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Date: 9 March 2018
Bench Strengh: 5 Number of pages: 538
Dipak Misra, CJI
The instant Writ Petition preferred under Article 32 of the Constitution of India by the petitioner, a registered society, seeks to declare “right to die with dignity” as a fundamental right within the fold of ”right to live with dignity” guaranteed under Article 21 of the Constitution; to issue directions to the respondents to adopt suitable procedure in consultation with the State Governments, where necessary; to ensure that persons of deteriorated health or terminally ill patients should be able to execute a document titled “My Living Will and Attorney Authorisation” which can be presented to the hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness which may threaten termination of the life of the executant; to appoint a committee of experts including doctors, social scientists and lawyers to study into the aspect of issuing guidelines as to the “Living Wills”.
(i) A careful and precise perusal of the judgment in Gian Kaur case reflects the right of a dying man to die with dignity when life is ebbing out, and in the case of a terminally ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.
(ii) The Constitution Bench in Gian Kaur has not approved the decision in Airedale inasmuch as the Court has only made a brief reference to the Airedale case.
(iii) It is not the ratio of Gian Kaur that passive euthanasia can be introduced only by legislation.
(iv) The two-Judge bench in Aruna Shanbaug has erred in holding that this Court in Gian Kaur has approved the decision in Airedale case and that euthanasia could be made lawful only by legislation.
(v) There is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life.
(vi) In active euthanasia, a specific overt act is done to end the patient‘s life whereas in passive euthanasia, something is not done which is necessary for preserving a patient's life. It is due to this difference that most of the countries across the world have legalised passive euthanasia either by legislation or by judicial interpretation with certain conditions and safeguards.
(vii) Post Aruna Shanbaug, the 241st report of the Law Commission of India on Passive Euthanasia has also recognized passive euthanasia, but no law has been enacted.
(viii) An inquiry into common law jurisdictions reveals that all adults with capacity to consent have the right of self- determination and autonomy. The said rights pave the way for the right to refuse medical treatment which has acclaimed universal recognition. A competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. The 'Emergency Principle' or the 'Principle of Necessity' has to be given effect to only when it is not practicable to obtain the patient's consent for treatment and his/her life is in danger. But where a patient has already made a valid Advance Directive which is free from reasonable doubt and specifying that he/she does not wish to be treated, then such directive has to be given effect to.
(ix) Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty.
(x) It has to be stated without any trace of doubt that the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery.
(xi) A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity. Further, a study of the position in other jurisdictions shows that Advance Directives have gained lawful recognition in several jurisdictions by way of legislation and in certain countries through judicial pronouncements.
(xii) Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination.
(xiii) In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable.
(xiv) When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest.
We have laid down the principles relating to the procedure for execution of Advance Directive and provided the guidelines to give effect to passive euthanasia in both circumstances, namely, where there are advance directives and where there are none, in exercise of the power under Article 142 of the Constitution and the law stated in Vishaka v. State of Rajasthan.
The directive and guidelines shall remain in force till the Parliament brings a legislation in the field.
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