Common Cause (A Registered Society) v. Union Of India And Another

Per Dipak Misra, C.J. and Khanwilkar, J.

Euthanasia — Concept

Euthanasia is basically an intentional premature termination of another person's life either by direct intervention (active euthanasia) or by withholding life-prolonging measures and resources (passive euthanasia) either at the express or implied request of that person (voluntary euthanasia) or in the absence of such approval/consent (non-voluntary euthanasia).

(Para 46)

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. 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. Passive euthanasia fundamentally connotes absence of any overt act either by the patient or by the doctors. It also does not involve any kind of overt act on the part of the family members. It is avoidance of unnecessary intrusion in the physical frame of a person, for the inaction is meant for smooth exit from life. It is paramount for an individual to protect his dignity as an inseparable part of the right to life which engulfs the dignified process of dying sans pain, sans suffering and, most importantly, sans indignity. 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.

(Paras 202.5, 202.6 and 178)

It is perhaps due to the distinction evolved between these two forms of euthanasia, which has gained moral and legal sanctity all over, that most of the countries today have legalised passive euthanasia either by way of legislations or through judicial interpretation but there remains uncertainty whether active euthanasia should be granted legal status.

(Para 52)

The society at large may feel that a patient should be treated till he breathes his last breath and the treating physicians may feel that they are bound by their Hippocratic oath which requires them to provide treatment and save life and not to put an end to life by not treating the patient. The members of the family may remain in a constant state of hesitation being apprehensive of many a social factor which include immediate claim of inheritance, social stigma and, sometimes, the individual guilt. The Hippocratic oath taken by a doctor may make him feel that there has been a failure on his part and sometimes also make him feel scared of various laws. There can be allegations against him for negligence or criminal culpability.

(Para 176)

In this regard, two aspects are to be borne in mind. First, withdrawal of treatment in an irreversible situation is different from not treating or attending to a patient and second, once passive euthanasia is recognised in law regard being had to the right to die with dignity when life is ebbing out and when the prolongation is done sans purpose, neither the social morality nor the doctors' dilemma or fear will have any place. It is because the sustenance of dignity and self-respect of an individual is inhered in the right of an individual pertaining to life and liberty and there is necessity for this protection. And once the said right comes within the shelter of Article 21 of the Constitution, the social perception and the apprehension of the physician or treating doctor regarding facing litigation should be treated as secondary because the primacy of the right of an individual in this regard has to be kept on a high pedestal.

(Para 177)

There are philosophers, thinkers and also scientists who feel that life is not confined to the physical frame and biological characteristics. However, the legal fulcrum has to be how Article 21 of the Constitution is understood. If a man is allowed to or, for that matter, forced to undergo pain, suffering and state of indignity because of unwarranted medical support, the meaning of dignity is lost and the search for meaning of life is in vain.

(Para 179)

Aruna Shanbaug case has discussed about these two categories of euthanasia—active and passive. The main idea behind the distinction between the two, as observed by the Bench, is that in passive euthanasia, the doctors are not actively killing the patient, they are merely not saving him and only accelerating the conclusion of the process of natural death which has already commenced.

(Paras 46 and 47)

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294, affirmed on this point

The Court in Aruna Shanbaug case had drawn further distinction between voluntary euthanasia and non-voluntary euthanasia in the sense that voluntary euthanasia is where the consent is taken from the patient and non-voluntary euthanasia is where the consent is unavailable, for instances when the patient is in coma or is otherwise unable to give consent. Describing further about active euthanasia, the Division Bench had observed that the said type of euthanasia involves taking specific steps to cause the patient's death such as injecting the patient with some lethal substance i.e. sodium pentothal which causes, in a person, a state of deep sleep in a few seconds and the person instantly dies in that state. The Court further categorised passive euthanasia into voluntary passive euthanasia and non-voluntary passive euthanasia. The voluntary passive euthanasia has been described as a situation where a person who is capable of deciding for himself decides that he would prefer to die because of various reasons whereas non-voluntary passive euthanasia has been described to mean that a person is not in a position to decide for himself e.g. if he is in coma or PVS.

(Paras 46 and 48)

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294, affirmed on this point

Airedale N.H.S. Trust v. Bland, 1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA & HL); Vacco v. Quill, 1997 SCC OnLine US SC 80 : 138 L Ed 2d 834 : 521 US 793 (1997); Rodriguez v. Attorney General of Canada, 1993 SCC OnLine Can SC 97 : (1993) 3 SCR 519 : 85 CCC 3d 15; Conroy, In re, 98 NJ 321 : 486 A 2d 1209 (NJ 1985), considered

After the judgment of Aruna Shanbaug case was delivered, the Law Commission of India submitted its 241st Report which dealt with “Passive Euthanasia — A Relook”. The Report supports the view of several authorities especially Lord Browne-Wilkinson (in Airedale case) and Justice Cardozo that in case of any forced medical intervention on the body of a patient, the surgeon/doctor is guilty of “assault” or “battery”. The Report also laid emphasis on the opinion of Lord Goff placing right of self-determination on a higher pedestal.

(Paras 127 and 131)

Airedale N.H.S. Trust v. Bland, 1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA & HL); F. (Mental Patient: Sterilisation), In re, (1990) 2 AC 1 : (1989) 2 WLR 1025 : (1989) 2 All ER 545 (HL); R. (Pretty) v. Director of Public Prosecutions, (2002) 1 AC 800 : (2001) 3 WLR 1598 : (2002) 1 All ER 1 : 2001 UKHL 61 (HL); B. (Consent to Treatment: Capacity), In re, (2002) 1 FLR 1090 sub nom B. (Adult: Refusal of Medical Treatment), In re, (2002) 2 All ER 449; R. (Nicklinson) v. Ministry of Justice, 2015 AC 657 : (2014) 3 WLR 200 : 2014 UKSC 38; Cruzan v. Missouri Department of Health, 1990 SCC OnLine US SC 123 : 111 L Ed 2d 224 : 110 S Ct 2841 : 497 US 261 (1990); Vacco v. Quill, 1997 SCC OnLine US SC 80 : 138 L Ed 2d 834 : 521 US 793 (1997); Hunter and New England Area Health Service v. A., 2009 NSWSC 761; Brightwater Care Group (Inc.) v. Rossiter, 2009 WASC 229 : 40 WAR 84; Australian Capital Territory v. JT, 2009 ACTSC 105; Vikas Yadav v. State Of Up, (2016) 9 SCC 541 : (2016) 3 SCC (Cri) 621, considered

Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118 (QB); Quinlan, In re, 355 A 2d 647 : 70 NJ 10 (NJ 1976); Garger v. New Jersey, 429 US 922 (1976); Supt. of Belchertown State School v. Saikewicz, 373 Mass 728 : 370 NE 2d 417 (1977); B. (A Minor) (Wardship: Medical Treatment), In re, (1981) 1 WLR 1421 : (1990) 3 All ER 927 (CA); J. (A Minor) (Wardship: Medical Treatment), In re, 1991 Fam 33 (CA) : (1991) 2 WLR 140 : (1990) 3 All ER 930; Pretty v. United Kingdom, (2002) 35 EHRR 1 : 2002 ECHR 423; Haas v. Switzerland, (2011) 53 EHRR 33 : 2011 ECHR 2422; Quill v. Vacco, 80 F 3d 716 (2d Cir 1996); Auckland Area Health Board v. Attorney General, (1993) 1 NZLR 235 (HC); Messiha v. South East Health, 2004 NSWSC 1061; Brightwater Care Group (Inc.) v. Rossiter, 2009 WASC 229 : 40 WAR 84; Australian Capital Territory v. JT, 2009 ACTSC 105, cited

In Aruna Shanbaug case at para 101 the two-Judge Bench noted that Gian Kaur case has approved the decision of the House of Lords in Airedale case and observed that euthanasia could be made lawful only by legislation. This perception is not correct. The Constitution Bench of the Supreme Court in Gian Kaur case has not decried euthanasia as a concept. On the contrary, it gives an indication that in such situations, it is the acceleration of the process of dying which may constitute a part of right to life with dignity so that the period of suffering is reduced. It is understood and appreciated that there is a distinction between a positive or overt act to put an end to life by the person living his life and termination of life so that an individual does not remain in a vegetative state or, for that matter, when the death is certain because of terminal illness and he remains alive with the artificially assisted medical system. While dealing with the attempt to commit suicide, the Court clearly held that when a man commits suicide, he has to undertake certain positive overt acts and the genesis of those acts cannot be tested to or be included within the protection of the expression “right to life” under Article 21 of the Constitution. It was also observed that a dignified procedure of death may include the right of a dying man to also die with dignity when the life is ebbing out.

(Paras 45, 44.2, 44.3, 202.3 and 202.4)

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. This is how the pronouncement in Gian Kaur case has to be understood. It is also not the ratio of the authority in Gian Kaur case that euthanasia has to be introduced only by a legislation. What has been stated in para 41 of Gian Kaur case is what has been understood to have been held in Airedale case. The Court has neither expressed any independent opinion nor has it approved the said part or the ratio as stated in Airedale case. There has been only a reference to Airedale case and the view expressed therein as regards legislation. Therefore, the perception in Aruna Shanbaug case that the Constitution Bench has approved the decision in Airedale case is not correct. It is also quite clear that Gian Kaur case does not lay down that passive euthanasia can only be thought of or given effect to by legislation. Appositely understood, it opens an expansive sphere of Article 21 of the Constitution and it cannot thus be treated as a binding precedent for the purpose of laying down the principle that passive euthanasia can be made lawful “only by legislation”. Gian Kaur case has neither given any definite opinion with regard to euthanasia nor has it stated that the same can be conceived of only by a legislation. However, the view of Aruna Shanbaug case that euthanasia could be made lawful only by legislation, which has not been accepted by the referral Bench, makes no difference to the present analysis.

(Paras 44.4, 45, 202.1 and 202.2)

Gian Kaur (Smt) v. State Of Punjab ., (1996) 2 SCC 648 : 1996 SCC (Cri) 374, explained

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294, overruled on this point

Airedale N.H.S. Trust v. Bland, 1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA & HL), referred to

Compassion in Dying v. Washington, 49 F 3d 586 (9th Cir 1995); Compassion in Dying v. Washington, 850 F Supp 1454 (WD Wash 1994); R. v. Cox, 18-9-1992 (unreported); Vikram Deo Singh Tomar v. State Of Bihar ., 1988 Supp SCC 734 : 1989 SCC (Cri) 66; J. (A Minor) (Wardship: Medical Treatment), In re, 1991 Fam 33 (CA) : (1991) 2 WLR 140 : (1990) 3 All ER 930; Washington v. Glucksberg, 1997 SCC OnLine US SC 79 : 138 L Ed 2d 772 : 521 US 702 (1997); Vacco v. Quill, 1997 SCC OnLine US SC 80 : 138 L Ed 2d 834 : 521 US 793 (1997); Charan Lal Sahu v. Union Of India ., (1990) 1 SCC 613; State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227; Common Cause (A Registered Society) v. Union Of India ., (2014) 5 SCC 338 : (2014) 2 SCC (Cri) 557, cited

Per Sikri, J. (concurring)

The word euthanasia appears to have come into usage in the early 17th century and was used in the sense of “easy death”. The term is derived from the Greek “euthanatos”, with “eu” meaning well, and “thanatos” meaning death. In ancient Greece and Rome, citizens were entitled to a good death to end the suffering of a terminal illness. The above Greek definition of euthanasia apart, it is a loaded term. People have been grappling with it for ages. Devised for service in a rhetoric of persuasion, the term “euthanasia” has no generally accepted and philosophically warranted core meaning. It is also defined as: killing at the request of the person killed. The popular conception which is widely accepted is that some sorts of life are not worth living; life in such a state demeans the patient's dignity, and maintaining it (otherwise than at the patient's express request) insults that dignity; proper respect for the patient and the patient's best interests requires that that life be brought to an end. In this thought process, the basic Greek ideology that it signifies “an easy and gentle death” still remains valid.

(Paras 216 and 217)

Michael Manning: Euthanasia and Physician-Assisted Suicide (Paulist Press, 1998), referredto

In common parlance euthanasia can be of three types, namely, voluntary, non-voluntary and involuntary euthanasia. The terms can be described as under:

Voluntary euthanasia—People concerned to legalise the termination of life on medical grounds have always concentrated on voluntary euthanasia (this implies that the patient specifically requests that his life be ended). It is generally agreed that the request must come from someone who is either (a) in intolerable pain, or (b) who is suffering from an illness which is agreed as being terminal. It may be prior to the development of the illness in question or during its course. In either case it must not result from any pressure from relatives or those who have the patients in their care. Both active and passive euthanasia can be termed as forms of voluntary euthanasia. These definitions of voluntary, non-voluntary and involuntary euthanasia correspond to those employed by the House of Lords Select Committee on Medical Ethics (Walton Committee).

(Para 218.1)

Non-voluntary euthanasia—Seen by some as subvariety of voluntary euthanasia. This involves the death, ostensibly for his own good, of someone who cannot express any views on the matter and who must, therefore, use some sort of proxy request that his/her life be ended. This form of euthanasia is that which most intimately concerns the medical profession. Selective non-treatment of the newborn or the doctor may be presented with demented and otherwise senilely incompetent patients. In practice, non-voluntary euthanasia presents only as an arguable alternative to non-treatment.

(Para 218.2)

Involuntary euthanasia—It involves ending the patient's life in the absence of either a personal or proxy invitation to do so. The motive “the relief from suffering” may be the same as voluntary euthanasia—but its only justification — “a paternalistic decision as to what is best for the victim of the disease”. In extreme cases, it could be against the patient's wishes or could be just for social convenience. It is examples of the latter which serve as warnings as to those who would invest the medical professional with more or unfettered powers over life and death.

(Para 218.3)

“Euthanasia and Its Legality and Legitimacy from Indian and International Human Right Instruments Perspectives” in Human Rights & Social Justice by Muzafer Assadi, referred to

Contrary to the above, in legal parlance, euthanasia has since come to be recognised as of two distinct types: the first is active euthanasia, where death is caused by the administration of a lethal injection or drugs. Active euthanasia also includes physician-assisted suicide, where the injection or drugs are supplied by the physician, but the act of administration is undertaken by the patient himself. Active euthanasia is not permissible in most countries.

(Para 219)

Passive euthanasia occurs when medical practitioners do not provide life-sustaining treatment (i.e. treatment necessary to keep a patient alive) or remove patients from life-sustaining treatment. This could include disconnecting life support machines or feeding tubes or not carrying out life-saving operations or providing life-extending drugs. In such cases, the omission by the medical practitioner is not treated as the cause of death; instead, the patient is understood to have died because of his underlying condition.

(Para 219)

In Aruna Ramachandra Shanbaug case, the Court recognised these two types of euthanasia i.e. active and passive. It also noted that active euthanasia is impermissible, which was so held by the Constitution Bench in Gian Kaur case. Therefore, without going into further debate on differential that is assigned to the term “euthanasia”, ethically, philosophically, medically, etc., discussion should be confined to the aforesaid legal meaning assigned to active and passive euthanasia. Thus, insofar as active euthanasia is concerned, this has to be treated as legally impermissible, at least for the time being. It is more so, as there is absence of any statutory law permitting active euthanasia. If at all, legal provisions in the form of Sections 306 and 307 IPC, etc. point towards its criminality. The discussion henceforth, therefore, would confine to passive euthanasia.

(Para 220)

Gian Kaur (Smt) v. State Of Punjab ., (1996) 2 SCC 648 : 1996 SCC (Cri) 374, relied on

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294, affirmed on this point

Per Chandrachud, J. (concurring)

Central to the debate are notions such as “involuntary”, “non-voluntary” and “voluntary”. Also “active” and “passive” are used, particularly in combination with “voluntary” euthanasia. In general, the following might be said:

(i) involuntary euthanasia refers to the termination of life against the will of the person killed;

(ii) non-voluntary euthanasia refers to the termination of life without the consent or opposition of the person killed;

(iii) voluntary euthanasia refers to the termination of life at the request of the person killed;

(iv) active euthanasia refers to a positive contribution to the acceleration of death;

(v) passive euthanasia refers to the omission of steps which might otherwise sustain life.

(para 384)

What is relatively straightforward is that involuntary euthanasia is illegal and amounts to murder. However, the boundaries between active and passive euthanasia are blurred since it is quite possible to argue that an omission amounts to a positive act.

(Para 384)

Consent postulates that the individual is in a mental condition which enables her to choose and to decide on a course of action and convey this decision. Its voluntary nature is premised on its consensual character. Euthanasia becomes non-voluntary where the individual has lost those faculties of mind which enable her to freely decide on the course of action or lost the ability to communicate the chosen course of action.

(Para 385)

Passive euthanasia—whether in the form of withholding or withdrawing treatment—has the effect of removing, or as the case may be, not providing supportive treatment. Its effect is to allow the individual to continue to exist until the end of the natural span of life. On the other hand, active euthanasia involves hastening of death: the lifespan of the individual is curtailed by a specific act designed to bring an end to life. Active euthanasia would on the state of the penal law as it stands constitute an offence. Hence, it is only Parliament which can in its legislative wisdom decide whether active euthanasia should be permitted. Passive euthanasia on the other hand would not implicate a criminal offence since the decision to withhold or withdraw artificial life support after taking into account the best interest of the patient would not constitute an illegal omission prohibited by law.

(Para 450)

R. (Conway) v. Secy. of State for Justice, (2018) 2 WLR 322 : 2017 EWHC 2447 (Admin), considered

R. (Countryside Alliance) v. Attorney General, 2008 AC 719 : (2007) 3 WLR 922 (HL); AXA General Insurance Ltd. v. HM Advocate, (2012) 1 AC 868 : (2011) 3 WLR 871 (SC), cited

The distinctions between active and passive euthanasia are based on the manner in which death is brought about. They closely relate to the understanding and consequences of the legal concepts of act and omission. The expression “passive” has been used to denote the withdrawal or withholding of medical treatment. Implicit in this definition is the assumption that both the withdrawal of or withholding treatment stand on the same ethical or moral platform. There is a qualitative difference between a positive medical intervention (such as a lethal injection) which terminates life and a decision to not put a patient on artificial life support, which will not artificially prolong life. The former brings a premature extinction of life. The latter does not delay the end of life beyond its natural end point. Even though euthanasia is grounded in compassion and to relieve the patient of suffering, only certain types of deaths can be lawful. If active euthanasia amounts to “killing”, the operation of criminal law can lead to medical practitioners being exposed to the indignity of criminal prosecutions and punishments. While passive euthanasia can appear to save the dignity of medical practitioners, it is perhaps at the expense of the patient's dignity.

(Paras 385, 386, 388 and 390)

Hazel Biggs: “Euthanasia, Death with Dignity and the Law” (Hart Publishing, 2001), at pp. 12, 162; James Rachels: “Active and Passive Euthanasia”, New England Journal of Medicine (9-1-1975), at pp. 78-80; James Rachels: End of Life: Euthanasia and Morality (Oxford University Press, 1986); Bruce R. Reichenbach: “Euthanasia and the Active-Passive Distinction”, Bioethics (January 1987), Vol. 1, at pp. 51-73; James Rachels: End of Life: Euthanasia and Morality (Oxford University Press, 1986), at pp. 101-20; Len Doyal and Lesley Doyal: “Why Active Euthanasia and Physician-Assisted Suicide should be Legalised if Death is in a Patient's Best Interest Then Death Constitutes a Moral Good”, British Medical Journal (2001), at pp. 1079-80; Rohini Shukla: “Passive Euthanasia in India: A Critique”, Indian Journal of Medical Ethics (Jan-Mar 2016), pp. 35-38; Aparna Chandra and Mrinal Satish: “Misadventures of the Supreme Court in Aruna Shanbaug v. Union of India”, Law and Other Things (13-3-2011) ; Ratna Kapur: “The Spectre of Aruna Shanbaug”, The Wire (18-5-2015) , referred to

But, if the decision to proceed with euthanasia is the right one based on compassion and the humanitarian impulse to reduce pain and suffering, then the method used is not in itself important. Moreover, it is argued that passive euthanasia often involves more suffering since simply withholding treatment means that the patient may take longer to die and thus suffer more. Passive euthanasia may become questionable where the withholding or withdrawal of medical intervention may lead to a condition of pain and suffering, often a lingering and cruel death. The avoidance of suffering, which is the object and purpose of euthanasia, may hence not be the result of passive euthanasia and the converse may result. Besides raising troubling moral questions—especially where it is non-voluntary, it questions the efficacy of passive euthanasia. Moreover, it raises a troubling issue of the validity of the active-passive divide.

(Paras 388 and 450)

Aruna Shanbaug judgment has been criticised in an article by Rohini Shukla in Indian Journal of Medical Ethics (2016) on the ground that it does not distinguish between the terms “withholding and withdrawing and uses 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 between what is “active” and “passive” as act and omission. Withholding life support implies that crucial medical intervention is restrained or is not provided—an act of omission on the part of the doctor. Withdrawing life support implies suspending medical intervention that was already in use to sustain the patient's life—an act of commission. If the basis of distinction between active and passive euthanasia is that in passive euthanasia the doctor only passively commits acts of omission, while in active euthanasia the doctor commits acts of commission then withdrawing medical treatment is an act of commission and therefore amounts to active euthanasia. In both these cases, the doctor is aware that his/her commissions or omissions will in all likelihood lead to the patient's death. However, in passive euthanasia death may not be the only consequence and the suffering that passive euthanasia often entails such as suffocation to death or starvation till death, raises the question of whether passive euthanasia, in such circumstances, militates against the idea of death with dignity—the very basis of legalising euthanasia. Shukla's criticism needs careful attention since it raises profound questions about the doctor-patient relationship and the efficacy of the distinction in the context of death with dignity. Where there is a duty to care, the distinction between an act and an omission may have questionable relevance. Acts and omissions are not disjunctive or isolated events. Treatment of the human body involves a continuous association between the caregiver and receiver. The expert caregiver is involved in a continuous process where medical knowledge and the condition of the patient as well as the circumstances require the doctor to evaluate choices—choices on the nature and extent of medical intervention, the wisdom about a course of action and about what should or should not be done. 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 manageable standards?

(Paras 391 and 392)

Since the judgment legalised passive euthanasia, withdrawing medical support was the only option in Aruna Shanbaug case and if this had been done, she would have in all likelihood suffocated to death. Question is whether this could be the best possible death in consonance with the right to live with dignity (which extends to dignity when death approaches) and the extent to which it upholds the principle of prioritising the patient's autonomy and dignity over mere prolongation of life. Had the Court taken into account these consequences of passive euthanasia for the patient, it would be apparent that passive euthanasia is not a simple panacea for an individual faced with end of life suffering.

(Para 394)

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294, disapproved on this point

The second and more critical flaw in Aruna Shanbaug judgment was the unjustified emphasis on doctor's agency in administering different types of euthanasia which led to ignoring the patient's autonomy and suffering. Respecting patient autonomy and reducing suffering are fundamental ethical values ascribed to euthanasia. It is also the foremost principle of bioethics. The effects of euthanasia on everyone (particularly her caregivers) were given greater importance than the patient's own wishes.

(Para 395)

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294, disapproved on this point

Roop Gurusahani and Raj Kumar Mani: “India: Not a Country to Die in”, Indian Journal of Medical Ethics (Jan-Mar 2016), at pp. 30-35, referred to

Even while there are pertinent questions regarding the moral validity of the active-passive distinction, there appears to be a significant difference between active and passive euthanasia when viewed from the lens of the patient's consent. Consent gives an individual the ability to choose whether or not to accept the treatment that is offered. But consent does not confer on a patient the right to demand that a particular form of treatment be administered, even in the quest for death with dignity. Voluntary passive euthanasia, where death results from selective non-treatment because consent is withheld, is therefore legally permissible while voluntary active euthanasia is prohibited. Moreover, passive euthanasia is conceived with a purpose of not prolonging the life of the patient by artificial medical intervention. Both in the case of a withdrawal of artificial support as well as in non-intervention, passive euthanasia allows for life to ebb away and to end in the natural course. In contrast, active euthanasia results in the consequence of shortening life by a positive act of medical intervention. It is perhaps this distinction which necessitates legislative authorisation for active euthanasia, as differentiated from the passive.

(Para 398)

The question of legality of these two forms of euthanasia has significant consequences. Death when it is according to the wishes and in the caregiver of the patient must be viewed as a moral good. The fact that active euthanasia is an illegal act (absent legislative authorisation) also prevents many professional and emotional carers from performing it even if they perceive it as a compassionate and otherwise appropriate response in line with the patient's wishes and caregiver, thereby prolonging the patient's suffering and indignity. These complex issues cannot be addressed when active euthanasia is not legalised and regulated. The meeting point between bioethics and law does not lie on a straight course.

(Para 399)

The decision by a treating doctor to withhold or withdraw medical intervention in the case of a patient in the terminal stage of illness or in a persistently vegetative state or the like where artificial intervention will merely prolong the suffering and agony of the patient is protected by the law. Where the doctor has acted in such a case in the best interest of the patient and in bona fide discharge of the duty of care, the law will protect the reasonable exercise of a professional decision.

(Para 521)

“The Dilemmas of Euthanasia”, Bio-Science (August 1973), Vol. 23, No. 8, at p. 459; Margaret A. Somerville: “Legalising euthanasia: Why Now?”, The Australian Quarterly (Spring 1996), Vol. 68, No. 3, at p. 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 p. 513; Alan Norrie: “Legal Form and Moral Judgement: Euthanasia and Assisted Suicide” in R.A. Duff, et al (ed), The Structures of the Criminal Law (Oxford University Press, 2011), at p. 134; Elizabeth Wicks: The Right to Life and Conflicting Interests (Oxford University Press, 2010), at p. 199; Elizabeth M. Andal Sorrentino: “The Right to Die?”, Journal of Health and Human Resources Administration (Spring, 1986), Vol. 8, No. 4, p. 361; Atul Gawande: Being Mortal: Medicine and What Matters in the End (Hamish Hamilton, 2014), at p. 260; Henry Marsh: Admissions: A Life in Brain Surgery, (Weidenfeld & Nicolson, 2017), at pp. 265-66; Randy Pausch and Jeffrey Zaslow: The Last Lecture, (Hodder & Stoughton, 2008), at p. 17, referred to

The decision in Aruna Shanbaug case has proceeded on the hypothesis that the Constitution Bench in Gian Kaur case had “quoted with approval” the decision of the House of Lords in Airedale case. This hypothesis is incorrect. There was only a passing reference to the decision of the House of Lords. The decision in Gian Kaur case referred to the distinction made in Airedale case between cases in which a physician decides not to provide or to continue to provide treatment which would prolong life and cases in which a physician decides to actively bring an end to the life of the patient by administering a lethal drug. The Court in Airedale case observed that actively causing the death of the patient could be made lawful only by legislation. It was this aspect which was emphasised by the judgment in Gian Kaur case. Hence, the position adopted in Aruna Shanbaug case, that the Constitution Bench in Gian Kaur case quoted Airedale case with approval (as the basis of allowing passive euthanasia) is seriously problematic.

(Para 376)

Ratna Kapur: “The Spectre of Aruna Shanbaug”, The Wire (18-5-2015) , referred to

Per Ashok Bhushan, J. (concurring)

Euthanasia is derived from the Greek word euthanatos; eu means well or good and thanatos means death.

(Para 597)

In ancient Greek society, euthanasia as “good death” was associated with the drinking of “Hemlock”. In last few centuries, euthanasia increasingly came to connote specific measures taken by physicians to hasten the death. The primary meaning, as has now been ascribed to the word is compassionate murder. In the last century, the thought has gained acceptance that euthanasia is to be distinguished from withdrawal of life saving treatments which may also result in death. Withdrawing medical treatment in a way hasten the death in case of terminal illness or persistent vegetative state (PVS) but is not to be treated as compassionate murder. Advancement in the medical science on account of which life can be prolonged by artificial devices are the developments of only last century.

(Para 599)

Airedale N.H.S. Trust v. Bland, 1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA & HL), relied on

The withdrawal of medical treatment of terminally ill persons is a complex ethical, moral and social issue with which many countries have wrestled with their attempt to introduce a legal framework for end of life decision-making. In absence of a comprehensive legal framework on the subject the issue has to be dealt with great caution.

(Para 557)

The act of withdrawal from live-saving devices is an independent right which can lawfully be exercised by informed decision. Withdrawal of medical assistance or withdrawal of medical devices which artificially prolong the life cannot be regarded as an act to achieve a good death. Artificial devices to prolong the life are implanted, when a person is likely to die due to different causes in his body. Lifesaving treatment and devices are put by physicians to prolong the life of a person.

(Paras 609 and 603)

Withdrawal of life-saving devices, leads to natural death which is arrested for the time being due to above device and the act of withdrawal 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 a decision when treatment becomes futile and unnecessary. Practice of euthanasia in this country is prohibited and for medical practitioners it is already ordained to be unethical conduct.

(Para 606)

K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, relied on

A critically ill patient who is mentally competent to take a decision, decides not to take support of life prolonging measures, and respecting his wisdom if he is not put on such devices like ventilator, etc. it is not at all euthanasia. Large number of persons in advance age of life decide not to take medical treatment and embrace death in its natural way; their death cannot be termed as euthanasia. The decision not to take lifesaving medical treatment by a patient, who is competent to express his opinion cannot be termed as euthanasia, but a decision to withdraw lifesaving treatment by a patient who is competent to take decision as well as with regard to a patient who is not competent to take decision can be termed as passive euthanasia. On the strength of the precedents in this country and weight of precedents of other countries, such action of withdrawing lifesaving device is legal. Thus, such acts, which are commonly expressed as passive euthanasia is lawful and legally permissible in this country.

(Para 607)

Court is not a legislative body nor is entitled or competent to act as a moral or ethical arbiter. The task of the Supreme Court is not to weigh or evaluate or reflect different beliefs and views or give effect to its own but to ascertain and build the law of land as it is now understood by all. Message which need to be sent to vulnerable and disadvantaged people should not, however, obliviously to encourage them to seek death but should assure them of care and support in life.

(Para 608)

Nancy B. v. Hotel Dieu de Quebec, (1992) 86 DLR (4th) 385 (Que SC); T. (Adult: Refusal of Treatment), In re, 1993 Fam 95 : (1992) 3 WLR 782 : (1992) 4 All ER 649 (CA); B. (Adult: Refusal of Medical Treatment), In re, (2002) 2 All ER 449; S. v. McC. (Orse. S.) and M. (D.S. Intervener), 1972 AC 24 : (1970) 3 WLR 366 (HL); R. (Pretty) v. Director of Public Prosecutions, (2002) 1 AC 800 : (2001) 3 WLR 1598 : (2002) 1 All ER 1 : 2001 UKHL 61 (HL); Schloendorff v. Society of New York Hospital, 105 NE 92 : 211 NY 125 (1914); Cruzan v. Missouri Department of Health, 1990 SCC OnLine US SC 123 : 111 L Ed 2d 224 : 110 S Ct 2841 : 497 US 261 (1990); Compassion in Dying v. Washington, 79 F 3d 790 (1996); Vacco v. Quill, 1997 SCC OnLine US SC 80 : 138 L Ed 2d 834 : 521 US 793 (1997); Washington v. Glucksberg, 1997 SCC OnLine US SC 79 : 138 L Ed 2d 772 : 521 US 702 (1997); Rodriguez v. Attorney General of Canada, 1993 SCC OnLine Can SC 97 : (1993) 3 SCR 519 : 85 CCC 3d 15; Gian Kaur (Smt) v. State Of Punjab ., (1996) 2 SCC 648 : 1996 SCC (Cri) 374, referred to

Pratt v. Davis, 224 Ill 300 : 79 NE 562 (1906); Mohr v. Williams, 95 Minn 261 : 104 NW 12 (1905); Union Pacific Rly. Co. v. Botsford, 1891 SCC OnLine US SC 217 : 35 L Ed 734 : 11 S Ct 1000 : 141 US 250 (1891); Conroy, In re, 98 NJ 321 : 486 A 2d 1209 (NJ 1985); Quill v. Vacco, 80 F 3d 716 (2d Cir 1996); Stanford v. Kentucky, 1989 SCC OnLine US SC 151 : 106 L Ed 2d 306 : 109 S Ct 2969 : 492 US 361 (1989), cited

E. Constitution of India — Art. 21 — Constitutional value of euthanasia — Considered having regard to theological, philosophical and constitutional models

— Life, liberty and dignity — Human dignity in euthanasia — Though right to life does not include right to die (Gian Kaur case), but right to live with dignity protected under Art. 21 includes right to live with dignity up to end of natural life by smoothening process of dying — Dignity in death has a sense of realism that permeates right to life — Right to dignity is neither lost in process of dying nor when death occurs — Individual cannot be deprived of his/her dignity till end of his/her life — Right to die with dignity being legal, neither morality, not doctor's dilemma, nor patient's fear will have any place — There is constitutional expectation of providing dignity in death which is protected under Art. 21 and is enforceable against the State

— Life, liberty and dignity — Human dignity is an inextricable facet of right to life — It is intrinsic in preserving sanctity and quality of life — Liberty, autonomy and self-determination are its essential attributes

— Life and liberty — Connotation and amplitude — Both are interlinked concepts — Together they constitute right of core significance

— Liberty — Of personal sovereignty over body and mind falls under Art. 21

— Life and natural death — Life is not mere biological existence — It relates to quality of life — Prolongation of life by means of modern medical technology of a patient who is terminally ill, in PVS or brain dead state — In certain circumstances it renders life to mere biological existence — Thus notion of life is reshaped

— Right to privacy — It is constitutional core of dignity — Comprehends right to take decisions relating to own bodily integrity and death by refusing medical treatment — Every person has a right to make essential choices which affect course of life — Patient's right to refuse life prolonging medical treatment or terminate his/her life, is a freedom which falls within ambit of privacy — Continuing treatment against wishes of patient violative of his/her bodily privacy — Patient must have freedom to decide whether to continue living when quality of life deteriorates

— Right to health — A facet of Art. 21

— Sanctity of life — Meaning and limits — Concepts of sacred value and inviolability of human life considered in context of religion, morality and ethics, as also right to life, autonomy and quality of life — Quality of life needs to be protected — When a person is only alive in most rudimentary sense without having any capacity to experience pleasure or pain, life loses its value — Rule against killing applies where person has life in qualitative sense not where person living merely in vegetative sense — Human and Civil Rights — Right to Die/Euthanasia

F. Constitution of India — Pt. III — Fundamental Rights — Liberal, dynamic and expansive interpretation needed

G. Jurisprudence — Law and morality — Normally moral basis of law is not required to be examined by court in its interpretative process — But moral aspect gains significance when some legal norms are jurisprudentially expounded by courts or developed as common law principles — Common Law

Held :

Per Dipak Misra, C.J. and Khanwilkar, J.

Life and liberty

Under Article 21 of the Constitution word “liberty” is the sense and realisation of choice of the attributes associated with the said choice; and the term “life” is the aspiration to possess the same in a dignified manner. The two are intrinsically interlinked. Liberty impels an individual to change and life welcomes the change and the movement. Life does not intend to live sans liberty as it would be, in all possibility, a meaningless survival.

(Para 142)

The language employed in the constitutional provision should be liberally construed, for such provision can never remain static. It is because staticity would mar the core which is not the intent. The interpretation of the Constitution, especially fundamental rights, has to be dynamic and it is only such interpretative dynamism that breathes life into the written words. As far as Article 21 is concerned, it is imperative to mention that dynamism can, of course, infuse life into life and liberty as used in the said Article. The word “liberty” is the sense and realisation of choice of the attributes associated with the said choice; and the term “life” is the aspiration to possess the same in a dignified manner. The two are intrinsically interlinked. Liberty impels an individual to change and life welcomes the change and the movement. Life does not intend to live sans liberty as it would be, in all possibility, a meaningless survival.

(Paras 153, 149 and 142)

There is no doubt that no fundamental right is absolute, but any restraint imposed on liberty has to be reasonable. The concept of liberty perceives a hazard when it feels it is likely to become hollow. This necessarily means that there would be liberty available to individuals subject to permissible legal restraint and it should be made clear that in that restraint, free ideas cannot be imprisoned by some kind of unknown terror. Liberty cannot be a slave because it constitutes the essential marrow of life and that is how the conception of liberty is intended to be understood when it is read in association with the term “life” as used in Article 21 of the Constitution. Life as envisaged under Article 21 has been very broadly understood by the Supreme Court.

(Paras 142, 144 and 145)

The fundamental rights in their connotative expanse are bound to engulf certain rights which really flow from the same. Liberty allows freedom of speech, association and dissemination without which the society may face hurdles in attaining the requisite maturity. History is replete with narratives how the thoughts of individuals, though not accepted by the contemporaneous society, later on gained not only acceptance but also respect. There is a danger in discouraging free thinking and curtailing the power of imagination.

(Paras 151 and 143)

Adkins v. Children's Hospital of the District of Columbia, 1923 SCC OnLine US SC 105 : 67 L Ed 785 : 261 US 525 (1923); Maneka Gandhi v. Union of India, (1978) 1 SCC 248; M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013, relied on

Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, (1983) 1 SCC 124 : 1983 SCC (L&S) 61; State of A.P. v. Challa Ramkrishna Reddy, (2000) 5 SCC 712; Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly, (1986) 3 SCC 156 : 1986 SCC (L&S) 429; V.C. Rangadurai v. D. Gopalan, (1979) 1 SCC 308, affirmed on this point

P. Rathinam v. Union of India, (1994) 3 SCC 394 : 1994 SCC (Cri) 740; State of H.P. v. Umed Ram Sharma, (1986) 2 SCC 68; Maruti Shripati Dubal v. State Of Maharashtra, 1986 SCC OnLine Bom 278 : 1987 Cri LJ 743 : (1986) 88 Bom LR 589; Rustom Cowasjee Cooper v. Union Of India ., (1970) 2 SCC 298; Carter v. Attorney General of Canada, 2015 SCC OnLine Can SC 1 : 2015 SCC 5, referred to

Earl of Oxford, In re, 1625 Jones, W. 97 : (1626) 82 ER 51 (HL), cited

Dignity

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, the Supreme 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.

(Para 202.9)

The nine-Judge Bench of the Supreme Court in Puttaswamy case has reaffirmed that human dignity is a component of Article 21. Life without dignity is like a sound that is not heard. Dignity speaks, it has its sound, it is natural and human. It is a combination of thought and feeling, and it deserves respect even when the person is dead and described as a “body”. Dignity does not recognise or accept any nexus with the status or station in life. The singular principle that it pleasantly gets beholden to is the integral human right of a person. Law gladly takes cognizance of the fact that dignity is the most sacred possession of a man. And the said possession neither loses its sanctity in the process of dying nor evaporates when death occurs. The concept is based on non-prolongation of life where there is no cure for the state the patient is in and he, under no circumstances, would have liked to have such a degrading state needs consideration. The words “no cure” have to be understood to convey that the patient remains in the same state of pain and suffering or the dying process is delayed by means of taking recourse to modern medical technology. It is a state where the treating physicians and the family members know fully well that the treatment is administered only to procrastinate the continuum of breath of the individual and the patient is not even aware that he is breathing. Life is measured by artificial heartbeats and the patient has to go through this undignified state which is imposed on him. The dignity of life is denied to him as there is no other choice but to suffer an avoidable protracted treatment thereby thus indubitably casting a cloud and creating a dent in his right to live with dignity and face death with dignity, which is a preserved concept of bodily autonomy and right to privacy. In such a stage, he has no old memories or any future hopes but he is in a state of misery which nobody ever desires to have. Some may also silently think that death, the inevitable factum of life, cannot be invited. To meet such situations, the Court has a duty to interpret Article 21 in a further dynamic manner and it has to be stated without any trace of doubt that the right to life with dignity has to include the smoothening of the process of dying when the person is in a vegetative state or is living exclusively by the administration of artificial aid that prolongs the life by arresting the dignified and inevitable process of dying. Here, the issue of choice also comes in. Thus analysed, such a right would come within the ambit of Article 21 of the Constitution.

(Paras 156, 160 and 166)

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.

(Para 202.10)

K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1; Christine Goodwin v. United Kingdom, 2002 ECHR 588; S. v. Makwanyane, 1995 SCC OnLine ZACC 2 : (1995) 3 SA 391, relied on

Kharak Singh v. State of U.P., (1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329; Gobind v. State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468; PUCL v. Union of India, (1997) 1 SCC 301; Cruzan v. Missouri Department of Health, 1990 SCC OnLine US SC 123 : 111 L Ed 2d 224 : 110 S Ct 2841 : 497 US 261 (1990), referred to

In Gian Kaur case the Court expounded that the word “life” in Article 21 has been construed as life with human dignity and it takes within its ambit the “right to die with dignity” being part of the “right to live with dignity”. Further, the “right to live with human dignity” would mean existence of such a right up to the end of natural life which would include the right to live a dignified life up to the point of death including the dignified procedure of death. A dying man who is terminally ill or in a persistent vegetative state can make a choice of premature extinction of his life as being a facet of Article 21 of the Constitution. If that choice is guaranteed being part of Article 21, there is no necessity of any legislation for effectuating that fundamental right and more so his natural human right. Indeed, that right cannot be an absolute right but subject to regulatory measures to be prescribed by a suitable legislation which, however, must be reasonable restrictions and in the interests of the general public. As part of the right to die with dignity in case of a dying man who is terminally ill or in a persistent vegetative state, only passive euthanasia would come within the ambit of Article 21 and not the one which would fall within the description of active euthanasia in which positive steps are taken either by the treating physician or some other person. That is because the right to die with dignity is an intrinsic facet of Article 21.

(Paras 164 and 165)

Gian Kaur (Smt) v. State Of Punjab ., (1996) 2 SCC 648 : 1996 SCC (Cri) 374, relied on

Mehmood Nayyar Azam v. State of Chhattisgarh, (2012) 8 SCC 1 : (2012) 4 SCC (Civ) 34 : (2012) 3 SCC (Cri) 733 : (2012) 2 SCC (L&S) 449; Vikas Yadav v. State Of Up, (2016) 9 SCC 541 : (2016) 3 SCC (Cri) 621; Francis Coralie Mullin v. State (UT of Delhi), (1981) 1 SCC 608 : 1981 SCC (Cri) 212; National Legal Services Authority v. Union of India, (2014) 5 SCC 438; Shabnam v. Union of India, (2015) 6 SCC 702 : (2015) 3 SCC (Cri) 355, affirmed

Vikas Yadav v. State Of Up, 2015 SCC OnLine Del 7129, held, affirmed on this point

Sushila Rao: “India and Euthanasia: The Poignant Case of Aruna Shanbaug”, Oxford Medical Law Review, Vol. 19, Issue 4 (1-12-2011), at pp. 646-656; “Humanization and Decriminalization of Attempt to Suicide”, Law Commission of India (Report No. 210, 2008); Rajeev Ranjan, et al, “(De-) Criminalization of Attempted Suicide in India: A Review”, Industrial Psychiatry Journal (2014), Vol. 23, Issue 1, at pp. 4-9; D. Benatar, “Should There be a Legal Right to Die?” Current Oncology (2010), Vol. 17, Issue 5, at pp. 2-3; Richard Delgado: “Euthanasia Reconsidered—The Choice of Death as an Aspect of the Right of Privacy”, Arizona Law Review (1975), Vol. 17, at p. 474., referred to

Per Sikri, J. (concurring)

Life, liberty, dignity, privacy

Euthanasia is a complexed and complicated issue. Article 21 of the Constitution has been interpreted by the Court in most expansive terms, particularly when it comes to the meaning that is assigned to “right to life”. Right to life has been treated as more than “mere animal existence”. Article 21 recognises right to live with human dignity. The legal position which stands as of today is that right to life does not include right to die. Although “right to life” under Article 21 does not include “right to die”, but “right to live with dignity” includes “right to die with dignity”.

(Paras 236, 238, 241 and 330)

Kharak Singh v. State of U.P., (1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329; K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1; Rustom Cavasjee Cooper v. Union Of India ., (1970) 1 SCC 248; Gian Kaur (Smt) v. State Of Punjab ., (1996) 2 SCC 648 : 1996 SCC (Cri) 374; State v. Sanjay Kumar Bhatia ., 1985 SCC OnLine Del 134 : 1985 Cri LJ 931; Maruti Shripati Dubal v. State Of Maharashtra, 1986 SCC OnLine Bom 278 : 1987 Cri LJ 743; Chenna Jagadeeswar v. State of A.P., 1987 SCC OnLine AP 263 : 1988 Cri LJ 549; P. Rathinam v. Union of India, (1994) 3 SCC 394 : 1994 SCC (Cri) 740; CESC Ltd. v. Subhash Chandra Bose, (1992) 1 SCC 441 : 1992 SCC (L&S) 313; Prem Shankar Shukla v. State (UT of Delhi), (1980) 3 SCC 526 : 1980 SCC (Cri) 815; Francis Coralie Mullin v. State (UT of Delhi), (1981) 1 SCC 608 : 1981 SCC (Cri) 212; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : 1984 SCC (L&S) 389; Khedat Mazdoor Chetna Sangath v. State of M.P., (1994) 6 SCC 260 : 1994 SCC (Cri) 1643; M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013; Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786 : (2010) 1 SCC (L&S) 894; Selvi v. State of Karnataka, (2010) 7 SCC 263 : (2010) 3 SCC (Cri) 1; Mehmood Nayyar Azam v. State of Chhattisgarh, (2012) 8 SCC 1 : (2012) 4 SCC (Civ) 34 : (2012) 3 SCC (Cri) 733 : (2012) 2 SCC (L&S) 449; Shabnam v. Union of India, (2015) 6 SCC 702 : (2015) 3 SCC (Cri) 355; Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 : (2016) 3 SCC (Civ) 551, referred to

Ronald Dworkin: Taking Rights Seriously (A&C Black, 2013) 239; Ronald Dworkin: Is Democracy Possible Here? Principles for a New Political Debate (Princeton University Press, 2006); Harvard University Press, 2011; Kenneth W. Simons: “Dworkin's Two Principle of Dignity: An Unsatisfactory Non-consequentialist Account of Interpersonal Moral Duties”, 90 Boston Law Rev. 715 (2010); Aharon Barak: Human Dignity: The Constitutional Value and the Constitutional Right, referred to

As the process of dying is an inevitable consequence of life, the right to life necessarily implies the right to have nature take its course and to die a natural death. It also encompasses a right, unless the individual so wishes, not to have life artificially maintained by the provision of nourishment by abnormal artificial means which have no curative effect and which are intended merely to prolong life. According to John Finnis, there is no real and morally relevant distinction between active euthanasia and passive euthanasia inasmuch as one employs the method of deliberate omissions (or forbearances or abstentions) in order to terminate life (passive euthanasia) and other employs “a deliberate intervention” for the same purpose (active euthanasia). In this sense, in both the cases, it is an intentional act whether by omission or by intervention, to put an end to somebody's life and, therefore, morally wrong.

(Para 269)

Sushila Rao: Economic and Political Weekly, Vol. 46, No. 18 (30-4-2011-6-5-2011), pp. 13-16; John Finnis: Human Rights and Common Good: Collected Essays, Vol. III; S.D. Sharma: Administration of Justice in Ancient Bharat, (1988); Toman E. Hill: “Humanity as an End in itself” (1980) 91 Ethics 84; Jeremy Waldron: “How Law Protects Dignity”, referred to

In K.S. Puttaswamy, (2017) 10 SCC 1, the Constitution Bench has recognised the dignity of existence. Liberty and autonomy are regarded as the essential attributes of a life with dignity. In this manner, sanctity of life also stands acknowledged, as part of Article 21 of the Constitution. That apart, while holding the right of privacy as an intrinsic part of right to life and liberty in Article 21, various facets thereof are discussed by the learned Judges in their separate opinions. A common theme which flows in all these opinions is that that privacy recognises the autonomy of the individual; every person has right to make essential choices which affect the course of life; he has to be given full liberty and freedom in order to achieve his desired goals of life; and the concept of privacy is contained not merely in personal liberty, but also in the dignity of the individual. Chelameswar, J. in K.S. Puttaswamy case, observed: “Forced feeding of certain persons by the State raises concerns of privacy. An individual's right to refuse life prolonging medical treatment or terminate his life is another freedom which falls within the zone of privacy.” Liberty by itself, which is a facet of Article 21 of the Constitution, duly recognised in K.S. Puttaswamy case, ensures and guarantees such a choice to the individual. In fact, the entire structure of civil liberties presupposes that freedom is worth fostering. The very notion of liberty is considered as good for the society. It is also recognised that there are some rights, encompassing liberty, which are needed in order to protect freedom.

(Paras 300 and 301)

K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, relied on

David Feldman: Civil Liberties & Human Rights in England & Wales; Arval A. Morris: “Voluntary Euthanasia”, Washington Law Review (1970), Vol. 45, at p. 240, referred to

Right to health is a part of Article 21 of the Constitution. At the same time, it is also a harsh reality that everybody is not able to enjoy that right because of poverty, etc. The State is not in a 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 denied right to die in dignity?

(Para 304)

National Legal Services Authority v. Union of India, (2014) 5 SCC 438, affirmed

Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1, cited

Dignity is, thus, the core value of life and dying in dignity stands recognised in Gian Kaur case. It becomes a part of right of self-determination. Passive euthanasia and death with dignity are inextricably linked, which can be summed up with the following pointers:

(Paras 308 and 311)

The opportunity to die unencumbered by the intrusion of medical technology and before experiencing loss of independence and control, appears to many to extend the promise of a dignified death. When medical technology intervenes to prolong dying like this it does not do so unobtrusively; Today many patients insist on more than just a right to healthcare in general. They seek a right to choose specific types of treatment, able to retain control throughout the entire span of their lives and to exercise autonomy in all medical decisions concerning their welfare and treatment; A dreadful, painful death on a rational but incapacitated terminally-ill patient are an affront to human dignity.

(Paras 311.1 to 311.3)

Gian Kaur (Smt) v. State Of Punjab ., (1996) 2 SCC 648 : 1996 SCC (Cri) 374, relied on

A. Kolnai: “Dignity”, in R.S. Dillon (Ed.) Dignity, Character, and Self-Respect (London, Routledge, 1995) 53-75, at pp. 55, 56; R.S. Downie: K.S. Calman, Healthy Respect: Ethics in Health Care (Oxford, Oxford University Press, 1994) at 51-53, referred to

At least the case for passive euthanasia is made out. Certain moral dilemma as to what is the exact stage when such a decision to withdraw medical support, would still remain. At times, a physician would be filled with profound ethical uncertainties when a person is suffering unbearable pain and agony, the question would be as to whether such suffering has reached the stage where it is incurable and, therefore, decision should be taken to allow such person to pass away in peace and dignity of hastening the process of death or the situation may be reversible, though chances thereof are far remote.

(Para 312)

Dr R.R. Kishore: “End of Life Issues and the Moral Certainty : A Discovery through Hinduism” Eubios Journal of Asian and International Bioethics, Vol. 13(6), Nov. 2003 at pp. 210-13, referred to

While discussing a particular norm of law, the law per se is to be applied and, generally speaking, it is not the function of the courts to look into the moral basis of law. At the same time, some legal norms, particularly those which are jurisprudentially expounded by the courts or developed as common law principles, would have moral backing behind them. In that sense moral aspects of an issue may assume relevance. This relevancy and rationale is quite evident in the discussion about euthanasia. In fact, the very concept of dignity of life is substantially backed by moral overtones. Though western thinking is that the concept of human dignity has 2500 years' history, in many eastern civilisations including India human dignity as core human value was recognised thousands of years ago.

(Para 260)

S.D. Sharma: Administration of Justice in Ancient Bharat, (1988); Thomas Aquinas (1225-1274): Summa Theologia, referred to

The issue is not purely a legal one. It has moral and philosophical overtones. It has even religious overtones. Insofar as concept of human dignity is concerned, it dates back to thousands of years. Historically, human dignity, as a concept, found its origin in different religions which is held to be an important component of their theological approach. Later, it was also influenced by the views of philosophers who developed human dignity in their contemplations. Jurisprudentially, three types of models for determining the content of the 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 of human dignity as a constitutional value and as a constitutional right. Philosophers also came out with their views justifying human dignity as core human value. Legal understanding is influenced by theological and philosophical views, though these two are not identical.

(Paras 245 and 277)

Lochner v. New York, 1905 SCC OnLine US SC 100 : 49 L Ed 937 : 198 US 45 (1905), referred to

Philosophers believe that we have to control switch that can end it all, on request. In medical/legal parlance, it is called euthanasia: “an easy and gentle death”. Philosophically, this debate is about our right, when terminally ill, to choose how to die. It is about the right to control how much we have to suffer and when and how we die. It is about having some control over our dying process in a system that can aggressively prolong life with invasive technology. Traditional religions are echoed in the modern Western understanding of euthanasia, as a means of achieving death with dignity, which focuses on avoiding dependence and loss of control. Choosing to deliberately end one's life allows control over the time, place and method of one's dying and explains why euthanasia appears to offer death with dignity. Rather than active euthanasia these ancient religions advocate calm, control and compassion as a means of achieving dignity. It is well known that medical scientists are intensely busy in finding the ways to become ageless and immortal, but till date have remained unsuccessful in achieving this dream.

(Paras 256 and 259)

Charles I. Lugosi: “Natural Disaster, Unnatural Deaths: The Killings on the Life Care Floors at Tenet's Memorial Centre after Hurricane Katrina”, Issues in Law and Medicine, Vol. 23, Summer, 2007; John Keown: Euthanasia, Ethics and Public Policy (Cambridge: Cambridge University Press, 2002) p. 37; T.N. Madan: “Dying with Dignity” (1992) 35(4) Social Science and Medicine 425-32; T.N. Madan: “Living and Dying” in Non-Renunciation: Themes and Interpretations of the Hindu Culture (New Delhi, Oxford University Press, 1987); J. Parry: Death and the Regeneration of Life (Cambridge, Cambridge University Press, 1982); Justice Holmes: “The Path of the Law”, 10 Harvard Law Review 457-78, at p. 459 (1897); Lon L. Fuller: “The Morality of Law” (Revised Edn.), Yale University Press, referred to

The philosophy of euthanasia, coupled with its morality aspect, brings out the conflicting views. Though philosophical as well as religious overtones may indicate that a person does not have right to take his life, it is still recognised that a human being is justified in his expectation to have a peaceful and dignified death. Opposition to euthanasia, on moral grounds, proceeds primarily on the basis that neither the person concerned has a right to take his own life, which is God's creation, nor anybody else has this right. However, while opposing euthanasia, no segregated discussion on active and passive euthanasia is made. It also does not take into consideration permissibility of passive euthanasia under certain specific circumstances.

(Para 274)

Per Chandrachud, J. (concurring)

Dignity

Under our Constitution, the inherent value which sanctifies life is the dignity of existence. Recognising human dignity is intrinsic to preserving the sanctity of life. Life is truly sanctified when it is lived with dignity. There exists a close relationship between dignity and the quality of life. For, it is only when life can be lived with a true sense of quality that the dignity of human existence is fully realised. Hence, there should be no antagonism between the sanctity of human life on the one hand and the dignity and quality of life on the other hand. Quality of life ensures dignity of living and dignity is but a process in realising the sanctity of life.

(Para 437)

The right to a dignified existence, the liberty to make decisions and choices and the autonomy of the individual are central to the quest to live a meaningful life. Liberty, dignity and autonomy are essential to the pursuit of happiness and to find meaning in human existence. Human dignity is an essential element of a meaningful existence. A life of dignity comprehends all stages of living including the final stage which leads to the end of life. Liberty and autonomy are essential attributes of a life of substance. It is liberty which enables an individual to decide upon those matters which are central to the pursuit of a meaningful existence. The expectation that the individual should not be deprived of his or her dignity in the final stage of life gives expression to the central expectation of a fading life: control over pain and suffering and the ability to determine the treatment which the individual should receive. When society assures to each individual a protection against being subjected to degrading treatment in the process of dying, it seeks to assure basic human dignity. Dignity ensures the sanctity of life. The recognition afforded to the autonomy of the individual in matters relating to end-of-life decisions is ultimately a step towards ensuring that life does not despair of dignity as it ebbs away.

(Paras 516 and 438)

The entitlement of each individual to a dignified existence necessitates constitutional recognition of the principle that an individual possessed of a free and competent mental state is entitled to decide whether or not to accept medical treatment. The right of such an individual to refuse medical treatment is unconditional. Neither the law nor the Constitution compel an individual who is competent and able to take decisions, to disclose the reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity.

(Para 517)

Dignity is the core value of life and personal liberty which infuses every stage of human existence. Dignity in the process of dying as well as dignity in death reflects a long yearning through the ages that the passage away from life should be bereft of suffering. These individual yearnings are enhanced by the experiences of sharing, observing and feeling with others: the loss of a parent, spouse, friend or an acquaintance to the cycle of life. Dignity in death has a sense of realism that permeates the right to life. It has a basic connect with the autonomy of the individual and the right to self-determination. Loss of control over the body and the mind are portents of the deprivation of liberty. As the end of life approaches, a loss of control over human faculties denudes life of its meaning. Terminal illness hastens the loss of faculties. Control over essential decisions about how an individual should be treated at the end of life is hence an essential attribute of the right to life. Corresponding to the right is a legitimate expectation that the State must protect it and provide a just legal order in which the right is not denied. In matters as fundamental as death and the process of dying, each individual is entitled to a reasonable expectation of the protection of his or her autonomy by a legal order founded on the rule of law. A constitutional expectation of providing dignity in death is protected by Article 21 and is enforceable against the State.

(Para 439)

Constitutional recognition of the dignity of existence as an inseparable element of the right to life necessarily means that dignity attaches throughout the life of the individual. Every individual has a constitutionally protected expectation that the dignity which attaches to life must subsist even in the culminating phase of human existence. Dignity of life must encompass dignity in the stages of living which lead up to the end of life. Dignity in the process of dying is as much a part of the right to life under Article 21. To deprive an individual of dignity towards the end of life is to deprive the individual of a meaningful existence. Hence, the Constitution protects the legitimate expectation of every person to lead a life of dignity until death occurs.

(Para 518)

K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1; Maneka Gandhi v. Union of India, (1978) 1 SCC 248, relied on

Ronald Dworkin: Life's Dominion (London: Harper Collins, 1993); Deryck Beyleveld and Roger Brownsword: “Human Dignity, Human Rights, and Human Genetics”, Modern Law Review (1998), Vol. 61, at pp. 665-66; Christopher O. Tollefsen: “Capital Punishment, Sanctity of Life, and Human Dignity”, Public Discourse (16-9-2011), ; Stefania Negri: “Ending Life and Death” in A. den Exter (eds.), European Health Law, Maklu Press (2017), at p. 241; Arval A. Morris: “Voluntary Euthanasia”, Washington Law Review (1970), Vol. 45, at p. 240, 247, 251-252; Sebastian Muders: Autonomy and the Value of Life as Elements of Human Dignity (Oxford University Press, 2017); Lawrence O. Gostin: “The Constitutional Right to Die: Ethical Considerations”, St John's Journal of Legal Commentary (1997), Vol. 12, at pp. 602-603; L.W. Sumner: “Dignity through Thick and Thin”, in Sebastian Muders, Human Dignity and Assisted Death (Oxford University Press, 2017); Aneeta A. Minocha, Arima Mishra and Vivek R. Minocha: “Euthanasia: A Social Science Perspective”, Economic & Political Weekly (3-12-2011), at pp. 25-28, referred to

Privacy

The right to privacy was held to be an intrinsic part of the right to life and liberty under Article 21 and protected under Part III of the Constitution. The protective mantle of privacy covers certain decisions that fundamentally affect the human life cycle. It protects the most personal and intimate decisions of individuals that affect their life and development. Thus, choices and decisions on matters such as procreation, contraception and marriage have been held to be protected. While death is an inevitable end in the trajectory of the cycle of human life of individuals are often faced with choices and decisions relating to death. Decisions relating to death, like those relating to birth, sex, and marriage, are protected by the Constitution by virtue of the right of privacy. The right to privacy resides in the right to liberty and in the respect of autonomy. The right to privacy protects autonomy in making decisions related to the intimate domain of death as well as bodily integrity. Few moments could be of as much importance as the intimate and private decisions that we are faced regarding death. Continuing treatment against the wishes of a patient is not only a violation of the principle of informed consent, but also of bodily privacy and bodily integrity that have been recognised as a facet of privacy by the Supreme Court.

(Paras 440 and 441)

K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, relied on

Just as people value having control over decisions during their lives such as where to live, which occupation to pursue, whom to marry, and whether to have children, so people value having control over whether to continue living when the quality of life deteriorates. The protection of these rights by the legal order is as much an emanation of the right to privacy which shares a functional relationship with the fundamental right to life and personal liberty guaranteed by the Constitution. Privacy recognises that the body and mind are inviolable. An essential attribute of this inviolability is the ability of the individual to refuse medical treatment. The right to privacy envisages safeguarding the integrity of individual choice in the intimate sphere of decisions relating to death. However, since privacy is not an absolute right and is subject to restrictions, the restrictions must fulfil the requirements as laid down by this Court in Puttaswamy case.

(Paras 442, 446 and 447)

Haas v. Switzerland, (2011) 53 EHRR 33, referred to

Richard Delgado: “Euthanasia Reconsidered—The Choice of Death as an Aspect of the Right of Privacy”, Arizona Law Review (1975), Vol. 17, at p. 474; T.L. Beauchamp: “The Right to Privacy and the Right to Die”, Social Philosophy and Policy (2000), Vol. 17, at p. 276; D. Benatar: “Should There be a Legal Right to Die?” Current Oncology (2010), Vol. 17, Issue 5, at pp. 2-3; Peter J. Riga: “Privacy and the Right to Die”, The Catholic Lawyer (2017) Vol. 26: No. 2, Article 2, referred to

Sanctity of life

The “sanctity of life” principle has historically been the single most basic and normative concept in ethics and the law. The phrase has emerged as a key principle in contemporary bioethics, especially in debates about end-of-life issues. The traditional and standard view is that life is invaluable. It has persisted as an idea in various cultures through the centuries. A sacred value has been prioritised for human life. This “rhetoric of the value in human life” has been highlighted in various traditions. The protection of the right to life derives from “the idea that all human life is of equal value”—the idea being drawn from religion, philosophy and science. The principle or doctrine of the “sanctity of life”, sometimes also referred to as the “inviolability of human life”, is based on “overarching moral considerations”, the first of which has been stated as: “Human life is sacred, that is inviolable, so one should never aim to cause an innocent person's death by act or omission.”

(Paras 400 to 402)

Elizabeth Wicks: The Right to Life and Conflicting Interests (Oxford University Press, 2010); Anne J. Davis: “Dilemmas in Practice: To Make Live or Let Die”, The American Journal of Nursing (March 1981), Vol. 81, No. 3, at p. 582; Heike Baranzke: ““Sanctity-of-Life”—A Bioethical Principle for a Right to Life?”, Ethic Theory Moral Practice (2012), Vol. 15, Issue 3, at p. 295; P.G. Lauren: The Evolution of International Human Rights: Visions Seen (University of Pennsylvania Press, 2003, 2nd Edn.), at p. 12; John Keown: The Law and Ethics of Medicine: Essays on the Inviolability of Human Life (Oxford University Press, 2012), at p. 3; John Locke: Two Treatises of Government (ed. P. Laslett) (Cambridge University Press, 1988); Ronald Dworkin, Life's Dominion: An Argument about Abortion and Euthanasia (Harper Collins, 1993), at pp. 73-74; John Finnis: Human Rights and Common Good (Oxford University Press, 2011), at p. 221, referred to

The principle of the sanctity of life considers autonomy as a “valuable capacity, and part of human dignity”. However, autonomy's contribution to dignity is “conditional, not absolute”. The issue of the sacred value of life is potentially a conflicting interest between a right to life and autonomy. The disagreement between “sanctity of life” and the “quality of life” is another conflict. Therefore, intractable questions about morality and ethics arise. What is the core of life that might be protected by law? Will a poor quality of life (in the shadow of the imminence of death) impact upon the value of that life to such an extent that it reduces the protection for that life offered by the sanctity of life doctrine? Are there limits to the principle of sanctity?

(Paras 409 to 411)

Elizabeth Wicks: The Right to Life and Conflicting Interests (Oxford University Press, 2010), at pp. 176-77; Alan Norrie: “Legal Form and Moral Judgement: Euthanasia and Assisted Suicide” in R.A. Duff, et al (ed), The Structures of the Criminal Law (Oxford University Press, 2011), at pp. 141-142, referred to

The doctrine of “sanctity of life” must be accepted or rejected on its merits, by religious and non-religious people alike. The value of life is not the value that it has for God or the value that it may have from any religious perspective. The truth of moral judgments and exercising reason to decide what is right and wrong does not depend on the truth of theological claims. The value of life is the value that it has for the human beings who are subjects of lives. Thus, the value of life must be understood from the perspective of the person who will be harmed by the loss, the subject of life. The rule against killing protects individuals that have lives and not merely individuals who are alive. When an individual is alive only to the extent of being conscious in the most rudimentary 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 one experiencing them since they do not arise from any human activities or projects and they will not be connected with any coherent view of the world. The quality of life approach has its basis in the way life is being lived. “An overriding concern”, “is the conditions under which people live rather than whether they live”. This does not mean that someone “who chooses to end their life through euthanasia” does not value their lives as much as others.

(Paras 414 and 419)

The sanctity of life principle appears in declarations on human rights as the “right to life”. Under the Indian Constitution, right to life has been provided under Article 21. The sanctity of human life is the arterial vein which animates the values, spirit and cellular structure of the Constitution. The Constitution recognises the value of life as its indestructible component. The survival of the sanctity principle is founded upon the guarantees of dignity, autonomy and liberty. The sanctity of human life lies in its intrinsic value. It inheres in nature and is recognised by natural law. But human lives also have instrumental functions. Our lives enable us to fulfil our needs and aspirations. The intrinsic worth of life is not conditional on what it seeks to or is capable to achieve. Life is valuable because it is. The Indian Constitution protects the right to life as the supreme right, which is inalienable and inviolable even in times of Emergency. It clearly recognises that every human being has the inherent right to life, which is protected by law, and that “No person shall be deprived of his life … except according to procedure established by law”. It, thus, envisages only very limited circumstances where a person can be deprived of life.

(Paras 428 and 515)

Parmanand Katara v. Union of India, (1989) 4 SCC 286 : 1989 SCC (Cri) 721, affirmed

Alexandra Mullock: End-of-Life Law and Assisted Dying in the 21st Century: Time for Cautious Revolution? (PhD Thesis, University of Manchester, 2011), at pp. 24-25; Luis Kutner: “Euthanasia: Due Process for Death with Dignity; The Living Will”, Indiana Law Journal (Winter 1979), Vol. 54, Issue, 2, at p. 225; Sushila Rao: “The Moral Basis for a Right to Die”, Economic & Political Weekly (30-4-2011), at p. 14; 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 p. 281; Sushila Rao: “The Moral Basis for a Right to Die”, Economic & Political Weekly (30-4-2011), at p. 14; Elizabeth Wicks: The Right to Life and Conflicting Interests (Oxford University Press, 2010), at pp. 102-149; Margaret A. Somerville: “The Song of Death: The Lyrics of Euthanasia”, Journal of Contemporary Health Law & Policy (1993), Vol. 9, Issue 1, at p. 67; James Rachels: End of Life: Euthanasia and Morality (Oxford University Press, 1986), at p. 26; Roger S. Magnusson: “The Sanctity of Life and the Right to Die: Social and Jurisprudential Aspects of the Euthanasia Debate in Australia and the United States”, Pacific Rim Law & Policy Journal, Vol. 6, No. I, at p. 40; Peter Singer: “Sanctity of Life or Quality of Life”, Pediatrics (1983), Vol. 72, Issue 1, at pp. 128-129; Sanctity of Life Versus Quality of Life”, Los Angeles Times (7-6-2015), ; Jessica Stern: Euthanasia and the Terminally Ill (2013) ; John Breck: “Euthanasia and the Quality of Life Debate”, Christian Bioethics (1995), Vol. 1, No. 3, at pp. 322-337; Michael A. Weingarten: “On the Sanctity of Life”, British Journal of General Practice (April 2007), Vol. 57(537), at p. 333; Alan Norrie: “Legal Form and Moral Judgement: Euthanasia and Assisted Suicide” in R.A. Duff, et al (ed), The Structures of the Criminal Law (Oxford University Press, 2011), at p. 143; Stefania Negri: “Universal Human Rights and End-of-Life Care” in S. Negri et al. (Eds.), Advance Care Decision Making in Germany and Italy: A Comparative, European and International Law Perspective, Springer (2013), at p. 18, referred to

Life and natural death

The word “natural” implies that “the only acceptable death is one that occurs from natural causes”. Life is only “sacred insofar as it ends by natural means”. Medical advancements, however, have brought uncertainty about the definition of death — “what constitutes death, in particular a “natural” death”. Medical advances have “complicated the question of when life ends”. There exists no natural death where artificial technology is concerned.

(Paras 421 and 422)

Modern medicine has found ways to prolong life and to delay death. But, it does not imply that modern medicine “necessarily prolongs our living a full and robust life because in some cases it serves only to prolong mere biological existence during the act of dying”. This may, in certain situations result in a mere “prolongation of a heartbeat that activates the husk of a mindless, degenerating body that sustains an unknowing and pitiable life—one without vitality, health or any opportunity for normal existence—an inevitable stage in the process of dying”. Prolonging life in a vegetative state by artificial means or allowing pain and suffering in a terminal state would lead to questioning the belief that any kind of life is so sanctified as to be preferred absolutely over death.

(Para 423)

Modern technology has in a fundamental manner reshaped the notion of life. As technology continuously evolves into more complex planes, it becomes even more necessary to re-evaluate its relationship with the meaning and quality of life.

(Para 427)

Great Ormond Street Hospital v. Yates, 2017 EWHC 1909 : (2017) 4 WLR 131 (Fam), referred to

Alecia Pasdera: The Rhetoric of the Physician-Assisted Suicide Movement: Choosing Death 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 p. 68; Sushila Rao: “The Moral Basis for a Right to Die”, Economic & Political Weekly (30-4-2011), at p. 15; Arval A. Morris: “Voluntary Euthanasia”, Washington Law Review (1970), Vol. 45, at p. 240; Elizabeth M. Andal Sorrentino: “The Right to Die?”, Journal of Health and Human Resources Administration (Spring, 1986), Vol. 8, No. 4, at pp. 361-373; Peter Singer: “The Sanctity of Life”, Foreign Policy (20-10-2009) ; Lady Justice Arden, Law of Medicine and the Individual: Current Issues, What does Patient Autonomy Mean for the Courts?, (Justice K.T. Desai Memorial Lecture 2017), referred to

Per Ashok Bhushan, J. (concurring)

In recent times, three principles had gained acceptance throughout the world and they are:

(1) Sanctity of life,

(2) Right of self-determination,

(3) Dignity of the individual human being.

(para 600)

The sanctity of life is one thought which is philosophically, religiously and mythologically accepted by the large number of population of the world practising different faiths and religions. Sanctity of life entails its inviolability by an outsider. Sanctity of life is the concern of State.

(Para 601)

Right of self-determination also encompasses in it bodily integrity. Without consent of an adult person, who is in fit state of mind, even a surgeon is not authorised to violate the body. Sanctity of the human life is the most fundamental of the human social values. The acceptance of human rights and development of its meaning in recent times has fully recognised the dignity of the individual human being. All the above three principles enable an adult human being of conscious mind to take decision regarding extent and manner of taking medical treatment. An adult human being of conscious mind is fully entitled to refuse medical treatment or to decide not to take medical treatment and may decide to embrace the death in natural way. Euthanasia as the meaning of the word suggest is an act which leads to a good death. Some positive act is necessary to characterise the action as euthanasia. Euthanasia is also commonly called “assisted suicide” due to the above reasons.

(Para 602)

H. Common Law — Right of self-determination and individual autonomy — Right to choose how one should live his/her own life — Right to self-determination encompasses in it bodily integrity — Every adult person having capacity to decide has right to choose his/her own way of life which includes right to decide whether to have medical treatment or to refuse the same — Wishes of patient should be given effect to even if considered to be against his/her best interest — Principle of sanctity of life should yield to that of self-determination — Constitution of India, Art. 21

I. Medical Jurisprudence — Euthanasia — Right to refuse medical treatment — Refusal by terminally ill or PVS patient to take medical treatment neither amounts to euthanasia nor suicide — By refusal patient allows disease to take its natural course — Constitution of India — Art. 21 — Human and Civil Rights — Right to Die/Euthanasia — Common Law — Penal Code, 1860, S. 309

J. Medical Jurisprudence — Euthanasia — Right to refuse medical treatment — Based on right to self-determination and autonomy — Competence to accept or refuse treatment — There is presumption of capacity to consent to or refuse medical treatment unless same is rebutted — Patient from whom consent is obtained by medical practitioner should have full information including risk and benefits involved in giving consent — Situation in which medical treatment can be given without consent — “Emergency principle” and “principle of necessity” — Applicability — Constitution of India — Art. 21 — Human and Civil Rights — Right to Die/Euthanasia — Common Law

Held :

Per Dipak Misra, C.J. and Khanwilkar, J.

The liberal concept of autonomy focuses on choice and likewise, self-determination is understood as exercised through the process of choosing. The respect for an individual human being and in particular for his right to choose how he should live his own life is individual autonomy or the right of self-determination. It is the right against non-interference by others, which gives a competent person who has come of age the right to make decisions concerning his or her own life and body without any control or interference of others.

(Para 168)

Lambert v. France, 2015 ECHR 185, considered

In the context of health and medical care decisions, a person's exercise of self-determination and autonomy involves the exercise of his right to decide whether and to what extent he/she is willing to submit himself/herself to medical procedures and treatments, choosing amongst the available alternative treatments or, for that matter, opting for no treatment at all which, as per his or her own understanding, is in consonance with his or her own individual aspirations and values. Thus all adults with the capacity to consent have the Common Law right to refuse medical treatment and the right of self-determination. Doctors would be bound by the choice of self-determination made by the patient who is terminally ill and undergoing a prolonged medical treatment or is surviving on life support, subject to being satisfied that the illness of the patient is incurable and there is no hope of his being cured. Any other consideration cannot pass off as being in the best interests of the patient.

(Paras 169, 174 and 175)

Reeves v. Commr. of Police of the Metropolis, (2000) 1 AC 360 : (1993) 3 WLR 363 (HL); Jobes, In re, 108 NJ 394 (1987); Reibl v. Hughes, 1980 SCC OnLine Can SC 88 : (1980) 2 SCR 880; Airedale N.H.S. Trust v. Bland, 1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA & HL), relied on

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294, affirmed on this point

Rawls, John, Political Liberalism, 32, 33 (New York: Columbia University Press, 1993), relied on

The recognition of the freedom of competent adults to make choices about their medical care necessarily encompasses recognition of the right to make choices since individual free choice and self-determination are themselves fundamental constituents of life. In the 21st Century, with the advancement of technology in medical care, it has become possible, with the help of support machines, to prolong the death of patients for months and even years in some cases. At this juncture, the right to refuse medical treatment comes into the picture. A patient (terminally ill or in a persistent vegetative state) exercising the right to refuse treatment may ardently wish to live but, at the same time, he may wish to be free from any medical surgery, drugs or 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 a right to refuse medical treatment. This right stands on a different pedestal as compared to suicide, physician-assisted suicide or even euthanasia. When a terminally-ill patient refuses to take medical treatment, it can neither be termed as euthanasia nor as suicide. Albeit, both suicide and refusal to take treatment in case of terminal ailment shall result in the same consequences, that is, death, yet refusal to take treatment by itself cannot amount to suicide. In case of suicide, there has to be a self-initiated positive action with a specific intention to cause one's own death. On the other hand, a patient's right to refuse treatment lacks his specific intention to die, rather it protects the patient from unwanted medical treatment. A patient refusing medical treatment merely allows the disease to take its natural course and if, in this process, death occurs, the cause for it would primarily be the underlying disease and not any self-initiated act.

(Paras 135 and 136)

There is a presumption of capacity whereby an adult is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted in deciding whether a person has the capacity to make a particular decision. The ultimate question is whether that person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. The consent may be vitiated if the individual concerned may not have been competent in law to give or refuse that consent; or even if the individual was competent in law, the decision has been obtained by undue influence or some other vitiating means; or the apparent consent or refusal does not extend to the particular situation; or the terms of the consent or refusal are ambiguous or uncertain; or if the consent or refusal is based on incorrect information or incorrect assumption. In circumstances where it is practicable for a 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.

(Para 139)

Where it is not practicable for a medical practitioner to obtain consent for treatment and where the patient's life is in danger if appropriate treatment is not given, then the treatment may be administered without consent. This is justified by what is sometimes called the “emergency principle” or “principle of necessity”. Usually, the medical practitioner treats the patient in accordance with his clinical judgment of what is in the patient's best interests. For the principle of necessity to apply, two conditions must be met:

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

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

However, the principle of necessity cannot be relied upon to justify a particular form of medical treatment where the patient has given an advance care directive specifying that he/she does not wish to be so treated and where there is no reasonable basis for doubting the validity and applicability of that directive.

(para 140)

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.

(Para 202.8)

F. v. R., (1983) 33 SASR 189; Rogers v. Whitaker, 1992 HCA 58 : (1992) 175 CLR 479; Department of Health and Community Services v. JWB and SMB, (1992) 66 AJLR 300 : (1992) 175 CLR 218; Rodriguez v. Attorney General of Canada, 1993 SCC OnLine Can SC 97 : (1993) 3 SCR 519 : 85 CCC 3d 15; F. (Mental Patient: Sterilisation), In re, (1990) 2 AC 1 : (1989) 2 WLR 1025 : (1989) 2 All ER 545 (HL), relied on

Schloendorff v. Society of New York Hospital, 105 NE 92 : 211 NY 125 (1914); Malette v. Shulman, (1990) 67 DLR (4th) 321 : 72 OR (2d) 417 (CA); MB (Medical Treatment), In re, 1997 EWCA Civ 3093 : (1997) 2 FLR 426, approved

Per Sikri, J. (concurring)

In the context of euthanasia, “personal autonomy” of an individual, as a part of human dignity, can be pressed into service. In addition to personal autonomy, other facets of human dignity, namely, “self-expression” and “right to determine” also support the argument that it is the choice of the patient to receive or not to receive treatment.

(Paras 305 and 306)

Ronald Dworkin, Life's Dominion (2nd Edn., Vintage Books, New York 1944) 239; Ronald Dworkin, Life's Dominion (London, Harper-Collins, 1993) at p. 166, referred to

It is a common law right of people, of any civilised country, to refuse unwanted medical treatment and no person can force him/her to take any medical treatment which the person does not desire to continue with.

(Para 329)

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294, affirmed on this point

Schloendorff v. Society of New York Hospital, 105 NE 92 : 211 NY 125 (1914); Sidaway v. Board of Governors of the Bethlem Royal Hospital, 1985 AC 871 : (1985) 2 WLR 480 : (1985) 1 All ER 643 (HL); Nancy B. v. Hotel Dieu de Quebec, (1992) 86 DLR (4th) 385 (Que SC); T. (Adult: Refusal of Treatment), In re, 1993 Fam 95 : (1992) 3 WLR 782 : (1992) 4 All ER 649 (CA); Airedale N.H.S. Trust v. Bland, 1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA & HL), cited

Per Chandrachud, J. (concurring)

Respecting patient autonomy and reducing suffering are fundamental ethical values ascribed to euthanasia. Dignity has basic connect with autonomy of the individual and right to self-determination. In matters as fundamental as death and the process of dying, each individual is entitled to a reasonable expectation of protection of his or her autonomy by a legal order founded on rule of law.

(Paras 53 and 97)

Recognition of the right to accept or refuse medical treatment is founded upon autonomy. The Stanford Encyclopaedia of Philosophy postulates that there is “a rough consensus in medical ethics on the requirement of respect for patient autonomy”. However, a patient may not always have the opportunity to grant or withhold consent to medical treatment. An unforeseen event may deprive the individual of the ability to indicate a desire to either receive or not to have medical treatment.

(Para 470)

Luis Kutner: “Due Process of Euthanasia: The Living Will, A Proposal”, Indiana Law Journal (1969), Vol. 44, Issue 4, at pp. 539, 551; “Advance Directives and Substitute Decision-Making”, Stanford Encyclopaedia of Philosophy (24-3-2009) ; Luis Kutner: “Euthanasia: Due Process for Death with Dignity; The Living Will”, Indiana Law Journal (Winter 1979), Vol. 54, Issue, 2, at p. 226, referred to

Per Ashok Bhushan, J. (concurring)

Right of self-determination encompasses in it bodily integrity. The rights of bodily integrity and self-determination are the rights which belong to every human being. When an adult person having mental capacity to take a decision can exercise his right not to take treatment or withdraw from treatment, the above right cannot be negated for a person who is not able to take an informed decision due to terminal illness or being in a persistent vegetative state (PVS). Without consent of an adult person, who is in a fit state of mind, even a surgeon is not authorised to violate the body.

(Paras 611 and 602)

K. Constitution of India — Art. 21 — Passive euthanasia — Economic considerations may be an instrument of cost curtailment in view of high cost factor involved in modern medical treatment, lack of capacity to afford health services and limited availability of medical facilities — In such circumstances, economic considerations would support passive euthanasia — Utilitarian principle of evaluating policies in virtue of their effect on individual welfare or utility considered — Human and Civil Rights — Right to Die/Euthanasia — Economic Theory, Law and Economics — Economic analysis of law — When warranted

Held :

Per Sikri, J.

The matter of euthanasia can be considered in the context of economic principles also. This aspect can be dealt with in two ways: First, because of rampant poverty where majority of the persons are not able to afford health services, should they be forced to spend on medical treatment beyond their means 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, should a major part thereof be consumed on those patients who have no chances of recovery?

(Paras 321 to 321.2)

Some of the apprehensions expressed in ethical debates about euthanasia can be answered when the ethical debate about euthanasia is not divorced from an economic consideration of cost and benefits of euthanasia to society. Under certain circumstances i.e. when the patient is in PVS or brain dead/clinically dead, at least passive euthanasia would even be ethically acceptable, on the application of doctrine of dignity. In such a situation, the economic considerations would strengthen the conclusion in favour of passive euthanasia.

(Paras 323 and 324)

Shivashakti Sugars Ltd. v. Shree Renuka Sugar Ltd., (2017) 7 SCC 729 : (2017) 4 SCC (Civ) 234, explained

“Health Care Rationing: Can We Afford to Ignore Euthanasia?”, Health Services Management Research 1997; 10; 32-41; Mooney G.: The Valuation of Human Life, London: Macmillan Press, 1977; Economics and Euthanasia by Stephen Heasell, Department of Economics and Politics, Nottingham Trent University, and David Paton, Nottingham University Business School, referred to

At times, for deciding legal issues, economic analysis of law assumes importance. It is advocated that one of the main reasons which should prompt philosophers of law to undertake economic analysis seriously is that the most basic notion in the analysis—efficiency or Pareto optimality—was originally introduced to help solve a serious objection to widely held moral theory, utilitarianism. Utilitarians hold that the principle of utility is the criterion of the right conduct. If one has to evaluate policies in virtue of their effect on individual welfare or utility, one norm of utility has to be compared with that of another. This economic principle has been applied in a limited sense only as a supporting consideration with the aim to promote efficiency.

(Para 325)

Jeffrie G. Murphy & Jules L. Coleman: Philosophy of Law (An Introduction to Jurisprudence), referred to

Per Chandrachud, J. (concurring)

One of the limitations of contemporary debates on euthanasia is that they do not take into consideration “certain socio-economic concerns that must necessarily be factored into any discourse”. Cost of treatment is a critical factor in influencing the medical decision. “Sometimes patients are ‘transferred’ to smaller (read cheaper) institutions or even their homes, with the tacit understanding that this will hasten the inevitable.” “In the absence of adequate medical insurance, specialised treatments like ventilator support, kidney dialysis, and expensive life-saving drugs administered in private hospitals can turn middle-class families into virtual paupers. Poorly equipped government hospitals simply do not have enough life-support machines compared to the number of patients who need them.” The inadequacies of the range and reach of Indian Health Care may lead to a situation where euthanasia/active euthanasia may become “an instrument of cost containment”. Wealth, poverty, and class structure have a profound effect on the choices people make.

(Paras 448 and 449)

S. Nagral: “Euthanasia: Cost Factor is a Worry”, The Times of India (19-6-2011) ; Sushila Rao: “India and Euthanasia: The Poignant Case of Aruna Shanbaug”, Oxford Medical Law Review, Vol. 19, Issue 4 (1-12-2011), at pp. 654-655; Alan Norrie: “Legal Form and Moral Judgement: Euthanasia and Assisted Suicide” in R.A. Duff, et al (ed), The Structures of the Criminal Law (Oxford University Press, 2011), at p. 144, referred to

L. Constitution of India — Art. 21 — Passive euthanasia — Withholding or withdrawing life prolonging treatment of patient — By allowing the same to a person who is terminally ill, in PVS or brain dead state and thereby hastening process of natural death with dignity in compliance with wishes of the patient, medical practitioner would not be guilty of any penal provision under Penal Code — Contrasted with position obtaining in respect of active euthanasia under prevailing law — Penal Code, 1860 — Ss. 43, 76, 79, 81, 88, 92, 107, 300, 306 and 399 — Human and Civil Rights — Right to Die/Euthanasia

M. Penal Code, 1860 — Ss. 299 and 300 — “Cause death” — Decision not to prolong life of a terminally ill/permanent vegetative state patient by medical treatment does not involve intention to cause death

(Para 459)

N. Penal Code, 1860 — Ss. 43 and 32 — Illegality — Act or Omission which is prohibited by law — When omission to do something is unlawful, individual is legally bound to do it

O. Penal Code, 1860 — S. 81 — Protection to act done with knowledge that it is likely to cause harm — Available when act done without criminal intent to cause harm, in good faith and for preventing other harm

P. Penal Code, 1860 — S. 92 — Act done in good faith for benefit of another person, even if causes unintended harm to that person protected under S. 92 — Such act would be protected even if it was not possible to obtain consent of that person

Q. Penal Code, 1860 — Ss. 107, 305, 306 — To constitute abetment, there must be course of conduct or action of intentionally aiding or facilitating another person to end life

R. Interpretation of Statutes — Particular Statutes or Provisions — Penal statutes or provisions — Interpretation in background of constitutional principles — Where penal statute bears significant relationship to fundamental constitutional principles of liberty, dignity and autonomy on which question in issue is based, Court, while analysing penal provisions, should give effect to constitutional principles

Held :

Per Chandrachud, J.

The constitutionally recognised right to life is subject to the procedure established by law. The procedure for regulation or deprivation must, it is well-settled, be fair, just and reasonable. Criminal law imposes restraints and penal exactions which regulate the deprivation of life, or as the case may be, personal liberty. The intentional taking away of the life of another is made culpable by the Penal Code. Active euthanasia falls within the express prohibitions of the law and is unlawful.

(Para 519)

The legality of and constitutional protection which is afforded to passive euthanasia cannot be read in isolation from the provisions of the Penal Code. Physicians are apprehensive about their civil or criminal liability when called upon to decide whether to limit life-supporting treatment. Undoubtedly, constitutional positions are not controlled by statutory provisions, because the Constitution rises above and controls legislative mandates. But, in the present reference where no statutory provision is called into question, it is necessary for the Court to analyse the relationship between what the statute penalises and what the Constitution protects. The task of interpretation is to allow for their co-existence while interpreting the statute to give effect to constitutional principle. This is particularly so in an area such as the present where criminal law may bear a significant relationship to the fundamental constitutional principles of liberty, dignity and autonomy.

(Para 452)

S. Balakrishnan and R.K. Mani, “The Constitutional and Legal Provisions in Indian Law for Limiting Life Support”, Indian Journal of Critical Care Medicine (2005), Vol. 9, Issue 2, at p. 108, referred to

A distinction arises between active and passive euthanasia from the provisions of the Penal Code. Active euthanasia involves an intention to cause the death of the patient. Mens rea requires a guilty mind; essentially an intent to cause harm or injury. Passive euthanasia does not embody an intent to cause death. A doctor may withhold life support to ensure that the life of a patient who is in the terminal stage of an incurable illness or in a permanent vegetative state, is not prolonged artificially. The decision to do so is not founded upon an intent to cause death but to allow the life of the patient to continue till and cease at the end of its natural term. Placing such a person on life support would have been an intervention in the natural process of death. A decision not to prolong life by artificial means does not carry an intention to cause death. The crucial element in Section 299 is provided by the expression “causes death”. In a case involving passive euthanasia, the affliction of the patient is not brought about either by an act or omission of the doctor. There is neither an animus nor an intent to cause death. The creation of the condition of the patient is outside the volition of the doctor and has come about without a covert or overt act by the doctor. The decision to withhold medical intervention is not intended to cause death but to prevent pain, suffering and indignity to a human being who is in the end stage of a terminal illness or of a vegetative state with no reasonable prospect of cure. Placing a patient on artificial life support would, in such a situation, merely prolong the agony of the patient. Hence, a decision by the doctor based on what is in the best interest of the patient precludes an intent to cause death. Similarly, withdrawal of artificial life support is not motivated by an intent to cause death. What a withdrawal of life support does is not to artificially prolong life. The end of life is brought about by the inherent condition of the patient. Thus, both in a case of a withdrawal of life supporting intervention and withholding it, the law protects a bona fide assessment of a medical professional. There being no intent to cause death, the act does not constitute either culpable homicide or murder.

(Para 462)

Section 32 of the Penal Code places acts and omissions on the same plane. An illegal omission (unless a contrary intent appears in the Code) is proscribed when the act is unlawful. Further, Section 43 comprehends within the meaning of illegality, that (i) which is an offence; or (ii) which is prohibited by law; or (iii) which furnishes a ground for a civil action. Omissions and acts are mirror images. When it is unlawful to omit to do something, the individual is legally bound to do it. This raises the question of whether an omission to provide life-sustaining treatment constitutes an illegal omission.

(Paras 453 and 454)

“Doctrine of Double Effect”, Stanford Encyclopedia of Philosophy (28-7-2004) , referred to

Section 81 protects acts which are done without a criminal intent to cause harm, in good faith, to prevent or avoid other harm to person or property. The law protects the action though it was done with the knowledge that it was likely to cause harm if a threefold requirement is fulfilled. It comprehends an absence of criminal intent to cause harm, the presence of good faith and the purpose of preventing other harm. Knowledge of the likelihood of harm is not culpable when a criminal intent to cause harm is absent and there exists an element of good faith to prevent or avoid other harm.

(Para 455)

The doctor does not inflict a bodily injury. The condition of a patient is on account of a factor independent of the doctor and is not an outcome of his or her actions. Death emanates from the pre-existing medical condition of the patient which enables life to chart a natural course to its inexorable end. The law protects a decision which has been made in good faith by a medical professional not to prolong the indignity of a life placed on artificial support in a situation where medical knowledge indicates a point of no return. Neither the act nor the omission is done with 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 but by the medical condition of the patient. When a doctor takes a considered decision in the case of a patient in a terminal stage of illness or in a permanently vegetative state, not to provide artificial life support, the law does not attribute to the doctor the knowledge that it is likely to cause death.

(Para 463)

Withdrawing life support to a person in a permanently vegetative state or in a terminal stage of illness is not “prohibited by law” within the meaning of Section 43 IPC Such an act would also not fall outside the purview of Section 92 for the reason that there is no intentional causing of death or attempt to cause death. Where a decision to withdraw artificial life support is made in the caregiver of the patient, it fulfils the duty of care required from a doctor towards the patient. Where a doctor has acted in fulfilment of a duty of care owed to the patient, the medical judgment underlying the decision protects it from a charge of illegality. Such a decision is not founded on an intention to cause death or on the knowledge that it is likely to cause death. An act done in pursuance of the duty of care owed by the doctor to a patient is not prohibited by law.

(Para 464)

Section 92 protects an individual from a consequence which arises from the doing of an act for the benefit of another in good faith, though a harm is caused to the other. What was done is protected because it was done in good faith. Good faith is distinguished from an evil design. When a person does something to protect another from a harm or injury, the law protects what was done in good faith, treating the harm that may result as a consequence unintended by the doer of the act. This protection is afforded by the law even in the absence of consent when the circumstances are such that it is impossible for the person for whose benefit the act was done to consent to it. This may arise where the imminence of the apprehended danger makes it impossible to obtain consent. Another eventuality is where the individual is incapable of consenting (by being incapacitated in mind) and there is no person in the position of a guardian or person in lawful charge from whom consent can 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 exception does not extend to the intentional causing of death or attempt to cause death 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 protection extended by Section 92.

(Para 456)

For abetting an offence, the person abetting must have intentionally aided the commission of the crime. Abetment requires an instigation to commit or intentionally aiding the commission of a crime. It presupposes a course of conduct or action which (in the context of the present discussion) facilitates another to end life. Hence abetment of suicide is an offence expressly punishable under Sections 305 and 306 IPC.

(Para 458)

In 2006, the Law Commission of India submitted its 196th Report titled “Medical Treatment to Terminally-Ill Patients (Protection of Patients and Medical Practitioners)”. The Report by Justice M. Jagannadha Rao as Chairperson contains a succinct elucidation of legal principles governing criminal law on the subject. Some of them are explained below:

(Para 466)

While a doctor has a duty of care, a doctor who obeys the instructions of a competent patient to withhold or withdraw medical treatment does not commit a breach of professional duty and the omission to treat will not be an offence;

(Para 466.1)

And a decision to not receive medical treatment does not constitute an attempt to commit suicide within the meaning of Section 309 of the Penal Code;

(Para 466.2)

Once a competent patient has decided not to accept medical intervention, and to allow nature to take its course, the action of the treating doctor in abiding by those wishes is not an offence, nor would it amount to an abetment under Section 306. Under Section 107, an omission has to be illegal to constitute an abetment. A doctor bound by the instructions of a patient to withhold or withdraw medical treatment is not guilty of an illegal act or an abetment. The doctor is bound by the decision of the patient to refuse medical intervention;

(Para 466.3)

The act of withholding or withdrawing a life support system in the case of a competent patient who has refused medical treatment and, in the case of an incompetent person where the action is in the best interest of the patient would be protected by good faith protections available under Sections 76, 79, 81 or, as the case may be, by Section 88, even if it is construed that the doctor had knowledge of the likelihood of death.

(Para 466.4)

Introducing a structural safeguard, in the form of a Medical Board of experts can be contemplated to further such an objective. The Transplantation of Human Organs and Tissues Act, 1994 provides for the constitution of Authorisation Committees under Section 9(4). The Authorisation Committees are contemplated at the State and district levels and a hospital board. Once the process of decision-making has been arrived at by fulfilling a mandated safeguard (the prior approval of a committee), the decision to withdraw life support should not constitute an illegal act or omission. The setting up of a broad-based board is precisely with a view to lend assurance that the duty of care owed by the doctor to the patient has been fulfilled. Once due safeguards have been fulfilled, the doctor is protected against the attribution of a culpable intent or knowledge. It will hence fall outside the definition of culpable homicide (Section 299), murder (Section 300) or causing death by a rash or negligent act (Section 304-A).

(Para 467)

Schloendorff v. Society of New York Hospital, 105 NE 92 : 211 NY 125 (1914), referred to

S. Constitution of India — Art. 21 — Euthanasia — Passive Euthanasia (Voluntary and Non-Voluntary) — Procedure for effectuating when (a) there is an Advance Directive; and (b) when there is no Advance Directive — Detailed Safeguards and Guidelines laid down, to be in force till legislation is enacted to cover the field — Living will — Advance Directive — Adult terminally ill patient, while possessed of mental capacity to take informed decision relating to own healthcare and treatment, has right to execute Advance Directive document expressing his/her will of not to be treated with life prolonging medical supportive measures till end of his/her natural life in case of his/her future mental impairment, PVS or brain dead/clinically dead state — Object and reason for recognising Advance Directive, stated — Meaning of terminal condition, persistently unconscious condition and end-stage condition, explained — Concept of Advance Directive based on fundamental right to liberty to live with dignity till end of natural life, right to privacy and common law rights of individual autonomy, self-determination and concept of sanctity of life

Held :

Per Dipak Misra, C.J. and Khanwilkar, J.

In order to overcome the difficulty faced in case of patients who are unable to express their wishes at the time of taking the decision, the concept of Advance Medical Directives emerged in various countries. Advance Directives for healthcare go by various names in different countries though the objective by and large is the same, that is, to specify an individual's healthcare decisions and to identify persons who will take those decisions for the said individual in the event he is unable to communicate his wishes to the doctor.

(Paras 184 and 185)

A living will, on the other hand, is a document prescribing a person's wishes regarding the medical treatment the person would want if he was unable to share his wishes with the healthcare provider.

(Para 186)

Another type of Advance Medical Directive is medical power of attorney. It is a document which allows an individual (principal) to appoint a trusted person (agent) to take healthcare decisions when the principal is not able to take such decisions. The agent appointed to deal with such issues can interpret the principal's decisions based on their mutual knowledge and understanding.

(Para 187)

A failure to legally recognise Advance Medical Directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity. Further, a study of the position in other jurisdictions shows that Advance Directives have gained lawful recognition in several jurisdictions by way of legislation and in certain countries through judicial pronouncements. Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination.

(Paras 202.11 and 202.12)

Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive will dispel many a doubt at the relevant time of need during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner. However, Advance Medical Directive cannot operate in abstraction. There has to be safeguards. They need to be spelt out. They are enumerated as follows:

(Para 198)

Who can execute the Advance Directive and how?

The Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document. It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information. It should have characteristics of an informed consent given without any undue influence or constraint. It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.

(Paras 198.1, 198.1.1, 198.1.2, 198.3 and 198.1.4)

What should it contain?

It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to. It should be in specific terms and the instructions must be absolutely clear and unambiguous. It should mention that the executor may revoke the instructions/authority at any time. It should disclose that the executor has understood the consequences of executing such a document. It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive. In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient's wishes and will be given effect to.

(Para 198.2)

How should it be recorded and preserved?

The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the District Judge concerned. The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences. The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format. The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format. The JMFC shall cause to inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document. A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document. The JMFC shall cause to hand over copy of the Advance Directive to the family physician, if any.

(Para 198.3)

When and by whom can it be given effect to?

In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional JMFC before acting upon the same.

(Para 198.4.1)

The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.

(Para 198.4.2)

If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/close relative, as the case may be, about the nature of illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he beliefs on reasonable grounds that the person in question understands the information provided, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.

(Para 198.4.3)

The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Medical Board consisting of the Head of the treating department and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion.

(Para 198.4.4)

In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/hospital shall forthwith inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then immediately constitute a Medical Board comprising the Chief District Medical Officer of the district concerned as the Chairman and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years (who were not members of the previous Medical Board of the hospital). They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive.

(Para 198.4.5)

The Board constituted by the Collector must beforehand ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. In the event the executor is incapable of taking decision or develops impaired decision-making capacity, then the consent of the guardian nominated by the executor in the Advance Directive should be obtained regarding refusal or withdrawal of medical treatment to the executor to the extent of and consistent with the clear instructions given in the Advance Directive.

(Para 198.4.6)

The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment administered to the executor. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board.

(Para 198.4.7)

It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.

(Para 198.4.8)

What if permission is refused by Medical Board?

If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution. If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to constitute an independent committee consisting of three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years.

(Para 198.5.1)

The High Court shall hear the application expeditiously after affording opportunity to the State counsel. It would be open to the High Court to constitute Medical Board in terms of its order to examine the patient and submit report about the feasibility of acting upon the instructions contained in the Advance Directive.

(Para 198.5.2)

Needless to say that the High Court shall render its decision at the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of “best interests of the patient”.

(Para 198.5.3)

Revocation or inapplicability of Advance Directives.

An individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.

(Para 198.6.1)

An Advance Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.

(Para 198.6.2)

If the Advance Directive is not clear and ambiguous, the Medical Boards concerned shall not give effect to the same and, in that event, the guidelines meant for patients without Advance Directive shall be made applicable.

(Para 198.6.3)

Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction on the Advance Directive.

(Para 198.6.4)

Cases where there is no Advance Directive

It is necessary to make it clear that there will be cases where there is no Advance Directive. The said class of persons cannot be alienated. In cases where there is no Advance Directive, the procedure and safeguards are to be same as applied to cases where Advance Directives are in existence and in addition there to, the following procedure shall be followed:

(Para 199)

In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board in the manner indicated earlier. The Hospital Medical Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion.

(Para 199.1)

In the event the Hospital Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall immediately inform the jurisdictional Collector. The jurisdictional Collector shall then constitute a Medical Board comprising the Chief District Medical Officer as the Chairman and three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years. The Medical Board constituted by the Collector shall visit the hospital for physical examination of the patient and, after studying the medical papers, may concur with the opinion of the Hospital Medical Board. In that event, intimation shall be given by the Chairman of the Collector nominated Medical Board to the JMFC and the family members of the patient.

(Para 199.2)

The JMFC shall visit the patient at the earliest and verify the medical reports, examine the condition of the patient, discuss with the family members of the patient and, if satisfied in all respects, may endorse the decision of the Collector nominated Medical Board to withdraw or refuse further medical treatment to the terminally-ill patient.

(Para 199.3)

There may be cases where the Board may not take a decision to the effect of withdrawing medical treatment of the patient or the Collector nominated Medical Board may not concur with the opinion of the hospital Medical Board. In such a situation, the nominee of the patient or the family member or the treating doctor or the hospital staff can seek permission from the High Court to withdraw life support by way of writ petition under Article 226 of the Constitution in which case the Chief Justice of the said High Court shall constitute a Division Bench which shall decide to grant approval or not. The High Court may constitute an independent committee to depute three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years after consulting the competent medical practitioners. It shall also afford an opportunity to the State counsel. The High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay. Needless to say, the High Court shall ascribe reasons specifically keeping in mind the principle of “best interests of the patient”.

(Para 199.4)

It is appropriate to cover a vital aspect to the effect the life support is withdrawn, the same shall also be intimated by the Magistrate to the High Court. It shall be kept in a digital format by the Registry of the High Court apart from keeping the hard copy which shall be destroyed after the expiry of three years from the death of the patient.

(Para 200)

When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest.

(Para 202.14)

The principles relating to the procedure for execution of Advance Directive and the guidelines to give effect to passive euthanasia in both circumstances, namely, where there are Advance Directives and where there are none, have been laid down in exercise of the power under Article 142 of the Constitution and the law stated in Vishaka, (1997) 6 SCC 241. The directive and guidelines shall remain in force till Parliament brings a legislation in the field.

(Para 203)

Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932, referred to

Per Sikri, J. (concurring)

The petitioner wants that citizens should have right to decide in advance not to accept any kind of treatment at a stage when they are terminally ill. Expressing this in advance in a document is known as “living will” or “Advance Directive”, whereby the aforesaid self-determination of the person is to be acted upon when he reaches PVS or is brain dead/clinically dead. Such an advance authority is akin to well-recognised common law right to refuse medical treatment.

(Paras 328 and 333)

Gian Kaur (Smt) v. State Of Punjab ., (1996) 2 SCC 648 : 1996 SCC (Cri) 374; Cruzan v. Missouri Department of Health, 1990 SCC OnLine US SC 123 : 111 L Ed 2d 224 : 110 S Ct 2841 : 497 US 261 (1990); K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, relied on

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294, affirmed on this point

T. (Adult: Refusal of Treatment), In re, 1993 Fam 95 : (1992) 3 WLR 782 : (1992) 4 All ER 649 (CA); B. (Adult: Refusal of Medical Treatment), In re, (2002) 2 All ER 449; Malette v. Shulman, (1990) 67 DLR (4th) 321 : 72 OR (2d) 417 (CA), approved

Schloendorff v. Society of New York Hospital, 105 NE 92 : 211 NY 125 (1914); Sidaway v. Board of Governors of the Bethlem Royal Hospital, 1985 AC 871 : (1985) 2 WLR 480 : (1985) 1 All ER 643 (HL); Nancy B. v. Hotel Dieu de Quebec, (1992) 86 DLR (4th) 385 (Que SC); T. (Adult: Refusal of Treatment), In re, 1993 Fam 95 : (1992) 3 WLR 782 : (1992) 4 All ER 649 (CA); Skinner v. Oklahoma, 1942 SCC OnLine US SC 125 : 86 L Ed 1655 : 316 US 535 (1942); Williams v. Fears, 1900 SCC OnLine US SC 211 : 45 L Ed 186 : 179 US 270 (1900), cited

Advance Directives are instruments through which persons express their wishes at a prior point in time, when they are capable of making an informed decision, regarding their medical treatment in the future, when they are not in a position to make an informed decision, by reason of being unconscious or in a PVS or in a coma. A medical power of attorney is an instrument through which persons nominate representatives to make decisions regarding their medical treatment at a point in time when the persons executing the instrument are unable to make informed decisions themselves. Clause 11 of the draft Treatment of Terminally-ill Patients (Protection of Patients and Medical Practitioners) Bill, 2016 states that Advance Directives or medical power of attorney shall be void and of no effect and shall not be binding on any medical practitioner. This blanket ban, including the failure even to give some weight to Advance Directives while making a decision about the withholding or withdrawal of life-sustaining treatment is disproportionate. It does not constitute a fair, just or reasonable procedure, which is a requirement for the imposition of a restriction on the right to life (in this case, expressed as the right to die with dignity) under Article 21.

(Para 335)

On the one hand autonomy of an individual gives him right to choose his destiny and, therefore, he may decide beforehand, in the form of Advance Directive, at what stage of his physical condition he would not like to have medical treatment, and on the other hand, there are dangers of misuse thereof as well. But possibility of misuse cannot be held to be a valid ground for rejecting Advance Directive, as opined by the Law Commission of India as well in its 196th and 241st Reports. Instead, attempt can be made to provide safeguards for exercise of such Advance Directive. Section 5 of the Mental Health Ccare Act, 2017 and Section 3 of the Transplantation of Human Organs and Tissues Act, 1994 provide such safeguards.

(Paras 336 and 337)

All the suggestions of the counsel and various aspects of Advance Directives have been elaborately considered and detailed directions are given by the Hon'ble the Chief Justice in his judgment, with which I duly concur.

(Para 341)

Per Chandrachud, J. (concurring)

A patient, in a sound state of mind, possesses the ability to make decisions and choices and can legitimately refuse medical intervention. Advance Directives have evolved conceptually to deal with cases where a patient who subsequently faces a loss of the mental faculty to decide has left instructions, when he or she was possessed of decision-making capacity, on how future medical decisions should be made. Advance Directives are thus documents a person completes while still in possession of decisional capacity about how treatment decisions should be made in the event she or he loses decision-making capacity in future. They cover three conditions: (i) a terminal condition; (ii) a persistently unconscious condition; and (iii) an end-stage condition. The Advance Directive is an indicator to medical professionals of the underlying desire of the person executing it.

(Paras 468, 472, 474 and 486)

“Advance Directives and Substitute Decision-Making”, Stanford Encyclopaedia of Philosophy (24-3-2009) ; Hazel Biggs: “Euthanasia, Death with Dignity and the Law” (Hart Publishing, 2001), at p. 115; James C. Turner: “Living Wills — Need for Legal Recognition”, West Virginia Law Review (1976), Vol. 78, Issue 3, at p. 370, referred to

An individual who is in a sound and competent state of mind is entitled by means of an Advance Directive in writing, to specify the nature of medical intervention which may not be adopted in future, should he or she cease to possess the mental ability to decide. Such an Advance Directive is entitled to deference by the treating doctor. The treating doctor who, in a good faith exercise of professional medical judgment abides by an Advance Directive is protected against the burden of criminal liability.

(Para 520)

A terminal condition is an incurable or irreversible condition which even with the administration of life-sustaining treatment will result in death in the foreseeable future. A persistently unconscious condition is an irreversible condition, in which thought and awareness of self and environment are absent. An end-stage condition is a condition caused by injury, disease or illness which results in severe and permanent deterioration indicated by incompetency and complete physical dependency for which treatment of the irreversible condition would be medically ineffective.

(Para 475)

The reason for recognising an Advance Directive is based on individual autonomy. As an autonomous person, every individual has a constitutionally recognised right to refuse medical treatment. The right not to accept medical treatment is essential to liberty. Medical treatment cannot be thrust upon an individual, however, it may have been conceived in the interest of the individual. The reasons which may lead a person in a sound state of mind to refuse medical treatment are inscrutable. Those decisions are not subject to scrutiny and have to be respected by the law as an essential attribute of the right of the individual to have control over the body. The State cannot compel an unwilling individual to receive medical treatment. While an individual cannot compel a medical professional to provide a particular treatment (this being in the realm of professional medical judgment), it is equally true that the individual cannot be compelled to undergo medical intervention. The principle of sanctity of life thus recognises the fundamental liberty of every person to control his or her body and as its incident, to decline medical treatment. The ability to take such a decision is an essential element of the privacy of the being. Privacy also ensures that a decision as personal as whether or not to accept medical treatment lies exclusively with the individual as an autonomous being. The reasons which impel an individual to do so are part of the privacy of the individual. The mental processes which lead to decision-making are equally part of the constitutionally protected right to privacy.

(Para 476)

Advance Directives are founded on the principle that an individual whose state of mind is not clouded by an affliction which prevents him or her from taking decisions is entitled to decide whether to accept or not accept medical intervention. If a decision can be made for the present, when the individual is in a sound state of mind, such a person should be allowed to decide the course of action which should be followed in the future if he or she were to be in a situation which affects the ability to take decisions. If a decision on whether or not to receive medical treatment is valid for the present such a decision must be equally valid when it is intended to operate in the future. Advance Directives are, in other words, grounded in a recognition by the law of the importance of consent as an essential attribute of personal liberty. It is the consensual nature of the act underlying the Advance Directive which imparts sanctity to it in future in the same manner as a decision in the present on whether or not to accept medical treatment.

(Para 477)

When a patient is brought for medical treatment in a state of mind in which he or she is deprived of the mental capacity to make informed choices, the medical professional needs to determine the line of treatment. One line of enquiry, which seeks to protect patient autonomy is how the individual would have made a decision if he or she had decision-making capacity. This is called the substituted judgment standard. An Advance Medical Directive is construed as a facilitative mechanism in the application of the substituted judgment standard, if it provides to the physician a communication by the patient (when she or he was in a fit state of mind) of the desire for or restraint on being provided medical treatment in future.

(Para 478)

Conceptually, there is a second standard, which is the caregiver standard. This is founded on the principle of beneficence. The second standard seeks to apply an objective notion of a line of treatment which a reasonable individual would desire in the circumstances. The difference between these two standards is that the first seeks to reconstruct the subjective point of view of the patient. The second allows for “a more generic view of interests”, without having to rely on the “idiosyncratic values and preference of the patient in question”. An autonomous decision suited to an earlier identity may not always be a valid rationale for determining the course of action in respect of a new identity which a patient acquires in the course of illness.

(Paras 479, 480 and 483)

The relationship between a doctor and her patient with an evolving mental condition needs a balance between the desires of the patient in a different mental state and the needs of the patient in the present condition. Neither can be ignored in preference to the other. The first recognises the patient as an autonomous individual whose desires and choices must be respected by law and medicine. The desire not to be subject to endless medical intervention, when one's condition of mind or body have reached an irreversible state is a profound reflection of the value to be left alone. Constitutional jurisprudence protects it as part of the right to privacy. On the other hand, the need to procure the dignity of the individual in a deteriorating and irreversible state of body or mind is as crucial to the value of existence. The doctor must respect the former while being committed as a professional to protect the latter.

(Para 484)

Human experience suggests that there is a chasm of imponderables which divide the present from the future. Such a divide may have a bearing on whether and if so, the extent to which an Advance Directive should bind in the future. The sanctity of an Advance Directive is founded upon the expression of the will of an individual who is in a sound state of mind when the directive is executed. Underlying the consensual character of the declaration is the notion of the consent being informed. Undoubtedly, the reasons which have weighed with an individual in executing the Advance Directive cannot be scrutinised (in the absence of situations such as fraud or coercion which implicate the very basis of the consent). However, an individual who expresses the desire not to be subjected to a particular line of treatment in the future, should she or he be ailing in the future, does so on an assessment of treatment options available when the directive is executed. Advances in medical knowledge between the date of the execution of the document and an uncertain future date when the individual may possibly confront treatment for the disease may have led to a re-evaluation by the person of the basis on which a desire was expressed several years earlier. Another fundamental issue is whether the individual can by means of an Advance Directive compel the withholding of basic care such as hydration and nourishment in the future. Protecting the individual from pain and suffering as well as the indignity of debility may similarly raise important issues. Advance Directives may hence conceivably raise ethical issues of the extent to which the perception of the individual who executes it must prevail in priority to the best interest of the patient. The Advance Directive is an indicator to medical professionals of the underlying desire of the person executing it.

(Paras 485 and 486)

In a society such as ours where family ties have an important place in social existence, Advance Directives also provide a sense of solace to the family. Decisions such as whether to withhold or withdraw artificial life saving treatment are difficult for families to take. Advance Directives provide moral authority for the family of the patient that the decision which has been taken to withdraw or withhold artificial life support is in accord with the stated desire of the patient expressed earlier. The Court is above all, engaged in the task of expounding the Constitution. In doing so, the Court have been confronted with the enormous task of finding substance and balance in the relationship between life, morality and the experience of dying. The reason which has impelled the Court to recognise passive euthanasia and Advance Directives is that both bear a close association to the human urge to live with dignity. Age brings isolation. Physical and mental debility bring a loss of self-worth. Pain and suffering are accompanied by a sense of being helpless. The loss of control is compounded when medical intervention takes over life. Human values are then lost to technology. More significant than the affliction of ageing and disease is the fear of our human persona being lost in the anonymity of an intensive care ward. It is hence necessary for this Court to recognise that our dignity as citizens continues to be safeguarded by the Constitution even when life is seemingly lost and questions about our own mortality confront us in the twilight of existence.

(Paras 487 and 514)

The recognition of Advance Directives as part of a regime of constitutional jurisprudence is an essential attribute of the right to life and personal liberty under Article 21. That right comprehends dignity as its essential foundation. Quality of life is integral to dignity. As an essential aspect of dignity and the preservation of autonomy of choice and decision-making, each individual must have the right on whether or not to accept medical intervention. Such a choice expressed at a point in time when the individual is in a sound and competent state of mind should have sanctity in the future if the individual were to cease to have the mental capability to take decisions and make choices. Yet, a balance between the application of the substituted judgment standard and the best interest standard is necessary as a matter of public interest. This can be achieved by allowing a supervisory role to an expert body with whom shall rest oversight in regard to whether a patient in the terminal stage of an illness or in a permanent vegetative state should be withheld or withdrawn from artificial life support.

(Para 488)

In the context of mental illness, Parliament has now expressly recognised the validity of Advance Directives and delineated the role of nominated representatives in being associated with healthcare and treatment decisions.

(Para 506)

A comparative analysis of Advance Directives in various jurisdictions indicates some common components. They include the patient's views and wishes regarding: (i) Cardio-pulmonary resuscitation (CPR) — treatment that attempts to start breathing and blood flow in people 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) Appointment of proxy/healthcare agent/surrogate, etc.

(Para 507)

Certain precepts can be deduced from the existing global framework on Advance Directives. These include the following:

(Para 508)

Advance Directives reflect the right of an adult with capacity to make a decision to refuse specific treatment at a point in the future when they lack capacity. A person can be said to lack capacity when “in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. He/she must be deemed to have capacity to make decisions regarding his treatment if such person has ability to— (a) understand the information that is relevant to take a decision on the treatment or admission or personal assistance; or (b) appreciate any reasonably foreseeable consequence of a decision or lack of decision on the treatment or admission or personal assistance; or (c) communicate such decision by means of speech, expression, gesture or any other means.

(Para 508.1)

For a legally valid advance decision to refuse treatment, an Advance Directive must fulfil a basic criteria, which should include that—a directive must be made by a person after he has reached 18 years of age; the person must be mentally competent when the directive is made; the directive must specify—in medical or layman's terms—the treatment refused; and, it can specify the circumstances in which the refusal is to apply.

(Para 508.2)

At any time before reaching the comatose state, an individual can revoke the directive. In other words, an individual may withdraw or alter an advance decision at any time when he/she has capacity to do so. Such withdrawal (including a partial withdrawal) need not be in writing. A directive must be revoked if the statements or actions subsequent to the written document indicate contrary consent.

(Para 508.3)

An advance decision will not be applicable to the treatment in question if — (a) at the material time, the person, who made it, did not have the capacity to give or refuse consent to it; (b) the treatment is not the treatment specified in the advance decision; (c) any circumstances specified in the advance decision are absent; or (d) there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the advance decision and which would have affected his decision had he anticipated them.

(Para 508.4)

If a person intends specifically to refuse life-sustaining procedures, he/she must — clearly indicate that it is to apply even if life is at risk and death will predictably result; put the decision in writing; and, ensure it is signed and witnessed.

(Para 508.5)

In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient's wishes and will be given effect to.

(Para 508.6)

A person will not incur any liability for the consequences of withholding or withdrawing a treatment from an individual, if he, at the material time, reasonably beliefs that a valid advance decision applicable to the treatment, made by that individual, exists.

(Para 508.7)

An Advance Directive must clearly contain the following:

(a) full details of its maker, including date of birth, home address and any distinguishing features;

(b) the name and address of a general practitioner and whether they have a copy;

(c) a statement that the document should be used if the maker lacks capacity to make treatment decisions;

(d) a clear statement of the decision, the treatment to be refused and the circumstances in which the decision will apply;

(e) the date the document was written (or reviewed); and,

(f) the person's signature and the signature of a witness.

(para 508.8)

Advance Directives also have limitations. Individuals may not fully understand treatment options or recognise the consequences of certain choices in the future. Sometimes, people change their minds after expressing Advance Directives and forget to inform others. Another issue with Advance Directives is that vague statements can make it difficult to understand the course of action when a situation arises. For example, general statements rejecting “heroic treatments” are vague and do not indicate whether you want a particular treatment for a specific situation (such as antibiotics for pneumonia after a severe stroke). On the other hand, very specific directives for future care may not be useful when situations change in unexpected ways. New medical therapies may also have become available since an Advance Directive was given. Thus, Advance Directives should be reviewed and revised regularly if feelings about certain issues change, so that current wishes and decisions are always legally documented.

(Para 509)

An important facet which a regime of advanced care directives must factor in, is the existence of variables which affect the process. These include, in our society, institutional aspects such as the paucity of access to publicly funded medicare, declining standards of professional ethics and the inadequacy of institutional responses to the lack of professional accountability in the medical profession.

(Para 510)

A report submitted in October 2017 by the American Bar Association's Commission on Law and Ageing to the US Department of Health Services, dwelt on several variables which bear upon Advance Directives.

(Para 511)

There are variables which “profoundly affect the experience of dying” even in a developed society. They provide a sobering reflection of the gulf which separates the needs of patients and the availability of services to the poor, in a society like ours with large impoverished strata. Patient autonomy may mean little to the impoverished citizen. For marginalised groups in urban and rural India, even basic medical care is a distant reality. Advance Directives postulate the availability of medical care. For, it is on the hypothesis of such care being available that the right to choose or refuse treatment is based. The stark reality in our society is that medical facilities are woefully inadequate. Primary medical care is a luxury in many places. Public hospitals are overwhelmed by the gap between the demand for medical care and its supply. Advance Directives may have little significance to large segments of Indian society which are denied access to basic care. Advance Directives also require an awareness of rights. The stark reality is that the average Indian is deprived of even basic medical facilities in an environment where absence of rudimentary care is the norm. Moreover, absolute notions of patient autonomy need to be evaluated in the context of the Indian social structure where bonds of family, religion and caste predominate. The immediate family and in many situations, the larger unit of the extended family are caregivers. In the absence of a social security net, universal medical coverage and compulsory insurance, it is the family to which a patient turns to in distress. Families become the caregivers, willingly or as a result of social conditioning, especially in the absence of resources and alternative institutional facilities. The views of the family which are drawn by close bonds of kinship have to be factored into the process. At the other end of the spectrum, rising costs of medical care in the urban areas threaten to ruin the finances of a family when a member is struck by a serious illness. To them, Advance Directives may provide a measure of assurance when a crucial decision as to whether to prolong artificial support in an irreversible medical situation is to be taken. The fact that the patient had expressed a desire in the form of an Advance Directive obviates a sense of moral guilt on the part of the caregivers, when the family accepts the doctors' wisdom to withdraw or withhold artificial support. Another important variable which a regime of Advance Directives must bear in mind is the danger of misuse. The regime of Advance Directives which is intended to secure patient autonomy must contain safeguards against the greed of avaricious relatives colluding with willing medical professionals. The safeguards must be robust to obviate the dangers. The complexities of culture and of the social strata adverted to above only emphasise the wide diversity that prevails within the country. Our solution must take into account the diversity across the country. It is with the above background in view that a safeguard in the form of broad-based committees to oversee the process have been introduced.

(Para 512)

The directions in regard to the regime of Advance Directives have been issued in exercise of the power conferred by Article 142 of the Constitution and shall continue to hold the field until a suitable legislation is enacted by Parliament to govern the area.

(Para 524)

I agree with the directions proposed in the judgment of the learned Chief Justice. The reference shall stand disposed of in the above terms.

(Para 525)

T. (Adult: Refusal of Treatment), In re, (1942) 4 All ER 649; C. (Adult: Refusal of Treatment), In re, (1994) 1 WLR 290 : (1994) 1 All ER 819; St. George's Health Care N.H.S. Trust v. S., 1999 Fam 26 : (1998) 3 WLR 936 (CA); B. (Adult: Refusal of Medical Treatment), In re, (2002) 2 All ER 449; M. (Adult Patient), In re, (2012) 1 WLR 1653 : 2011 EWHC 2443 (Fam); Aintree University Hospitals NHS Foundation Trust v. James, 2013 UK SC 67; AK (Adult Patient) (Medical Treatment: Consent), In re, (2001) 1 FLR 129; HE v. A Hospital N.H.S. Trust, (2003) 2 FLR 408, referred to

A.S. Kessel and J. Meran: “Advance Directives in the UK: Legal, Ethical, and Practical Considerations for Doctors”, British Journal of General Practice (1998), at p. 1263; “Are Advance Directives Legally Binding or Simply the Starting Point for Discussion on patients' Best Interests?”, BMJ (28-11-2009), Vol. 339, p. 1231; Elizabeth Wicks, The State and the Body: Legal Regulation of Bodily Autonomy, (Hart Publishing, 2016), at p. 69; Alexander Ruck Keene, “Advance Decisions: Getting it Right?” ; Luis Kutner, “Euthanasia: Due Process for Death with Dignity; The Living Will”, Indiana Law Journal (Winter 1979), Vol. 54, Issue, 2, at p. 228; “Advance Directives and Advance Care Planning: Legal and Policy Issues”, US Department of Health and Human Services (October 2007) at p. 1, referred to

Per Ashok Bhushan, J. (concurring)

The question is who is competent to take decision in case of terminally ill or PVS patient, who is not able to take decision. In case of a person who is suffering from a disease and is taking medical treatment, there are three stakeholders; the person himself, his family members and doctor treating the patient. In cases of incompetent patients who are unable to take an informed decision, it is in the best interests of the patient that the decision be taken by the competent medical experts and that such decision be implemented after providing a cooling period at least of one month to enable aggrieved person to approach the court of law. The best interest of the patient as determined by medical experts shall meet the ends of justice. The medical team by taking decision shall also take into consideration the opinion of the blood relations of the patient and other relevant facts and circumstances.

(Paras 611 and 612)

The concept of Advance Medical Directive is also called living will is of recent origin, which gained recognition in latter part of the 20th century. Advance Medical Directives are not exclusively associated with end-of-life decisions. However, it is vital to ensure that form of an Advance Medical Directive reflects the needs of its author and is sufficiently authoritative and practical to enable its provisions to be upheld. In most of the western countries Advance Medical Directives have taken a legalistic form incorporating a formal declaration to be signed by competent witnesses. The laws also make provisions for updating confirmation of its applicability and revocation. Protecting the individual autonomy is obviously the primary purpose of an Advance Medical Directive. The right to decide one's own fate presupposes a capacity to do so. The answer as to when a particular Advance Medical Directive becomes operative usually depends upon an assent of when its author is no longer competent to participate in medical decision-making.

(Paras 614 and 615)

An Advance Medical Directive is an individual's advance exercise of his autonomy on the subject of extent of medical intervention that he wishes to allow upon his own body at a future date, when he may not be in a position to specify his wishes. The purpose and object of Advance Medical Directive is to express the choice of a person regarding medical treatment in an event when he loses capacity to take a decision. Use and operation of Advance Medical Directive is to confine only to a case when person becomes incapacitated to take an informed decision regarding his medical treatment. So long as an individual can take an informed decision regarding his medical treatment, there is no occasion to look into Advance Medical Directives. A person has unfettered right to change or cancel his Advance Medical Directives looking to the need of time and advancement in medical science. Hence, a person cannot be tied up or bound by his instructions given at an earlier point of time.

(Para 616)

The concept of Advance Medical Directive originated largely as a response to development in medicines. Many people living depending on machines cause great financial distress to the family with the cost of long-term medical treatment. Advance Medical Directive was developed as a means to restrict the kinds of medical intervention in event when one becomes incapacitated. The foundation for seeking direction regarding Advance Medical Directive is extension of the right to refuse medical treatment and the right to die with dignity. When a competent patient has right to take a decision regarding medical treatment, with regard to medical procedure entailing right to die with dignity, the said right cannot be denied to those patients, who have become incompetent to take an informed decision at the relevant time. The concept of Advance Medical Directive has gained ground to give effect to the rights of those patients, who at a particular time are not able to take an informed decision.

(Para 617)

Another concept which has been accepted in several countries is recognition of instrument through which a person nominates a representative to make decision regarding their medical treatment at a point of time when the person executing the instrument is unable to make an informed decision. This is called attorney authorisation leading to medical treatment.

(Para 618)

The right to execute an Advance Medical Directive is nothing but a step towards protection of the aforesaid right by an individual, in event he becomes incompetent to take an informed decision, in particular stage of life. It has to be recognised by all including the States that a person has right to execute an Advance Medical Directive to be utilised to know his decision regarding manner and extent of medical treatment given to his body, in case he is incapacitated to take an informed decision. Such right by an individual does not depend on any recognition or legislation by a State and such rights can be exercised by an individual in recognition and in affirmation of his right of bodily integrity and self-determination which are duly protected under Article 21 of the Constitution. The procedure and manner of such expression of such right is a question which needs to be addressed to protect the vulnerable, infirm and old from any misuse. It is the duty of the State to protect its subjects specially those who are infirm, old and need medical care. The duty of doctor to extend medical care to the patients, who comes to them in no manner diminishes in any manner by recognition of concept that an individual is entitled to execute an Advance Medical Directive. The physicians and medical practitioners treating a person, who is incompetent to express an informed decision have to act in a manner so as to give effect to the express wishes of an individual.

(Para 624)

The directions and safeguards which have been enumerated by the Hon'ble Chief Justice in his judgment shall be sufficient to safeguard the interests of the patients, doctors and society till the appropriate legislation is framed and enforced.

(Para 627)

The conclusion is that a person with competent medical facility is entitled to execute an Advance Medical Directive subject to various safeguards as noted above.

(Para 628)

T. Jurisprudence — Decision-making process of court — Kinds of cases which come up before Supreme Court for adjudication viz. easy cases, intermediate cases and hard cases — In hard cases there are multiple lawful situations in which Court is required to exercise discretion in larger public interest — This has to be done within framework of limitations, procedural as well as substantive — After considering all alternatives, Court has freedom of “sovereign prerogative choice”

Held :

Per Sikri, J.

The courts, in dispensation of their judicial duties of deciding cases, come across all types of problems which are brought before them. These cases may be broadly classified into three categories: (i) the easy cases, (ii) the intermediate cases, and (iii) the hard cases. The meaning of certain legal norms, when applied with respect to a given system of facts, is so simple and clear that their application involves no judicial discretion. These are termed as the “easy cases”. This may even apply to “intermediate cases”. These would be those cases where both sides appear to have a legitimate legal argument supporting their position and a conscious act of interpretation is noted, before a Judge can conclude which side is right in law and there is only one lawful situation. However, when it comes 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. In these cases, judicial discretion exists as the choice is not between lawful and unlawful, but between lawful and lawful. A number of lawful solutions exist. In this scenario, the court is supposed to ultimately choose that solution which is in larger public interest. In other words, there are limitations that find the court with respect to the manner in which it chooses among possibilities (procedural limitations) and with respect to the considerations it takes into account in the choice (substantive limitations). Thus, discretion when applied to a court of justice means sound discretion guided by law. Thus, though the judicial discretion is with the court, the same is limited and not absolute. The court is not entitled to weigh any factor as it likes. It has to act within the framework of the limitations, and after they have been exhausted, there is a freedom of choice which can also be described as “sovereign prerogative of choice”.

(Paras 206 and 207)

“The Role of Judiciary and HIV Law”—Michael Kirby, in D.C. Jayasuriya (Ed.), HIV Law, Ethics and Human Rights; Dworkin, “Judicial Discretion”, 6 J of Phil 624 (1963); Aharon Barak: Judicial Discretion, Yale University Press; B. Cardozo: The Growth of the Law 144 (1924), at 60-61; Justice O. Holmes: Collected Legal Papers, 239 (1921), referred to

U. Human and Civil Rights — Universal Declaration of Human Rights, 1948 — Interpretation — Must keep pace with changing society — Needs of present have to be addressed through interpretative process accordingly unless same falls outside framework of the Constitution

V. Jurisprudence — Normative and analytical jurisprudence — When Court dealing with new concept and developing new legal norm, analytical and normative jurisprudence have significance

Held :

Per Sikri, J.

Whenever the Court is entering into a new territory and is developing a new legal norm, discussion on normative jurisprudence assumes greater significance as the Court is called upon to decide what the legal norm should be. At the same time, this normative jurisprudence discourse has to be preceded by analytical jurisprudence, which is necessary for the Court to underline existing nature of law. That would facilitate knowing legal framework of what is the current scenario and, in turn, help in finding the correct answers.

(Para 245)

W. Jurisprudence — Law and social dynamism — Law must take cognizance of changing social ideology and developments and see how much strength and sanction can be drawn from the Constitution to convert the same into reality — Present immediate needs required to be addressed by Court through interpretative process

Held :

Per Dipak Misra, C.J. and Khanwilkar, J.

The law must take cognizance of the changing society and march in consonance with the developing concepts. The need of the present has to be served with the interpretative process of law. However, it is to be seen how much strength and sanction can be drawn from the Constitution to consummate the changing ideology and convert it into a reality. The immediate needs are required to be addressed through the process of interpretation by the Court unless the same totally fall outside the constitutional framework or the constitutional interpretation fails to recognise such dynamism.

(Para 166)

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