if suchperson has ability to— (a) understand the information that isrelevant to take decision on the treatment or admission or

190 (1997) 6 SCC 241

191 Section 2, Mental Capacity Act 2005 (UK)

Apersonal assistance; or (b) appreciate any reasonablyforeseeable consequence of decision or lack of decision onthe treatment or admission or personal assistance; or (c)communicate such decision by means of speech, expression,gesture or any other means.[192]

BB) For legally valid advance decision to refuse treatment, anadvance directive must fulfil basic criteria[193], which shouldinclude that- directive must be made by person after hehas reached 18 years of age[194]; the person must be mentallycompetent when the directive is made; the directive mustspecify – in medical or layman’s terms – the treatment refused;Cand, it can specify the circumstances in which the refusal is toapply.

C) At any time before reaching the comatose state, an individualcan revoke the directive. In other words, an individual maywithdraw or alter an advance decision at any time when he/Dshe has capacity to do so. Such withdrawal (including partialwithdrawal) need not be in writing. directive must be revokedif the statements or actions subsequent to the written documentindicate contrary consent.[195]

D) An advance decision will not be applicable to the treatment inEquestion if - (a) at the material time, the person, who made it,did not have the capacity to give or refuse consent to it[196]; (b)the treatment is not the treatment specified in the advancedecision[197]; (c) any circumstances specified in the advancedecision are absent[198]; or (d) there are reasonable grounds forFbelieving that circumstances exist which the person makingthe directive did not anticipate at the time of the advancedecision and which would have affected his decision had heanticipated them.[199]

192 Section 4, Mental Healthcare Act, 2017 (India)G 193 Section 24, Mental Capacity Act, 2005 (UK)

194 parent acting on behalf of his child cannot make such declaration.

195 Luis Kutner (Supra note 65), at page 228

196 Section 25(3), Mental Capacity Act 2005 (UK)

197 Section 25(4) (a), Mental Capacity Act 2005 (UK)

198 Section 25(4) (b), Mental Capacity Act 2005 (UK)

199 Section 25(4) (c), Mental Capacity Act 2005 (UK)H

E) If person intends specifically to refuse life-sustainingprocedures[200], he/she must - clearly indicate that it is to applyeven if life is at risk and death will predictably result; put thedecision in writing; and, ensure it is signed and witnessed.

F) In the event that there is more than one valid Advance Directive,none of which have been revoked, the most recently signedAdvance Directive will be considered as the last expression ofthe patient’s wishes and will be given effect.

G) person will not incur any liability for the consequences ofwithholding or withdrawing treatment from an individual, ifhe, at the material time, reasonably believes that valid advancedecision applicable to the treatment, made by that individual,exists.[201]

H) An advance directive must clearly contain the following: (a)full details of its maker, including date of birth, home addressand any distinguishing features; (b) the name and address of ageneral practitioner and whether they have copy; (c) astatement that the document should be used if the maker lackscapacity to make treatment decisions; (d) clear statement ofthe decision, the treatment to be refused and the circumstancesin which the decision will apply; (d) the date the documentwas written (or reviewed); and, (e) the person’s signature andthe signature of witness.[202]138. Advance directives also have limitations. Individuals may notfully understand treatment options or recognize the consequences ofcertain choices in the future. Sometimes, people change their minds afterexpressing advance directives and forget to inform others. Another issuewith advance directives is that vague statements can make it difficult tounderstand the course of action when situation arises. For example,general statements rejecting “heroic treatments” are vague and do notindicate whether you want particular treatment for specific situation(such as antibiotics for pneumonia after severe stroke). On the otherhand, very specific directives for future care may not be useful whensituations change in unexpected ways. New medical therapies may also

200 Section 25 (5) and (6), Mental Capacity Act 2005 (UK)

201 Section 26(3), Mental Capacity Act 2005 (UK)

202 Alexander Ruck Keene, “Advance Decisions: getting it right?”, available at http://www.39essex.com/docs/articles/advance_decisions_paper_ark_december_2012.pdf

Ahave become available since an advance directive was given. Thus,advance directives should be reviewed and revised regularly if feelingsabout certain issues change, so that current wishes and decisions arealways legally documented.

139. An important facet which regime of advanced careBdirectives must factor in, is the existence of variables which affect theprocess. These include, in our society, institutional aspects such as thepaucity of access to publicly funded Medicare, declining standards ofprofessional ethics and the inadequacy of institutional responses to thelack of professional accountability in the medical profession.

C140. report submitted in October 2017 by the American BarAssociation’s Commission on Law and Ageing to the US Department ofHealth Services, dwelt on several variables which bear upon advancedirectives. The following observations provide an insight:

“A good starting point in understanding this landscape is aDrealization that law and regulation are but one slice of the universeof variables that profoundly affect the experience of dying…

…other key variables include institutional innovation, the role offinancing systems, professional and public education andprofessional standards and guidelines. All these operate in largerEframework that is defined by family, workplace, community lifeand spirituality. Thus, the isolation of law and regulation as astrategy for behaviour change requires sense of humility inestablishing expectations, lest we overstate the influence of lawin the human experience of dying…”[203]

141. There are variables which “profoundly affect the experienceFof dying” even in developed society. They provide sobering reflectionof the gulf which separates the needs of patients and the availability ofservices to the poor, in society like ours with large impoverished strata.Patient autonomy may mean little to the impoverished citizen. Formarginalised groups in urban and rural India, even basic medical care isGa distant reality. Advance directives postulate the availability of medicalcare. For, it is on the hypothesis of such care being available that theright to choose or refuse treatment is based. The stark reality in oursociety is that medical facilities are woefully inadequate. Primary medical

203 “Advance Directives And Advance Care Planning: Legal And Policy Issues”, U.S.Department of Health and Human Services (October 2007), available at https://Haspe.hhs.gov/system/files/pdf/75366/adacplpi.pdf, at page 1

care is luxury in many places. Public hospitals are overwhelmed bythe gap between the demand for medical care and its supply. Advancedirectives may have little significance to large segments of Indian societywhich are denied access to basic care. Advance directives also requirean awareness of rights. The stark reality is that the average Indian isdeprived of even basic medical facilities in an environment where absenceof rudimentary care is the norm. Moreover, absolute notions of patientautonomy need to be evaluated in the context of the Indian social structurewhere bonds of family, religion and caste predominate. The immediatefamily and in many situations, the larger unit of the extended family arecaregivers. In the absence of social security net, universal medicalcoverage and compulsory insurance, it is the family to which patientturns to in distress. Families become the caregivers, willingly or as aresult of social conditioning, especially in the absence of resources andalternative institutional facilities. The views of the family which are drawnby close bonds of kinship have to be factored into the process. At theother end of the spectrum, rising costs of medical care in the urbanareas threaten to ruin the finances of family when member is struckby serious illness. To them, advance directives may provide measureof assurance when crucial decision as to whether to prolong artificialsupport in an irreversible medical situation is to be taken. The fact thatthe patient had expressed desire in the form of an advance directiveobviates sense of moral guilt on the part of the caregivers, when thefamily accepts the doctors’ wisdom to withdraw or withhold artificialsupport. Another important variable which regime of advance directivesmust bear in mind is the danger of misuse. The regime of advancedirectives which is intended to secure patient autonomy must containsafeguards against the greed of avaricious relatives colluding with willingmedical professionals. The safeguards must be robust to obviate thedangers. The complexities of culture and of the social strata adverted toabove only emphasise the wide diversity that prevails within the country.Our solution must take into account the diversity across the country. It iswith the above background in view that we have introduced safeguardin the form of broad-based committees to oversee the process.

142. In order to ensure clarity in the course of action to be followedI agree with the guidelines contained in the judgment of the learnedChief Justice in regard to Advance Directives as well as in regard to theprocedural mechanisms set up in the judgment.

DEFG

AK Conclusion

143. The court is above all, engaged in the task of expounding theConstitution. In doing so, we have been confronted with the enormoustask of finding substance and balance in the relationship between life,morality and the experience of dying. The reason which has impelledBthe court to recognise passive euthanasia and advance directives is thatboth bear close association to the human urge to live with dignity. Agebrings isolation. Physical and mental debility bring loss of self worth.Pain and suffering are accompanied by sense of being helpless. Theloss of control is compounded when medical intervention takes over life.Human values are then lost to technology. More significant than theCaffliction of ageing and disease is the fear of our human persona beinglost in the anonymity of an intensive care ward. It is hence necessaryfor this court to recognise that our dignity as citizens continues to besafeguarded by the Constitution even when life is seemingly lost andquestions about our own mortality confront us in the twilight of existence.

(i) The sanctity of human life is the arterial vein which animatesthe values, spirit and cellular structure of the Constitution. TheConstitution recognises the value of life as its indestructiblecomponent. The survival of the sanctity principle is foundedupon the guarantees of dignity, autonomy and liberty;

E(ii) The right to dignified existence, the liberty to make decisionsand choices and the autonomy of the individual are central tothe quest to live meaningful life. Liberty, dignity and autonomyare essential to the pursuit of happiness and to find meaning inhuman existence;

F(iii) The entitlement of each individual to dignified existencenecessitates constitutional recognition of the principlethat anindividual possessed of free and competent mental state isentitled to decide whether or not to accept medical treatment.The right of such an individual to refuse medical treatment isGunconditional. Neither the law nor the Constitution compel anindividual who is competent and able to take decisions, todisclose the reasons for refusing medical treatment nor is sucha refusal subject to the supervisory control of an outside entity;

(iv) Constitutional recognition of the dignity of existence as aninseparable element of the right to life necessarily means thatH

dignity attaches throughout the life of the individual. Everyindividual has constitutionally protected expectation that thedignity which attaches to life must subsist even in the culminatingphase of human existence. Dignity of life must encompassdignity in the stages of living which lead up to the end of life.Dignity in the process of dying is as much part of the right tolife under Article 21. To deprive an individual of dignity towardsthe end of life is to deprive the individual of meaningfulexistence. Hence, the Constitution protects the legitimateexpectation of every person to lead life of dignity until deathoccurs;

(v) The constitutionally recognised right to life is subject to theprocedure established by law. The procedure for regulation ordeprivation must, it is well-settled, be fair, just and reasonable.Criminal law imposes restraints and penal exactions whichregulate the deprivation of life, or as the case may be, personalliberty. The intentional taking away of the life of another ismade culpable by the Penal Code. Active euthanasia falls withinthe express prohibitions of the law and is unlawful;

(vi) An individual who is in sound and competent state of mind isentitled by means of an advance directive in writing, to specifythe nature of medical intervention which may not be adoptedin future, should he or she cease to possess the mental abilityto decide. Such an advance directive is entitled to deferenceby the treating doctor. The treating doctor who, in good faithexercise of professional medical judgment abides by an advancedirective is protected against the burden of criminal liability;

(vii) The decision by treating doctor to withholdor withdrawmedical intervention in the case of patient in the terminalstage of illness or in persistently vegetative state or the likewhere artificial intervention will merely prolong the sufferingand agony of the patient is protected by the law. Where thedoctor has acted in such case in the best interest of thepatient and in bonafide discharge of the duty of care, the lawwill protect the reasonable exercise of professional decision;

(viii) In Gian Kaur, the Constitution Bench held, while affirmingthe constitutional validity of Section 306 of the Penal Code

A(abetment of suicide), that the right to life does not include theright to die. Gian Kaur does not conclusively rule on the validityof passive euthanasia. The two Judge Bench decision in ArunaShanbaug proceeds on an incorrect perception of Gian Kaur.Moreover, Aruna Shanbaug has proceeded on the basis ofthe act – omission distinction which suffers from incongruitiesBof jurisprudential nature. Aruna Shanbaug has also not dwelton the intersection between criminal law and passiveeuthanasia, beyond adverting to Sections 306 and 309 of thePenal Code. Aruna Shanbaug has subordinated the interestof the patient to the interest of others including the treatingCdoctors and supporting caregivers. The underlying basis of thedecision in Aruna Shanbaug is flawed. Hence, it has becomenecessary for this Court in the present reference to revisit theissues raised and to independently arrive at conclusion basedon the constitutional position;

D(ix) While upholding the legality of passive euthanasia (voluntaryand non-voluntary) and in recognising the importance ofadvance directives, the present judgment draws sustenancefrom the constitutional values of liberty, dignity, autonomy andprivacy. In order to lend assurance to decision taken by thetreating doctor in good faith, this judgment has mandated theEsetting up of committees to exercise supervisory role andfunction. Besides lending assurance to the decision of thetreating doctors, the setting up of such committees and theprocessing of proposed decision through the committee willprotect the ultimate decision that is taken from an imputationFof lack of bona fides; and

(x) The directions in regard to the regime of advance directiveshave been issued in exercise of the power conferred by Article142 of the Constitution and shall continue to hold the field untila suitable legislation is enacted by Parliament to govern theGarea.

144. I agree with the directions proposed in the judgment of thelearned Chief Justice.

145. The reference shall stand disposed of in the above terms.

ASHOK BHUSHAN, J.

1. I had advantage of going through the draft judgment of Hon’blethe Chief Justice. Though, broadly I subscribe to the views expressedby Hon’ble the Chief Justice on various principles and facets as expressedin the judgment, but looking to the great importance of issues involved, Ihave penned my reasons for my views expressed. However, I am in fullagreement with the directions and safeguards as enumerated by Hon’blethe Chief Justice in Paras 191 to 194 of the Judgment with regard toadvance medical directives.

I also had the benefit of going through the erudite opinion of Dr.Justice D.Y. Chandrachud, which expresses almost the same viewswhich are reflected in my judgment.

This Constitution Bench has been constituted on reference madeby three-Judge Bench vide its order dated 25[th] February, 2014. Thewrit petition filed in public interest prayed for essentially following tworeliefs:

(a) declare ‘right to die with dignity’ as fundamental rightwithin the fold of Right to Live with dignity guaranteed underArticle 21 of the Constitution of India;

(b) issue direction to the Respondent, to adopt suitableprocedures, in consultation with State Governments wherenecessary, to ensure that persons of deteriorated health orterminally ill should be able to execute document titled “MYLIVING WILL & ATTORNEY AUTHORISATION” which canbe presented to hospital for appropriate action in event ofthe executant being admitted to the hospital with serious illnesswhich may threaten termination of life of the executant or inthe alternative, issue appropriate guidelines to this effect;”2. Petitioner in support of writ petition has placed reliance onConstitution Bench judgment in Gian Kaur Vs. State of Punjab, (1996)2 SCC 648 as well as two-Judge Bench judgment in ArunaRamachandra Shanbaug Vs. Union of India & Ors., (2011) 4 SCC454. Petitioner’s case is that this Court in the above two judgments hasalthough disapproved active euthanasia but has granted its approval topassive euthanasia. The three-Judge Bench after referring to paragraphs24 and 25 of Constitution Bench judgment observed that Constitution

ABench did not express any binding view on the subject of euthanasiarather reiterated that legislature would be the appropriate authority tobring the change. Three-Judge Bench further observed that view of twoJudge Bench in Aruna Ramachandra Shanbaug that the ConstitutionBench in Gian Kaur has approved the judgment of House of Lords inAiredale NHS Trust Vs. Bland, (1993) 1 All ER 821, is not correctBand further opinion expressed by two-Judge Bench judgment inparagraphs 101 and 104 is inconsistent. In the above view of the matterthe three-Judge Bench made the reference to the Constitution Bench. Itis useful to extract paragraphs 17, 18 and 19 of the referring order whichis to the following effect:C“17) In view of the inconsistent opinions rendered in ArunaShanbaug (supra) and also considering the important questionof law involved which needs to be reflected in the light ofsocial, legal, medical and constitutional perspective, itbecomes extremely important to have clear enunciation ofDlaw. Thus, in our cogent opinion, the question of law 12 Page13 involved requires careful consideration by ConstitutionBench of this Court for the benefit of humanity as whole.

18) We refrain from framing any specific questions forconsideration by the Constitution Bench as we invite theEConstitution Bench to go into all the aspects of the matterand lay down exhaustive guidelines in this regard.

19) Accordingly, we refer this matter to Constitution Benchof this Court for an authoritative opinion.”

3. We have heard Shri Prashant Bhushan, learned counselFappearing for the petitioner. Shri P.S. Narasimha, learned AdditionalSolicitor General appearing for the Union of India. Shri Arvind Datar,learned senior counsel for Vidhi Centre for Legal Policy, Shri Sanjay R.Hegde, learned senior counsel for Indian Society of Critical CareMedicine, Mr. Devansh A. Mohta, learned counsel for Society for RightGto Die with Dignity and Mr. Praveen Khattar, learned counsel for DelhiMedical Council. We have also been assisted by Dr. R.R. KishoreMember of the Bar who has joined the Bar after carrying on theprofession of doctor for more than 40 years.

A. PETITIONER’S CASE

4. The petitioner is registered society which is engaged in takingof the common problems of the people. The petitioner vide this publicinterest litigation brings to the notice of this Court the serious problem ofviolation of fundamental right to life, liberty, privacy and the right to diewith dignity of the people of this country, guaranteed to them underArticle 21 of the Constitution of India. It is submitted that the citizenswho are suffering from chronic diseases and/or are at the end of theirnatural life span and are likely to go into state of terminal illness orpermanent vegetative state are deprived of their rights to refuse crueland unwanted medical treatment, like feeding through hydration tubes,being kept on ventilator and other life supporting machines in order toartificially prolong their natural life span. This sometimes leads toextension of pain and agony both physical and mental which theydesperately seek to end by making an informed choice and clearlyexpressing their wishes in advance, (called living will) in the event ofthey going into state when it will not be possible for them to expresstheir wishes.5. The petitioner further pleads that it is common law right ofthe people, of any civilised country, to refuse unwanted medical treatmentand no person can force him/her to take any medical treatment whichthe person does not desire to continue with. It is submitted that to initiatea medical treatment to person who has reached at an end of his lifeand the process of his/her death has already commenced against thewishes of that person will be violative of his/her right to liberty. The rightto be free from unwanted life-sustaining medical treatment is rightprotected by Article 21. Even the right to privacy which has also beenheld to be part of right to life is being violated as the people are notbeing given any right to make an informed choice and personal decisionabout withholding or withdrawing life sustaining medical treatment.

B. MAN & MEDICINE

6. Human being mortal, death is an accepted phenomenon.Anyone born on the earth is sure to die. Human body is prone to diseaseand decay. Human being after getting knowledge of various science andart always fought with failure and shortcomings of human body. Variousways and means of healing its body were found and invented by mankind.The branch of medicine is practiced from ancient time both in India and

Aother parts of the World. In our country “Charak Samhita” is treatiseof medicine which dates back 1000 BC.

7. In Western World “Hippocrates” is regarded as “father ofwestern medicine”. Hippocratic period dates from 460 BC. “CorpusHippocraticum” comprises of not only general medical prescription,Bdescription of diseases, diagnosis, dietary recommendations but alsoopinion of professional ethics of physician. Thus, those who practicedmedicine from ancient time were ordained to follow some ethicalprinciples. For those who follow medical profession ‘Hippocratic Oath’was always treated to be Oath to which every medical professional washeld to be bound. It is useful to refer to original Hippocratic Oath, (asCtranslated into English):

“I swear by Apollo, the healer, Asclepius, Hygieia, andPanacea, and I take to witness all the gods, all the goddesses,to keep according to my ability and my judgment, the followingOath and agreement:

To consider dear to me, as my parents, him who taught methis art; to live in common with him and, if necessary, to sharemy goods with him; To look upon his children as my ownbrothers, to teach them this art.

EI will prescribe regimens for the good of my patients accordingto my ability and my judgment and never do harm to anyone.

I will not give lethal drug to anyone if I am asked, nor willI advise such plan; and similarly I will not give woman apessary to cause an abortion.

FBut I will preserve the purity of my life and my arts.

I will not cut for stone, even for patients in whom the diseaseis manifest; I will leave this operation to be performed bypractitioners, specialists in this art.

In every house where I come I will enter only for the good ofGmy patients, keeping myself far from all intentional ill-doingand all seduction and especially from the pleasures of lovewith women or with men, be they free or slaves.

All that may come to my knowledge in the exercise of myprofession or in daily commerce with men, which ought not toHbe spread abroad, I will keep secret and will never reveal.

If I keep this oath faithfully, may I enjoy my life and practicemy art, respected by all men and in all times; but if I swervefrom it or violate it, may the reverse be my lot.”

8. The noticeable portion of the Hippocratic Oath is that medicalpractitioner swears that he will not give lethal drug to anyone nor hewill advise such plan.

9. At this juncture, it shall be useful to refer to thoughts of Plato, acelebrated Greek Philosopher, on “physician” and treatment which heexpressed in his treatise ‘Republic’. Plato in “The Republic of Plato”,(translated by Francis Macdonald Cornford) while discussing “physician”,in Chapter IX states:

“Shall we say, then, that Asclepius recognized this andrevealed the art of medicine for the benefit of people of soundconstitution who normally led healthy life, but hadcontracted some definite ailment? He would rid them of theirdisorders by means of drugs or the knife and tell them to goon living as usual, so as not to impair their usefulness ascitizens. But where the body was diseased through and through,he would not try, by nicely calculated evacuations and doses,to prolong miserable existence and let his patient begetchildren who were likely to be as sickly as himself. Treatment,he thought, would be wasted on man who could not live inhis ordinary round of duties and was consequently useless tohimself and to society.”

10. Plato in the same Chapter in little harsher words further states:

“But if man had sickly constitution and intemperate habits,his life was worth nothing to himself or to anyone else;medicine was not meant for such people and they should notbe treated, though they might be richer than Midas.”

11. From what has been noted above, it is apparent that althoughon one hand medical professional has to take Hippocratic Oath that heshall treat his patient according to his ability and judgment and never doharm to anyone. Further, he will not give any lethal drug to anyone evenhe is asked for, on the other hand Plato held that those who has sicklyconstitution and intemperate habits should not be helped by medicine.Thus, the cleavage in views regarding ethics of medical professional

Aas well as not supporting medical treatment for those who are thoroughlydiseased is found from ancient time in Greek thoughts itself.

12. The dilemma of medical professional still continues to this dayand medical professionals are hesitant in adopting course which maynot support the life of patient or lead to patient’s death. NumerousBcases raising conflicting views were brought before the Courts in thedifferent parts of the World, some of which we shall refer hereinafter.

13. There has been considerable development in medical sciencefrom ancient time to this day. There has been substantial acceptance ofnatural and human rights of the human beings which found expression inC“United Nations Human Rights Declaration, 1948” and subsequentdeclarations. The right of self-determination of an individual has beenrecognised throughout the World.

C. CONCEPT OF LIFE & DEATH

14. In the ancient India, on ‘life’ and ‘death’ there is considerableDliterature. According to Hinduism, life never comes to an end. The soulnever die although body may decay. The soul is continuous and perpetualwhich is not merely biological identity, death is not the end of life butonly transformation of body. In “Bhagavad-gita” Chapter II Verse22 (as translated in English), it is stated by Lord Krishna:

E“22.As man shedding worn-out garments, takes other newones, likewise the embodied soul, casting off worn-out bodies,enters into others that are new.”

15. The death was never feared in ancient Indian culture andmythology. Death was treated sometimes means to obtain liberationFthat is ‘moksha’. Every life is gift of God and sacred and it has to beprotected at all cost. No person is bestowed with the right to end his orher life. However, an individual’s act of discarding mortal body may bepermissible under certain circumstances. In ancient Indian religion,sanctity was attached to Yogi (a person who has mastered the art ofregulating his involuntary physical and mental functions, at will) canGdiscard his/her mortal coil(body) through the process of higher spiritualpractices called yoga. Such state was known as ‘Samadhi’. But therewas no concept in ancient India/mythology of putting an end to life ofanother human being which was always regarded as crime and against‘dharma’.

16. The Vedic Rules also forbid suicide whereas according toancient hindu culture, man in his fourth stage, i.e., Vanaprastha couldgo into the forest sustaining only on water and air, end his body. Brahminalso could have got rid of his body by drowning oneself in river,precipitating oneself from mount, burning oneself or starving oneselfto death; or by one of those modes of practising austerities, mentionedabove. The Laws of Manu as contained in Sacred Books of the East,Edited by Max Muller, Volume 25 Chapter VI verses 31 and 32 refers toabove. The Book also refers to views of various commentators on verses31 and 32. It is useful to extract verses 31 and 32 and Note of theauthor on aforesaid verses containing the views of differentcommentators which are to the following effect:

“31.Or let him walk, fully determined and going straight on,in north-easterly direction, subsisting on water and air, untilhis body sinks to rest.

32. Brahmana, having got rid of his body by one of thosemodes practised by the great sages, is exalted in the world ofBrahman, free from sorrow and fear.

——————————————————————

31. Gov. and Kull. take yukta, firmly resolved’ (Nar., Ragh.),in the sense of ‘intent on the practice of Yoga.’ Gov. and Kull.(see also Medh. on the next verse) say that man mayundertake the Mahaprasthana, or’ Great Departure,’ on ajourney which ends in death, when he is incurably diseasedor meets with great mis-fortune, and that, because it is taughtin the Sastras, it is not opposed to the Vedic rules which forbidsuicide. From the parallel passage of Ap. II, 23, 2, it is,however, evident that voluntary death by starvation wasconsidered the befitting conclusion of hermit’s life. Theantiquity and general prevalence of the practice may beinferred from the fact that the Gaina ascetics, too, consider itparticularly meritorious.

32. By one of those modes,’ i.e. drowning oneself in river,precipitating oneself from mount, burning oneself or starvingoneself to death’ (Medh.); or ‘by one of those modes ofpractising austerities, mentioned above, verse 23’ (Gov., Kull.,Nar., Nand.). Medh. adds long discussion, trying to prove

Athat the world of Brahman,’ which the ascetic thus gains, isnot the real complete liberation.”

17. The Hindu Sculpture also says that life and death is the gift ofGod and no human being has right to take away the said gift. Thesuicide is disapproved in Hindu way of life and it is believed that thoseBwho commit suicide did not attain Moksha or Salvation from the cycle oflife and death.

18. The Muslims also strongly condemn suicide as they believethat life and death of person depends on Allah’s will and human beingsare prohibited in going against HIS will.

19. Christianity also disapprove taking of one’s life. Bible saysthat human being is temple of God and the spirit of God dwelleth in thebody and no man can defile the temple. Reference is made to Chapter3 verses 16 and 17 of I CORINTHIA NS , which is as below:-

“16. Know Ye not that ye are the temple of God, and that theDSpirit of God dwelleth in you?

17. If any man defile the temple of God, him shall God destroy;for the temple of God is holy, which temple ye are.”

20. Pope John Paul II in, “The Gospel of Life”, denouncingeuthanasia writes:E

“Laws which authorise and promote euthanasia are thereforeradically opposed not only to the good of the individual butalso to the common good; as such they are completely lackingin authentic juridical validity. Disregarded for the right tolife, precisely because it leads to the killing of the personFwhom society exists to serve, is what most directly conflictswith the possibility of achieving the common good.Consequently, civil law authorising euthanasia ceases bythat very fact to be true, morally binding civil law.”

21. The tenets of Jainism also talks about the practice of religiouslyGnominated self-build death called “Sallkhana”, meaning ‘fast upto death’.

22. The Buddhist sculpture states that Lord Buddha had alsoallowed self-build death for the extremely ill person as an act ofcompassion.

23. In different religions and cultures, there are clear injunctionsagainst taking life of oneself.

24. The petitioner in the Writ Petition has categorically clarifiedthat petitioner is neither challenging the provisions of I.P.C. by which“attempt to suicide” is made penal offence nor praying right to die bedeclared as fundamental right under Article 21. It is useful to refer toPara 7 of the Writ Petition, in which petitioner pleads following:-

“It is submitted at the outset that the petitioner in the instantpetition is neither challenging the Section 309 of Indian PenalCode, vide which Attempt to Suicide is penal offence nor isasking right to die per se as fundamental right under Article21 (as the issue is squarely covered by the Constitution Benchjudgment of this Hon’ble Court in the case of Gian Kaur vs.State of Punjab and in other connected matters, (1996) 2 SCC648. The endeavour of the Petitioner in the instant petition isto seek guidelines from this Hon’ble Court whereby the peoplewho are diagnosed of suffering from terminal diseases orailments can execute Living Will or give directives in advanceor otherwise to his/her attorney/executor to act in specificmanner in the event he/she goes into persistent vegetativestate or coma owing to that illness or due to some otherreason.”

D. THE RELEVANT PROVISIONS OF IPC

25. The Indian Penal Code, 1860, is general penal code definingvarious acts which are offence and providing for punishment thereof.Chapter XVI deals with “offences affecting the human body”. Theprovisions of Indian Penal Code which are relevant in the present contextare Section 306 and Section 309. Section 306 relates to abetment ofsuicide. It provides “if any person commits suicide, whoever abets thecommission of such suicide, shall be punished with imprisonment of eitherdescription for term which may extend to ten years, and shall also beliable to fine”. Another provision which is relevant is Section 309 i.e.attempt to commit suicide. The provision states, whoever attempts tocommit suicide and does any act towards the commission of such offence,shall be punished with simple imprisonment for term which may extendto one year (or with fine, or with both). The issues which have come upfor consideration in the present case have to be dealt with keeping in

Aview the above provisions of Indian Penal Code which declares certainacts to be offence.

E. LEGISLATION IN REFERENCE TO EUTHANASIA

26. The only statutory provision in our country which refers toeuthanasia is statutory regulations framed under Indian Medical CouncilBAct, 1956, namely The Indian Medical Council (Professional Conduct,Etiquette & Ethics) Regulations, 2002. Chapter VI of the Regulationsdeals with “Unethical Acts”. Regulation 6 is to the following effect:

“6. UNETHICAL ACTS

CA physician shall not aid or abet or commit any of the followingacts which shall be construed as unethical-

………………………………………………

6.7 Euthanasia- Practising euthanasia shall constituteDunethical conduct. However, on specific occasion, the questionof withdrawing supporting devices to sustain cardiopulmonaryfunction even after brain death, shall be decided only by ateam of doctors and not merely by the treating physician alone.A team of doctors shall declare withdrawal of support system.Such team shall consist of the doctor in-charge of the patient,EChief Medical Officer/Medical Officer in-charge of thehospital and doctor nominated by the in-charge of thehospital from the hospital staff or in accordance with theprovisions of the Transplantation of Human Organ Act, 1994.”

27. The Law Commission of India had stated and submitted aFdetailed report on the subject in 196[th] report on “Medical Treatment toTerminally Ill Patients (Protection of Patients and Medical Practitioners)”.Law Commission examined various provisions of Indian Penal Codeand other statutory provisions, judgments of this court and different courtsof other countries and had made certain recommendations. draft billGwas also made part of the recommendation. Draft bill namely MedicalTreatment to Terminally Ill Patients (Protection of Patients and MedicalPractitioners) Bill, 2006, was made part of the report as an Annexure.

28. Chapter 8 of the report contains summary of recommendations.It is not necessary to reproduce all the recommendations. It is sufficientHto refer to para 1 and 2 of the recommendations:

“...In the previous chapters, we have considered variousimportant issues on the subject of withholding or withdrawingmedical treatment (including artificial nutrition and hydration)from terminally ill-patients. In Chapter VII, we have consideredwhat is suitable for our country. Various aspects arise forconsideration, namely, as to who are competent andincompetent patients, as to what is meant by ‘informeddecision’, what is meant by ‘best interests’ of patient, whetherpatients, their relations or doctors or hospitals can move aCourt of law seeking declaration that an act or omission ora proposed act or omission of doctor is lawful, if so, whethersuch decisions will be binding on the parties and doctors, infuture civil and criminal proceedings etc. Questions havearisen whether patient who refuses treatment is guilty ofattempt to commit suicide or whether the doctors are guilty ofabetment of suicide or culpable homicide not amounting tomurder etc. On these issues, we have given our views inChapter VII on consideration of law and vast comparativeliterature.

In this chapter, we propose to give summary of ourrecommendations and the corresponding sections of theproposed Bill which deal with each of the recommendations.(The draft of the Bill is annexed to this Report). We shall nowrefer to our recommendations.

1) There is need to have law to protect patients who areterminally ill, when they take decisions to refuse medicaltreatment, including artificial nutrition and hydration, so thatthey may not be considered guilty of the offence of ‘attemptto commit suicide’ under sec.309 of the Indian Penal Code,1860.

It is also necessary to protect doctors(and those who actunder their directions) who obey the competent patient’sinformed decision or who, in the case of (i) incompetentpatients or (ii) competent patients whose decisions are notinformed decisions, and decide that in the best interests ofsuch patients, the medical treatment needs to be withheld orwithdrawn as it is not likely to serve any purpose. Such actionsof doctors must be declared by statute to be ‘lawful’ in order

to protect doctors and those who act under their directions ifthey are hauled up for the offence of ‘abetment of suicide’under sections 305, 306 of the Indian Penal Code, 1860, orfor the offence of culpable homicide not amounting to murderunder section 299 read with section 304 of the Penal Code,1860 or in actions under civil law.

2)Parliament is competent to make such law under Entry26 of List III of the Seventh Schedule of the Constitution ofIndia in regard to patients and medical practitioners. Theproposed law, in our view, should be called ‘The MedicalTreatment of Terminally Ill Patients (Protection of Patients,CMedical Practitioners) Act.”

29. The 196[th] Report was again revised by the Law Commissionof India in 241[st] Report dated August, 2012. The 2006 draft bill wasredrafted by Law Commission which was Annexure 1 to the report.The above bill however could not fructify in law. The Ministry ofDhealth and family welfare had published another draft bill namely TheMedical Treatment of Terminally Ill Patients (Protection of Patients &Medical Practitioners) Bill, 2016, as private member bill which wasintroduced in Rajya Sabha on 5[th] August 2016, which is still pending.

30. From the above, it is clear that only statutory provision onEeuthanasia is regulation 6.7 of the 2002 Regulations as referred above.The regulations prohibit practicing euthanasia and declare that practicingeuthanasia constitute unethical conduct on behalf of the medicalpractitioner. The regulation however carves an exception that on specificoccasion, the question of withdrawing supporting devices to sustainFcardio-pulmonary function even after brain death, shall be decided onlyby team of doctors and not merely by the treating physician alone. Theregulation further provides that team of doctors shall declare withdrawalof support system.

31. The withdrawal of medical treatment of terminally ill PersonsGis complex ethical, moral and social issue with which many countrieshave wrestled with their attempt to introduce legal framework for endof life decision making. In absence of comprehensive legal frameworkon the subject the issue has to be dealt with great caution.

F. TWO IMPORTANT JUDGMENTS OF THIS COURTON THE SUBJECT:-

32. The first important judgment delivered by the ConstitutionBench of this court touching the subject is the judgment of ConstitutionBench in Gian Kaur Vs. State of Punjab, (1996) 2 SCC 648. In theabove case, the appellants were convicted under Section 306 and awardedsentence for abetment of commission of suicide by one Kulwant Kaur.The conviction was maintained by the High Court against which theappeal was filed as special leave in this Court. One of the grounds forassailing the conviction before this Court was that Section 306 IPC isunconstitutional. The reliance was placed on two-Judge Bench decisionof this court in P.Rathinam Vs. Union of India & Anr., (1994) 3 SCC394, wherein Section 309 IPC was held to be unconstitutional as violativeof Article 21 of the Constitution.33. Section 306 was sought to be declared as unconstitutionalbeing violative of Article 21 of the Constitution. The Law Commissionby its 22[nd] report had recommended for deletion of Section 309 and aBill was introduced in 1972 to amend the Indian Penal Code by deletingSection 309. The Constitution Bench dwelt the question as to whether‘right to die’ is included in Article 21. The Constitution Bench concludedthat ‘right to die’ “cannot be included as part of fundamental rightsguaranteed under Article 21”.

34. The challenge to section 309 on the basis of Articles 14 and21 was repelled. This court further held that Section 306 of Indian PenalCode does not violate Article 21 and Article 14 of the Constitution ofIndia.

35. The second judgment which needs to be noted in detail is two-Judge Bench judgment of this court in Aruna Ramachandra ShanbaugVs. Union of India & Ors., (2011) 4 SCC 454. Writ Petition underArticle 32 on behalf of Aruna Ramachandra Shanbaug was filed by oneM/s. Pinky Virani claiming to be best friend. Aruna RamachandraShanbaug was staff nurse working in King Edward Memorial (KEM)Hospital, Parel, Mumbai. On 27.11.1973, she was attacked by asweeper of the hospital who wrapped dog chain around her neck andyanked her back with it. While sodomising her, he twisted the chainaround her neck, as result supply of oxygen to the brain stopped andthe brain got damaged. On the next day she was found in unconscious

Acondition. From the date of above incident she continued to be in persistentvegetative state(PVS) having no state of awareness, she was bed-ridden,unable to express herself, unable to think, hear and see anything orcommunicate in any manner. In writ petition under Article 32 it wasprayed that the hospital where she is laying for last 36 years be directedto stop feeding and let her die peacefully. In the above case, Two-JudgeBBench considered all aspects of euthanasia, the court examined bothactive and passive euthanasia. Dealing with active and passive euthanasiaand further voluntary and involuntarily euthanasia, following was laiddown in para 39 and 40:

“39. Coming now to the legal issues in this case, it may beCnoted that euthanasia is of two types: active and passive.Active euthanasia entails the use of lethal substances or forcesto kill person e.g. lethal injection given to person withterminal cancer who is in terrible agony. Passive euthanasiaentails withholding of medical treatment for continuance ofDlife e.g. withholding of antibiotics where without giving it apatient is likely to die, or removing the heart-lung machine,from patient in coma. The general legal position all overthe world seems to be that while active euthanasia is legaleven without legislation provided certain conditions andsafeguards are maintained.”

40. further categorisation of euthanasia is between voluntaryeuthanasia and non-voluntary euthanasia. Voluntaryeuthanasia is where the consent is taken from the patient,whereas non-voluntary euthanasia is where the consent isunavailable e.g. when the patient is in coma, or is otherwiseFunable to give consent. While there is no legal difficulty inthe case of the former, the latter poses several problems, whichwe shall address.”

36. The court held that in India, active euthanasia is illegal andcrime. In paragraph 41, following was held:

“41. As already stated above active euthanasia is crime allover the world except where permitted by legislation. In Indiaactive euthanasia is illegal and crime under Section 302 oratleast under Section 304 of the Penal Code, 1860. Physician-assisted suicide is crime under Section 306 IPC (abetment

to suicide). Active euthanasia is taking specific steps to causethe patient’s death, such as injecting the patient with somelethal substance e.g. sodium pentothal which causes persondeep sleep in few seconds, and the person instantaneouslyand painlessly dies in this deep sleep.”

37. The court noticed various judgments of different countries inthe above context. Two-Judge Bench also referred to Constitution Benchjudgment in Gian Kaur Vs. State of Punjab. In Para 101 and 104,following has been laid down:

“101. The Constitution Bench of the Supreme Court in GinaKaur V. State of Punjab held that both euthanasia and assistedsuicide are not lawful in India. That decision overruled theearlier two-Judge Bench decision of the Supreme Court inP.Rathinam V. Union of India. The Court held that the rightto life under Article 21 of the Constitution does not includethe right to die. In Gian Kaur case the Supreme Courtapproved of the decision of the House of Lords in Airedalecase and observed that euthanasia could be made lawful onlyby legislation.

104. It may be noted that in Gian Kaur Case although theSupreme Court has quoted with approval the view of theHouse of Lords in Airedale case, it has not clarified who candecide whether life support should be discontinued in thecase of an incompetent person e.g. person in coma or PVS.This vexed question has been arising often in India becausethere are large number of cases where persons go intocoma(due to an accident or some other reason) or for someother reason are unable to give consent, and then the questionarises as to who should give consent for withdrawal of lifesupport. This is an extremely important question in Indiabecause of the unfortunate low level of ethical standards towhich our society has descended, its raw and widespreadcommercialisation, and the rampant corruption, and hence,the Court has to be very cautious that unscrupulous personswho wish to inherit the property of someone may not get himeliminated by some crooked method.”

A38. Two-Judge Bench noticed that there is no statutory provisionin this country as to the legal procedure to withdraw life support to aperson in Persistent Vegetative State (PVS) or who is otherwiseincompetent to take the decision in this connection. The court, however,issued certain directions which were to continue to be the law untilParliament makes law on this subject. In paragraph 124, following hasBbeen laid down: -

“124. There is no statutory provision in our country as to thelegal procedure for withdrawing life support to person inPVS or who is otherwise incompetent to take decision inthis connection. We agree with Mr. Andhyarujina that passiveeuthanasia should be permitted in our country in certainsituations, and we disagree with the learned Attorney Generalthat it should never be permitted. Hence, following thetechnique used in Vishaka case, we are laying down the lawin this connection which will continue to be the law untilParliament makes law on the subject:

(i) decision has to be taken to discontinue life supporteither by the parents or the spouse or other closerelatives, or in the absence of any of them, such adecision can be taken even by person or body ofpersons acting as next friend. It can also be taken bythe doctors attending the patient. However, the decisionshould be taken bona fide in the best interest of thepatient.

In the present case, we have already noted that ArunaShanbaug’s parents are dead and other close relatives arenot interested in her ever since she had the unfortunateassault on her. As already noted above, it is the KEMhospital staff, who have been amazingly caring for herday and night for so many long years, who really are hernext friends, and not Ms. Pinki Virani who has only visitedher on few occasions and written book on her. Hence itis for the KEM Hospital staff to take that decision. KEMHospital staff have clearly expressed their wish that ArunaShanbaug should be allowed to live.

Mr. Pallav Shishodia, learned Senior Counsel, appearingfor the Dean, KEM Hospital, Mumbai, submitted that Ms.Pinki Virani has no locus standi in this case. In our opinionit is not necessary for us to go into this question since weare of the opinion that it is the KEM Hospital staff who isreally the next friend of Aruna Shanbaug.

We do not mean to decry or disparage what Ms. PinkiVirani has done. Rather, we wish to express ourappreciation of the splendid social spirit she has shown.We have seen on the internet that she has been espousingmany social causes, and we hold her in high esteem. Allthat we wish to say is that however much her interest inAruna Shanbaug may be it cannot match the involvementof the KEM Hospital staff who have been taking care ofAruna day and night for 38 years.

However, assuming that the KEM Hospital staff at somefuture time changes its mind, in our opinion in such asituation KEM Hospital would have to apply to the BombayHigh Court for approval of the decision to withdraw lifesupport.

(ii) Hence, even if decision is taken by the near relativesor doctors or next friend to withdraw life support, sucha decision requires approval from the High Courtconcerned as laid down in Airedale case.

In our opinion, this is even more necessary in our countryas we cannot rule out the possibility of mischief being doneby relatives or others for inheriting the property of thepatient.”

G. LAW ON SUBJECT IN OTHER COUNTRIES

39. The debate on Euthanasia had gathered momentum in last100 years. The laws of different countries expresses thoughts of peoplebased on different culture, philosophy and social conditions. Assistedsuicide was always treated as an offence in most of the countries.Physician assisted suicide is also not accepted in most of the countriesexcept in few where it gain ground in last century. In several countriesincluding different States of U.S.A., European Countries and United

AKingdom, various legislations have come into existence codifying differentprovisions pertaining to physician assisted suicide. The right to notcommence or withdraw medical treatment in case of terminally ill orPSV patients, advance medical directives have also been made part ofdifferent legislations in different countries.

40. Physician assisted suicide has not been accepted by manycountries. However, few have accepted it and made necessary legislationto regulate it. Switzerland, Netherlands, Belgium, Luxembourg, andAmerican States of Oregan, Washington, Montana and Columbia haspermitted physician assisted suicide with statutory regulations. Courts indifferent parts of the world have dealt with the subject in issue in detail.CIt is not necessary to refer to different legislation of different countriesand the case law on subject of different countries. For the purposes ofthis case, it shall be sufficient to notice few leading cases of UnitedKingdom, United States Supreme Court and few others countries.

United KingdomD

41. Euthanasia is criminal offence in the United Kingdom.According to Section 2(1) of the Suicide Act, 1961, person assisting anindividual, who wish to die commits an offence. The provision statesthat it is an offence to aid, abet, counsel or procure the suicide of anotheror an attempt by another to commit suicide, however, it is not crime ifEit is by their own hands. There has been large parliamentary oppositionto the current United Kingdom Law concerning assisted suicide but therehas been no fundamental change in the law so far. In 1997, the DoctorAssisted Dying Bill as well as in 2000, the Medical Treatment (Preventionof Euthanasia) Bill were not approved. The most celebrated judgmentFof the House of Lords is Airedale N.H.S. Trust Vs. Bland, (1993)A.C. 789.42. Anthony David Bland was injured on 15[th] April, 1989 at theHillsborough football ground in which his lungs were crushed andpunctured, the supply of oxygen to the brain was interrupted. As result,Ghe sustained catastrophic and irreversible damage to the higher centresof the brain, which had left him in condition known as persistentvegetative state(P.V.S.). Medical opinion was unanimous that there wasno hope of improvement in his condition or recovery. At no time beforethe disaster had the patient indicated his wishes if he should find himselfin such condition. Bland’s father sought declarations that Hospital

authorities may discontinue all his life-sustaining treatment and medicalsupport measures and further lawfully discontinue and thereafter neednot furnish medical treatment to the patient except for the sole purposeof enabling the patient to end his life and die peacefully with the greatestdignity and the least of pain, suffering and distress.

43. The lower court granted the declarations sought for. The courtof appeal upheld the order. Official Solicitor filed an appeal before theHouse of Lords. Lord Goff held that it is not lawful for doctor toadminister drug to his patient to bring about his death, even though thatcourse is prompted by humanitarian desire to end his suffering. Suchact is actively causing death i.e. euthanasia which is not lawful. It wasfurther held that case in which doctor decides not to provide or continueto provide treatment or care, it may be lawful. Following was stated byLord Goff:

“First, it is established that the principle of self-determinationrequires that respect must be given to the wishes of the patient,so that if an adult patient of sound mind refuses, howeverunreasonably, to consent to treatment or care by which hislife would or might be prolonged, the doctors responsible forhis care must give effect to his wishes even though they donot consider it to be in his best interests to do so...........

To this extent, the principle of the sanctity of human life mustyield to the principle of self-determination(see ante, pp.826H-827A, per Hoffmann L.J.), and, for present purposes perhapsmore important, the doctor’s duty to act in the best interestsof his patient must likewise be qualified. On this basis, it hasbeen held that patient of sound mind may, if properlyinformed, require that life support should be discontinued:see Nancy B. v. H”tel-Dieu de Quebec (1992) 86 D.L.R.(4[th])385. Moreover the same principle applies where the patient’srefusal to give his consent has been expressed at an earlierdate, before he became unconscious or otherwise incapableof communicating it; though in such circumstances especialcare may be necessary to ensure that the prior refusal ofconsent is still properly to be regarded as applicable in thecircumstances which have subsequently occurred: see, e.g.,In re T.(Adult: Refusal of Treatment)(1993) Fam.95.I wish toadd that, in cases of this kind, there is no question of the

patient having committed suicide, nor therefore of the doctorhaving aided or abetted him in doing so. It is simply that thepatient has, as he is entitled to do, declined to consent totreatment which might or would have the effect of prolonginghis life, and the doctor has, in accordance with his duty,complied with his patient’s wishes................

I must however stress, at this point, that the law draws crucialdistinction between cases in which doctor decides not toprovide, or to continue to provide, for his patient treatmentor care which could or might prolong his life, and those inwhich he decides, for example by administering lethal drug,actively to bring his patient’s life to an end. As I have alreadyindicated, the former may be lawful, either because the doctoris giving effect to his patient’s wishes by withholding thetreatment or care, or even in certain circumstances in which(on principles which I shall describe) the patient isincapacitated from stating whether or not he gives his consent.But it is not lawful for doctor to administer drug to hispatient to bring about his death, even though that course isprompted by humanitarian desire to end his suffering,however great that suffering may be: see Reg. v. Cox(unreported), 18 September, 1992. So to act is to cross theRubicon which runs between on the one hand the care of theliving patient and on the other hand euthanasia-activelycausing his death to avoid or to end his suffering. Euthanasiais not lawful at common law. It is of course well known thatthere are many responsible members of our society who believethat euthanasia should be made lawful; but that result could,I believe, only be achieved by legislation which expresses thedemocratic will that so fundamental change should be madein our law, and can, if enacted, ensure that such legalisedkilling can only be carried out subject to appropriatesupervision and control..................................

At the heart of this distinction lies theoretical question. Whyis it that the doctor who gives his patient lethal injectionwhich kills him commits an unlawful act and indeed is guiltyof murder, whereas doctor who, by discontinuing lifesupport, allows his patient to die, may not act unlawfully –

and will not do so, if he commits no breach of duty to hispatient ?”

44. Lord Browne-Wilkinson in his judgment noticed thefollowing questions raised in the matter:

“(1) lawfully discontinue all life-sustaining treatment andmedical support measures designed to keep (Mr. Bland) alivein his existing persistent vegetative state including thetermination of ventilation, nutrition and hydration by artificialmeans; and

(2) lawfully discontinue and thereafter need not furnishmedical treatment to (Mr. Bland) except for the sole purposeof enabling (Mr. Bland) to end his life and die peacefullywith the greatest dignity and the least of pain, suffering anddistress.”

Answering the questions following was held:

“Anthony Bland has been irreversibly brain damaged; themost distinguished medical opinion is unanimous that there isno prospect at all that the condition will change for the better.He is not aware of anything. If artificial feeding isdiscontinued and he dies, he will feel nothing. Whether helives or dies he will feel no pain or distress. All the purelyphysical considerations indicate that it is pointless to continuelife support. Only if the doctors responsible for his care heldthe view that, though he is aware of nothing, there is somebenefit to him in staying alive, would there be anything toindicate that it is for his benefit to continue the..................In these circumstances, it is perfectly reasonable for theresponsible doctors to conclude that there is no affirmativebenefit to Anthony Bland in continuing the invasive medicalprocedures necessary to sustain his life. Having so concluded,they are neither entitled nor under duty to continue suchmedical care. Therefore they will not be guilty of murder ifthey discontinue such care.”

45. Another judgment which needs to be noticed is Ms. Vs. AnNHS Hospital Trust, 2002 EWHC 429. The claimant, Ms. hassought declaration from the High Court that the invasive treatment which

Ais currently being given by the respondent by way of artificial ventilationis an unlawful trespass. The main issue raised in the case is as to whetherMs. has the capacity to make her own decision about her treatment inhospital. Ms. B, aged 43 years, had suffered devastating illness whichhas caused her to become tetraplegic and whose expressed wish is notto be kept artificially alive by the use of ventilator. The High Court inBthe above context examined several earlier cases on the principle ofautonomy. Paragraphs 16 to 22 are to the following effect:

“16. In 1972 Lord Reid in S v McC: W v W [1972] AC 25said, at page 43:

“…English law goes to great lengths to protect person offull age and capacity from interference with his personalliberty. We have too often seen freedom disappear in othercountries not only by coups d’état but by gradual erosion:and often it is the first step that counts. So it would be unwiseto make even minor concessions.”

17. In re (Mental Patient: Sterilisation) [1990] 2 AC 1,Lord Goff of Chieveley said at page 72:

“I start with the fundamental principle, now long established,that every person’s body is inviolate.”

18. Lord Donaldson of Lymington, MR said in re T (Adult:Refusal of Treatment) [1993] Fam 95, at page 113:

“…. . the patient’s right of choice exists whether the reasonsfor making that choice are rational, irrational, unknown oreven non-existent.”

19. In re T (Adult: Refusal of Treatment), I cited Robins JAin Malette v Shulman 67 DLR (4th) 321 at 336, and said atpage 116-117:

“The right to determine what shall be done with one’s ownbody is fundamental right in our society. The conceptsinherent in this right are the bedrock upon which theprinciples of self-determination and individual autonomyare based. Free individual choice in matters affecting thisright should, in my opinion, be accorded very high priority.”

20. In re MB (Medical Treatment) [1997] 2 FLR 426, I saidat 432:

“A mentally competent patient has an absolute right torefuse to consent to medical treatment for any reason,rational or irrational, or for no reason at all, even wherethat decision may lead to his or her own death”, (referringto Sidaway v Board of Governors of the Bethlehem RoyalHospital and the Maudsley Hospital [1985] AC 871, perLord Templeman at 904-905; and to Lord Donaldson M.R.in re T (Adult: Refusal of Treatment) (see above)).

21. This approach is identical with the jurisprudence in otherparts of the world. In Cruzan v Director, Missouri Departmentof Health (1990) 110 S. Ct 2841, the United States SupremeCourt stated that:

“No right is held more sacred, or is more carefully guarded…than the right of every individual to the possession and controlof his own person, free from all restraint or interference ofothers, unless by clear and unquestionable authority of law.”

b. The sanctity of life

22. Society and the medical profession in particular areconcerned with the equally fundamental principle of thesanctity of life. The interface between the two principles ofautonomy and sanctity of life is of great concern to the treatingclinicians in the present case. Lord Keith of Kinkel in AiredaleNHS Trust v Bland [1993] AC 789, said at page 859:

“.. the principle of the sanctity of life, which it is the concernof the state, and the judiciary as one of the arms of thestate, … is not an absolute one. It does not compel medicalpractitioner on pain of criminal sanctions to treat patient,who will die if he does not, contrary to the express wishesof the patient.””

46. The judgment of House of Lords in Regina (Pretty) Vs.Director of Public Prosecutions (Secretary of State for the HomeDepartment intervening),(2002) 1 AC 800, also needs to be referredto. The claimant, who suffered from progressive and degenerativeterminal illness, faced the imminent prospect of distressing and

Ahumiliating death. She was mentally alert and wished to control the timeand manner of her dying but her physical disabilities prevented her fromtaking her life unaided. She wished her husband to help her and he waswilling to do so provided that in the event of his giving such assistance hewould not be prosecuted under Section 2(1) of the Suicide Act, 1961.The claimant accordingly requested the Director of Public ProsecutionsBto undertake that he would not consent to such prosecution underSection 2(4). On his refusal to give that undertaking the claimant, inreliance on rights guaranteed by the European Convention for theProtection of Human Rights and Fundamental Freedoms as Schedule tothe Human Rights Act, 1998, sought relief by way of judicial review.C

47. The Divisional Court of the Queen’s Bench Division concludedthat the Director has no power to give an undertaking and dismissed theclaim. The House of Lords again reiterated the distinction between thecessation of life-saving or life-prolonging treatment on the one hand andthe taking of action intended solely to terminate life on the other. InDparagraph 9 of the judgment following was held:

“9. In the Convention field the authority of domesticdecisions is necessarily limited and, as already noted, MrsPretty bases her case on the Convention. But it is worthy ofnote that her argument is inconsistent with two principlesEdeeply embedded in English law. The first is distinctionbetween the taking of one’s own life by one’s own act and thetaking of life through the intervention or with the help of athird party. The former has been permissible since suicideceased to be crime in 1961. The latter has continued to beproscribed. The distinction was very clearly expressed byFHoffmann LJ in Airedale NHS Trust v Bland [1993] AC 789,831:F

“No one in this case is suggesting that Anthony Blandshould be given lethal injection. But there is concernabout ceasing to supply food as against, for example,Gceasing to treat an infection with antibiotics. Is there anyreal distinction? In order to come to terms with our intuitivefeelings about whether there is distinction, I must startby considering why most of us would be appalled if hewas given lethal injection. It is, I think, connected withour view that the sanctity of life entails its inviolability by

an outsider. Subject to exceptions like self-defence, humanlife is inviolate even if the person in question has consentedto its violation. That is why although suicide is not crime,assisting someone to commit suicide is. It follows that, evenif we think Anthony Bland would have consented, we wouldnot be entitled to end his life by lethal injection.”

The second distinction is between the cessation of life-savingor life-prolonging treatment on the one hand and the takingof action lacking medical, therapeutic or palliativejustification but intended solely to terminate life on the other.This distinction provided the rationale of the decisions inBland. It was very succinctly expressed in the Court of AppealIn re] (A Minor) (Wardship: Medical Treatment) [1991] Fam33, in which Lord Donaldson of Lymington MR said, at p46:

“What doctors and the court have to decide is whether, inthe best interests of the child patient, particular decisionas to medical treatment should be taken which as sideeffect will render death more or less likely. This is not amatter of semantics. It is fundamental. At the other end ofthe age spectrum, the use of drugs to reduce pain will oftenbe fully 8 justified, notwithstanding that this will hastenthe moment of death. What can never be justified is theuse of drugs or surgical procedures with the primarypurpose of doing so.”

United States of America

48. The State of New York in 1828 enacted statute declaringassisted suicide as crime. New York example was followed by differentother States.

49. Cardozo, J., about century ago in Schloendroff Vs. Societyof New York Hospital, 211 N.Y. 125, while in Court of Appeal hadrecognised the right of self-determination by every adult human being.Following was held:

“Every human being of adult years and sound mind has aright to determine what shall be done with his own body; anda surgeon who performs an operation without his patient’s

Aconsent commits an assault, for which he is liable in damages.Pratt v. Davis, 224 Ill., 300, 79 N.E. 562, 7 L.R.A. (N.S.)609, 8 Ann. Cas, 197: Mohr v. Williams, 95 Minn. 261, 104N.W. 12.1 L.R. A.(N.S.), 111 Am. St. Rep. 462, 5 Ann. Cas,303. This is true, except in cases of emergency where the patientis unconscious, and where it is necessary to operate before consentBcan be obtained.”

50. Supreme Court of United States of America in Nancy BethCruzan Vs. Director, Missouri Department of Health, 497 U.W. 261,had occasion to consider case of patient who was in persistentvegetative state, her guardian brought declaratory judgment seekingjudicial sanction to terminate artificial hydration and nutrition of patient.The Supreme Court recognised right possessed by every individual tohave control over own person. Following was held by Rehnquist, CJ:

“At common law, even the touching of one person by anotherwithout consent and without legal justification was battery.See W. Keeton, D.Dobbs, R. Keeton, & D. Owen, Prosser andKeeton on Law of Torts, 9, pp.39-42 (5[th] ed. 1984). Beforethe turn of the century, this Court observed that “no right isheld more sacred, or is more carefully guarded, by the commonlaw, than the right of every individual to the possession andcontrol of his own person, free from all restraint or interferenceof others, unless by clear and unquestionable authority oflaw.” Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). This notion of bodilyintegrity has been embodied in the requirement that informedconsent is generally required for medical treatment. JusticeCardozo, while on the Court of Appeals of New York, aptlydescribed this doctrine: “Every human being of adult yearsand sound mind has right to determine what shall be donewith his own body; and surgeon who performs an operationwithout his patient’s consent commits an assault, for whichhe is liable in damages,” Schloendorff v. Society of New YorkHospital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914).The informed consent doctrine has become firmly entrenchedin American tort law. See Keeton, Dobbs, Keeton, & Owen,supra, 32, pp.189-192; F. Rozovsky, Consent to Treatment, APractical Guide 1-98 (2d ed. 1990).

The logical corollary of the doctrine of informed consent isthat the patient generally possesses the right, not to consent,that is, to refuse treatment.”

51. Referring to certain earlier cases following was held:

“Reasoning that the right of self-determination should not belost merely because an individual is unable to sense violationof it, the court held that incompetent individuals retain rightto refuse treatment. It also held that such right could beexercised by surrogate decision maker using “subjective”standard when there was clear evidence that the incompetentperson would have exercised it. Where such evidence waslacking, the court held that an individual’s right could still beinvoked in certain circumstances under objective “bestinterest” standards. Id., at 361-368, 486 A.2d, at 1229-1233.Thus, if some trustworthy evidence existed that the individualwould have wanted to terminate treatment, but not enough toclearly establish person’s wishes for purposes of thesubjective standard, and the burden of prolonged life fromthe experience of pain and suffering markedly outweighedits satisfactions, treatment could be terminated under a“limited-objective” standard. Where no trustworthy evidenceexisted, and person’s suffering would make theadministration of life-sustaining treatment inhumane, “pure-objective” standard could be used to terminate treatment. Ifnone of these conditions obtained, the court held it was bestto err in favour of preserving life. Id., at 364-368, 486 A.2d,at 1231-1233.”

In the facts of the above case, the claim of parents of Cruzanwas refused since guardian could not satisfactorily prove that Cruzanhad expressed her wish not to continue her life under circumstances inwhich she drifted.

52. All different aspects of euthanasia were again considered bythe United States Supreme Court in Washington, Et Al,, Vs. HaroldGlucksberg Et Al, 521 US 702 equivalent to 138 L.Ed 2d 772. AWashington State statute enacted in 1975 provided that person wasguilty of the felony of promoting suicide attempt when the personknowingly caused or aided another person to attempt suicide. An action

Awas brought in the United States District Court for the Western Districtof Washington by several plaintiffs, among whom were (1) physicianswho occasionally treated terminally ill, suffering patients, and (2)individuals who were then in the terminal phases of serious and painfulillness. The plaintiffs, asserting the existence of liberty interest protectedby the Federal Constitution’s Fourteenth Amendment which extended toBa personal choice by mentally competent, terminally ill adult to commitphysician-assisted suicide, sought declaratory judgment that theWashington Statute was unconstitutional on its face. The District Court,granting motions for summary judgment by the physicians and theindividuals, ruled that the statute was unconstitutional because it placedCan undue burden on the exercise of the asserted liberty interest (850 FSupp 1454, 1994 US Dist LEXIS 5831). On appeal, the United StatesCourt of Appeals for the Ninth Circuit, expressed the view that (1) theConstitution encompassed due process liberty interest in controllingthe time and manner of one’s death; and (2) the Washington Statute was

unconstitutional as applied to terminally ill, competent adults who wishedDto hasten their deaths with medication prescribed by their physicians (79F3d 790, 1996 US App LEXIS 3944).

53. On certiorari, the United States Supreme Court reversed. Inan opinion by Rehnquist, C.J., joined by O’Connor, Scalia, Kennedy,and Thomas, JJ., it was held that the Washington Statute did not violateEthe due process clause- either on the Statute’s face or as the Statutewas applied to competent, terminally ill adults who wished to hastentheir deaths by obtaining medication prescribed by their physicians –because (1) pursuant to careful formulation of the interest at stake, thequestion was whether the liberty specially protected by the due processFclause included right to commit suicide which itself included right toassistance in doing so; (2) an examination of the nation’s history, legaltraditions, and practices revealed that the asserted right to assistance incommitting suicide was not fundamental liberty interest protected bythe due process clause; (3) the asserted right to assistance in committingsuicide was not consistent with the Supreme Court’s substantive dueGprocess line of cases; and (4) the State’s assisted suicide ban was atleast reasonably related to the promotion and protection of number ofWashington’s important and legitimate interests.

54. The US Supreme Court held that Washington statute did notviolate the due process clause. CJ, Rehnquist while delivering theH

opinion of the Court upheld the State’s ban on assisted suicide to thefollowing effect:

“...In almost every State-indeed, in almost every westerndemocracy-it is crime to assist suicide. The States’ assisted-suicide bans are longstanding expressions of the States’commitment to the protection and preservation of all humanlife. Cruzan, supra, at 280, 111 L.Ed 2d 224, 110 S Ct 2841(“The States-indeed, all civilized nations-demonstrate theircommitment to life by treating homicide as serious crime.Moreover, the majority of States in this country have lawsimposing criminal penalties on one who assists another tocommit suicide”); see Stanford v. Kentucky, 492 US 3561,373, 106 L ED 2d 306, 109 S Ct 2969 (1989) (“The primaryand most reliable indication of national consensus is ... thepattern of enacted laws”). Indeed, opposition to andcondemnation of suicide-and, therefore, of assisting suicide-are consistent and enduring themes of our philosophical,legal, and cultural heritages.”

55. Another judgment of US Supreme Court which needs to benoted is Dennis C. Vacco, Attorney General of New York, Et Al. Vs.Timothy E. Quill Et Al, 521 US 793. New York state law as in effectin 1994 provided that person who intentionally caused or aided anotherperson to attempt or commit suicide was guilty of felony; but underother statutes, competent person could refuse even life-saving medicaltreatment. Plaintiff sought declaratory relief and injunctive against theenforcement of criminal law asserting that such law is violative of statutesof the Federal Constitution Fourteenth Amendment.

56. Rehnquist, CJ. in his opinion again upheld distinction betweenassisted suicide and withdrawing of life sustaining treatment. Followingwas laid down:

“[1d] The Court of Appeals, however, concluded that someterminally ill people-those who are on life support systems-are treated differently from those who are not, in that the formermay “hasten death” by ending treatment, but the latter maynot “hasten death” through physician-assisted suicide. 80F.3d, at 729. This conclusion depends on the submission thatending or refusing lifesaving medical treatment “is nothing

more nor less than assisted suicide.” Ibid. Unlike the Courtof Appeals, we think the distinction between assisting suicideand withdrawing life-sustaining treatment, distinction widelyrecognised and endorsed in the medical profession and inour legal traditions, is both important and logical; it is certainlyrational...

The distinction comports with fundamental legal principlesof causation and intent. First, when patient refuses life-sustaining medical treatment, he dies from an underlying fataldisease or pathology; but if patient ingests lethal medicationprescribed by physician, he is killed by that medication....

Furthermore, physician who withdraws, or honors apatient’s refusal to begin, life-sustaining medical treatmentpurposefully intends, or may so intend, only to respect hispatient’s wishes and “to cease doing useless and futile ordegrading things to the patient when the patient no longerstands to benefit from them.”

57. However, there are four States which have passed legislationpermitting euthanasia. These States include Oregon, Washington,Missouri and Texas.

CanadaE

58. Section 241(b) of the Criminal Code provides that everyonewho aids or abets person in committing suicide commits an indictableoffence. In Rodriguez Vs. British Columbia (Attorney General), 1993(3) SCR 519, the Supreme Court of Canada has considered the issue ofassisted suicide. 42 year old lady who was suffering from an incurableFillness applied before the Supreme Court of British Columbia for anorder that Section 241(b) which prohibits giving assistance to commitsuicide, be declared invalid. The application was dismissed and the matterwas taken to the Supreme Court of Canada which held that prohibitionof Section 241(b) which fulfils the government’s objective of protectingGthe vulnerable, is grounded in the State interest in protecting life andreflects the policy of the State that human life should not be depreciatedby allowing life to be taken.

Switzerland

59. In Switzerland the assisted suicide is allowed only for altruisticreasons. person is guilty and deserved to be sentenced for imprisonmenton assisted suicide when he incites someone to commit suicide for selfishreasons.

Netherlands

60. The Netherlands has the most experience with physician-hastened death. Both euthanasia and assisted suicide remain crimes therebut doctors who end their patients’ lives will not be prosecuted if legalguidelines are followed. Among the guidelines are:

31. The request must be made entirely of the patient’s own freewill.

32. The patient must have long-lasting desire for death.

33. The patient must be experiencing unbearable suffering.

34. There must be no reasonable alternatives to relative sufferingother than euthanasia.

35. The euthanasia or assisted suicide must be reported to thecoroner.

61. The above discussion clearly indicates that pre-dominantthought as on date prevailing in other part of the World is that assistedsuicide is crime. No one is permitted to assist another person to commitsuicide by injecting lethal drug or by other means. In India, Section 306of the Indian Penal Code specifically makes it an offence. TheConstitution Bench of this Court in Gian Kaur (supra) has alreadyupheld the constitutional validity of Section 306, thus, the law of the landas existing today is that no one is permitted to cause death of anotherperson including physician by administering any lethal drug even if theobjective is to relive the patient from pain and suffering.

H. RATIO OF GIAN KAUR VS. STATE OF PUNJAB

62. In Gian Kaur’s case (supra), the constitutional validity ofSection 306 of Indian Penal Code, 1860 was challenged. The appellanthad placed reliance on Two Judge Bench Judgment of this Court in P.Rathinam Vs. Union of India (supra), where this Court declaredSection 309 IPC to be unconstitutional as violative of Article 21 of the

AConstitution. It was contended that Section 309 having already beendeclared as unconstitutional, any person abetting the commission of suicideby another is merely assisting in the enforcement of the fundamentalright under Article 21 and, therefore, Section 306 IPC penalising assistedsuicide is equally violative of Article 21. The Court proceeded to considerthe constitutional validity of Section 306 on the above submission. InBPara 17 of the judgment, this Court had made observation that referenceto euthanasia cases tends to befog the real issue. Following are therelevant observations made in Para 17:-“....Any further reference to the global debate on thedesirability of retaining penal provision to punish attemptedCsuicide is unnecessary for the purpose of this decision. Undueemphasis on that aspect and particularly the reference toeuthanasia cases tends to befog the real issue of theconstitutionality of the provision and the crux of the matterwhich is determinative of the issue.”DThe Constitution Bench held that Article 21 does not include rightto die. Paragraph 22 of the judgment contains the ratio in followingwords:-

“....Whatever may be the philosophy of permitting personto extinguish his life by committing suicide, we find it difficultEto construe Article 21 to include within it the “right to die” asa part of the fundamental right guaranteed therein. “Right tolife” is natural right embodied in Article 21 but suicide isan unnatural termination or extinction of life and, therefore,incompatible and inconsistent with the concept of “right toFlife”.....”

Although, right to die was held not to be fundamental rightenshrined under Article 21 but it was laid down that the right to lifeincludes right to live with human dignity, i.e., right of dying man to alsodie with dignity when his life is ebbing out. Following pertinentobservations have been made in Para 24:-G

“....The “right to life” including the right to live with humandignity would mean the existence of such right up to theend of natural life. This also includes the right to dignifiedlife up to the point of death including dignified procedureof death. In other words, this may include the right of dyingH

man to also die with dignity when his life is ebbing out. Butthe “right to die” with dignity at the end of life is not to beconfused or equated with the “right to die” an unnatural deathcurtailing the natural span of life.”

63. The Constitution Bench, however, noticed the distinctionbetween dying man, who is terminally ill or in persistent vegetativestate, when process of natural death has commenced, from one wherelife is extinguished. The Court, however, held that permitting terminationof life to such cases to reduce the period of suffering during the processof certain natural death is not available to interpret Article 21 to includetherein the right to curtail the natural span of life. Paragraph 25 of thejudgment is to the following effect:-

“25. question may arise, in the context of dying man whois terminally ill or in persistent vegetative state that he maybe permitted to terminate it by premature extinction of hislife in those circumstances. This category of cases may fallwithin the ambit of the “right to die” with dignity as part ofright to live with dignity, when death due to termination ofnatural life is certain and imminent and the process of naturaldeath has commenced. These are not cases of extinguishinglife but only of accelerating conclusion of the process ofnatural death which has already commenced. The debate evenin such cases to permit physician-assisted termination of lifeis inconclusive. It is sufficient to reiterate that the argumentto support the view of permitting termination of life in suchcases to reduce the period of suffering during the process ofcertain natural death is not available to interpret Article 21to include therein the right to curtail the natural span of life.”

64. The Constitution Bench in above paragraphs has observedthat termination of life in case of those who are terminally ill or in apersistent vegetative state, may fall within the ambit of “right to die”with dignity as part of right to live with dignity when death due totermination of natural life is certain and imminent and process of naturaldeath has commenced. But even in those cases, physician assistedtermination of life can not be included in right guaranteed under Article21. One more pertinent observation can be noticed from Para 33, wherethis Court held that:

DEF

“33. ....We have earlier held that “right to die” is not includedin the “right to life” under Article 21. For the same reason,“right to live with human dignity” cannot be construed toinclude within its ambit the right to terminate natural life, atleast before commencement of the natural process of certaindeath....”

(emphasis by us)

65. The distinction between cases where physician decides not toprovide or to discontinue to provide for treatment or care, which couldor might prolong his life and those in which he decides to administer aClethal drug, was noticed while referring to the judgment of the House ofLords’s case in Airedale’s case (supra). In Airedale’s case (supra), itwas held that it is not lawful for doctor to administer drug to hispatient to bring about his death. Euthanasia is not lawful at common lawand euthanasia can be made lawful only by legislation. It is furtherrelevant to notice that in Para 40, this Court had observed that it is notDnecessary to deal with physician assisted suicide or euthanasia cases.Paragraph 40, is as follows:-

“40. Airedale N.H.S. Trust v. Bland was case relating towithdrawal of artificial measures for continuance of life by aphysician. Even though it is not necessary to deal withphysician-assisted suicide or euthanasia cases, briefreference to this decision cited at the Bar may be made. In thecontext of existence in the persistent vegetative state of nobenefit to the patient, the principle of sanctity of life, which isthe concern of the State, was stated to be not an absoluteone. In such cases also, the existing crucial distinctionbetween cases in which physician decides not to provide,or to continue to provide, for his patient, treatment or carewhich could or might prolong his life, and those in which hedecides, for example, by administering lethal drug, activelyto bring his patient’s life to an end, was indicated and it wasthen stated as under: (All ER p. 867 : WLR p. 368)

“… But it is not lawful for doctor to administer drug tohis patient to bring about his death, even though thatcourse is prompted by humanitarian desire to end hissuffering, however great that suffering may be [see R. v.

Cox, (18-9-1992, unreported)] per Ognall, J. in the CrownCourt at Winchester. So to act is to cross the Rubicon whichruns between on the one hand the care of the living patientand on the other hand euthanasia — actively causing hisdeath to avoid or to end his suffering. Euthanasia is notlawful at common law. It is of course well known that thereare many responsible members of our society who believethat euthanasia should be made lawful; but that resultcould, I believe, only be achieved by legislation whichexpresses the democratic will that so fundamental changeshould be made in our law, and can, if enacted, ensurethat such legalised killing can only be carried out subjectto appropriate supervision and control. …”

66. conjoint reading of observations in Paras 25, 33 and 40indicates that although for person terminally ill or in PSV state, whoseprocess of natural death has commenced, termination of life may fall inthe ambit of right to die with dignity but in those cases also there is noright of actively terminating life by physician. The clear opinion hasthus been expressed that euthanasia is not lawful. But at the same time,the Constitution Bench has noticed the distinction between the cases inwhich physician decides not to provide or to continue to provide for hispatient’s treatment or care which could or might prolong his life andthose in which physician decides actively to bring life to an end. Theratio of the judgment is contained in Paragraph 22 and 24, which is tothe following effect:-(i)”....Whatever may be the philosophy of permitting personto extinguish his life by committing suicide, we find it difficultto construe Article 21 to include within it the “right to die” asa part of the fundamental right guaranteed therein. “Right tolife” is natural right embodied in Article 21 but suicide isan unnatural termination or extinction of life and, therefore,incompatible and inconsistent with the concept of “right tolife”.....”

(ii)”....The “right to life” including the right to live with humandignity would mean the existence of such right up to theend of natural life. This also includes the right to dignifiedlife up to the point of death including dignified procedureof death. In other words, this may include the right of dying

Aman to also die with dignity when his life is ebbing out. Butthe “right to die” with dignity at the end of life is not to beconfused or equated with the “right to die” an unnatural deathcurtailing the natural span of life.”

67. We have noticed above that in Para 17, this Court had observedBthat reference to euthanasia cases tends to befog the real issue andfurther in Para 40, it was observed that “even though it is not necessaryto deal with physician assisted suicide or euthanasia cases”; theConstitution Bench has neither considered the concept of euthanasianor has laid down any ratio approving euthanasia.

C68. At best, the Constitution Bench noted difference betweencases in which physician decides not to provide or to continue to providefor medical treatment or care and those cases where he decides toadminister lethal drug activity to bring his patient’s life to an end. Thejudgment of House of Lords in Airedale’s case (supra) was referred toand noted in the above context. The Airedale’s case (supra) was citedDon behalf of the appellant in support of the contention that in said casethe withdrawal of life saving treatment was held not to be unlawful.

69. We agree with the observation made in the reference order ofthe three-Judge Bench to the effect that the Constitution Bench did notexpress any binding view on the subject of euthanasia. We hold that noEbinding view was expressed by the Constitution Bench on the subject ofEuthanasia.

I.CONCEPT OF EUTHANASIA

70. Euthanasia is derived from the Greek words euthanatos; eumeans well or good and thanatos means death. New Webster’sFDictionary (Deluxe Encyclopedic Edition) defines Euthanasia asfollowing:

“A painless putting to death of persons having an incurabledisease; an easy death. Also mercy killing.”

G71. The Oxford English Dictionary defines ‘euthanasia’: “Thepainless killing of patient suffering from an incurable and painfuldisease or in an irreversible coma”. The definition of the word‘euthanasia’ as given by the World Health Organisation may be noticedwhich defines it as: “A deliberate act undertaken by one person with the

intention of either painlessly putting to death or failing to prevent deathfrom natural causes in cases of terminal illness or irreversible coma ofanother person”.

72. In ancient Greek Society, Euthanasia as ‘good death’ wasassociated with the drinking of ‘Hemlock’. Drinking of Hemlock hadbecome common not only in cases of incurable diseases but also bythose individuals who faced other difficult problems or old age. In ancienttimes, in Greece freedom to live was recognised principle, whichpermitted the sick and desperates to terminate their lives by themselvesor by taking outside help. In last few centuries, Euthanasia increasinglycame to connote specific measures taken by physicians to hasten thedeath. The primary meaning, as has now been ascribed to the word iscompassionate murder. In the last century, the thought has gainedacceptance that Euthanasia is to be distinguished from withdrawal oflife saving treatments which may also result in death. Withdrawingmedical treatment in way hasten the death in case of terminal illnessor Persistent Vegetative State (PVS) but is not to be treated ascompassionate murder. Advancement in the medical science on accountof which life can be prolonged by artificial devices are the developmentsof only last century. Lord Browne Wilkinson, J., in Airedale N.H.A.Trust v. Bland, 1993 (2) W.L.R. 316 (H.L.), at page 389 observed:

“....Death in the traditional sense was beyond human control.Apart from cases of unlawful homicide, death occurredautomatically in the course of nature when the naturalfunctions of the body failed to sustain the lungs and the heart.Recent developments in medical science have fundamentallyaffected these previous certainties. In medicine, the cessationof breathing or of heartbeat is no longer death. By the use ofa ventilator, lungs which in the unaided course of nature wouldhave stopped breathing can be made to breathe, therebysustaining the heartbeat. Those, like Anthony Bland, whowould previously have died through inability to swallow foodcan be kept alive by artificial feeding. This has led the medicalprofession to redefine death in terms of brain stem death, i.e.,the death of that part of the brain without which the bodycannot function at all without assistance. In some cases it isnow apparently possible, with the use of the ventilator, tosustain beating heart even though the brain stem, and

Atherefore in medical terms the patient, is dead; “the ventilatedcorpse.”

73. In recent times, three principles had gained acceptancethroughout the world they are:

1. Sanctity of life

2. Right of self-determination

3. Dignity of the individual human being

74. The sanctity of life is one thought which is philosophically,religiously and mythologically accepted by the large number of populationCof the world practicing different faiths and religions. Sanctity of life entailsit’s inviolability by an outsider. Sanctity of life is the concern of State.

75. Right of self-determination also encompasses in it bodilyintegrity. Without consent of an adult person, who is in fit state of mind,even surgeon is not authorised to violate the body. Sanctity of theDhuman life is the most fundamental of the human social values. Theacceptance of human rights and development of its meaning in recenttimes has fully recognised the dignity of the individual human being. Allthe above three principles enable an adult human being of consciousmind to take decision regarding extent and manner of taking medicaltreatment. An adult human being of conscious mind is fully entitled toErefuse medical treatment or to decide not to take medical treatment andmay decide to embrace the death in natural way. Euthanasia, as notedabove, as the meaning of the word suggest is an act which leads to agood death. Some positive act is necessary to characterise the action asEuthanasia. Euthanasia is also commonly called “assisted suicide” dueFto the above reasons.

J. WITHDRAWAL OF LIFE SAVING DEVICES

76. Withdrawal of medical assistance or withdrawal of medicaldevices which artificially prolong the life cannot be regarded as an act toachieve good death. Artificial devices to prolong the life are implanted,Gwhen person is likely to die due to different causes in his body. Lifesaving treatment and devices are put by physicians to prolong the life ofa person. The Law Commission of India in its 196[th] Report on “MedicalTreatment to Terminally Ill Patients (Protection of Patients and MedicalPractitioners)” on the subject had put introductory note to the followingHeffect:

“The title to this Report immediately suggests to one that weare dealing with ‘Euthanasia’ or ‘Assisted Suicide’. But wemake it clear at the outset that Euthanasia and AssistedSuicide continue to be unlawful and we are dealing with adifferent matter ‘Withholding Life-support Measures’ topatients terminally ill and, universally, in all countries, suchwithdrawal is treated as ‘lawful’.”

77. The Law Commission of India was of the opinion thatwithdrawing life supporting measures of patient terminally ill is concept,different from Euthanasia. The opinion of Cardozo, J., rendered morethan hundred years ago that every human being of adult years and soundmind has right to determine what shall be done with his own body, isnow universally accepted principle. The judgment of the U.S. SupremeCourt and House of Lords, as noticed above, also reiterate the aboveprinciple.

78. Recently, in nine-Judges judgment in K.S. Puttaswamyand Another Vs. Union of India and Others, (2017) 10 SCC 1, JusticeJ. Chelameswar elaborating the concept of right to life as enshrined inArticle 21 under the Constitution of India has observed:

“An individual’s right to refuse the life-prolonging medicaltreatment or terminate life is another freedom which fallswithin the zone of right of privacy.”

79. Withdrawal of life-saving devices, leads to natural death whichis arrested for the time being due to above device and the act ofwithdrawal put the life on the natural track. Decision to withdraw life-saving devices is not an act to cause good death of the person rather,decision to withdraw or not to initiate life-supporting measures is decisionwhen treatment becomes futile and unnecessary. Practice of Euthanasiain this country is prohibited and for medical practitioners it is alreadyordained to be unethical conduct. The question as to what should be themeasures to be taken while taking decision to withdraw life-savingmeasures or life-saving devices is another question which we shallconsider little later.

80. Two-Judge Bench in Aruna Ramachandra Shanbaug Vs.Union of India and Ors., (2011) 4 SCC 454 has held that withdrawalof live-saving measures is passive Euthanasia which is permissible inIndia. critically ill patient who is mentally competent to take decision,

Adecides not to take support of life prolonging measures, and respectinghis wisdom if he is not put on such devices like ventilator etc., it is not atall Euthanasia. Large number of persons in advance age of life decidenot to take medical treatment and embrace death in its natural way, cantheir death be termed as Euthanasia. Answer is, obviously ‘No’. Thedecision not to take life saving medical treatment by patient, who isBcompetent to express his opinion cannot be termed as euthanasia, but adecision to withdraw life saving treatment by patient who is competentto take decision as well as with regard to patient who is not competentto take decision can be termed as passive euthanasia. On the strengthof the precedents in this country and weight of precedents of otherCcountries as noted above, such action of withdrawing life saving deviceis legal. Thus, such acts, which are commonly expressed as passiveeuthanasia is lawful and legally permissible in this country.

81. We remind ourselves that this Court is not legislative bodynor is entitled or competent to act as moral or ethical arbiter. The taskDof this Court is not to weigh or evaluate or reflect different believes andviews or give effect to its own but to ascertain and build the law of landas it is now understood by all. Message which need to be sent to vulnerableand disadvantaged people should not, however, obliviously to encouragethem to seek death but should assure them of care and support in life.

E82. We thus are of the considered opinion that the act of withdrawalfrom live-saving devices is an independent right which can lawfully beexercised by informed decision.

K. DECISION FOR WITHDRAWAL OF LIFE-SAVINGTREATMENT IN CASE OF PERSON WHO ISINCOMPETENT TO TAKE AN INFORMED DECISION.F

83. One related aspect which needs to be considered is that iscase of those patients who are incompetent to decide due to their mentalstate or due to the fact that they are in permanent persistent vegetativestate or due to some other reasons unable to communicate their desire.GWhen the right of an adult person who expresses his view regardingmedical treatment can be regarded as right flowing from Article 21 ofthe Constitution of India, the right of patient who is incompetent to expresshis view cannot be outside the fold of Article 21 of the Constitution ofIndia. It is another issue, as to how, the decision in cases of mentallyincompetent patients regarding withdrawal of life-saving measures, is toHbe taken.84. The rights of bodily integrity and self-determination are therights which belong to every human being. When an adult person havingmental capacity to take decision can exercise his right not to taketreatment or withdraw from treatment, the above right cannot be negatedfor person who is not able to take an informed decision due to terminalillness or being Persistent Vegetative State (PVS). The question iswho is competent to take decision in case of terminally-ill or PVS patient,who is not able to take decision. In case of person who is sufferingfrom disease and is taking medical treatment, there are three stakeholders; the person himself, his family members and doctor treating thepatient. The American Courts give recognition to opinion of “surrogate”where person is incompetent to take decision. No person can takedecision regarding life of another unless he is entitled to take such decisionauthorised under any law. The English Courts have applied the “bestinterests” test in case of incompetent person. The best interests of thepatient have to be found out not by doctor treating the patient alone buta team of doctors specifically nominated by the State Authority. In ArunaShanbaug (supra), two-Judge Bench of this Court has opined that insuch cases relying on doctrine of ‘parens patriae (father of the country)’,it is the Court alone which is entitled to take decision whether towithdraw treatment for incompetent terminally-ill or PVS patient. Inparagraphs 130 and 131 following has been held:

“130. In our opinion, in the case of an incompetent personwho is unable to take decision whether to withdraw lifesupport or not, it is the Court alone, as parens patriae, whichultimately must take this decision, though, no doubt, the viewsof the near relatives, next friend and doctors must be givendue weight.

Under which provision of law can the Court grant approvalfor withdrawing life support to an incompetent person

131. In our opinion, it is the High Court under Article 226ofthe Constitution which can grant approval for withdrawal oflife support to such an incompetent person. Article 226(1)ofthe Constitution states :

“226. Power of High Courts to issue certain writs.-(1)Notwithstanding anything in article 32, every HighCourt shall have power, throughout the territories in relation

Ato which it exercises jurisdiction, to issue to any person orauthority, including in appropriate cases, any Government,within those territories directions, orders or writs, includingwrits in the nature of habeas corpus, mandamus,prohibition, quo warranto and certiorari, or any of them,for the enforcement of any of the rights conferred by PartBIII and for any other purpose”.

(emphasis supplied)

bare perusal of the above provisions shows that the HighCourt under Article 226of the Constitution is not only entitledCto issue writs, but is also entitled to issue directions or orders.”

85. Various learned counsel appearing before us have submittedthat seeking declaration from the High Court in cases where medicaltreatment is needed to be withdrawn is time taking and does not advancethe object nor is in the interest of terminally-ill patient. It is submittedDthat to keep check on such decisions, the State should constitutecompetent authorities consisting of pre-dominantly experienced medicalpractitioners whose decision may be followed by all concerned with arider that after taking of decision by competent body cooling periodshould be provided to enable anyone aggrieved from the decision toapproach Court of Law. We also are of the opinion that in cases ofEincompetent patients who are unable to take an informed decision, it is inthe best interests of the patient that the decision be taken by competentmedical experts and that such decision be implemented after providing acooling period at least of one month to enable aggrieved person toapproach the Court of Law. The best interest of the patient as determinedFby medical experts shall meet the ends of justice. The medical team bytaking decision shall also take into consideration the opinion of the bloodrelations of the patient and other relevant facts and circumstances.

L. ADVANCE MEDICAL DIRECTIVE

86. The petitioner by the Writ Petition has also sought directionGto the respondent to adopt suitable procedures to ensure that persons ofdeteriorated health or terminally ill should be able to execute documenttitled “MY LIVING WILL & ATTORNEY AUTHORISATION”. Thepetitioner submits that it is an important personal decision of the patientto use or not to use the life sustaining treatment in case of terminalillness and stage of persistent vegetative state. The petitioner pleadsH

that the petitioner’s endeavour is only to seek ‘choice’ for the peoplewhich is not available at present and they are left to the mercy of doctorswho to save themselves from any penal consequences half heartedly,despite knowing that the death is inevitable continue administering thetreatment which the person might not have wanted to continue with. Aperson will be free to issue advance directives both in positive andnegative manner, meaning thereby that person is not necessarily requiredto issue directive that the life sustaining treatment should not be given tohim in the event of he or she going into persistent vegetative state or inan irreversible state. The person can also issue directives as to all thepossible treatment which should be given to him when he is not able toexpress his/her wishes on medical treatment. The petitioner also refersto and rely on various legislations in different countries, which recognisesthe concept of advance medical directive. Petitioner pleads that in Indiaalso law in the nature “Patient Autonomy & Self- determination Act”should be enacted. Petitioner has also alongwith his Writ Petition hasannexed draft titling it “Patient’s Self-determination Act”.87. The concept of advance medical directive is also called livingwill is of recent origin, which gained recognition in latter part of 20[th]century. The advance medical directive has been recognised first byStatute in United States of America when in the year 1976, State ofCalifornia passed “Natural Death Act”. It is claimed that 48 states outof 50 in the United States of America have enacted their own lawsregarding Patient’s Rights and advance medical directives. Advancemedical directive is mechanism through which individual autonomycan be safeguarded in order to provide dignity in dying. As noted above,the Constitution Bench of this Court in the case of Gian Kaur (supra)has laid down that right to die with dignity is enshrined in Article 21 ofthe Constitution. It is to be noticed that advance medical directives arenot exclusively associated with end of life decisions. However, it is vitalto ensure that form of an advance medical directive reflects the needsof its author and is sufficiently authoritative and practical to enable itsprovisions to be upheld. In most of the western countries advance medicaldirectives have taken legalistic form incorporating formal declarationto be signed by competent witnesses. The laws also make provisionsfor updating confirmation of its applicability and revocation. Protectingthe individual autonomy is obviously the primary purpose of an advancemedical directive. The right to decide one’s own fate pre-supposes

Acapacity to do so. The answer as to when particular advance medicaldirective becomes operative usually depends upon an assent of when itsauthor is no longer competent to participate in medical decision making.The Black’s Law Dictionary defines the Advance Medical Directive as“a legal document explaining one’s wishes about medical treatment ifone becomes incompetent or unable to communicate”. An advanceBmedical directive is an individual’s advance exercise of his autonomy onthe subject of extent of medical intervention that he wishes to allowupon his own body at future date, when he may not be in position tospecify his wishes. The purpose and object of advance medical directiveis to express the choice of person regarding medical treatment in anCevent when he looses capacity to take decision. Use and operation ofadvance medical directive is to confine only to case when personbecomes incapacitated to take an informed decision regarding his medicaltreatment. So long as an individual can take an informed decisionregarding his medical treatment, there is no occasion to look into advancemedical directives. person has unfettered right to change or cancel hisDadvance medical directives looking to the need of time and advancementin medical science. Hence, person cannot be tied up or bound by hisinstructions given at an earlier point of time.88. The concept of advance medical directive originated largelyas response to development in medicines. Many people living dependingEon machines cause great financial distress to the family with the cost oflong term medical treatment. Advance medical directive was developedas means to restrict the kinds of medical intervention in event whenone become incapacitated. The foundation for seeking direction regardingadvance medical directive is extension of the right to refuse medicalFtreatment and the right to die with dignity. When competent patienthas right to take decision regarding medical treatment, with regard tomedical procedure entailing right to die with dignity, the said right cannotbe denied to those patients, who have become incompetent to take aninformed decision at the relevant time. The concept of advance medicaldirective has gained ground to give effect to the rights of those patients,Gwho at particular time are not able to take an informed decision.Another concept which has been accepted in several countries isrecognition of instrument through which person nominates arepresentative to make decision regarding their medical treatment at apoint of time when the person executing the instrument is unable toH

make an informed decision. This is called attorney authorisation leadingto medical treatment. In this country, there is no legislation governingsuch advance medical directives. It is, however, relevant to note recentlegislation passed by the Parliament namely “The Mental HealthcareAct, 2017”, where as per Section 5 every person, who is not minor hasa right to make an advance directive in writing regarding treatment tohis mental illness in the way person wishes to be treated or mentalillness. The person wishes not to be treated for mental illness andnomination of individual and individual’s as his/her representative. Section5 is to the following effect:-

“5. (1) Every person, who is not minor, shall have right tomake an advance directive in writing, specifying any or allof the following, namely:––

(a) the way the person wishes to be cared for and treatedfor mental illness;

(b) the way the person wishes not to be cared for and treatedfor mental illness;

(c) the individual or individuals, in order of precedence,he wants to appoint as his nominated representative asprovided under section 14.

(2) An advance directive under sub-section (1) may be madeby person irrespective of his past mental illness or treatmentfor the same.

(3) An advance directive made under sub-section (1), shallbe invoked only when such person ceases to have capacityto make mental healthcare or treatment decisions and shallremain effective until such person regains capacity to makemental healthcare or treatment decisions.

(4) Any decision made by person while he has the capacityto make mental healthcare and treatment decisions shall over-ride any previously written advance directive by such person.

(5) Any advance directive made contrary to any law for thetime being in force shall be ab initio void.”

89. Section 6 of the Act provides that an advance directive shallbe made in the manner as has been prescribed by the regulations made

Aby the Central Authority. In the draft Medical Healthcare Regulationpublished by Ministry of Health and Family Welfare, form is prescribedin which advance directive may be made. Other aspects of medicaldirective have also been dealt with by draft regulation. Thus, in ourcountry, recognition of advance directives regarding medical treatmenthas started to be recognised and are in place relating to specified fieldBand purpose. Another legislation which also recognise some kind ofadvance directive relating to person’s body is Section 3 of theTransplantation of Human Organs and Tissues Act, 1994. Section 3sub-sections (1) and (2) which are relevant for the present purpose is asfollows:-

“3. Authority for removal of [human organs or tissues orboth].—(1) Any donor may, in such manner and subject tosuch conditions as may be prescribed, authorise the removal,before his death, of any [human organ or tissue or both] ofhis body for therapeutic purposes.D(2) If any donor had, in writing and in the presence of two ormore witnesses (at least one of whom is near relative ofsuch person), unequivocally authorised at any time beforehis death, the removal of any [human organ or tissue or both]of his body, after his death, for therapeutic purposes, theEperson lawfully in possession of the dead body of the donorshall, unless he has any reason to believe that the donor hadsubsequently revoked the authority aforesaid, grant to aregistered medical practitioner all reasonable facilities forthe removal, for therapeutic purposes, of that [human organor tissue or both] from the dead body of the donor.”F

90. The rules have been framed under Section 24 of theTransplantation of Human Organs and Tissues Act, 1994 namelyTransplantation of Human Organs and Tissues Rules, 2014 where formof authorisation for organ or tissue pledging is Form 7, which providesthat an authorisation by donor in presence of two witnesses which isGalso required to be registered by Organ Donor Registry.

91. The statutory recognition of the above mentioned authorisationin two statutes is clear indication of acceptance of the concept of advancemedical directive in this country.

92. Learned counsel for the petitioner as well as for the intervenersand the Additional Solicitor General of India has expressed concernregarding manner and procedure of execution of advance medicaldirective. It is submitted that unless proper safeguards are not laid down,those who are vulnerable, infirm and aged may be adversely affectedand efforts by those related to person to expedite death of person forgaining different benefits, cannot be ruled out. We have been referredto various legislations in different countries, which provides detailedprocedure of execution of advance medical directive, competence ofwitnesses, mode and manner of execution, authority to register and keepsuch advance medical directive.

93. Shri Arvind Datar, learned senior counsel has in its writtensubmissions referred to certain aspects, which may be kept in mind whileformulating guidelines for advance medical directive, which are as follows:

a) Only adult persons, above the age of eighteen years andof sound mind at the time at which the advance directive isexecuted should be deemed to be competent. This shouldinclude persons suffering from mental disabilities providedthey are of sound mind at the time of executing an advancedirective.

b) Only written advance directives that have been executedproperly with the notarised signature of the person executingthe advance directive, in the presence of two adult witnessesshall be valid and enforceable in the eyes of the law. Theform should require reaffirmation that the person executingsuch directive has made an informed decision. Only thoseadvance directives relating to the withdrawal or withholdingof life-sustaining treatment should be granted legal validity.The determination that the executor of the advance directiveis no longer capable of making the decision should be madein accordance with relevant medical professional regulationsor standard treatment guidelines, as also the determinationthat the executor’s life would terminate in the absence of life-sustaining treatment. The constitution of panel of expertsmay also be considered to make this determination. The useof expert committees or ethics committees in other jurisdictionsis discussed at Para 28 of these written submissions.

EFG

c) Primary responsibility for ensuring compliance with theadvance directive should be on the medical institution wherethe person is receiving such treatment.

d) If hospital refuses to recognise the validity of an advancedirective, the relatives or next friend may approach theBjurisdictional High Court seeking writ of mandamus againstthe concerned hospital to execute the directive. The High Courtmay examine whether the directive has been properly executed,whether it is still valid (Le, whether or not circumstances havefundamentally changed since its execution, making it invalid)and/or applicable to the particular circumstances or treatment.

e) No hospital or doctor should be made liable in civil orcriminal proceedings for having obeyed validly executedadvance directive.

f) Doctors citing conscientious objection to the enforcementDof advance directives on the grounds of religion should bepermitted not to enforce it, taking into account theirfundamental right under Article 25 of the Constitution.However, the hospital will still remain under this obligation.

94. The right to self-determination and bodily integrity has beenErecognised by this Court as noted above. The right to execute an advancemedical directive is nothing but step towards protection of aforesaidright by an individual, in event he becomes incompetent to take an informeddecision, in particular stage of life. It has to be recognised by all includingthe States that person has right to execute an advance medical directiveto be utilised to know his decision regarding manner and extent of medicalFtreatment given to his body, in case he is incapacitated to take an informeddecision. Such right by an individual does not depend on any recognitionor legislation by State and we are of the considered opinion that suchrights can be exercised by an individual in recognition and in affirmationof his right of bodily integrity and self-determination which are dulyGprotected under Article 21 of the Constitution. The procedure and mannerof such expression of such right is question which needs to be addressedto protect the vulnerable, infirm and old from any misuse. It is the dutyof the State to protect its subjects specially those who are infirm, old andneeds medical care. The duty of doctor to extend medical care to thepatients, who comes to them in no manner diminishes in any manner by

recognition of concept that an individual is entitled to execute an advancemedical directive. The physicians and medical practitioners treating aperson, who is incompetent to express an informed decision has to act ina manner so as to give effect to the express wishes of an individual.

95. The concept of advance medical directive has gained groundthroughout the world. Different countries have framed necessarylegislation in this regard. Reference of few of such legislations shall giveidea of such statutory scheme formulated by different countries to achievethe object. The Republic of Singapore has passed an enactment namelyADVANCE MEDICAL DIRECTIVE ACT (Act 16 of 1996). Section3 of the Act, sub-section (1) empowers person who is not mentallydisordered and attained the age of 21 years to make an advance directivein the prescribed form.Other provisions of Statute deals with duty of witness, registrationof directives, objections, revocation of directive, panel of specialists,certification of terminal illness, duty of medical practitioner and otherrelated provisions. The Belgian Act on Euthanasia, 2002 also containsprovisions regarding advance directive in Section 4. Swiss Civil Code1907 in Articles 362 and 365 provides for advance care directive, itsexecution and termination. Mental Capacity Act, 2005 (England) alsocontemplates for an advance directive. The Statute further provides thatan advance directive is applicable in life sustaining treatment only. Whenthe decision taken in writing, signed by the patient or by another personin patient’s presence on his direction. Pennsylvania Act 169 of 2006 alsocontains provisions with regard to execution of advance medical directiveand other related provisions, its revocation etc.

In our country, there is yet no legislation pertaining to advancemedical directive. It is, however, relevant to note that Ministry of Healthand Family Welfare vide its order dated 06.05.2016 uploaded the LawCommission’s 241[st] report and solicited opinions, comments on the same.An explanatory note has also been uploaded by the Ministry of Healthand Family Welfare where in paragraph 6 following was stated:

“ Living Will has been defined as “A document in which personstates his/her desire to have or not to have extraordinary lifeprolonging measures used when recovery is not possible fromhis/her terminal condition”.

AHowever, as per para 11 of the said Bill the advance medicaldirective (living will) or medical power of attorney executedby the person shall be void and of no effect and shall not bebinding on any medical practitioner.”

Although in Clause 11 of the draft bill, it was contemplated thatBadvance medical directives are not binding on medical practitioner butthe process of legislation had not reached at any final stage. The directionsand safeguards which have been enumerated by Hon’ble Chief Justicein his judgment shall be sufficient to safeguard the interests of patients,doctors and society till the appropriate legislation is framed and enforced.

CWe thus conclude that person with competent medical facility isentitled to execute an advance medical directive subject to varioussafeguards as noted above.

M. CONCLUSIONS:

From the above discussions, we arrive on following conclusions:-D

(i) The Constitution Bench in Gian Kaur’s case held that the“right to life: including right to live with human dignity” would mean theexistence of such right up to the end of natural life, which also includesthe right to dignified life upto the point of death including dignifiedprocedure of death. The above right was held to be part of fundamentalEright enshrined under Article 21 of the Constitution which we alsoreiterate.

(ii) We agree with the observation made in the reference order ofthe three-Judge Bench to the effect that the Constitution Bench in GianKaur’s case did not express any binding view on the subject ofFeuthanasia. We hold that no binding view was expressed by theConstitution Bench on the subject of Euthanasia.

(iii) The Constitution Bench, however, noted distinction betweencases in which physician decides not to provide or continue to providefor treatment and care, which could or might prolong his life and those inGwhich he decides to administer lethal drug even though with object ofrelieving the patient from pain and suffering. The later was held not tobe covered under any right flowing from Article 21.

(iv) Thus, the law of the land as existing today is that no one ispermitted to cause death of another person including physician by

administering any lethal drug even if the objective is to relieve the patientfrom pain and suffering.

(v) An adult human being of conscious mind is fully entitled torefuse medical treatment or to decide not to take medical treatment andmay decide to embrace the death in natural way.

(vi) Euthanasia as the meaning of words suggest is an act whichleads to good death. Some positive act is necessary to characterise theaction as Euthanasia. Euthanasia is also commonly called “assistedsuicide” due to the above reasons.

(vii) We are thus of the opinion that the right not to take lifesaving treatment by person, who is competent to take an informeddecision is not covered by the concept of euthanasia as it is commonlyunderstood but decision to withdraw life saving treatment by patientwho is competent to take decision as well as with regard to patientwho is not competent to take decision can be termed as passiveeuthanasia, which is lawful and legally permissible in this country.

(viii) The right of patient who is incompetent to express his viewcannot be outside of fold of Article 21 of the Constitution of India.

(ix) We also are of the opinion that in cases of incompetent patientswho are unable to take an informed decision, “the best interests principle”be applied and such decision be taken by specified competent medicalexperts and be implemented after providing cooling period to enableaggrieved person to approach the court of law.

(x) An advance medical directive is an individual’s advanceexercise of his autonomy on the subject of extent of medical interventionthat he wishes to allow upon his own body at future date, when he maynot be in position to specify his wishes. The purpose and object ofadvance medical directive is to express the choice of person regardingmedical treatment in an event when he looses capacity to take decision.The right to execute an advance medical directive is nothing but steptowards protection of aforesaid right by an individual.

(xi) Right of execution of an advance medical directive by anindividual does not depend on any recognition or legislation by Stateand we are of the considered opinion that such rights can be exercisedby an individual in recognition and in affirmation of his right of bodilyintegrity and self-determination.

AIn view of our conclusions as noted above the writ petition isallowed in the following manner:

(a) The right to die with dignity as fundamental right has alreadybeen declared by the Constitution Bench judgment of this Court in GianKaur case (supra) which we reiterate.

(b) We declare that an adult human being having mental capacityto take an informed decision has right to refuse medical treatmentincluding withdrawal from life saving devices.

(c) person of competent mental faculty is entitled to execute anadvance medical directive in accordance with safeguards as referred toCabove.

96. Before we conclude, we acknowledge our indebtness to allthe learned Advocates who have rendered valuable assistance with greatindustry and ability which made it possible for us to resolve issues ofseminal public importance. We record our fullest appreciation for theDassistance rendered by each and every counsel in this case.

A. K. SIKRI, J. 1. Michael Kirby, former Judge of theAustralian High Court, while discussing about the role of judiciary in thecontext of HIV law[1], talks about the consciousness with which thejudiciary is supposed to perform its role. In this hue, while discussingEabout the responsibility of leadership which the society imposes uponJudges, he remarks: “Nowhere more is that responsibility tested thanwhen completely new and unexpected problem presents itself tosociety. All the judges’ instincts for legality, fairness andreasonableness must then be summoned up, to help lead societytowards an informed, intelligent and just solution to the problem.”FThe problem at hand, just solution whereof is imminently needed, is thatof Euthanasia. This Court is required to summon up instincts for legality,fairness and reasonableness in order to find just solution to the problem.In this process, the Court is duty bound to look into the relevant provisionsof the Constitution of India, particularly those pertaining to theGfundamental rights, and to discharge the task of expounding those basichuman rights enshrined in the Chapter relating to Fundamental Rights.The issue of euthanasia, with the seminal importance that is attached toit, has thrown the challenge of exposition, development and obligation of

1 ‘The Role of Judiciary and HIV Law’ – Michael Kirby, published in the book titledH‘HIV Law, Ethics and Human Rights’, edited by D.C. Jayasuriya.

the constitutional morality and exhorts the Court to play its creative roleso that balanced approach to an otherwise thorny and highly debatablesubject matter is found.

2. The Courts, in dispensation of their judicial duties of decidingcases, come across all types of problems which are brought before them.These cases may be broadly classified into three categories: (i) the easycases, (ii) the intermediate cases, and (iii) the hard cases. ProfessorRonald Dworkin[2] has argued that each legal problem has one lawfulsolution and even in the hard cases, the Judge is never free to chooseamong alternatives that are all inside the bounds of law. This may not beentirely correct inasmuch as judicial discretion does exist. This is true,at least, in solving ‘hard cases’[3]. It is found that meaning of certainlegal norms, when applied with respect to given system of facts, is sosimple and clear that their application involves no judicial discretion. Theseare termed as the ‘easy cases’. This may even apply to ‘intermediatecases’. These would be those cases where both sides appear to have alegitimate legal argument supporting their position and conscious actof interpretation is noted, before Judge can conclude which side isright in law and there is only one lawful situation. However, when itcomes to the hard cases, the Court is faced with number of possibilities,all of which appear to be lawful within the context of the system. Inthese cases, judicial discretion exists as the choice is not between lawfuland unlawful, but between lawful and lawful. number of lawfulsolutions exist. In this scenario, the Court is supposed to ultimately choosethat solution which is in larger public interest. In other words, there arelimitations that find the Court with respect to the manner in which itchoses among possibilities (procedural limitations) and with respect tothe considerations it takes into account in the choice (substantivelimitations). Thus, discretion when applied to cout of justice meanssound discretion guided by law. It must be govered by legal rules. Toquote Justice Cardozo:“Given freedom of choice, how shall the choice be guided?Complete freedom – unfettered and undirected – there never is.A thousand limitations – the product some of statute, some ofprecedent, some of vague tradition or of an immemorial technique– encompass and hedge us even when we think of ourselves as

2 Dworkin, “Judicial Discretion,” 6 J. of Phil. 624 (1963)

3 See Aharon Barak: Judicial Discretion, Yale University Press.

316SUPREME COURT REPORTS

Aranging freely and at large. The inscrutable force of professionalopinion presses upon us like the atmosphere, though we areheedless of its weight. Narrow at best is any freedom that isallotted to us[4]

3. Thus, though the judicial discretion is with the Court, the sameBis limited and not absolute. The Court is not entitled to weigh any factoras it likes. It has to act within the framework of the limitations, and afterthey have been exhausted, there is freedom of choice which can alsodescribed as ‘sovereign prerogative of choice’[5]. Instant case falls inthe category of ‘hard cases’ and the Court has endeavoured to make achoice, after evaluating all the pros and cons, which in its wisdom is theC“just result” of the contentious issue.

4. Adverting to the Indian precedents in the first instance, wehave before us two direct judgments of this Court which may throwsome light on the subject and demonstrate as to how this topic has beendealt with so far. The first judgment is that of Constitution Bench inDthe case titled Gian Kaur v. State of Punjab[6]. Second case is knownas Aruna Ramachandra Shanbaug v. Union of India and Others[7],which is Division Bench judgment that takes note of Gian Kaur andpremised thereupon goes much farther in accepting passive euthanasiaas facet of Article 21 of the Constitution.

5. In the instant case, while making reference to the ConstitutionBench vide its order dated February 25, 2014[8], the three Judge Benchhas expressed its reservation in the manner the ratio of the ConstitutionBench in Gian Kaur is applied by the Division Bench in ArunaRamachandra Shanbaug. This reference order accepts that ArunaFRamachandra Shanbaug rightly interpreted the decision in Gian Kaurinsofar as it held that euthanasia can be allowed in India only through avalid legislation. However, the reference order declares that ArunaRamachandra Shanbaug has committed factual error in observingthat in Gian Kaur the Constitution Bench approved the decision of theHouse of Lords in Airedale N.H.S. Trust v. Bland [9]. As per theGreference order,Gian Kaur merely referred to the said judgment which

4 B. Cardozo: The Growth of the Law 144 (1924), at 60-61

5 Justice O. Holmes opined this expression in ‘Collected Legal Papers’ 239 (1921)

6 (1996) 2 SCC 648

7 (2011) 4 SCC 454

8 Reported as (2014) 5 SCC 338

9 (1993) 2 WLR 316 (HL)

cannot be construed to mean that the Constitution Bench in Gian Kaurapproved the opinion of the House of Lords rendered in Bland. Thereference order also accepts the position that in Gian Kaur theConstitution Bench approved that ‘right to live with dignity’ under Article21 of the Constitution will be inclusive of ‘right to die with dignity’.However, it further notes that the decision does not arrive at conclusionfor validity of euthanasia, be it active or passive. Therefore, the onlyjudgment that holds the field in India is Aruna Ramachandra Shanbaug,which upholds the validity of passive euthanasia and lays down anelaborate procedure for executing the same on ‘the wrong premisethat the Constitution Bench in Gian Kaur had upheld the same’.

6. The aforesaid discussion contained in the reference orderprompted the reference court to refer the matter to the ConstitutionBench. No specific questions were framed for consideration by theConstitution Bench. However, importance of the issue has beenhighlighted in the reference order in the following manner:

“17. In view of the inconsistent opinions rendered in ArunaShanbaug and also considering the important question of lawinvolved which needs to be reflected in the light of social, legal,medical and constitutional perspectives, it becomes extremelyimportant to have clear enunciation of law. Thus, in our cogentopinion, the question of law involved requires careful considerationby Constitution Bench of this Court for the benefit of humanityas whole.

18. We refrain from framing any specific questions forconsideration by the Constitution Bench as we invite theConstitution Bench to go into all the aspects of the matter and laydown exhaustive guidelines in this regard. Accordingly, we referthis matter to Constitution Bench of this Court for an authoritativeopinion.”

7. I have given glimpse of the narratives for the simple reasonthat the Hon’ble the Chief Justice, in his elaborate opinion, has alreadydiscussed this aspect in detail. Likewise, it can be found in the separatejudgments authored by my esteemed brethren – Chandrachud, J. andBhushan, J. Those judgments discuss in detail the law laid down inGian Kaur as well as Aruna Ramachandra Shanbaug, includingcritique thereof. To avoid repetition, I have eschewed that part of

Adiscussion. For the same reason, I have also not ventured to discuss thelaw in some other countries and historic judgments rendered by the courtsof foreign jurisdiction, as this aspect is also taken care of by them.However, my analysis of the above two judgments is limited to the extentit is necessitated for maintaining continuum and clarity of thought.

B8. At the outset, I say that I am in complete agreement with theconclusion and also the directions given therein in the judgment of theHon’ble the Chief Justice and also with the opinions and reasoning ofmy other two learned brothers. My purpose is not to add my ink to theerudite opinion expressed in otherwise eloquent opinions penned by mylearned brothers. At the same time, having regard to the importance ofCthe issue involved, I am provoked to express my own few thoughts, inmy own way, which I express hereinafter.

9. In the writ petition filed by the petitioner – Common Cause, ithas made the following prayers:

“a) declare ‘right to die with dignity’ as fundamental right withinthe fold of Right to Live with dignity guaranteed under Article 21of the Constitution of India;

b) issue direction to the Respondent, to adopt suitable procedures,in consultation with State Governments where necessary, to ensureEthat persons of deteriorated health or terminally ill should be ableto execute document titled “MY LIVING WILL & ATTORNEYAUTHORISATION” which can be presented to hospital forappropriate action in event of the executant being admitted to thehospital with serious illness which may threaten termination oflife of the executants or in the alternative, issue appropriateFguidelines to this effect;

c) appoint an expert committee of experts including doctors, socialscientists and lawyers to study into the aspect of issuing guidelinesas to the Living Wills;

d) pass such other and further order/s as this Hon’ble Court mayGdeem fit and proper on the facts and in the circumstances of thecase.”

10. Having regard to the aforesaid prayers, the reference orderand the arguments which were addressed by Mr. Prashant Bhushan,learned counsel who appeared for the petitioner, and Mr. Arvind Datar,H

learned senior counsel who made elaborate submissions on behalf of theinterveners – Vidhi Centre for Legal Policy, and Mr. R.R. Kishore,Advocate, who gave an altogether new dimension to the seminal issue,I find that following issues/questions of law of relevance need to bediscussed:

(i) Whether the Right to Live under Article 21 of the Constitutionincludes the Right to Die? {Now that attempt to commit suicideis not punishable offence under Section 309 of the IndianPenal Code, 1860 (for short, ‘IPC’) vide Section 115 of theMental Healthcare Act, 2017 (Act No. 10 of 2017)}

(ii) Whether the ‘right to die with dignity’ as fundamental rightfalls within the folds of the ‘right to live with dignity’ underArticle 21 of the Constitution?

(iii) Whether the observations in Aruna Ramachandra Shanbaugthat the Constitution Bench in Gian Kaur permitted passiveeuthanasia stand correct?

(iv) Whether there exists inconsistency in the observations inAruna Ramachandra Shanbaug with regard to what hasbeen held in Gian Kaur?

(v) Whether mere reference to verdict in judgment can beconstrued to mean that the verdict is approved? {with respectto Article 141 – What is binding?; whether the ConstitutionBench in Gian Kaur approved the decision of the House ofLords in Bland?}

(vi) Whether the law on passive euthanasia, as held valid in ArunaRamachandra Shanbaug, holds true in the present times aswell? {The Treatment of Terminally-ill Patients Bill, 2016 isbased on the aforementioned judgment}

(vii) Whether active euthanasia is legal in India?

(viii) Whether assisted suicide/physician administered suicide islegal in India? {The 2016 bill in the current form, under Clause5(3) permits for physician assisted suicide}

(ix) Whether there exists right to Living Will/AdvanceDirectives? Whether there exists the fundamental right tochoose one’s own medical treatment? {With Right to Privacy

Anow fundamental right under Article 21, the principle of self-determination in India stands on higher footing than before}

(x) Definition of ‘Terminal Illness’.

11. It is not necessary for me to answer all the aforesaid questions.I say so for the reason that all these aspects are dealt with by the Hon’bleBthe Chief Justice in his opinion. Therefore, in this ‘addendum’, I wouldbe focusing myself to the core issues.

EUTHANASIA DEFINED

12. The Oxford English Dictionary defines ‘euthanasia’ as ‘theCpainless killing of patient suffering from an incurable and painfuldisease or in an irreversible coma’. The word appears to have comeinto usage in the early 17[th] century and was used in the sense of ‘easydeath’. The term is derived from the Greek ‘euthanatos’, with ‘eu’meaning well, and ‘thanatos’ meaning death. In ancient Greece andRome, citizens were entitled to good death to end the suffering of aDterminal illness. To that end, the City Magistrates of Athens kept asupply of poison to help the dying ‘drink the hemlock’[10].13. The above Greek definition of euthanasia apart, it is loadedterm. People have been grappling with it for ages. Devised for servicein rhetoric of persuasion, the term ‘euthanasia’ has no generallyEaccepted and philosophically warranted core meaning. It is also definedas: killing at the request of the person killed. That is how the Dutchmedical personnel and civil authorities define euthanasia. In Nazidiscourse, euthanasia was any killing carried out by medical means ormedically qualified personnel, whether intended for the termination ofsuffering and/or of the burden or indignity of life not worth livingF(Lebensunwertes Leben), or for some more evidently public benefitsuch as eugenics (racial purity and hygiene), Lebensraum (living spacefor Germans), and/or minimizing the waste of resources on ‘uselessmouths’. Understandably, in today’s modern democracies these Naziideas and practices cannot be countenanced. Racist eugenics areGcondemned, though one comes across discreet allusions to the burdenand futility of sustaining the severely mentally handicapped. The popularconception which is widely accepted is that some sorts of life are notworth living; life in such state demeans the patient’s dignity, and

10 Michael Manning, Euthanasia and Physician-Assisted Suicide (Paulist Press, 1998).

maintaining it (otherwise than at the patient’s express request) insultsthat dignity; proper respect for the patient and the patient’s best interestsrequires that that life be brought to an end. In this thought process, thebasic Greek ideology that it signifies ‘an easy and gentle death’ stillremains valid. Recognition is to the Human Rights principle that ‘rightto life’ encompasses ‘right to die with dignity’.

14. In common parlance, euthanasia can be of three types, namely,‘voluntary euthanasia’ which means killing at the request of personkilled which is to be distinguished from ‘non-voluntary euthanasia’,where the person killed is not capable of either making or refusing tomake such request. Second type of euthanasia would be involuntaryeuthanasia where the person killed is capable of making such requestbut has not done so[11]. These terms can be described as under:

(i) Voluntary Euthanasia: People concerned to legalize thetermination of life on medical grounds have always concentrated onVoluntary Euthanasia (this implies that the patient specifically requeststhat his life be ended.) It is generally agreed that the request must comefrom someone who is either; (a) in intolerable pain or (b) who is sufferingfrom an illness which is agreed as being terminal. It may be prior to thedevelopment of the illness in question or during its course. In either caseit must not result from any pressure from relatives or those who havethe patients in their care. Both active and passive euthanasia can betermed as forms of voluntary euthanasia.

(ii) Non-Voluntary Euthanasia: Seen by some as sub-variety ofvoluntary euthanasia. This involves the death, ostensibly for his owngood, of someone who cannot express any views on the matter and whomust, therefore, use some sort of proxy request that his/her life be ended.This form of Euthanasia is that which most intimately concerns themedical profession. Selective non-treatment of the new-born or thedoctor may be presented with demented and otherwise senilelyincompetent patients. In practice, non-voluntary euthanasia presentsonly as an arguable alternative to non treatment.

(iii)Involuntary Euthanasia: It involves ending the patient’s lifein the absence of either personal or proxy invitation to do so. Themotive ‘The relief of suffering’ may be the same as voluntary euthanasia-

11 These definitions of voluntary, non-voluntary and involuntary euthanasia correspondto those employed by the House of Lords Select Committee on Medical Ethics (WaltonCommittee)

Abut its only justification - “a paternalistic decision as to what is best forthe victim of the disease.” In extreme cases it could be against thepatient’s wishes or could be just for social convenience. It is examplesof the latter which serve as warnings as to those who would invest themedical professional with more or unfettered powers over life and death[12].

B15. Contrary to the above, in legal parlance, euthanasia has sincecome to be recognised as of two distinct types: the first is activeeuthanasia, where death is caused by the administration of lethal injectionor drugs. Active euthanasia also includes physician-assisted suicide,where the injection or drugs are supplied by the physician, but the act ofadministration is undertaken by the patient himself. Active euthanasia isCnot permissible in most countries. The jurisdictions in which it is permissibleare Canada, the Netherlands, Switzerland and the States of Colorado,Vermont, Montana, California, Oregon and Washington DC in the UnitedStates of America. Passive euthanasia occurs when medical practitionersdo not provide life-sustaining treatment (i.e. treatment necessary to keepDa patient alive) or remove patients from life sustaining treatment. Thiscould include disconnecting life support machines or feeding tubes ornot carrying out life saving operations or providing life extending drugs.In such cases, the omission by the medical practitioner is not treated asthe cause of death; instead, the patient is understood to have died becauseof his underlying condition.E

16. In Aruna Ramachandra Shanbaug, the Court recognisedthese two types of euthanasia i.e. active and passive. It also noted thatactive euthanasia is impermissible, which was so held by the ConstitutionBench in Gian Kaur. Therefore, without going into further debate ondifferential that is assigned to the term euthanasia, ethically,Fphilosophically, medically etc., we would be confining ourselves to theaforesaid legal meaning assigned to active and passive euthanasia. Thus,insofar as active euthanasia is concerned, this has to be treated as legallyimpermissible, at least for the time being. It is more so, as there isabsence of any statutory law permitting active euthanasia. If at all, legalGprovisions in the form of Sections 306 and 307 IPC etc. point towards itscriminality. The discussion henceforth, therefore, would confine to passiveeuthanasia.

12 See Euthanasia and Its Legality and Legitimacy from Indian and International HumanRight Instruments Perspectives published in Human Rights & Social Justice by MuzaferAssadiH

PASSIVE EUTHANASIA AND ARUNA RAMACHANDRASHANBAUG

17. In Aruna Ramachandra Shanbaug, two Judges’ Benchof this Court discussed in much greater detail various nuances ofeuthanasia by referring to active and passive euthanasia as well asvoluntary and involuntary euthanasia; legality and permissibility thereof;relationship of euthanasia vis-a-vis offences concerned under the IPCand doctor assisted death; etc.

18. The Court also took note of legislations in some countriesrelating to euthanasia or physician assisted death. Thereafter, it discussedin detail the judgment in Bland wherein the House of Lords had permittedthe patient to die. Ratio of Bland was culled out in the following manner:

“Airedale (1993) decided by the House of Lords has been followedin number of cases in UK, and the law is now fairly well settledthat in the case of incompetent patients, if the doctors act on thebasis of informed medical opinion, and withdraw the artificial lifesupport system if it is in the patient’s best interest, the said actcannot be regarded as crime.”

19. The Court was of the opinion that this should be permittedwhen the patient is in Persistent Vegitative State (PVS) and held thatit is ultimately for the Court to decide, as parens patriae, as to what isin the best interest of the patient. The wishes of the close relatives andnext friends and opinion of the medical practitioners should be given dueweight by the Court in coming to its decision. The Court then noted theposition of euthanasia with reference to Section 306 (abetment of suicide)and Section 309 (attempt to commit suicide) of the IPC, inasmuch as,even allowing passive euthanasia may come in conflict with the aforesaidprovisions which make such an act crime. While making passingobservation that Section 309 should be deleted by the Parliament as ithas become anachronistic, the Court went into the vexed question as towho can decide whether life support should be discontinued in the caseof an incompetent person, e.g. person in coma or PVS. The Courtpointed out that it was vexed question, both because of its likely misuseand also because of advancement in medical science. It noted:

“104. It may be noted that in Gian Kaur case although theSupreme Court has quoted with approval the view of the Houseof Lords in Airedale case, it has not clarified who can decide

whether life support should be discontinued in the case of anincompetent person e.g. person in coma or PVS. This vexedquestion has been arising often in India because there are largenumber of cases where persons go into coma (due to an accidentor some other reason) or for some other reason are unable to giveconsent, and then the question arises as to who should give consentfor withdrawal of life support. This is an extremely importantquestion in India because of the unfortunate low level of ethicalstandards to which our society has descended, its raw andwidespread commercialisation, and the rampant corruption, andhence, the Court has to be very cautious that unscrupulous personswho wish to inherit the property of someone may not get himeliminated by some crooked method.

105. Also, since medical science is advancing fast, doctors mustnot declare patient to be hopeless case unless there appearsto be no reasonable possibility of any improvement by some newlydiscovered medical method in the near future. In this connectionwe may refer to recent news item which we have come acrosson the internet of an Arkansas man Terry Wallis, who was 19years of age and newly married with baby daughter when in1984 his truck plunged through guard rail, falling 25 feet. Hewent into coma in the crash in 1984, but after 24 years he hasregained consciousness. This was perhaps because his brainspontaneously rewired itself by growing tiny new nerve connectionsto replace the ones sheared apart in the car crash. Probably thenerve fibres from Terry Wallis’ cells were severed but the cellsthemselves remained intact, unlike Terri Schiavo, whose brain cells

had died (see Terri Schiavo case on Google). However, we makeit clear that it is experts like medical practitioners who can decidewhether there is any reasonable possibility of new medicaldiscovery which could enable such patient to revive in the nearfuture.”

20. It held that passive euthanasia would be permissible when aperson is ‘dead’ in clinical sense. It chose to adopt the standard of‘brain death’, i.e. when there is an ‘irreversible cessation of allfunctions of the entire brain, including the brain stem’. The Courttook note of President’s Committee on Bioethics in the United States ofAmerica which had come up with new definition of ‘brain death’ in

the year 2008, according to which person was considered to bebraindead when he could no longer perform the fundamental humanwork of an organism. Three such situations contemplated in that definitionare the following:

“(1) openness to the world, that is receptivity to stimuli and signalsfrom the surrounding environment,

(2) the ability to act upon the world to obtain selectively what itneeds, and

(3) the basic felt need that drives the organism to act ... to obtainwhat it needs.”

21. The Court held that when the aforesaid situation is reached, aperson can be presumed to be dead. In paragraph 115 of the judgment,the position is summed up as under:

“When this situation is reached, it is possible to assume that theperson is dead, even though he or she, through mechanicalstimulation, may be able to breathe, his or her heart might be ableto beat, and he or she may be able to take some form ofnourishment. It is important, thus, that it be medically proved thata situation where any human functioning would be impossibleshould have been reached for there to be declaration of braindeath—situations where person is in persistent vegetative statebut can support breathing, cardiac functions, anddigestion without any mechanical aid are necessarily those thatwill not come within the ambit of brain death.”

22. The Court clarified that brain death was not the same as PVSinasmuch as in PVS the brain stem continues to work and so somedegree of reactions may occur, though the possibility of regainingconsciousness is relatively remote.

23. The Court further opined that position in the case of euthanasiawould be slightly different and pointed out that the two circumstances inwhich it would be fair to disallow resuscitation of person who isincapable of expressing his or her consent to the termination of his orher life. These are:

“(a) When person is only kept alive mechanically i.e. when notonly consciousness is lost, but the person is only able to sustain

326SUPREME COURT REPORTS

Ainvoluntary functioning through advanced medical technology—such as the use of heart-lung machines, medical ventilators, etc.

(b) When there is no plausible possibility of the person ever beingable to come out of this stage. Medical “miracles” are notunknown, but if person has been at stage where his life is onlyBsustained through medical technology, and there has been nosignificant alteration in the person’s condition for long period oftime—at least few years—then there can be fair case madeout for passive euthanasia.”

24. Taking clue from the judgment in Vishaka and Others v.CState of Rajasthan and Others[13], the Court laid down the law, whileallowing passive euthanasia, i.e. the circumstances when there could bewithdrawal of life support of patient in PVS. This is stated in paragraph124 of the judgment, which we reproduce below:

“124. There is no statutory provision in our country as to the legalDprocedure for withdrawing life support to person in PVS or whois otherwise incompetent to take decision in this connection. Weagree with Mr Andhyarujina that passive euthanasia should bepermitted in our country in certain situations, and we disagreewith the learned Attorney General that it should never be permitted.Hence, following the technique used in VishakaEcase [Vishaka v. State of Rajasthan, we are laying down thelaw in this connection which will continue to be the law untilParliament makes law on the subject:(i) decision has to be taken to discontinue life support either bythe parents or the spouse or other close relatives, or in the absenceFof any of them, such decision can be taken even by person ora body of persons acting as next friend. It can also be taken bythe doctors attending the patient. However, the decision shouldbe taken bona fide in the best interest of the patient.

In the present case, we have already noted that Aruna Shanbaug’sGparents are dead and other close relatives are not interested inher ever since she had the unfortunate assault on her. As alreadynoted above, it is the KEM Hospital staff, who have beenamazingly caring for her day and night for so many long years,who really are her next friends, and not Ms Pinki Virani who has 13 (1997) 6 SCC 241H

only visited her on few occasions and written book on her. Henceit is for the KEM Hospital staff to take that decision. KEM Hospitalstaff have clearly expressed their wish that Aruna Shanbaug shouldbe allowed to live.

Mr Pallav Shishodia, learned Senior Counsel, appearing for theDean, KEM Hospital, Mumbai, submitted that Ms Pinki Viranihas no locus standi in this case. In our opinion it is not necessaryfor us to go into this question since we are of the opinion that it isthe KEM Hospital staff who is really the next friend of ArunaShanbaug.

We do not mean to decry or disparage what Ms Pinki Virani hasdone. Rather, we wish to express our appreciation of the splendidsocial spirit she has shown. We have seen on the internet that shehas been espousing many social causes, and we hold her in highesteem. All that we wish to say is that however much her interestin Aruna Shanbaug may be it cannot match the involvement ofthe KEM Hospital staff who have been taking care of Aruna dayand night for 38 years.

However, assuming that the KEM Hospital staff at some futuretime changes its mind, in our opinion in such situation KEMHospital would have to apply to the Bombay High Court forapproval of the decision to withdraw life support.

(ii) Hence, even if decision is taken by the near relatives ordoctors or next friend to withdraw life support, such decisionrequires approval from the High Court concerned as laid downin Airedale case.

In our opinion, this is even more necessary in our country as wecannot rule out the possibility of mischief being done by relativesor others for inheriting the property of the patient.”

25. It can be discerned from the reading of the said judgment thatcourt was concerned with the question as to whether one can seek rightto die? This question has been dealt with in the context of Article 21 ofthe Constitution, namely, whether this provision gives any such right. Asis well-known, Article 21 gives ‘right to life’ and it is guaranteed to allthe citizens of India. The question was as to whether ‘right to die’ isalso an integral part of ‘right to life’. In Gian Kaur this ‘right to die’ had

Anot been accepted as an integral part of ‘right to life’. The Court inAruna Ramachandra Shanbaug maintained this position insofar as anactive euthanasia is concerned. However, passive euthanasia, undercertain circumstances, has been accepted.

26. It may be pertinent to mention that the petitioner (Aruna) inBthe said case was working as nurse in the King Edward MemorialHospital (KEM), Parel, Mumbai. The tragic incident happened on theevening of 27th November, 1973. Aruna was attacked by sweeper inthe hospital who wrapped dog chain around her neck and yanked herback with it. He tried to rape her but on finding that she was menstruating,he sodomized her. To immobilize her during this act, he twisted the chainCaround her neck. She was found unconscious by one cleaner on the nextday. Her body was on the floor and blood was all over the floor. Theincident did not allow oxygen to reach her brain as result of which herbrain got damaged.27. The petition was filed by Ms. Pinki Virani as next friend ofDAruna Shanbaug. According to facts of the case, Aruna has beensurviving on mashed food as she was not able to chew or taste any foodand she could not move her hands or legs. It is alleged that there is notthe slightest possibility of any improvement in her condition and her bodylies on the bed in the KEM Hospital like dead animal, and this has beenEthe position for the last 36 years. The prayer of the petitioner was thatthe respondents be directed to stop feeding Aruna, and let her diepeacefully.

28. The court appointed team of three eminent and qualifieddoctors to investigate and report on the medical condition of Aruna. TheFteam included, Dr. J.V. Divatia[14], Dr. Roop Gursahani[15] and Dr. NileshShah[16]. The team of doctors studied her medical history and observedthat Aruna would get uncomfortable if the room in which she was locatedwas over crowded, she was calm when fewer people were around her.In fact, the hospital staff had taken care and was willing to continue todo so. Moreover, Aruna’s body language did not suggest that she wantsGto die. Therefore, the doctors opined that there is no need for euthanasiain the instant case.

14 Professor and Head, Department of Anesthesia, Critical Care and Pain at TataMemorial Hospital, Mumbai.

15 Consultant Neurologist at P.D. Hinduja, Mumbai.

16 Professor and Head, Department of Psychiatry at Lokmanya Tilak MunicipalHCorporation Medical College and General Hospital.

29. Reliance was placed on the landmark judgment of the Houseof Lords in Bland, where for the first time in the English history, theright to die was allowed through the withdrawal of life support systemsincluding food and water. This case placed the authority to decide whethera case is fit or not for euthanasia in the hands of the court. In this case,Aruna did not have the capacity to consent for the proposed medicalprocess. Therefore, the next big question that was to be answered waswho should decide on her behalf.

30. Since, there was no relative traced directly, nor did she haveany frequent visitor who could relate to her, it was extremely crucial forthe court to declare who should decide on her behalf. As there was lackof acquaintance, it was decided by beneficence. Beneficence is actingin the interest that is best for the patient, and is not influenced by personalconvictions, motives or other considerations. Public interest and theinterests of the state were also considered in the said matter.

31. On the aforesaid principle of beneficence and studying theposition in some other countries, the court in its judgment said, the rightto take decision on behalf of Aruna was vested with the hospital and itsmanagement and not Ms. Pinki. The court also said that allowingeuthanasia would mean reversing the efforts of the hospital and its staff.In order to ensure that there is no misuse of this technique, the SupremeCourt has vested the power with the High Court to decide if life is to beterminated or not.

32. Thus, the Supreme Court allowed passive euthanasia in certainconditions, subject to the approval by the High Court following the dueprocedure. It held that when an application for passive euthanasia isfiled the Chief Justice of the High Court should forthwith constitute aBench of at least two Judges who should decide to grant approval ornot. Before doing so, the Bench should seek the opinion of committeeof three reputed doctors to be nominated by the Bench after consultingsuch medical authorities/medical practitioners as it may deem fit.Simultaneously with appointing the committee of doctors, the High CourtBench shall also issue notice to the State and close relatives e.g. parents,spouse, brothers/sisters etc. of the committee to them as soon as it isavailable. After hearing them, the High Court Bench should give itsverdict. The above procedure should be followed all over India untilParliament makes legislation on this subject. I am not carrying out thecritique of this judgment at this stage and the manner in which it has

Abeen analysed by those who are the proponents of passive euthanasiaand those who are against it. It is, more so, when my Brother,Chandrachud, J., has dealt with this aspect in detail in his discourse. Inany case, as noted above, in view of the reference order dated February25, 2014, the validity of this aspect has to be examined, which exerciseis undertaken by me at an appropriate stage.

EUTHANASIA: COMPLEX CONCEPT

33. As discussed hereinafter, issue of euthanasia is complexedand complicated issue over which there have been heated debates, notonly within the confines of courts, but also among elites, intelligentsiaCand academicians alike. Some of these complexities may be capturedat this stage itself.

34. The legal regime webbed by various judgments rendered bythis Court would reflect that the Indian position on the subject is somewhatcomplex and even complicated to certain extend. First, let us touch theDtopic from the constitutional angle.

35. Article 21 of the Constitution mandates that no person shall bedeprived of his life or personal liberty, except according to the procedureestablished by law. This Article has been interpreted by the Court inmost expansive terms, particularly when it comes to the meaning that isEassigned to ‘right to life’. It is not necessary to take stock of variousfaces of right to life defined by this Court. What is important for ourpurpose is to point out that right to life has been treated as more than‘mere animal existence’. In Kharak Singh v. State of U.P. & Ors.[17] itwas held that the word ‘life’ in Article 21 means right to live with humandignity and it does not merely connote continued drudgery. It takesFwithin its fold “some of the finer graces of human civilisation, whichmakes life worth living” and that the expanded concept of life wouldmean the “tradition, culture and heritage” of the concerned person. Thisconcept has been reiterated and reinforced, time and again, in seriesof judgments. It may not be necessary to refer to those judgments.GSuffice is to mention that nine Judge Constitution Bench of this Courtin K.S. Puttaswamy and Another v. Union of India and Others[18 ]hastaken stock of all important judgments which have echoed the messageenshrined in Kharak Singh’s case. We may, however, point out that in

17 (1964) 1 SCR 332

18 (2017) 10 SCC 1

the case of C.E.S.E. Limited and Others v. Subhash Chandra Boseand Others[19], Justice K. Ramaswamy observed that physical and mentalhealth have to be treated as integral part of right to life, because withoutgood health the civil and political rights assured by our Constitution cannotbe enjoyed. Though Justice Ramaswamy rendered minority opinion inthat case, on the aforesaid aspect, majority opinion was not contrary tothe views expressed by Justice Ramaswamy. Thus, Article 21 recognizesright to live with human dignity[20].

36. The question that arises at this juncture is as to whether rightto life enshrined in Article 21 of the Constitution includes right to die. Ifsuch right is recognised, that would provide immediate answer to theissue involved, which is pertaining to voluntary or passive euthanasia.However, the judgments of this Court, as discussed hereinafter, woulddemonstrate that no straightforward answer is discernible and, asobserved above, the position regarding euthanasia is somewhat complexin the process.

37. It would be interesting to point out that in Rustom CavasjeeCooper v. Union of India[21] the Court held that what is true of onefundamental right is also true of another fundamental right. This Courtalso made specific observation that there cannot be serious disputeabout the proposition that fundamental rights have their positive as wellas negative aspect. For example, freedom of speech and expressionincludes freedom not to speak. Likewise, freedom of association andmovement includes freedom not to join any association or moveanywhere. Freedom of business includes freedom not to do any business.In this context, can it be said that right to life includes right to die or rightto terminate ones own life? The Constitution Bench in Gian Kaur,however, has taken view that right to live will not include right not tolive.

38. We have already pointed out that Section 306 of the IPC makesabetment to suicide as punishable offence. Likewise, Section 309 IPCmakes attempt to commit suicide as punishable offence. Intention tocommit suicide is an essential ingredient in order to constitute an offenceunder this provision. Thus, this provision specifically prohibits personfrom terminating his life and negates right to die. Constitutional validity 19 (1992) 1 SCC 441

20 Aspects of human dignity as right to life in the context of euthanasia shall bediscussed in greater detail at the relevant stage. 21 (1970) 1 SCC 248

Aof this provision, on the touchstone of Article 21, was the subject matterof Gian Kaur’s case[22]. The Court held Sections 306 and 309 IPC to beconstitutionally valid. While so holding, the Court observed that when aman commits suicide, he has to undertake certain positive overt acts andthe genesis of those acts cannot be traced to, or be included within theprotection of the ‘right to life’ under Article 21. The significant aspectBof ‘sanctity of life’ is also not to be overlooked. Article 21 is provisionguaranteeing protection of life and personal liberty and by no stretch ofimagination can ‘extinction of life’ be read to be included in ‘protectionof life’. Whatever may be the philosophy of permitting person toextinguish his life by committing suicide, the Court found it difficult toCconstrue Article 21 to include within it the ‘right to die’ as part of thefundamental right guaranteed therein. ‘Right to life’ is natural rightembodied in Article 21 but suicide is an unnatural termination or extinctionof life and, therefore, incompatible and inconsistent with the concept of‘right to life’.

DThus, the legal position which stands as of today is that right tolife does not include right to die. It is in this background we have todetermine the legality of passive euthanasia.

39. Matter gets further complicated when it is examined in thecontext of morality of medical science (Hippocratic Oath). Every doctorEis supposed to take specific oath that he will make every attempt to safethe life of the patient whom he/she is treating and who is under his/hertreatment. The Hippocratic Oath goes on to say:

“I swear by Apollothe Healer, by Asclepius, by Hygieia, byPanacea, and by all the gods and goddesses, making them myFwitnesses, that I will carry out, according to my ability andjudgment, this oath and this indenture.

22 It may be noted that the Delhi High Court in State v. Sanjay Kumar, (1985) Crl.L.J.931, and the Bombay High Court in Maruti Sharipati Dubai v. State of Maharashtra,(1987) Crl.L.J. 743, had taken the view that Section 309 of IPC was unconstitutional,being violative of Articles 14 and 21 of the Constitution. On the other hand, the AndhraPradesh High Court in C. Jagadeeswar v. State of Andhra Pradesh, (1983) Crl.L.J. 549,Ghad upheld the validity of Section 309 holding that it did not offend either Article 14 orArticle 21 of the Constitution. Division Bench of this Court in R. Rathinam v. Unionof India and Another, (1994) 3 SCC 394, had held that Section 309 IPC deserves to beeffaced from the statute book to humanise our penal laws, terming this provision ascruel and irrational, which results in punishing person again who had already sufferedagony and would be undergoing ignominy because of his failure to commit suicide. It isHin this backdrop Gian Kaur’s case was referred to and decided by the ConstitutionBench.

To hold my teacher in this art equal to my own parents; to makehim partner in my livelihood; when he is in need of money toshare mine with him; to consider his family as my own brothers,and to teach them this art, if they want to learn it, without fee orindenture; to impart precept, oral instruction, and all other instructionto my own sons, the sons of my teacher, and to indentured pupilswho have taken the physician’s oath, but to nobody else.

I will use treatment to help the sick according to my ability andjudgment, but never with view to injury and wrong-doing. Neitherwill I administer poison to anybody when asked to do so, nor willI suggest such course. Similarly I will not give to woman apessary to cause abortion. But I will keep pure and holy both mylife and my art. I will not use the knife, not even, verily, on sufferersfrom stone, but I will give place to such as are craftsmen therein.

Into whatsoever houses I enter, I will enter to help the sick, and Iwill abstain from all intentional wrong-doing and harm, especiallyfrom abusing the bodies of man or woman, bond or free. Andwhatsoever I shall see or hear in the course of my profession, aswell as outside my profession in my intercourse with men, if it bewhat should not be published abroad, I will never divulge, holdingsuch things to be holy secrets.

Now if I carry out this oath, and break it not, may I gain for everreputation among all men for my life and for my art; but if I breakit and forswear myself, may the opposite befall me.”

40. This oath, thus, puts moral and professional duty upon adoctor to do everything possible, till the last attempt, to save the life of apatient. If that is so, would it not be against medical ethics to let aperson die by withdrawing medical aid or, even for that matter, lifesupporting instruments. Paradoxically, advancement in medical sciencehas compounded the issue further. There has been significantadvancement in medical science. Medical scientists have been,relentlessly and continuously, experimenting and researching to find outbetter tools for not only curing the disease with which human beingssuffer from time to time, noble attempt is to ensure that human life isprolonged and in the process of enhancing the expectancy of life, ailmentsand sufferings therefrom are reduced to the minimal. There is, thus, afervent attempt to impress the quality of life. It is this very advancement

Ain the medical science which creates dilemma at that juncture when, incommon perception, life of person has virtually become unlivable butthe medical doctors, bound by their Hippocratic Oath, want to still spareefforts in the hope that there may still be chance, even if it is veryremote, to bring even such person back to life. The issue, therefore,gets compounded having counter forces of medical science, moralityBand ethical values, the very concept of life from philosophical angle. Inthis entire process, as indicated in the beginning and demonstrated indetail at the appropriate stage, the vexed question is to be ultimatelydecided taking into consideration the normative law, and in particular,the constitutional values.C

41. Then, there is also possibility of misuse and it becomes achallenging task to ensure that passive euthanasia does not become atool of corruption and convenient mode to ease out the life of personwho is considered inconvenient. This aspect would be touched upon atsome length at the appropriate stage. This point is highlighted at thisDjuncture just to demonstrate the complexity of the issue.

42. I may add that the issue is not purely legal one. It has moraland philosophical overtones. It has even religious overtones. AsProfessor Upendra Baxi rightly remarks that judges are, in fact, notjurisprudes. At the same time, it is increasingly becoming important thatEsome jurisprudential discussion ensues while deciding those cases whichhave such more and philosophical overtones as well. Such an analysesprovides not only legal basis for the conclusions arrived at but it alsoprovides logical commonsense justification as well. Obviously, wheneverthe court is entering into new territory and is developing new legalnorm, discussion on normative jurisprudence assumes greater significanceFas the court is called upon to decide what the legal norm should be. Atthe same time, this normative jurisprudence discourse has to be precededby analytical jurisprudence, which is necessary for the court to underlineexisting nature of law. That would facilitate knowing legal frameworkof what is the current scenario and, in turn, help in finding the correctGanswers. When we discuss about the philosophical aspects of the subjectmatter, it is the ‘value of life’ which becomes the foremost focus ofdiscussion. The discussion which follows hereinafter keeps in mind theseparameters.

THE TWO ISSUES

43. As already stated above, as of now insofar ‘active euthanasia’is concerned, it is legally impermissible. Our discussion centres around‘passive euthanasia’. Another aspect which needs to be mentioned atthis stage is that in the present petition filed by the petitioner, the petitionerwants that ‘advance directive’ or ‘living will’ should be legally recognised.In this backdrop, two important questions arise for considerations, viz.,

(I) whether passive euthanasia, voluntary or even, in certaincircumstances, involuntary, is legally permissible? If so underwhat circumstances (this question squarely calls for answerhaving regards to the reference order made in the instantpetition)? and

(II) whether ‘living will’ or ‘advance directive’ should be legallyrecognised and can be enforced? If so, under whatcircumstances and what precautions are required whilepermitting it?

44. Answers to these questions have been provided in the judgmentof Hon’ble The Chief Justice, with excellent discourse on all relevantaspects in an inimitable and poetic style. I entirely agree with thereasoning and outcome. In fact, with the same fervour and conclusion,separate judgments are written by my brothers, Dhananjay Chandrachudand Ashok Bhushan, JJ. exhibiting expected eloquence and erudition. Ihave gone through those opinions and am in complete agreement thereby.In this scenario, in my own way, I intend to deal with the aforesaidquestions on the following hypothesis:

(i) Issue of passive euthanasia is highly debatable, controversialand complex (already indicated above).

(ii) It is an issue which cannot be put strictly within the legalconfines, but has social, philosophical, moral and even religious overtones.

(iii) When the issue of passive euthanasia is considered on theaforesaid parameters, one would find equally strong views on both sides.That is the reason which makes it thorny and complex issue and bringswithin the category of ‘hard cases’.

(iv) In this entire scenario when the issue is considered in thecontext of dignity of the person involved, one may tend to tilt in favour ofpermitting passive euthanasia.

(v) At the same time, in order to achieve balance, keeping inview the competing and conflicting interests, care can be taken to confinepermissibility of passive euthanasia only in rare cases, particularly, whenthe patient is declared ‘brain dead’ or ‘clinically dead’ with virtually nochances of revival.

(vi) In this process, as far as ‘living will’ or ‘advance directive’ isconcerned, that needs to be permitted, along with certain safeguards. Itwould not only facilitate prevention of any misuse but take care of manyapprehensions expressed about euthanasia.

With the outlining of the structured process as aforesaid, I proceedCto discuss these aspects in detail hereinafter.

45. As pointed out above, Aruna Ramachandra Shanbaugdecides that passive euthanasia, even involuntary, in certaincircumstances would be justified. The reference order in the instantcase, however, mentions that for coming to this conclusion, the BenchDrelied upon Gian Kaur, but that case does not provide any such mandate.In this backdrop, we take up the first question about the legality of passiveeuthanasia.

FIRST ISSUE

Whether passive euthanasia, voluntary or even, in certainEcircumstances, involuntary, is legally permissible? If so underwhat circumstances (this question squarely calls for answer havingregards to the reference order made in the instant petition)?

46. I intend to approach this question by discussing the followingfacets thereof:F

(a) Philosophy of euthanasia

(b) Morality of euthanasia

(c) Dignity in euthanasia

(d) Economics of euthanasia

G(A) Philosophy of Euthanasia

“I am the master of my fate; I am the captain of my soul”

- William Ernest Henley[23]

23 As quoted in P. Rathinam v. Union of India & Anr., (1994) 3 SCC 394H

“Death is our friend … he delivers us from agony. I do notwant to die of creeping paralysis of my faculties – adefeated man.”

- Mahatma Gandhi [24]

“When man’s circumstances contain preponderance ofthings in accordance with nature, it is appropriate for himto remain alive; when possess or sees in prospect majority

of contrary, it is appropriate for him to depart from life.”

- Marcus Tullius Cicero

“Euthanasia, and especially physician-assisted suicide,appears as the ultimate post-modern demand for dignity inan era of technologically-mediated death.”

- Dr. Jonathan Moreno

47. The afore-quoted sayings of some great persons bring out afundamental truth with universal applicability. Every persons wants tolead life with good health and all kinds of happiness. At the same time,nobody wants any pain, agony or sufferings when his or her life spancomes to an end and that person has to meet death. The followingopening stanza from song in film captures this message beautifully:

“Every person in this world comes crying. However, thatperson who leaves the world laughing/smiling will be theluckiest of all”

(Hindi Film – Muqaddar Ka Sikandar)

48. It became unbearable for young prince Siddharth when he,for the first time, saw an old crippled man in agony and dead bodybeing taken away. He did not want to encounter such situation in hisold life and desired to attain Nirvana which prompted him to renouncethe world so that he could find the real purpose of life; could lead lifewhich is worth living; and depart this world peacefully. He successfullyachieved this purpose of life and became Gautam Buddha. There aremany such similar examples.

24 Same as in 14 above.

ALife is mortal. It is transitory. It is as fragile as any other object.It is harsh reality that no human being, or for that matter, no livingbeing, can live forever. Every creature who takes birth on this planetearth has to die one day. Life has limited shelf age. In fact, unlike theobjects and articles which are produced by human beings and may carryalmost same life span, insofar as humans themselves are concerned,Bspan of life is also uncertain. Nobody knows how long he/she will beable to live. The gospel truth is that everybody has to die one day,notwithstanding the pious wish of man to live forever[25]. As WoodyAllen said once: ‘I do not want to achieve immortality through mywork. I want to achieve it through not dying’. At the same time,Cnobody wants to have tragic end to life. We all want to leave theworld in peaceful manner. In this sense, the term ‘euthanasia’ whichhas its origin in Greek language signifies ‘an easy and gentle death’.

49. According to Charles I. Lugosi, the sanctity of life ethic nolonger dominates American medical philosophy. Instead, quality of lifeDhas become the modern approach to manage human life that is at themargin of utility[26]. It is interesting to note that the issue of euthanasiawas debated in India in 1928. Probably this was the first public debateon euthanasia to be reported. Calf in Gandhi’s ashram was ailingunder great pain. In spite of every possible treatment and nursing…thecondition of the calf was so bad that it could not even change its side orEeven it could not be lifted about in order to prevent pressure ulcers/sores. It could not even take nourishment and was tormented by flies.The surgeon whose advice was sought in this matter declared the caseto be past help and past hope. After painful days of hesitation anddiscussions with the managing committee of Goseva Sangh and theFinmates of the ashram, Gandhi made up his mind to end the life of thecalf in painless way as possible. There was commotion in orthodoxcircles and Gandhi critically examined the question through his articlewhich appeared in Navajivan (dated 30-9-1928) and Young India (4-10-1928). Probably this was the first public debate on euthanasia and animal/

veterinary euthanasia and the debate also covered the issue of humanGeuthanasia. It is equally interesting to note that Gandhi and his critics 25 It is well known that medical scientists are intensely busy in finding the ways tobecome ageless and immortal, but till date have remained unsuccessful in achieving thisdream.

26 Charles I. Lugosi, ‘Natural Disaster, Unnatural Deaths: The Killings on the LifeCare Floors at Tenet’s Memorial Centre after Hurricane Katrina’, Issues in Law andHMedicine, Vol. 23, Summer, 2007.

discussed the issue of ‘painlessly ending the life to end suffering’without using the term ‘euthanasia’. But, he meant the same. Furtherit is more interesting to learn that at various instances Gandhiji hadtouched upon the issues of the present day debates on Voluntaryeuthanasia, Non-voluntary euthanasia, Involuntary euthanasia, as wellas passive euthanasia, active euthanasia, physician-assisted euthanasiaand the rejection or ‘termination of treatment’. Gandhi advocated thedevelopment of positive outlook towards life and strived for the humanenursing and medical care even when cure was impossible. It was theway he analysed Karma and submitted to the will of the God.

50. Mahatma Gandhi said:

“In these circumstances I felt that humanity demanded that theagony should be ended by ending life itself. The matter was placedbefore the whole ashram. At the discussion worthy neighbourvehemently opposed the idea of killing even to end pain. The ground ofhis opposition was that one has no right to take away life whichone cannot create. His argument seemed to me to be pointless here.It would have point if the taking of life was actuated by self-interest.Finally, in all humility but with the clearest of convictions, I got in mypresence doctor kindly to administer the calf quietus by means of aposition injection. The whole thing was over in less than two minutes.

But the question may very legitimately be put to me: would Iapply the same principle to human beings? Would I like it to be applied inmy own case? My reply is ‘yes’; the same law holds good in both thecases. The law, ‘as with one so with all’, admits of no exceptions, or thekilling of the calf was wrong and violent. In practice, however, we donot cut short the sufferings of our ailing dear ones by death because, asa rule, we have always means at our disposal to help them and theyhave the capacity to think and decide for themselves. But supposingthat in the case of an ailing friend, I am unable to render any aid whateverand recovery is out of question and the patient is lying in an unconsciousstate in the throes of agony, then I would not see any himsa in putting anend to his suffering by death.

Just as surgeon does not commit himsa but practices the purestahimsa when he wields his knife, one may find it necessary, under certainimperative circumstances, to go step further and sever life from thebody in the interest of the sufferer. It may be objected that whereas thesurgeon performs his operation to save the life of the patient, in the other

Acase we do just the reverse. But on deeper analysis it will be foundthat the ultimate object sought to be served in both the cases is the same,namely, to relieve the suffering soul within from pain. In the one caseyou do it by severing the diseased portion from the body, in the other youdo it by severing from the soul the body that has become an instrumentof torture to it. In either case it is the relief of the soul within from painBthat is aimed at, the body without the life within being incapable of feelingeither pleasure or pain.

To conclude then, to cause pain or wish ill to or to take the life ofany living being out of anger or selfish intent, is himsa. On the otherhand, after calm and clear judgment to kill or cause pain to livingCbeing from pure selfless intent may be the purest form of ahimsa.Each such case must be judged individually and on its own merits. Thefinal test as to its violence or non-violence is after all the intent underlyingthe act.”

51. Ethical Egoism propounded in modern times by ThomasDHobbes in “Leviathan” also operates from the general rule that if anyaction increases my own good, then it is right. Ethical egoism in thecontext of euthanasia would mean that if person wants or does notwant to end his/her life using euthanasia, this desire is presumed to bemotivated by need for self benefit, and is therefore an ethical action[27].EThe perspective of the world community is gradually shifting from sanctityof life to quality of life sustained and preserved.

52. Philosophers believe that we have to control switch that canend it all, on request. In medical/legal parlance, it is called euthanasia:‘an easy and gentle death’. Philosophically, this debate is about ourFright, when terminally ill, to choose how to die. It is about the right tocontrol how much we have to suffer and when and how we die. It isabout having some control over our dying process in system that canaggressively prolong life with invasive technology. Luckily, we also havethe technology that allows us to experience gentle death on our ownterms, rather than by medically set terms. In his famous essay on Liberty,GJohn Stuart Mill argues strongly for our right to self-determination. Hewrites: “over himself, over his own body and mind, the individual issovereign...he is the person most interested in his own well being.”Thesewordswerewritten over century ago. 27 John Keown, Euthanasia, Ethics and Public Policy, (Cambridge: Cambridge UniversityPress, (2002) p. 37H

53. Philosophically, therefore, one may argue that if person whois undergoing miserable and untold sufferings and does not want tocontinue dreadful agony and is terminally ill, he should be free to makehis choice to terminate his life and to put an end to his life so that he diespeacefully.

54. At the same time, Buddhism, Jainism and Hinduism are againsteuthanasia. However, their concept of ‘good death’ is extremelyinteresting – specially principles of Buddhism as they are echoed in thepresent day understanding of euthanasia. Without elaborating and to putit in nutshell:

• Buddhism, Jainism, and Hinduism, in particular, embrace theconcept of the good death as means of achieving dignity andspiritual fulfilment at the end of life without resorting to artificiallyshortening its span.

• Buddhists believe that human existence is rare and rebirth as ahuman is rarer still. Consequently it is best approached cautiouslywithout attempting to exert control over the dying process. At thepoint of dying, Buddhist should ideally be conscious, rational andalert.

• Traditional Hindu religious culture also emphasizes the gooddeath as reflection of the quality of life that preceded it. If agood, dignified death is attained, it is perceived as evidence ofhaving lived worthy life because “the manner of one’s passingout-weighs all previous claims and intimations of one’s moralworth”[28].

• “a good death certifies good life”[29].

• The good death is achieved when death occurs in fullconsciousness, in chosen place and at chosen time; and

• As with Buddhism great significance is attached to the elementof choice and the maintenance of control,[30]so if at all possible, 28 T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine 425–32. (

29 T N Madan, “Living and Dying” in Non-Renunciation: Themes and Interpretationsof the Hindu Culture (New Delhi, Oxford University Press, 1987). 31 J Parry, Death and the Regeneration of Life (Cambridge, Cambridge UniversityPress, 1982)

A“one must be in command and should not be overtaken by death.To be so overtaken is the loss of dignity”.[31]Thus the final momentsof life should be calm, easy and peaceful if dignity is to bepreserved.

Many of the insights of these traditional religions are echoed inBthe modern Western understanding of euthanasia, as means of achievingdeath with dignity, which focuses on avoiding dependence and loss ofcontrol. Choosing to deliberately end one’s life allows control over thetime, place and method of one’s dying and explains why euthanasiaappears to offer death with dignity. Rather than active euthanasia theseancient religions advocate calm, control and compassion as means ofCachieving dignity.

(B) Morality of Euthanasia

55. At the outset, I would like to clarify that while discussing aparticular norm of law, the law per se is to be applied and, generallyDspeaking, it is not the function of the Courts to look into the moral basisof law. At the same time, some legal norms, particularly those whichare jurisprudentially expounded by the Courts or developed as commonlaw principles, would have moral backing behind them. In that sensemoral aspects of an issue may assume relevance. This relevancy andrationale is quite evident in the discussion about euthanasia. In fact, theEvery concept of dignity of life is substantially backed by moral overtones.We may remind ourselves with the following classical words uttered byImmanuel Kant:

“We must not expect good constitution because those who makeit are moral men. Rather it is because of good constitution thatFwe may expect society composed of moral men.”

56. It is well known that Justice Holmes’ legal philosophy revolvedaround its central theme that law and morals are to be kept apart,maintaining sharp distinction between them. Notwithstanding, evenhe accepted that under certain circumstances distinction between lawGand morals loses much of its importance. To quote:

“I do not say say that there is not wider point of view fromwhich the distinction between law and morals becomes of

31 T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine425–32.H

secondary importance, as all mathematical distinctions vanish inthe presence of the infinite”.[32]

57. Euthanasia is one such critical issue where the law relating toit cannot be divorced from morality. Lon L. Fuller[33] has argued withgreat emphasis that it is the morality that makes the law possible. Healso points towards morality as the substantive aims of law. In fact, aswould be noticed later, the conceptualisation of doctrine of dignity byRonald Dworkin is supported with moral ethos. With the aid of dignityprinciple, he has argued in favour of euthanasia. Likewise, and ironically,John Finnis, Professor of Law and Legal Philosophy Emeritus in theUniversity of Oxford, while opposing euthanasia, also falls back on themorality conception thereof. It is this peculiar feature which drives us todiscuss the issue of euthanasia from the stand point of morality.

58. Influenced primarily by the aforesaid considerations, I deem itrelevant to indulge into discussion on morality.

59. When we come to the moral aspects of ‘end of life’ issues,we face the situation of dilemma. On the one hand, it is an acceptedbelief that every human being wants to die peacefully. Nobody wants toundergo any kind of suffering in his last days. So much so person whomeets his destiny by sudden death or easy death is often considered asa person who would have lived his life by practicing moral and ethicalvalues. Rightly or wrongly, it is perceived that such person who exhibitedgraceful behaviour while living his life is bestowed grace by the deathwhen time to depart came. However, it does not happen to most of thepeople. Ageing is natural phenomena. No doubt, as the person advancesin age, he becomes mature in his wisdom. However, old age brings,along with it, various ailments and diseases as well. Physical health andphysical functioning declines over the life course, particularly, in laterlife. rise in chronic disease and other conditions such as arthritis, highblood pressure and obesity can cause loss in function and lead to generallydecreasing trajectory for health over the lifespan. Thus, ageing has bothpositive and negative aspects. This ageing leads to extinction of humanlife which may generally be preceded by grave sickness and disease.

60. Horace, Roman poet in his poem on the ‘Ages of Man’ wrotequiet scathingly of the attributes of old age:

32 Justice Holmes: The Path of the Law, 10 Harvard Law review 457-78, at p. 459(1897)

32 Lon L. Fuller: The Morality of Law (Revised Edition), Yale University Press

DEFG

“Many ills encompass an old man, whether because he seeks,gain, and then miserably holds aloof from His store and fears touse it, because, in all that he does, he lacks fire and courage, isdilatory and slow to form hopes, is sluggish and greedy of longerlife, peevish, surly, given to praising the days he spent as boy,and to reproving and condemning the young.

(Ars Poetica, pp.169-74)

We find more contemporary echo of this in WilliamShakespeare’s (1564-1616) famous verse ‘All the World’s aStage’:

all the word’s stage, and all the men and women merelyplayers;

they have their exits and their entrances,

and one man in his time plays many parts,

his acts being seven ages....Last scene of all,

that ends this strange eventful history,

is second childishness and mere oblivion,

sans teeth, sans eyes, sans taste, sans everything.

(As You Like It, Act II, scene VII)”

It may, however, be added (for the sake of clarification) thatadvent of disease is not the confines of old age only. One may becomeEterminally ill at any age. Such disease may be acquired even at birth.

61. The moral dilemma is that it projects both the sides—protractedas well as intractable. On the one hand, it is argued by those who arethe proponents of liberal view that right to life must include aconcomitant right to choose when the life becomes unbearable and notFso worth living, when such stage comes and the sufferer feels that thatthe life has become useless, he should have right to die. Opponents, onthe other hand, project ‘Sanctity of Life’ (SOL) as the most importantfactor and argue that this ‘SOL’ principle is violated by self-styled anglesof death. Protagonists on ‘SOL’ principle believe that life should beGpreserved at all costs and the least which is expected is that there shouldnot be deliberate destruction of human life, though it does not demandthat life should always be prolonged as long as possible.

62. It might therefore be argued, as Emily Jackson (2008) cogentlydoes, that the law’s recognition that withdrawal of life-prolonging

treatment is sometimes legitimate is not so much an exception to theSOL principle, as an embodiment of it.

63. In the most secular judicial interpretation of the SOL doctrineyet, Denman J of the UKHL explicated thus:

“in respect person’s death, we are also respecting their life –giving it sanctity...A view that life must be preserved at all costsdoes not sanctify life.,..to care for the dying, to love and cherishthem, and to free them from suffering rather than simply topostpone death is to have fundamental respect for the sanctity oflife and its end.”

64. Hence, as the process of dying is an inevitable consequenceof life, the right to life necessarily implies the right to have nature take itscourse and to die natural death. It also encompasses right, unlessthe individual so wishes, not to have life artificially maintained by theprovision of nourishment by abnormal artificial means which have nocurative effect and which are intended merely to prolong life.

65. moral paradox which emerges is beautifully described bySushila Rao[34], in the following words:

“Several commentators have justified the active/passive distinctionby averring that there is an important moral difference betweenkilling patient by administering, say, lethal injection, andwithdrawing treatment which is currently keeping her alive. Activeeuthanasia, runs the argument, interferes with nature’s dominion,whereas withdrawal of treatment restores to nature her dominion.

Here too, an absolutist version of the SOL principle rears itsunseemly head. In plethora of cases in the UK, course ofaction which would lead to the patient’s action which would leadto the patient’s death was held to be compatible with the “bestinterests” test. Indeed, majority in the House of Lords in Blandexplicitly accepted that the doctor’s intention in withdrawingartificial nutrition and hydration was, in Lord Browne-Wilkinson’swords, to “bring about the death of Anthony Bland”. Lord Lowrysaid that “the intention to bring about the patient’s death is there”and Lord Mustill admitted that “the proposed conduct has theaim.. of terminating the life of Anthony Bland”. I each case, 34 Sushila Rao : Economic and Political Weekly, Vol. 46, No. 18 (April 30-May 6,2011), pp. 13-16

however, life could be brought to an end only because the doctorshad recourse to course of action which could plausibly bedescribed as “failure to prolong life”.

The SOL principle thus works insidiously to ensure that only certaintypes of death—namely, those achieved by suffocation,dehydration, starvation and infection, through the withdrawal orwithholding of, respectively, ventilation, ratification nutrition andhydration, and antibiotics-can lawfully be brought about. Morecrucially, the SOL principle prohibits doctors from acting to achievethat end quickly, and more humanly, by the administration of asingle lethal injection.

Lord Browne-Wilkinson lamented this paradox in Bland in thefollowing words:

“How can it be lawful to allow patient to die slowly, thoughpainlessly, over period of weeks from lack of food but unlawfulto produce his immediate death by lethal injection, thereby savingDhis family from yet another ordeal to add to the tragedy that hasalready struck them? I find it difficult to find moral answer tothat question.

As Simon Blackburn (2001) puts it, differentiating betweenwithdrawal of treatment and killing may salve some consciences,but it is very doubtful whether it ought to. It often condemns thesubject to painful, lingering death, fighting for breath or dying ofthirst, while those who could do something stand aside, withholdinga merciful death.”

66. Interestingly, Sushila Rao concludes that even the active-passivedistinction is not grounded much in morality and ethics as in ‘reasons ofFpolicy’.

67. John Finnis strongly believes that moral norms rule out thecentral case of euthanasia and discards the theory of terminating people’slife on the ground that doing so would be benefecial by alleviating humansuffering or burdens. He also does not agree that euthanasia wouldGbenefit ‘other people’ at least by alleviating their proportionately greaterburdens[35].

35 According to John Finnis, there is no real and morally relevant distinction betweenactive euthanasia and passive euthanasia inasmuch as one employs the method ofdeliberate omissions (or forbearances or abstentions) in order to terminate life (passiveeuthanasia) and other employs ‘a deliberate intervention’ for the same purpose (activeHeuthanasia). In this sense, in both the cases, it is an intentional act whether by omissionor by intervention, to put an end to somebody’s life and, therefore, morally wrong.

68. Moral discourse of John Finnis proceeds on the ‘intention ofthe person who is facing such situation’. He draws distinction betweenwhat one intends (and does) and what one accepts as foreseen sideeffects is significant by giving importance to free choice. There wouldbe free choice, he argues, only when one is rationally motivated towardsincompatible alternative possible purposes. Therefore, there may be apossibility that person may choose euthanasia but not as free choiceand it would be morally wrong. In situation where that person is not ina position to make choice (for e.g. when he is in comma) this choiceshall be exercised by others which, according to him, violates the autonomyof the person involved. It is significant to mention that Finnis acceptsthat autonomy of the patient or prospective patient counts. It reads:

“Is this to say that the autonomy of the patient or prospectivepatient counts for nothing? By no means. Where one does not knowthat the requests are suicidal in intent, one can rightly, as healthcareprofessional or as someone responsible for the care of people, give fulleffect to requests to withhold specified treatments or indeed any and alltreatments, even when one considers the requests misguided andregrettable. For one is entitled and indeed ought to honour these people’sautonomy, and can reasonably accept their death as side effect ofdoing so.”[36]

69. He, however, explains thereafter that even if such decisionis taken, said person would be proceeding on one or both of twophilosophically and morally erroneous judgments: (i) that human life incertain conditions or circumstances retains no intrinsic value and dignity;and/or (ii) that the world would be better place if one’s life wereintentionally terminated. And each of these erroneous judgments hasvery grave implications for people who are in poor shape and/or whoseexistence creates serious burdens for others.

It is, thus, clear that taking shelter of same morality principles,jurists have reached opposing conclusions. Whereas euthanasia ismorally impermissible in the estimation of some, others treat it as perfectlyjustified. As would be noted later, riding on these very moral principles,Dworkin developed the dignity of life argument and justified euthanasia.

The aforesaid discussion on the philosophy of euthanasia, coupledwith its morality aspect, brings out the conflicting views. Though 36 John Finnis: “Human Rights and Common Good: Collected Essays”, Volume III

Aphilosophical as well as religious overtones may indicate that persondoes not have right to take his life, it is still recognised that humanbeing is justified in his expectation to have peaceful and dignified death.Opposition to euthanasia, on moral grounds, proceeds primarily on thebasis that neither the concerned person has right to take his own life,which is God’s creation, nor anybody else has this right. However, oneBstartling feature which is to be noted in this opposition is that whileopposing euthanasia, no segregated discussion on active and passiveeuthanasia is made. It also does not take into consideration permissibilityof passive euthanasia under certain specific circumstances. Clarity onthis aspect is achieved when we discus the issue of euthanasia in theCcontext of dignity.

(C) Dignity in Euthanasia

70. This Court acknowledges its awareness of the sensitive andemotional nature of euthanasia controversy, and the vigours of opposingviews, even within the medical fraternity, and seemingly absoluteDconvictions that the subject inspires. This is so demonstrated above whilediscussing philosophical, moral, ethical and religious overtones of thesubject involved. These valid aspects, coupled with one’s attitude towardslife and family and their values, are likely to influence and to colourone’s thinking and conclusions about euthanasia. Notwithstanding theEsame, these aspects make the case as ‘hard case’. However, at theend of the day, the Court is to resolve the issue by constitutionalmeasurements, free of emotion and of predilection. One has to bear inmind what Justice Oliver Wendell Holmes Jr. said in his dissentingjudgment in Lochner v. New York[37], which is reproduced below:

F“[The Constitution] is made for people of fundamentally differingviews, and the accident of our finding certain opinions natural andfamiliar or novel and even shocking ought not to conclude ourjudgment upon the question whether statutes embodying themconflict with the Constitution of the United States.”

G71. With these preliminary remarks we return to the doctrine ofdignity as an aspect of Article 21 of the Constitution, brief reference towhich has already been made above.

72. Let me first discuss certain aspects of human dignity in general.Insofar as concept of human dignity is concerned, it dates back to 37 198 US 45, 76 (1905)H

thousands of years. Historically, human dignity, as concept, found itsorigin in different religions which is held to be an important componentof their theological approach. Later, it was also influenced by the viewsof philosophers who developed human dignity in their contemplations[38].Jurisprudentially, three types of models for determining the content ofthe constitutional value of human dignity are recognised. These are: (i)Theological Model, (ii) Philosophical Model, and (iii) Constitutional Model.Legal scholars were called upon to determine the theological basis ofhuman dignity as constitutional value and as constitutional right.Philosophers also came out with their views justifying human dignity ascore human value. Legal understanding is influenced by theological andphilosophical views, though these two are not identical. Aquinas, Kantas well as Dworkin discussed the jurisprudential aspects of humandignity. Over period of time, human dignity has found its way throughconstitutionalism, whether written or unwritten.

Theological Model of Dignity

‘Amritasya Putrah Vayam’

[We are all begotten of the immortal.] This is how Hinduismintroduces human beings.

‘Every individual soul is potentially divine’

– proclaimed Swami Vivekananda

73. Hinduism doesn’t recognize human beings as mere materialbeings. Its understanding of human identity is more ethical-spiritual thanmaterial. That is why sense of immortality and divinity is attributed toall human beings in Hindu classical literature.

74. Professor S.D. Sharma, sums up the position with followinganalysis[39]:

“Consistent with the depth of Indian metaphysics, the humanpersonality was given metaphysical interpretation. This is notunknown to the modern occidental philosophy. The concept ofhuman personality in Kant’s philosophy of law is metaphysicalentity but Kant was not able to reach the subtler unobservedelement of personality, which was the basic theme of the conceptof personality in Indian legal philosophy”

38 Though western thinking is that the concept of human dignity has 2500 years’history, in many eastern civilizations including India human dignity as core humanvalue was recognised thousands of years ago

39 Prof. S.D. Sharma : “Administration of Justice in Ancient Bharat”, (1988).

A75. It is on the principle that the soul that makes the body of allliving organisms its abode is in fact an integral part of the Divine Whole– Paramaatman – that the Vedas declare unequivocally:

Ajyesthaaso Akanisthaasa Yete; Sam BhraataroVaavrudhuh Soubhagaya

[No one is superior or inferior; all are brothers; all should strivefor the interest of all and progress collectively]

– RigVeda, Mandala-5, Sukta-60, Mantra-5

76. Even in Islam, tradition of human rights became evident in theCmedieval ages. Being inspired by the tenets of the Holy Koran, it preachesthe universal brotherhood, equality, justice and compassion. Islam believesthat man has special status before God. Because man is creation ofGod, he should not be harmed. Harm to human being is harm to God.God, as an act of love, created man and he wishes to grant himrecognition, dignity and authority. Thus, in Islam, human dignity stemsDfrom the belief that man is creation of God – the creation that Godloves more than any other.

77. The Bhakti and Sufi traditions too in their own unique wayspopularized the idea of universal brotherhood. It revived and regeneratedthe cherished Indian values of truth, righteousness, justice and morality.

78. Christianity believes that the image of God is revealed in Jesusand through him to human kind. God is rational and determines his goalsfor himself. Man was created in the image of God, and he too is rationaland determines his own goals, subject to the God as rational creation.Man has freedom of will. This is his dignity. He is free to choose hisFgoals, and he himself is goal. His supreme goal is to know God. Thushe is set apart from slave and from all the creations under him. Whena man sins, he loses his human dignity. He becomes an object[40].

Philosophical Model of Dignity

79. The modern conception of human dignity was affected by theGphilosophy of Kant[41]. Kant’s moral theory is divided into two parts:ethics and right (jurisprudence). The discussion of human dignity tookplace within his doctrine of ethics and does not appear in his

40 Based on the approach of Thomas Aquinas (1225-1274) in his work Summa Theologia

41 See Toman E. Hill, ‘Humanity as an End in itself’ (1980) 91 Ethics 84

jurisprudence[42]. Kant’s jurisprudence features the concept of person’sright to freedom as human being.

80. According to Kant, person acts ethically when he acts byforce of duty that rational agent self-legislates onto his own will. Thisself-legislated duty is not accompanied by any right or coercion, and isnot correlative to the rights of others. For Kant, ethics includes duties tooneself (e.g. to develop one’s talents) and to others (e.g. to contribute totheir happiness). This ability is the human dignity of man. This is whatmakes person different than an object. This ability makes person intoan end, and prevents her from being mere means in the hands ofanother.

81. Professor Upendra Baxi in his First Justice H.R. KhannaMemorial Lecture[43], on the topic Protection of Dignity of Individualunder the Constitution of India has very aptly remarked that dignitynotions, like the idea of human rights, are supposed to be the gifts of theWest to the Rest, though, this view is based on the prescribed ignoranceof the rich traditions of non-European countries. He, then, explainsEurocentric view of human dignity by pointing out that it views dignity interms of personhood (moral agency) and autonomy (freedom of choice).

Dignity here is to be treated as ‘empowerment’ which makes tripledemand in the name of respect for human dignity, namely:

1. Respect for one’s capacity as an agent to make one’s own freechoices.

2. Respect for the choices so made.

3. Respect for one’s need to have context and conditions inwhich one can operate as source of free and informed choice.

82. To the aforesaid, Professor Baxi adds:

“I still need to say that the idea of dignity is metaethical one, thatis it marks and maps difficult terrain of what it may mean to saybeing ‘human’ and remaining ‘human’, or put another way therelationship between ‘self’, ‘others’, and ‘society’. In thisformulation the word ‘respect’ is the keyword: dignity is respectfor an individual person based on the principle of freedom andcapacity to make choices and good or just social order is one

42 See Pfordten, ‘On the Dignity of Man in Kant’ 43 Delivered on 25th February, 2010 at Indian Institute of Public Administration, NewDelhi.

352SUPREME COURT REPORTS

Awhich respects dignity via assuring ‘contexts’ and ‘conditions’ asthe ‘source of free and informed choice’. Respect for dignitythus conceived is empowering overall and not just because it, evenif importantly, sets constraints state, law, and regulations.”

83. Jeremy Waldron[44] opines that dignity is sort of status-concept:Bit has to do with the standing (perhaps the formal legal standing or perhaps,more informally, the moral presence) that person has in society andin her dealings with others. He has ventured even to define this term“dignity” in the following manner:

“Dignity is the status of person predicated on the fact that she isCrecognized as having the ability to control and regulate her actionsin accordance with her own apprehension of norms and reasonsthat apply to her; it assumes she is capable of giving and entitledto give an account of herself (and of the way in which she isregulating her actions and organizing her life), an account thatothers are to pay attention to; and it means finally that she has theDwherewithal to demand that her agency and her presence amongus as human being be taken seriously and accommodated in thelives of others, in others’ attitudes and actions towards her, and insocial life generally”.

84. Kant, on the other hand, has initially used dignity as ‘valueEidea’, though in his later work he also talks of ‘respect’ which personneeds to accord to other person, thereby speaking of it more as matterof status.

Constitutional Perspective of Dignity

85. The most important lesson which was learnt as result ofFSecond World War was the realization by the Governments of variouscountries about the human dignity which needed to be cherished andprotected. It is for this reason that in the U.N. Charter, 1945, adoptedimmediately after the Second World War, dignity of the individuals wasmentioned as of core value. The almost contemporaneous UniversalGDeclaration of Human Rights (1948) echoed same sentiments.

86. Article 3 of the Geneva Conventions explicitly prohibits“outrages upon personal dignity”. There are provisions to this effect inInternational Covenant on Civil and Political Rights (Article 7) and the

44 See Article of Jeremy Waldron : “How Law Protects Dignity”

European Convention of Human Rights (Article 3) though implicit.However, one can easily infer the said implicit message in these documentsabout human dignity. The ICCPR begins its preamble with theacknowledgment that the rights contained in the covenant “derive fromthe inherent dignity of the human person”. And some philosophers saythe same thing. Even if this is not connection between dignity and lawas such, it certainly purports to identify wholesale connection betweendignity and the branch of law devoted to human rights. One of the keyfacets of twenty-first century democracies is the primary importancethey give to the protection of human rights. From this perspective, dignityis the expression of basic value accepted in broad sense by all people,and thus constitutes the first cornerstone in the edifice of human rights.Therefore, there is certain fundamental value to the notion of humandignity, which some would consider pivotal right deeply rooted in anynotion of justice, fairness, and society based on basic rights.

87. Aharon Barak, former Chief Justice of the Supreme Courtof Israel, attributes two roles to the concept of human dignity as aconstitutional value, which are:

1. Human dignity lays foundation for all the human rights as it isthe central argument for the existance of human rights.

2. Human dignity as constitutional value provides meaning tothe norms of the legal system. In the process, one can discern that theprinciple of purposive interpretation exhorts us to interpret all the rightsgiven by the Constitution, in the light of the human dignity. In this sense,human dignity influences the purposive interpretation of the Constitution.Not only this, it also influences the interpretation of every sub-constitutional norm in the legal system. Moreover, human dignity as aconstitutional value also influences the development of the common law.

88. Within two years of the adoption of the aforesaid UniversalDeclaration of Human Rights that all human beings are born free andequal in dignity and rights, India attained independence and immediatelythereafter Members of the Constituent Assembly took up the task offraming the Constitution of this Country. It was but natural to include aBill of Rights in the Indian Constitution and the Constitution Makers didso by incorporating Chapter on Fundamental Rights in Part III of theConstitution. However, it would be significant to point out that there isno mention of “dignity” specifically in this Chapter on Fundamental Rights.

ASo was the position in the American Constitution. In America, humandignity as part of human rights was brought in as Judge-made doctrine.Same course of action followed as the Indian Supreme Court read humandignity into Articles 14 and 21 of the Constitution.

89. Before coming to the interpretative process that has beenBdeveloped by this Court in evolving the aura of human dignity predicatedon Articles 14 and 21 of the Constitution, I am provoked to discuss as to

how Dworkin perceives interpretative process adopted by Judge.

90. Dworkin, being philosopher – jurist, was aware of the ideaof Constitution and of constitutional right to human dignity. In hisCbook, Taking Rights Seriously, he noted that everyone who takes rightsseriously must give an answer to the question why human rights vis-a-vis the State exist. According to him, in order to give such an answerone must accept, as minimum, the idea of human dignity. As he writes:

“Human dignity....associated with Kant, but defended byDphilosophers of different schgools, supposes that there are waysof treating man that are inconsistent with recognizing him as afull member of the human community, and holds that such treatmentis profoundly unjust.”[45]

91. In his Book, “Is Democracy Possible Here?”[46] DworkinEdevelops two principles about the concept of human dignity. First principleregards the intrinsic value of every person, viz., every person has aspecial objective value which value is not only important to that personalone but success or failure of the lives of every person is important toall of us. The second principle, according to Dworkin, is that of personalresponsibility. According to this principle, every person has theFresponsibility for success in his own life and, therefore, he must use hisdiscretion regarding the way of life that will be successful from his pointof view. Thus, Dworkin’s jurisprudence of human dignity is founded onthe aforesaid two principles which, together, not only define the basisbut the conditions for human dignity. Dworkin went on to develop and

Gexpand these principles in his book, Justice for Hedgehogs (2011)[47].

92. When speaking of rights, it is impossible to envisage it withoutdignity. In his pioneering and all inclusive “Justice for Hedgehogs”, he

45 Ibid., 1

46 Ronald Dworkin, Is Democracy Possible Here? Principles for New Political Debate(Princeton University Press, 2006).H 47 Ibid 13

proffered an approach where respect for human dignity, entails tworequirements; first, self-respect, i.e., taking the objective importance ofone’s own life seriously; this represents the free will of the person, hiscapacity to think for himself and to control his own life and second,authenticity, i.e., accepting “special, personal responsibility for identifyingwhat counts as success” in one’s own life and for creating that life“through coherent narrative” that one has chosen.[48] According toDworkin, these principles form the fundamental criteria supervising whatwe should do in order to live well.[49] They further explicate the rightsthat individuals have against their political community,[50] and they providea rationale for the moral duties we owe to others. This notion of dignity,which Dworkin gives utmost importance to, is indispensable to anycivilised society. It is what is constitutionally recognised in our countryand for good reason. Living well is moral responsibility of individuals;it is continuing process that is not static condition of character but amode that an individual constantly endeavours to imbibe. life livedwithout dignity, is not life lived at all for living well implies conceptionof human dignity which Dworkin interprets includes ideals of self-respectand authenticity.

93. This constitutional value of human dignity, has been beautifullyillustrated by Aharon Barak, as under:

“Human dignity as constitutional value is the factor that unitesthe human rights into one whole. It ensures the normative unity ofhuman rights. This normative unity is expressed in the three ways:first, the value of human dignity serves as normative basis forconstitutional rights set out in the constitution; second, it serves asan interpretative principle for determining the scope ofconstitutional rights, including the right to human dignity; third, thevalue of human dignity has an important role in determining theproportionality of statute limiting constitutional right.”[51]

94. We have to keep in mind that while expounding the aforesaidnotion of dignity, Dworkin was not interpreting any Constitution. This

48 Kenneth W. Simons, Dworkin’s Two Principle of Dignity: An unsatisfactoryNonconsequentialist Account of Interpersonal Moral Duties, 90 Boston law Rev. 715(2010)

49 Ibid

50 Supra 15

51 Aharon Barak, Human Dignity : The Constitutional Value and the ConstitutionalRight

Anotion of dignity, as conceptualised by Dworkin, fits like glove in ourconstitutional scheme. In series of judgments, dignity, as an aspect ofArticle 21, stands firmly recognised. Most of the important judgmentshave been taken note of and discussed in K.S. Puttaswamy[52].

95. In K.S. Puttaswamy, the Constitution Bench has recognisedBthe dignity of existence. Liberty and autonomy are regarded as theessential attributes of life with dignity. In this manner, sanctity of lifealso stands acknowledged, as part of Article 21 of the Constitution. Thatapart, while holding the right of privacy as an intrinsic part of right to lifeand liberty in Article 21, various facets thereof are discussed by thelearned Judges in their separate opinions. common theme which flowsCin all these opinions is that that privacy recognises the autonomy of theindividual; every person has right to make essential choices which affectthe course of life; he has to be given full liberty and freedom in order toachieve his desired goals of life; and the concept of privacy is containednot merely in personal liberty, but also in the dignity of the individual.DJustice Chelameshwar, in K.S. Puttaswamy, made certain specificcomments which are reflective of euthanasia, though this term is notspecifically used. He observed: “forced feeding of certain personsby the State raises concerns of privacy and individual’s right torefuse life prolonging medical treatment or terminate his life isanother freedom which falls within the zone of privacy.”E

96. Liberty by itself, which is facet of Article 21 of theConstitution, duly recognised in K.S. Puttaswamy, ensures and guaranteessuch choice to the individual. In fact, the entire structure of civilliberties presupposes that freedom is worth fostering. The very notionof liberty is considered as good for the society. It is also recognised thatFthere are some rights, encompassing liberty, which are needed in orderto protect freedom. David Feldman[53]beautifully describes as to whyfreedom (or liberty) is given:

52 Prem Shankar Shukla v. UT of Delhi, (1980) 3 SCC 526; Francis Coralie Mullin v.UT of Delhi, (1981) 1 SCC 608; Bandhua Mukti Morcha v. Union of India, (1984) 3GSCC 161; Khedat Mazdoor Chetna Sangath v. State of Madhya Pradesh, (1994) 6 SCC260; M. Nagaraj v. Union of India, (2006) 8 SCC 212, Maharashtra University ofHealth Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786; Selvi v. State ofKarnataka, (2010) 7 SCC 263; Mehmood Nayyar Azam v. State of Chhattisgarh, (2012)8 SCC 1; Shabnam v. Union of India, (2015) 6 SCC 702; Jeeja Ghosh v. Union of India,(2016) 7 SCC 761. 53 David Feldman: Civil Liberties & Human Rights in England & Wales

“The guiding principle for many liberal rights theorists may beseen as respect for individuals’ own aspirations, as means ofgiving the fullest expression to each individual’s moral autonomy.A fundamental principle entailed by respect for moral autonomyis that individuals should prima facie be free to select their ownideas of the Good, and develop plan for life, or day-to-daystrategy, accordingly. Their choice of goods should be constrainedonly to the extent necessary to protect society and the similarliberties of other people. The law should protect at least the basicliberties, that is, those necessary to the pursuit of any sociallyacceptable conception of the good life. This is the approach whichJohn Rawls adopts in Theory of Justice. It requires that basicliberties be given considerable respect, and that they should havepriority over the pursuit of social goods (such as economicdevelopment) perhaps even to the extent of giving them the statusof entrenched, constitutional rights, in order to shield them fromchallenge in the day-to-day rough and tumble of politicalcontention. This gives liberty priority over other values, which,whether viewed as description of liberal society or as aprescription for its improvement, is very controversial.Philosophers have doubted whether there are adequate groundsfor the priority of liberty. Professor H.L.A. Hart has argued that(at least in society where there is limited abundance of wealthand resources) it is rational to prefer basic freedoms to animprovement I material conditions only if one harbours the idealof ‘a public-spirited citizen who prizes political activity and serviceto others as among the chief goods of life and could notcontemplate as tolerable an exchange of the opportunities of suchactivity for mere material goods or contentment’.

rather different thesis runs through Professor Joseph Raz’sbook, The Morality of Freedom: people are autonomous moralactors, and autonomy is given expression primarily through makingone’s own decisions, but such freedom is valuable partly becauseit advances social ends. Raz points out that the identification ofbasic liberties therefore depends, in pat at least, on governmentalnotions of the public good. In respect of rights to freedom ofexpression, privacy, freedom of religion, and freedom fromdiscrimination, for example, ‘one reason for affording specialprotection to individual interests is that thereby one also protects

DEF

Aa collective good, an aspect of public culture’. At the sametime, certain social goods are needed if freedom is to have value.Freedom is useful only if the social and economic structure ofsociety provides sufficient range of choices to allow people’scapacity for choice to be exercised. Accordingly, freedom is seenas collective rather than an individual good. This may constrainBthe range of freedoms and the purposes to which they may morallybe put: decision to make freedom into constitutional right isan expression of the collective political culture of community.This thesis does not make the morality of freedom depend onpeople striving for perfection: individuals may not always, or ever,Cthink about the moral consequences of their decisions, or mayconsciously make decisions which do not make for self-improvement. Instead, it looks only for social commitment tothe idea of the moral significance of individual choice. Raz marriesthe idea of the individual to that of society by recognizing thatindividual freedom of choice is contingent on social arrangements.”D97. In his Article, Life’s Dominion, Ronald Dworkin, while buildingthe hypothesis on dignity concept, exhorts that people must decide abouttheir own death, or someone else’s in three main kind of situations, namely,(i) conscious and competent: it is situation where person is sufferingfrom some serious illness because of which he is incapacitated but he isEstill conscious and also competent to decide about his fate, he should begiven choice to decide as to whether he wants to continue to get thetreatment; (ii) unconscious: where the patient is unconscious and dying,doctors are often forced to decide whether to continue life support forhim or not under certain circumstances relatives have to take decision.

FHowever, at times, unconscious patients are not about to die. At thesame time, they are either in coma or in PVS. In either case, they areconscious. In such situation, where recovery is impossible, it shouldbe left to the relatives to decide as to whether they want the patient toremain on life support (ventilator, etc.); and (iii) conscious butincompetent. These factors may support, what is known as ‘livingGwill’ or ‘advance directive’, which aspect is dealt with specifically whileanswering the second issue.

98. When person is undergoing untold suffering and miserybecause of the disease with which he is suffering and at times evenunable to bear the same, continuing to put him on artificial machines toH

prolong his vegetable life would amount to violating his dignity. Theseare the arguments which are raised by some jurists and sociologists[54].

99. There is related, but interesting, aspect of this dignity whichneeds to be emphasised. Right to health is part of Article 21 of theConstitution. At the same time, it is also harsh reality that everybodyis not able to enjoy that right because of poverty etc. The State is not ina position to translate into reality this right to health for all citizens. Thus,when citizens are not guaranteed the right to health, can they be deniedright to die in dignity?

100. In the context of euthanasia, ‘personal autonomy’ of anindividual, as part of human dignity, can be pressed into service. InNational Legal Services Authority v. Union of India and Others[55],this Court observed:

“Article 21, as already indicated, guarantees the protection of“personal autonomy” of an individual. In Anuj Garg v. Hotel Assn.of India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this Courtheld that personal autonomy includes both the negative right ofnot to be subject to interference by others and the positive right ofindividuals to make decisions about their life, to express themselvesand to choose which activities to take part in. Self-determinationof gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteedunder Article 21 of the Constitution of India.”

101. In addition to personal autonomy, other facets of human dignity,namely, ‘self expression’ and ‘right to determine’ also support theargument that it is the choice of the patient to receive or not to receivetreatment.

102. We may again mention that talking particularly about certainhard cases involving moral overtones, Dworkin specifically discussedthe issues pertaining to abortion and euthanasia with emphasis that bothsupporters and critics accept the idea of sanctity of life. Decisionsregarding death – whether by abortion or by euthanasia – affect ourhuman dignity. In Dworkin’s opinion, proper recognition of human dignity

54 (i) Morris: Voluntary Euthanasia

(ii) LW Sumner: Dignity through Thick and Thin, in Sebastian Muders, “Human Dignityand Assisted Death (Oxford University Press, 2017). 55 (2014) 5 SCC 438

Aleads to the recognition of the freedom of the individual. Freedom is anecessary condition for self worth. Dworkin adds: “Because we cherishdignity, we insist on freedom .… Because we honour dignity, wedemand democracy.”[56]

103. Dignity is, thus, the core value of life and dying in dignityBstands recognised in Gian Kaur. It becomes part of right of selfdetermination.104. The important message behind Dworkin’s concept of humandignity can be summarised in the following manner:

(1) He describes belief in individual human dignity as the mostCimportant feature of Western political culture giving people themoral right “to confront the most fundamental questions about themeaning and value of their own lives”[57].

(2) In an age when people value their independence and strive tolive independent and fulfilled lives it is important “that life endsDappropriately, that death keeps faith with the way we want tohave lived”[58].

(3) Death is “not only the start of nothing but the end ofeverything”[59]and, therefore, it should be accomplished in mannercompatible with the ideals sought during life.E105. Taking into consideration the conceptual aspects of dignityand the manner in which it has been judicially adopted by variousjudgments, following elements of dignity can be highlighted (in the contextof death with dignity):

(i) Encompasses self-determination; implies quality of lifeFconsistent with the ability to exercise self-determined choices;

(ii) Maintains/ability to make autonomous choices; high regardfor individual autonomy that is pivotal to the perceived quality of aperson’s life;

G(iii) Self-control (retain similar kind of control over dying asone has exercised during life – way of achieving death withdignity);

56 Ibid., at 239

57 R Dworkin, Life’s Dominion (London, Harper-Collins, 1993) at 166.

58 R Dworkin, Life’s Dominion (London, HarperCollins, 1993) at 179.

59 Ibid.

(iv) Law of consent: The ability to choose - orchestrate the timingof their own death;

(v) Dignity may be compromised if the dying process is prolongedand involves becoming incapacitated and dependent;

(vi) Respect for human dignity means respecting the intrinsicvalue of human life;

(vii) Avoidance of dependency;

(viii) Indefinite continuation of futile physical life is regarded asundignified;

(ix) Dignity commands emphatic respect[60];

• Reason and emotion are both significant in treatmentdecisions, especially at the end of life where compassion isa natural response to appeals made on the basis of stifledself-determination;

• Compassion represents collision of “imaginative insight”and empathy; and

• Compassion is here distinguished from pity, which is regardedas “inappropriate to the dignity of the autonomous person,especially its overtones of paternalism”,[61]becauseEcompassion is believed to provoke an active, and byimplication positive, response.[62]

(x) Dignity engenders sense of serenity and powerfulness,fortified by “qualities of composure, calmness, restraint, reserve,and emotions or passions subdued and securely controlled withoutbeing negated or dissolved”[63]; and

(x) Observer’s Dignity aspect:

• person possessed of dignity at the end of life, might inducein an observer sense of tranquility and admiration which

60 Kolnai, “Dignity”, in R S Dillon (ed.) Dignity, Character, and Self-Respect (London,Routledge, 1995) 53–75, at 55.

61 R S Downie, K S Calman, Healthy Respect: Ethics in Health Care (Oxford, OxfordUniversity Press, 1994) at 51–53.

62 Ibid.

63 Kolnai, “Dignity”, in R S Dillon (ed.) Dignity, Character, and Self-Respect (London,Routledge, 1995) 53–75, at 56.

inspires images of power and self- assertion through restraintand poised composure; and

• dignity clearly does play valuable role in contextualizingpeople’s perceptions of death and dying, especially as itappears to embody spirit of self-determination thatBadvocates of voluntary euthanasia crave.

106. Once we examine the matter in the aforesaid perspective,the inevitable conclusion would be that passive euthanasia and deathwith dignity are inextricably linked, which can be summed up with thefollowing pointers:

(i) The opportunity to die unencumbered by the intrusion of medicaltechnology and before experiencing loss of independence andcontrol, appears to many to extend the promise of dignified death.When medical technology intervenes to prolong dying like this itdoes not do so unobtrusively;

(ii) Today many patients insist on more than just right to healthcare in general. They seek right to choose specific types oftreatment, able to retain control throughout the entire span of theirlives and to exercise autonomy in all medical decisions concerningtheir welfare and treatment;

(iii) dreadful, painful death on rational but incapacitatedterminally ill patient are an affront to human dignity.

107. The aforesaid discussion takes care of those who opposeeuthanasia on moral and ethical principles. We feel that at least thecase for passive euthanasia is made out. Certain moral dilemma as toFwhat is the exact stage when such decision to withdraw medical support,would still remain. At times, physician would be filled with profoundethical uncertainties when person is suffering unbearable pain andagony, the question would be as to whether such suffering has reachedthe stage where it is incurable and, therefore, decision should be takenGto allow such person to pass away in peace and dignity of hastening theprocess of death or the situation may be reversible, though chancesthereof are far remote. Dr. R.R. Kishore, who possesses medical aswell as law degree at the same time, lists the following questions whicha physician will have to answer while taking such decision:

(i) Is it professionally permissible to kill or to help in dying aterminally ill and incurable patient?

(ii) How does such decision affect the person concerned andthe society in general?

(iii) What are the values that are attracted in such situations?

(iv) How to assess that the individual’s urge to die is based oncool and candid considerations and is not an impulsive act reflectingresources constraints, inadequate care or discrimination?

(v) What are the practical risks involved in case decision istaken to terminate the life of the patient?

(vi) Where should the physician look for guidance in situations ofsuch moral dilemma?

(vii) Does the physician’s or the patient’s religion play any role indecision making process?

108. What are the parameters to be kept in mind and the dangerswhich may be encountered while taking decision on the aforesaidquestions, is beautifully explained by Dr. R.R. Kishore[64] in the followingwords:

“Contemporary world order is founded on reason, equity anddignity. Reason envisages definition and distinctness. What is thedistinction between ‘killing’ and ‘letting die’? or, in other words,what is the difference between ‘causing death’ and ‘denial toprevent death’? Also, can the prolongation of life be ever‘unnecessary’? And, if yes, what are the criteria to determinethe life’s worth? Equity mandates equality of opportunity, balancingof interests and optimization of resources. This means addressingquestions such as; for how long one should live? Who should diefirst? What should be the ideal method of terminating one’s life?Dignity imposes obligation to preserve life at all costs and in the4event of an individual’s conscious expression to end his life,contemplates valid purpose and truly informed consent.Deo0ntologically, in the context of sanctity of life, there is notmuch of conflict between secular and religious concepts as both

consider life as sacred and worthy of protection. But, the 64 Dr.R.R. Kishore,MD, LLB – End of Life Issues and the Moral Certainty: Discoverythrough Hinduism

differences appear in the face of application of advancedtechnology which has the potential of keeping alive the terminallyill and incurable persons who would have otherwise died. Sincethe technological resources are not unlimited prioritization becomesa functional imperative, bringing in the concepts of worth andutility. In other words, the questions like whose life is more preciousand worthy of protection have to be answered. This is formidabletask, attracting multiple and diverse perspectives, moral as wellas strategic, leading to heterogeneous approaches and despiteagreement on fundamental issue of value of life the decisionsmay seem to be at variance. fair and objective decision in suchcircumstances may be difficult exercise and any liberalization isfraught with following apprehensions:

• Danger of abuse

• Enhanced vulnerability to the poor

• Slippery slope outcome

• Weakening of protection of life notions

Any ethical model governing end of life decisions should thereforebe impervious to all extraneous forces such as, the utilitarian bias,poverty, and subjectivity i.e., inadequate appreciation of socio-economic, family, cultural and religious perspectives of theindividual. The poor and resourceless are likely to face deeperand more severe pain and agony before dying and as such mayrequest their physicians to terminate their lives much earlier thanthose who have better access to resource. This poverty-deathnexus makes an objective decision difficult, constituting aformidable challenge to committed physicians and others involvedwith the end of life issues. Taking decision on case to casebasis, depending on individual’s material constraints andinadequacies, enhances the problem rather than solving it, as itreduces the life from an eternal bliss to worldly award, subjectingits preservation to socio-economic exigencies. For these reasonsmany feel that the safer and more respectable course to improvedeath is to provide good palliative care and emotional support ratherthan assisting the end of life. The moral ambiguitiesnotwithstanding, decision to assist or not to assist the act of dying

by correctly interpreting the patient’s wish and the accompanyingcircumstances, including the moral dictates, constitutes practicalproblem. Let us see how Hinduism addresses these issues.”

109. In the article, End of Life Issues and the Moral Certainty[65],the author after posing the moral dilemma, noted above, discusses theapproach to find the solutions.

110. I had indicated at the earlier stage that Hippocratic Oath,coupled with ethical norms of medical profession, stand in the way ofeuthanasia. It brings about situation of dilemma insofar as medicalpractitioner is concerned. On the one hand his duty is to save the life ofa person till he is alive, even when the patient is terminally ill and thereare no chances of revival. On the other hand, the concept of dignity andright to bodily integrity, which recognises legal right of autonomy andchoice to the patient (or even to his relations in certain circumstances,particularly when the patient is unconscious or incapacitated to take adecision) may lead to exercising his right of euthanasia.

111. Dignity implies, apart from right to life enjoyment of right tobe free of physical interference. At common law, any physicalinterference with person is, prima facie, tortious. If it interferes withfreedom of movement, it may constitute false imprisonment. If itinvolves physical touching, it may constitute battery. If it puts personin fear of violence, it may amount to an assault. For any of these wrongs,the victim may be able to obtain damages.

112. When it comes to medical treatment, even there the generalcommon law principle is that any medical treatment constitutes trespassto the person which must be justified, by reference either to the patient’sconsent or to the necessity of saving life in circumstances where thepatient is unable to decide whether or not to consent.

113. Rights with regard to medical treatment fall essentially intotwo categories: first, rights to receive or be free of treatment as neededor desired, and not to be subjected involuntarily to experimentation which,irrespective of any benefit which the subjects may derive, are intendedto advance scientific knowledge and benefit people other than the subjectin the long term; secondly, rights connected incidentally with the provisionof medical services, such as rights to be told the truth by one’s doctor.

65 See Footnote 63.

A114. Having regard to the aforesaid right of the patients in commonlaw, coupled with the dignity and privacy rights, it can be said that passiveeuthanasia, under those circumstances where patient is in PVS and heis terminally ill, where the condition is irreversible or where he is braindead,can be permitted. On the aforesaid reasoning, I am in agreement withthe opinion of the other members of this Bench in approving the judgmentBin Aruna Ramachandra Shanbaug.

(D) Economics of Euthanasia

115. This is yet another reason for arriving at the same conclusion.

116. When we consider the matter of euthanasia in the context ofCeconomic principles, it becomes another reason to support the aforesaidconclusion. This aspect can be dealt with in two ways.

117. First, because of rampant poverty where majority of thepersons are not able to afford health services, should they be forced tospend on medical treatment beyond their means and in the processDcompelling them to sell their house property, household things and otherassets which may be means of livelihood Secondly, when there are limitedmedical facilities available, should major part thereof be consumed onthose patients who have no chances of recovery? In Economic & PoliticalWeekly dated February 10, 2018, it is reported:

“India is one of the worst India is one of the worst countries to diein, especially for those suffering from terminal illnesses. In 2015,the Economist Intelligence Unit brought out Quality of DeathIndex, which ranked India 67th out of the 80 countries it hadsurveyed. In December 2017, joint report published by the WorldHealth Organization and the World Bank revealed that 49 millionIndians are pushed into poverty every year due to out-of-pocketexpenditure on healthcare, accounting for half of the 100 millionwho meet such fate worldwide. India’s Central Bureau of HealthIntelligence data puts the figure even higher. This unconscionablesituation is the direct outcome of the sorry state of our publichealth system. India’s spending on health is among the lowest inthe world. The Economic Survey 2017–18shows that thegovernment spends only 1.4% of its gross domestic product (GDP)on health. The 2017 National Health Policy, which otherwiseexudes piety in its abstractions, aims to increase government

expenditure to 2.5% of GDP by 2025. By all accounts, this is toolittle too late.

The situation improves only marginally for the better-off sections.With over 90% of intensive care units in the private healthcaresector, it is largely this section that can access expensivetreatments. But this does not improve end-of-life situations forthem. Awareness and training in palliative care remain grosslyinadequate. For those making profit in the private healthcare sector,there is no incentive to provide such treatment. Instead, treatmentfor the terminally ill continues to involve prolonging life withexpensive, invasive, and painful treatment with very little concernfor the patients themselves or their families.”

118. Some of the apprehensions expressed in ethical debates abouteuthanasia can be answered when the ethical debate about euthanasiais not divorced from an economic consideration of cost and benefits ofeuthanasia to society. P.R. Ward[66]argues that ethics is concerned withindividuals and, therefore, does not take into account the societalperspective. On the other hand, economics is sought to be concernedwith relative costs and benefits to society and can help to determine ifeuthanasia is of benefit to the majority in society. According to him, thenet benefit to the individual (from ethical considerations) can be comparedwith the net benefit to society (from economics), and that both can beincluded in an overall decision rule for whether or not to legaliseeuthanasia. Ward draws on the health economics literature (for example,Mooney[67]) to suggest that positive answer to this question ins implicitin many health-rationing decisions and is applicable to the euthanasiadecision. He also asserts that ‘introducing an economic perspectiveis not incompatible with ethical issues’.

119. No doubt, protagonists of ethical aspects of euthanasia opposethe aforesaid view. According to them, euthanasia also involves thespecific act of medical professional killing patient and the ethicalstatus of this act has implications both for individuals and for society.Their counter argument, therefore, is that to be able to make an economicassessment of euthanasia, we would have to be able to evaluate the costand benefits of this act of killing. However, even they accept that if the

66 Healthcare rationing: can we afford to ignore euthanasia? Health Services ManagementResearch 1997; 10; 32-41

67 Mooney, G. The Valuation of Human Life. London: Macmillan Press, 1977

Aact of killing by euthanasia is ethically acceptable in some circumstances,it would be appropriate to consider the net benefits of the act to theindividual patient along with the wider economic considerations[68]. Inthe instant case, we have come to the conclusion that under certaincircumstances, i.e. when the patient is in PVS or braindead/ clinicallydead, at least passive euthanasia would even be ethically acceptable, onBthe application of doctrine of dignity. In such situation, the economicconsiderations would strengthen the aforesaid conclusion.

120. At times, for deciding legal issues, economic analysis of lawassumes importance[69]. It is advocated that one of the main reasonswhich should prompt philosophers of law to undertake economic analysisCseriously is that the most basic notion in the analysis – efficiency orPareto optimality[70] - was originally introduced to help solve seriousobjection to widely held moral theory, utilitarian. Utilitarians hold thatthe principle of utility is the criterion of the right conduct. If one has toevaluate policies in virtue of their effect on individual welfare or utility,Done norm of utility has to be compared with that of another. We mayclarify that this economic principle has been applied in limited senseonly as supporting consideration with the aim to promote efficiency.

121. If we understand correctly the logic behind opposition toeuthanasia, particularly, passive euthanasia, it proceeds on the basis thatEthird person should not have right to take decision about one’s life and,more importantly, it is difficult to ascertain, at particular stage, as towhether time has come to take such decision, namely, withdraw themedical support. Insofar as latter aspect is concerned, we feel that inAruna Ramachandra Shanbaug, this Court has taken due care inprescribing the circumstances, namely, when the person is in PermanentFVegetative State (PVS) with no reversible chance or when he is ‘braindead’ or ‘clinically dead’. Insofar as first aspect is concerned, the subjectmatter of the present writ petition takes care of that.

68 See – Economics and Euthanasia by Stephen Heasell, Department of EconomicsGand Politics, Nottingham Trent University, and David Paton, Nottingham UniversityBusiness School. 69 This aspect is discussed in some detail by this Court in Shivashakti Sugars Ltd. v.Shree Renuka Sugar Limited and Other, (2017) 7 SCC 729 70 Jeffrie G. Murphy & Jules L. Coleman: Philosophy of Law (An introduction toJurisprudence)H

THE SECOND ISSUE

122. With this, we advert to the second question formulated above,which is as under:

Whether ‘living will’ or ‘advance directive’ should belegally recognised and can be enforced? If so, under whatcircumstances and what precautions are required whilepermitting it?

123. In this writ petition, the petitioner has sought direction tothe respondents to adopt suitable procedures to ensure that persons ofdeteriorated health or terminally ill should be able to execute documenttitled ‘living will and/or advance authorisation’ which can be presentedto the hospital for appropriate action in the event of the executant beingadmitted to the hospital with serious illness which may threaten terminationof life of the executant. In nutshell, the petitioner wants that citizensshould have right to decide in advance not to accept any kind of treatmentat stage when they are terminally ill. Expressing this in advance in adocument is known as ‘living will’ or ‘advance directive’, whereby theaforesaid self-determination of the person is to be acted upon when hereaches PVS or his brain dead/clinically dead.124. It is an undisputed that Doctors’ primary duty is to providetreatment and save life but not in the case when person has alreadyexpressed his desire of not being subjected to any kind of treatment. Itis common law right of people, of any civilized country, to refuseunwanted medical treatment and no person can force him/her to takeany medical treatment which the person does not desire to continuewith. The foundation of the aforesaid right has already been laid downby this Court in Aruna Ramachandra Shanbaug while dealing withthe issue of ‘involuntary passive euthanasia’. To quote:

“66. Passive euthanasia is usually defined as withdrawing medicaltreatment with deliberate intention of causing the patient’s death.For example, if patient requires kidney dialysis to survive, notgiving dialysis although the machine is available, is passiveeuthanasia. Similarly, if patient is in coma or on heart-lungmachine, withdrawing of the machine will ordinarily result in passiveeuthanasia. Similarly not giving life-saving medicines like antibioticsin certain situations may result in passive euthanasia. Denying

Afood to person in coma or PVS may also amount to passiveeuthanasia.

67. As already stated above, euthanasia can be both voluntary ornon-voluntary. In voluntary passive euthanasia person who iscapable of deciding for himself decides that he would prefer toBdie (which may be for various reasons e.g. that he is in great painor that the money being spent on his treatment should instead begiven to his family who are in greater need, etc.), and for thispurpose he consciously and of his own free will refuses to takelife-saving medicines. In India, if person consciously andvoluntarily refuses to take life-saving medical treatment it is not aCcrime...

xxxxxx

xxx

78. ... First, it is established that the principle of self-determinationrequires that respect must be given to the wishes of the patient, so thatDif an adult patient of sound mind refuses, however unreasonably, toconsent to treatment or care by which his life would or might be prolonged,the doctors responsible for his care must give effect to his wishes, eventhough they do not consider it to be in his best interests to do so [seeSchloendorff v. Society of New York Hospital [211 NY 125 : 105 NE92 (1914)] , NE at p. 93, per Cardozo, J.; S. v. McC. (Orse S.) and ME(D.S. Intervener) [1972 AC 24 (HL)], W v. W; AC at p. 43, per LordReid; and Sidaway v. Board of Governors of the Bethlem RoyalHospital [1985 AC 871 : (1985) 2 WLR 480 : (1985) 1 All ER 643(HL)] AC at p. 882, per Lord Scarman]. To this extent, the principle ofthe sanctity of human life must yield to the principle of self-determinationF[see (Court of Appeal transcript in the present case, at p. 38 perHoffmann, L.J.)], and, for present purposes perhaps more important,the doctor’s duty to act in the best interests of his patient must likewisebe qualified. On this basis, it has been held that patient of sound mindmay, if properly informed, require that life support should be discontinued:see Nancy B. v. Hotel Dieu de Quebec [(1992) 86 DLR (4th) 385G(Que SC)] . Moreover the same principle applies where the patient’srefusal to give his consent has been expressed at an earlier date, beforehe became unconscious or otherwise incapable of communicating it;though in such circumstances especial care may be necessary to ensurethat the prior refusal of consent is still properly to be regarded asHapplicable in the circumstances which have subsequently occurred [seee.g. T. (Adult: Refusal of Treatment), In re [1993 Fam 95 : (1992) 3WLR 782 : (1992) 4 All ER 649 (CA)] ]. I wish to add that, in cases ofthis kind, there is no question of the patient having committed suicide,nor therefore of the doctor having aided or abetted him in doingso. It is simply that the patient has, as he is entitled to do, declined toconsent to treatment which might or would have the effect of prolonginghis life, and the doctor has, in accordance with his duty, complied withhis patient’s wishes...”

125. The aforesaid principle has also been recognised by this Courtin its Constitution Bench judgment passed in Gian Kaur wherein it washeld that although ‘Right to Life’ under Article 21 does not include ‘Rightto Die’, but ‘Right to live with dignity’ includes ‘Right to die withdignity’. To quote:

“24. Protagonism of euthanasia on the view that existence inpersistent vegetative state (PVS) is not benefit to the patient ofa terminal illness being unrelated to the principle of “sanctity oflife” or the “right to live with dignity” is of no assistance todetermine the scope of Article 21 for deciding whether theguarantee of “right to life” therein includes the “right to die”. The“right to life” including the right to live with human dignity wouldmean the existence of such right up to the end of natural life.This also includes the right to dignified life up to the point ofdeath including dignified procedure of death. In other words,this may include the right of dying man to also die with dignitywhen his life is ebbing out. But the “right to die” with dignity atthe end of life is not to be confused or equated with the “right todie” an unnatural death curtailing the natural span of life.

25. question may arise, in the context of dying man who isterminally ill or in persistent vegetative state that he may bepermitted to terminate it by premature extinction of his life inthose circumstances. This category of cases may fall within theambit of the “right to die” with dignity as part of right to live withdignity, when death due to termination of natural life is certain andimminent and the process of natural death has commenced. Theseare not cases of extinguishing life but only of acceleratingconclusion of the process of natural death which has alreadycommenced. The debate even in such cases to permit physician-assisted termination of life is inconclusive. It is sufficient to reiterate

372SUPREME COURT REPORTS

Athat the argument to support the view of permitting termination oflife in such cases to reduce the period of suffering during theprocess of certain natural death is not available to interpret Article21 to include therein the right to curtail the natural span of life.”

126. In fact, the Law Commission of India was asked to considerBon the feasibility of making legislation on euthanasia, taking into accountthe earlier 196[th] Report of the Law Commission as well as the judgment

of this Court in Aruna Ramachandra Shanbaug. In August, 2012,Law Commission came out with detailed 241[st] Report on the issue ofpassive euthanasia, wherein it approved the concept of Right to SelfDetermination also. The Law Commission made some importantCobservations in its report such as:

“2.4 The following pertinent observations made by the thenChairman of the Law Commission in the forwarding letter dated28 August 2006 addressed to the Hon’ble Minister are extractedbelow:

“A hundred years ago, when medicine and medical technologyhad not invented the artificial methods of keeping terminallyill patient alive by medical treatment, including by means ofventilators and artificial feeding, such patients were meetingtheir death on account of natural causes. Today, it is accepted,a terminally ill person has common law right to refuse modernmedical procedures and allow nature to take its own course,as was done in good old times. It is well-settled law in allcountries that terminally ill patient who is conscious and iscompetent, can take an ‘informed decision’ to die naturaldeath and direct that he or she be not given medical treatmentwhich may merely prolong life. There are currently largenumber of such patients who have reached stage in theirillness when according to well-informed body of medicalopinion, there are no chances of recovery. But modern medicineand technology may yet enable such patients to prolong life tono purpose and during such prolongation, patients could gothrough extreme pain and suffering. Several such patients preferpalliative care for reducing pain and suffering and do not wantmedical treatment which will merely prolong life or postponedeath.”

xxxxxx

5.2 The 196th Report of the Law Commission stated thefundamental principle that terminally ill but competent patienthas right to refuse treatment including discontinuance of lifesustaining measures and the same is binding on the doctor,“provided that the decision of the patient is an ‘informed decision’“. ‘Patient’ has been defined as person suffering from terminalillness. “Terminal illness” has also been defined under Section 2(m). The definition of ‘competent patient’ has to be understoodby the definition of ‘incompetent patient’. ‘Incompetent patient’means patient who is minor or person of unsound mind or apatient who is unable to weigh, understand or retain the relevantinformation about his or her medical treatment or unable to makean ‘informed decision’ because of impairment of or disturbancein the functioning of the mind or brain or person who is unable tocommunicate the informed decision regarding medical treatmentthrough speech, sign or language or any other mode (vide Section2(d) of the Bill, 2006). “Medical Treatment” has been defined inSection 2(i) as treatment intended to sustain, restore or replacevital functions which, when applied to patient suffering fromterminal illness, would serve only to prolong the process of dyingand includes life sustaining treatment by way of surgical operationor the administration of medicine etc. and use of mechanical orartificial means such as ventilation, artificial nutrition and cardioresuscitation. The expressions “best interests” and “informeddecision” have also been defined in the proposed Bill. “BestInterests”, according to Section 2(b), includes the best interestsof both on incompetent patient and competent patient who hasnot taken an informed decision and it ought not to be limited tomedical interests of the patient but includes ethical, social,emotional and other welfare considerations. The term ‘informeddecision’ means, as per Section 2 (e) “the decision as tocontinuance or withholding or withdrawing medical treatment takenby patient who is competent and who is, or has been informedabout – (i) the nature of his or her illness, (ii) any alternative formof treatment that may be available, (iii) the consequences of thoseforms of treatment, and (iv) the consequences of remaininguntreated.

xxxxxx

5.8 The Law Commission of India clarified that where competentpatient takes an ‘informed decision’ to allow nature to have itscourse, the patient is, under common law, not guilty of attempt tocommit suicide (u/s 309 IPC) nor is the doctor who omits to givetreatment, guilty of abetting suicide (u/s 306 IPC) or of culpablehomicide (u/s 299 read with Section 304 of IPC).

xxx

7.2 In this context, two cardinal principles of medical ethics arestated to be patient autonomy and beneficence (vide P. 482 ofSCC in Aruna’s case):

1. “Autonomy means the right to self-determination, where theinformed patient has right to choose the manner of his treatment.To be autonomous, the patient should be competent to makedecision and choices. In the event that he is incompetent to makechoices, his wishes expressed in advance in the form of livingwill, OR the wishes of surrogates acting on his behalf (substitutedjudgment) are to be respected. The surrogate is expected torepresent what the patient may have decided had she/she beencompetent, or to act in the patient’s best interest.

2. Beneficence is acting in what (or judged to be) in the patient’sbest interest. Acting in the patient’s best interest means followinga course of action that is best for the patient, and is not in influencedby personal convictions, motives or other considerations……..

xxxxxx

11.2 The discussion in the foregoing paras and the weighty opinionsof the Judges of highest courts as well as the considered views ofLaw Commission (in 196th report) would furnish an answer tothe above question in clearest terms to the effect that legally andconstitutionally, the patient (competent) has right to refuse

medical treatment resulting in temporary prolongation of life. Thepatient’s life is at the brink of extinction. There is no slightesthope of recovery. The patient undergoing terrible suffering andworst mental agony does not want his life to be prolonged byartificial means. She/he would not like to spend for his treatmentwhich is practically worthless. She/he cares for his bodily integrityrather than bodily suffering. She/he would not like to live like a‘cabbage’ in an intensive care unit for some days or months tillthe inevitable death occurs. He would like to have the right ofprivacy protected which implies protection from interference andbodily invasion. As observed in Gian Kaur’s case, the naturalprocess of his death has already commenced and he would like todie with peace and dignity. No law can inhibit him from optingsuch course. This is not situation comparable to suicide, keepingaside the view point in favour of decriminalizing the attempt tosuicide. The doctor or relatives cannot compel him to have invasivemedical treatment by artificial means or treatment. If there isforced medical intervention on his body, according to the decisionscited supra (especially the remarks of Lord Brown Wilkinson inAirdale’s case), the doctor / surgeon is guilty of ‘assault’ or‘battery’. In the words of Justice Cardozo, “every human beingof adult years and sound mind has right to determine what shallbe done with his own body and surgeon who performs anoperation without his patient’s consent commits an assault forwhich he is liable in damages.” Lord Goff in Airedale’s case placesthe right to self determination on high pedestal. He observedthat “in the circumstances such as this, the principle of sanctity ofhuman life must yield to the principle of self determination and thedoctor’s duty to act in the best interests of the patient must likewisebe qualified by the wish of the patient.” The following observationsof Lord Goff deserve particular notice:“I wish to add that, in cases of this kind, there is no question ofthe patient having committed suicide, nor therefore of the doctorhaving aided or abetted him in doing so. It is simply that thepatient has, as he is entitled to do, declined to consent totreatment which might or would have the effect of prolonginghis life, and the doctor has, in accordance with his duty, compliedwith his patient’s wishes.”

ABCDEF

127. And finally, the Law Commission in its 241[st] Report gaveSummary of Recommendations as under:

“14. Summary of Recommendations

14.1 Passive euthanasia, which is allowed in many countries, shallhave legal recognition in our country too subject to certainsafeguards, as suggested by the 17th Law Commission of Indiaand as held by the Supreme Court in Aruna Ramachandra’s case[(2011) 4 SCC 454)]. It is not objectionable from legal andconstitutional point of view.

14.2 competent adult patient has the right to insist that thereshould be no invasive medical treatment by way of artificial lifesustaining measures / treatment and such decision is binding onthe doctors / hospital attending on such patient provided that thedoctor is satisfied that the patient has taken an ‘informed decision’based on free exercise of his or her will. The same rule will applyto minor above 16 years of age who has expressed his or herwish not to have such treatment provided the consent has beengiven by the major spouse and one of the parents of such minorpatient.

14.3 As regards an incompetent patient such as person inirreversible coma or in Persistent Vegetative State and competentpatient who has not taken an ‘informed decision’, the doctor’s orrelatives’ decision to withhold or withdraw the medical treatmentis not final. The relatives, next friend, or the doctors concerned /hospital management shall get the clearance from the High Courtfor withdrawing or withholding the life sustaining treatment. Inthis respect, the recommendations of Law Commission in 196threport is somewhat different. The Law Commission proposed anenabling provision to move the High Court.

14.4 The High Court shall take decision after obtaining the opinionof panel of three medical experts and after ascertaining thewishes of the relatives of the patient. The High Court, as parenspatriae will take an appropriate decision having regard to the bestinterests of the patient.

14.5 Provisions are introduced for protection of medicalpractitioners and others who act according to the wishes of the

competent patient or the order of the High Court from criminal orcivil action. Further, competent patient (who is terminally ill)refusing medical treatment shall not be deemed to be guilty of anyoffence under any law.

14.6 The procedure for preparation of panels has been set outbroadly in conformity with the recommendations of 17th LawCommission. Advance medical directive given by the patient beforehis illness is not valid.

14.7 Notwithstanding that medical treatment has been withheldor withdrawn in accordance with the provisions referred to above,palliative care can be extended to the competent and incompetentpatients. The Governments have to devise schemes for palliativecare at affordable cost to terminally ill patients undergoingintractable suffering.

14.8 The Medical Council of India is required issue guidelines inthe matter of withholding or withdrawing of medical treatment tocompetent or incompetent patients suffering from terminal illness.

14.9 Accordingly, the Medical Treatment of Terminally Ill Patients(Protection of Patients and Medical Practitioners) Bill, 2006,drafted by the 17th Law Commission in the 196th Report hasbeen modified and the revised Bill is practically an amalgam ofthe earlier recommendations of the Law Commission and the views/ directions of the Supreme Court in Aruna Ramachandra case.The revised Bill is at Annexure I.”

128. I am also of the view that such an advance authority is akinto well recognised common law right to refuse medical treatment (See:Re T (Adult: Refusal of Medical Treatment [71]), Re (Adult: Refusalof Medical Treatment [72]), Crazan v. Director, Missouri Departmentof Health [73], Malette v. Shulam [74].

129. In recent landmark judgment of the nine Judge ConstitutionBench in the case of K.S. Puttaswamy authoritatively held that right tolife enshrined in Article 21 includes right to privacy. One of the facet ofthis right acknowledged is an individual’s decision to refuse life prolonging

71 (1992) 4 All ER 649 72 (2002) 2 All ER 449 73 497 U.S. 261 (1990) 74 67 DLR (4th) 321

Amedical treatment or terminate his life. Justice Chelameswar in hisseparate opinion has described the same in the following manner:

“373. Concerns of privacy arise when the State seeks to intrudeinto the body of subjects. [Skinner v. Oklahoma, 1942 SCCOnLine US SC 125 : 86 L Ed 1655 : 316 US 535 (1942)”20.There are limits to the extent to which legislatively representedmajority may conduct biological experiments at the expense ofthe dignity and personality and natural powers of minority—even those who have been guilty of what the majority defines ascrimes.” (SCC OnLine US SC para 20)—Jackson, J.] Corporealpunishments were not unknown to India, their abolition is of arecent vintage. Forced feeding of certain persons by the Stateraises concerns of privacy. An individual’s rights to refuse lifeprolonging medical treatment or terminate his life is another freedomwhich falls within the zone of the right to privacy. I am consciousof the fact that the issue is pending before this Court. But in variousother jurisdictions, there is huge debate on those issues though itis still grey area. [ For the legal debate in this area in US, SeeChapter 15.11 of American Constitutional Law by Laurence H.Tribe, 2nd Edn.] woman’s freedom of choice whether to bear achild or abort her pregnancy are areas which fall in the realm ofprivacy. Similarly, the freedom to choose either to work or notand the freedom to choose the nature of the work are areas ofprivate decision-making process. The right to travel freely withinthe country or go abroad is an area falling within the right to privacy.The text of our Constitution recognised the freedom to travelthroughout the country under Article 19(1)(d). This Court hasalready recognised that such right takes within its sweep theright to travel abroad. [Maneka Gandhi v. Union of India, (1978)1 SCC 248] person’s freedom to choose the place of hisresidence once again is part of his right to privacy[Williams v. Fears, 1900 SCC OnLine US SC 211 : 45 L Ed 186: 179 US 270 (1900)—”8. Undoubtedly the right of locomotion,the right to remove from one place to another according toinclination, is an attribute of personal liberty….” (SCC OnLineUS SC para 8)] recognised by the Constitution of India underArticle 19(1)(e) though the predominant purpose of enumeratingthe above-mentioned two freedoms in Article 19(1) is to disable

both the federal and State Governments from creating barrierswhich are incompatible with the federal nature of our country andits Constitution. The choice of appearance and apparel are alsoaspects of the right to privacy. The freedom of certain groups ofsubjects to determine their appearance and apparel (such askeeping long hair and wearing turban) are protected not as apart of the right to privacy but as part of their religious belief.Such freedom need not necessarily be based on religious beliefsfalling under Article 25. Informational traces are also an areawhich is the subject-matter of huge debate in various jurisdictionsfalling within the realm of the right to privacy, such data is aspersonal as that of the choice of appearance and apparel. Telephonetappings and internet hacking by State, of personal data is anotherarea which falls within the realm of privacy. The instant referencearises out of such an attempt by the Union of India to collectbiometric data regarding all the residents of this country. Theabove-mentioned are some of the areas where some interest ofprivacy exists. The examples given above indicate to some extentthe nature and scope of the right to privacy.”

NATURE OF LIVING WILL OR ADVANCE DIRECTIVE

130. Advance directives are instruments through which personsexpress their wishes at prior point in time, when they are capable ofmaking an informed decision, regarding their medical treatment in thefuture, when they are not in position to make an informed decision, byreason of being unconscious or in PVS or in coma. medical powerof attorney is an instrument through which persons nominaterepresentatives to make decisions regarding their medical treatment at apoint in time when the persons executing the instrument are unable tomake informed decisions themselves. Clause 11 of the draft Treatmentof Terminally-III Patients (Protection of Patients and MedicalPractitioners) Bill, 2016 states that advance directives or medical powerof attorney shall be void and of no effect and shall not be binding on anymedical practitioner. This blanket ban, including the failure even to givesome weight to advance directives while making decision about thewithholding or withdrawal of life-sustaining treatment is disproportionate.It does not constitute fair, just or reasonable procedure, which is arequirement for the imposition of restriction on the right to life (in thiscase, expressed as the right to die with dignity) under Article 21.

ABC

131. At this juncture, we may again reiterate that on the one handautonomy of an individual gives him right to choose his destiny and,therefore, he may decide before hand, in the form of advance directive,at what stage of his physical condition he would not like to have medicaltreatment, and on the other hand, there are dangers of misuse thereof aswell. David Feldman explained the same in the following manner:

“...However, while it is undoubtedly criminal act to do anythingintending to hasten another person’s death, there is no absoluteduty on doctor to try to save the life of patient, for two reasons.

The first is that any treatment is prima facie trespass to theperson, and if the patient is adult and competent to consent it willbe unlawful without that consent. doctor therefore acts lawfully– indeed, could not lawfully act otherwise – when he withholdstreatment at the request of terminally ill patient. This has beencalled passive, as distinct from active, euthanasia. To ensure thatmedical staff know of their wishes, some people have executedwhat are sometimes called ‘living wills’, giving directions to medicalstaff to withhold treatment in specified circumstances, and makingtheir wishes known to anyone who might be appointed as theirrepresentative in the event that they become in capable for anyreason. The efficacy of such prior indications was accepted,obiter, by Lord Goff in Airedale NHS Trust v. Bland, above. Insuch circumstances, the patient voluntarily accepts non-treatmentwhile in state to do so rationally. However, where there is theslightest doubt about the wishes of patient, that patient shouldbe treated, because the paternalism which decides for someoneelse when it is best to die is effectively denying them theopportunity to make the most of their lives as autonomousindividuals. Furthermore, it would seem to be wrong in principleto put pressure to bear on patient to elect to die. In those statesof the USA where voluntary euthanasia is lawful, the ethicalproblems for patients, doctors, next of kin, and nursing staff areimmense. Where the patient is not mentally competent to confirmthe choice to die at the time when the choice is about to be giveneffect, it will also be impossible to know whether the choiceexpressed earlier was truly voluntary, whether the consent wasinformed, and whether or not the patients would want to reconsider

were he able to do so. In the Netherlands, where it is lawful topractice voluntary euthanasia, it seems that the proceduralsafeguards designed to protect people against involuntaryeuthanasia are very hard to enforce and are regularly flouted.

Secondly, the doctrine of double effect allows the doctor to takesteps which carry substantial risk to life in order to treat, in goodfaith and with the patient’s consent, some disease or symptom.This is essential, because virtually any treatment carries somerisk to the patient. It is particularly relevant to the euthanasiaissue in cases where the primary object (e.g. pain control in terminalcancer treatment) can only be achieved by administering drugs ata level which is likely to shorten life, but enhances the quality oflife while it lasts. trade-off between length of life and quality oflife is permissible.”132. At the same time, possibility of misuse cannot be held to be avalid ground for rejecting advance directive, as opined by the LawCommission of India as well in its 196[th] and 241[st] Report. Instead, attemptcan be made to provide safeguards for exercise of such advance directive.For example, Section 5 of the Mental Healthcare Act, 2017 recognisesthe validity of advance directives for the treatment of mental illnessunder the Mental Healthcare Act, 2017. The draft Mental HealthcareRegulations have recently been made available for public comment bythe Ministry of Health and Family Welfare. These prescribe the form inwhich advance directives may be made. Part II, Chapter 1 of theRegulations allow Nominated Representative to be named in theAdvance Directive. An advance directive is to be in writing and signedby two witnesses attesting to the fact that the Directive was executed intheir presence. Directive to be registered with the Mental HealthReview Board. It may be changed as many times as desired by theperson executing it and the treating mental health professional must beinformed of such change. Similarly, Section 3 of the Transplantation ofHuman Organs and Tissues Act, 1994 allows persons to authorise theremoval of human organs and tissues from their body before death. Theform in which this authorisation is to be made is prescribed in Form 7 ofthe Transplantation of Human Organs and Tissues Rules, 2014. This isalso to be in writing and in the presence of two witnesses. copy of thepledge is to be retained at the institution where the pledge is made and

Athe person making the pledge has the option to withdraw the pledge atany time. Where such authorisation had been made, the person lawfullyin charge of the donor’s body after his death is required to grant theconcerned medical practitioner all reasonable facilities for the removalof human organs or tissues, unless such person has reason to believethat the donor had substantially revoked his authority.B

133. Mr. Datar, learned counsel appearing for the intervenor, hasalso brought to our notice various safeguards for advance directiveprovided in other jurisdiction in many ways i.e. by prescribing the formthat the directive must take, by specifying who may act as witnesses, byallowing the possibility of amendment and by allowing the validity of theCdirective to be challenged. Some of these examples are as follows:

(a) In U.K., under Section 24 of the Mental Capacity Act, 2005, aperson above the age of 18 years who has capacity may executean advance directive. person is said to lack capacity if in relationto matter at the material time, he is unable to make decisionfor himself because of an impairment of or disturbance in thefunctioning of the mind or brain. In Netherlands, under Article 2of the Termination of Life on Request and Assisted Suicide(Review Procedures) Act, patients aged 16 or above may makeadvance directives. In Germany, the authorisation of the court isrequired for the termination of treatment in the case of minors. InSwitzerland, persons with mental illnesses are consideredexceptions and cannot discontinue medical treatment if it is anexpression or symptom of their mental illness. In Hungary,pregnant women may not refuse treatment if it is seen that theyare able to carry the pregnancy.

(b) Section 25 of the Mental Capacity Act, an advance decisionto refuse life-sustaining treatment must be in writing. It must besigned by the patient or someone on his behalf and signed by awitness. It must also include written statement by the patientthat the decision will apply to the specific treatment even if thepatient’s life is at risk. Under Article 7: 450 of the Dutch CivilCode, an advance directive should be in written form, dated andsigned to be valid. Section 110Q of the Western AustraliaGuardianship and Administration Act, 1990 requires advancedirectives to be signed in the presence of two witnesses, who

must both be at least 18 years of age and one of whom must be aperson authorised to witness legal documents under the relevantlaw. Section 15 of the South Australia Advance Directives Act,2013 sets out requirements for ‘suitable’ witnesses under the Act.A person may not be witness if she is appointed as substitutedecision-maker under the advance directive, has direct or indirectinterest in the estate of the person executing the advance directiveor is health practitioner responsible for the health care of theperson executing the advance directive. Similar disqualificationsfor witnesses are prescribed in the Oregon Death with DignityAct, 2002 when person makes written request for medicationfor the purpose of ending her life in humane and dignified manner.

(c) Under Section 24(3) of the UK Mental Capacity Act, 2005, aperson may alter or withdraw an advance decision at any time hehas the capacity to do so. Under Section 25(2)(c), an advancedecision will not be applicable if person has done anything elseclearly inconsistent with the advance decision. Under Section3.06 of the Oregon Death with Dignity Act, 2005, person mayrescind her written request for medicating at any time regardlessof her mental state. To allow for change of mind, Section 3.08also requires at least 15 days to lapse between the patient’s initialoral request and the writing of prescription, while minimum of48 hours must elapse between the patient’s written request andthe writing of prescription. Under Section 110S of the WesternAustralia Guardianship and Administration Act, 1990, treatmentdecision in an advance directive does not operate if circumstancesexist or have arisen that the maker of that directive could notreasonably have anticipated at the time of making the directiveand that would have caused reasonable person in the maker’sposition to have changed her mind about the directive. Whiledetermining whether such circumstances have arisen, the age ofthe maker and the period that has elapsed between the time atwhich the directive was made and the circumstances that havearisen are factors that must be taken into account while determiningthe validity of the directive.

(d) Section 26(4) of the UK Mental Capacity Act permits courtsto make declaration as to whether the advance decision exists,

Ais valid, and applicable to treatment. Under Article 373 of theSwiss Civil Code, ‘any person closely related to the patient cancontact the adult protection authority in writing and claim that...the patient decree is not based on the patient’s free will.’ UnderSection 110V, 110W, 110X, 110Y and 110Z of the Western AustraliaGuardianship and Administration Act, 1990, any person who hasBa ‘proper interest’ in the matter, in the view of the StateAdministrative Tribunal, may apply to it for declaration withrespect to the validity of an advance directive. It can also interpretthe terms of the directive, give directions to give effect to it orrevoke treatment decision in the directive.C134. Mr. Datar has suggested that this Court should frame theguidelines to cover the following aspects:

(a) Who will be competent to execute an advance directive?

(b) In what form will an advance directive have to be issued inorder to be valid?D

(c) Who is to ensure that an advance directive is properly obeyed?(d) What legal consequences follow from the non-obedience toan advance directive?

(e) In what circumstances can doctor refuse to enforce anEadvance directive?

135. He has given the following suggestions on the aforesaidaspects:

(a) Only adult persons, above the age of eighteen years and ofFsound mind at the time at which the advance directive is executedshould be deemed to be competent. This should include personssuffering from mental disabilities provided they are of sound mindat the time of executing an advance directive.

(b) Only written advance directives that have been executedGproperly with the notarised signature of the person executing theadvance directive, in the presence of two adult witnesses shall bevalid and enforceable in the eyes of the law. The form shouldrequire reaffirmation that the person executing such directiveshas made an informed decision. Only those advance directivesrelating to the withdrawal or withholding of life-sustaining treatmentH

should be granted legal validity. The determination that theexecutor of the advance directive is no longer capable of makingthe decision should be made in accordance with relevant medicalprofessional regulations or standard treatment guidelines, as alsothe determination that the executor’s life would terminate in theabsence of life-sustaining treatment. The constitution of panelof experts may also be considered to make this determination.The use of expert committees or ethics committees in otherjurisdictions is discussed at Para 28 of these written submissions.

(c) Primary responsibility for ensuring compliance with the advancedirective should be on the medical institution where the person isreceiving such treatment.

(d) If hospital refuses to recognise the validity of an advancedirective, the relatives or next friend may approach thejurisdictional High Court seeking writ or mandamus against theconcerned hospital to execute the directive. The High Court mayexamine whether the directive has been properly executed,whether it is still valid (i.e. whether or not circumstances havefundamentally changed since its execution, making it invalid) and/or applicable to the particular circumstances or treatment.

(e) No hospital or doctor should be made liable in civil or criminalproceedings for having obeyed validly executed advancedirective.

(f) Doctors citing conscientious objection to the enforcement ofadvance directives on the grounds of religion should be permittednot to enforce it, taking into account their fundamental right underArticle 25 of the Constitution. However, the hospital will stillremain under this obligation.

136. All these suggestions and various aspects of advancedirectives have been elaborately considered and detailed directions aregiven by the Hon’ble the Chief Justice in his judgment, with which I dulyconcur. In summation, I say that this Court has, with utmost sincerity,summoned all its instincts for legality, fairness and reasonableness ingiving suitable answer to the vexed issue that confronts the people ondaily basis, keeping in mind the competing interests and balancing thoseinterests. It will help lead society towards an informed, intelligent andjust solution to the problem.

386SUPREME COURT REPORTS

[2018] 6 S.C.R.

A137. My last remarks are pious hope that the Legislature wouldstep in at the earliest and enact comprehensive law on ‘living will/advance directive’ so that there is proper statutory regime to governvarious aspects and nuances thereof which also take care of theapprehensions that are expressed against euthanasia.

Devika Gujral

Writ Petition disposed of.