Common Cause (A Regd. Society) vs. Union of India (UOI) and Ors.

Judges: Dipak Misra, C.J.I., A.M. Khanwilkar, A.K. Sikri, Dr. D.Y. Chandrachud and Ashok Bhushan, JJ.

Facts:

This writ petition sought a ruling that, in accordance with Article 21, the 'right to live with dignity' included the 'right to die with dignity', as well as to ensure that those who were terminally ill or in poor condition might execute a living will or an Advance Medical Directive.

This matter was initially placed before a three Judge Bench of Supreme Court, however in view of the contradictory judgments on law relating to right to die, it was referred to a Constitution Bench.

The issue, therefore, dates back to the time of pronouncement of P. Rathinam vs. Union of India MANU/SC/0433/1994, which held that Section 309 of the Indian Penal Code, 1860 (IPC) was unconstitutional to the extent it criminalised attempting to commit suicide. While Section 309 of IPC was declared violative of the fundamental rights prescribed under Articles 14 and 21 of the Constitution, the right to die was declared to be encompassed within the right to live.

This judgment was overruled by a five Judge Bench of the Supreme Court in Gian Kaur vs. The State of Punjab MANU/SC/0335/1996, as the Court held that the right to live does not prescribe the right to die according to Article 21 of the Constitution.

However, much later in 2011, in Aruna Ramachandra Shanbaug vs. Union of India and Ors MANU/SC/0176/2011, the Supreme Court granted permission for passive euthanasia under exceptional circumstances by laying down strict guidelines to be followed in each such case.

Issues:

(i) Whether the right to live with dignity guaranteed under Article 21 of the Constitution, inscribe within its ambit the right to die with dignity?

(ii) Whether passive euthanasia, voluntary or even, in certain circumstances, involuntary, is legally permissible? If so, under what circumstances?

(iii)Whether a 'living will' or 'advance directive' should be legally recognised and can be enforced? If so, under what circumstances and what precautions are required while permitting it?

Laws:

Constitution of India, 1950 - Article 21 - States about the Right to Protection of Life and personal liberty.

Constitution of India, 1950 - Article 14 - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Indian Penal Code, 1860 - Section 306 - Defines 'Abetment of suicide'.

Indian Penal Code, 1860 - Section 309 - Defines attempt to commit suicide

Contentions:

Petitioners

(i) Every individual is entitled to take his/her decision about the continuance or discontinuance of life when the process of death has already commenced and he/she has reached an irreversible permanent progressive state where death is not far away.

(ii) Each individual has an inherent right to die with dignity which is an inextricable facet of Article 21 of the Constitution.

(iii) Right to die sans pain and suffering is fundamental to one's bodily autonomy and such integrity does not remotely accept any effort that puts the individual on life support without any ray of hope.

(iv) Due to the advancement of modern medical technology pertaining to medical science and respiration, a situation has been created where the dying process of the patient is unnecessarily prolonged causing distress and agony to the patient as well as to the near and dear ones. Consequently, the patient is in a persistent vegetative state thereby allowing free intrusion.

(v) Petitioner-society is not claiming that the right to die is a part of the right to life but asserting the claim that the right to die with dignity is an inseparable and inextricable facet of the right to live with dignity.

(vi) Execution of a living will or issuance of advance directive has become a necessity in today's time keeping in view the prolongation of treatment in spite of irreversible prognosis and owing to penal laws in the field that creates a dilemma in the minds of doctors to take aid of the modern techniques in a case or not.

Respondent

(i) Serious thought has been given to regulate the provisions of euthanasia. Law Commission had submitted a report on The Medical Treatment of Terminally-ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006 but the Ministry of Health and Family Welfare was not in favour of the enactment.

(ii) After the judgment was delivered by this Court in Aruna Ramachandra Shanbaug v. Union of India and Ors. MANU/SC/0176/2011, the Ministry of Law and Justice opined that the directions given by this Court have to be followed in such cases and the said directions should be treated as law.

(iii) Right to life does not include the right to die and, in any case, the right to live with dignity guaranteed Under Article 21 of the Constitution means availability of food, shelter and health and does not include the right to die with dignity.

(iv) Saving the life is the primary duty of the State and, therefore, there is necessity for health care. Introduction of the right to die with dignity as a facet of the right under Article 21 will create a right that the said constitutional provision does not envisage.

Analysis:

Right to die - Constitutional positions in P. Rathinam, Gian Kaur and the approach in Aruna Shanbaug

(i) In P. Rathinam's case, the Court concluded that the right to live under Article 21 of Constitution can be said to bring in its trail the right not to live a forced life. The Court declared Section 309 of IPC ultra vires and held that it deserved to be effaced from the statute book to humanize our penal laws.

(ii) In Gian Kaur's case, the Constitution Bench overturned the decision rendered in P. Rathinam and observed that when a man commits suicide, he has to undertake certain positive overt acts. The genesis of those acts cannot be traced to or be included within the protection of the 'right to life' under Article 21 of Constitution.

It also held that the significant aspect of 'sanctity of life' should not be overlooked and by no stretch of imagination, extinction of life can be read to be included in protection of life because Article 21.

Adverting to the concept of euthanasia, the Court observed that protagonism of euthanasia on the view that existence in persistent vegetative state (PVS) is not a benefit to the patient of terminal illness being unrelated to the principle of "sanctity of life" or the "right to live with dignity" is of no assistance to determine the scope of Article 21 for deciding whether the guarantee of "right to life" therein includes the "right to die". The "right to life" including the right to live with human dignity would mean the existence of such a right up to the end of natural life.

Right to live with human dignity cannot be construed to include within its ambit the right to terminate natural life, at least before the commencement of the process of certain natural death.

Taking into consideration various other aspects, the Constitution Bench declared Sections 306 and 309 of IPC as constitutional.

(iii) In Aruna Shanbaug case, the Court observed while addressing legal issues related to active and passive euthanasia observed that passive euthanasia is usually defined as withdrawing medical treatment with a deliberate intention of causing the patient's death.

The legal position across the world seems to be that while active euthanasia is illegal unless there is a legislation permitting it, passive euthanasia is legal even without legislation, provided certain conditions and safeguards are maintained.

The court, therefore, stipulated guidelines for the passive euthanasia.

Right to refuse treatment - Principle of necessity

(i) 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.

(ii) 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.

(iii) 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.

(iv) 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".

(v) 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.

Right of self-determination and individual autonomy

(i) All adults with the capacity to consent have the common law right to refuse medical treatment and the right of self determination.

(ii) 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.

Advance Directive/Advance Care Directive/Advance Medical Directive

(i) Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. It will not only dispel doubts at the relevant time of need during the course of treatment of the patient, but also 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. Following directions were issued on the subject of Advance Medical Directive -

Who can execute the Advance Directive and how?

(i) It 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.

(ii) It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.

(iii) It should have characteristics of an informed consent given without any undue influence or constraint.

(iv) 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.

What should it contain?

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

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

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

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

(v) 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 authorized to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.

(vi) 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.

How should it be recorded and preserved?

(i) 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 concerned District Judge.

(ii) The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or compulsion.

(iii) The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format and shall one copy of the document to the Registry of the jurisdictional District Court for being preserved, both in physical and digital format.

(iv) 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.

(v) 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.

(vi) The JMFC shall cause to handover copy of the Advance Directive to the family physician, if any.

When and by whom can it be given effect to?

(i) 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.

(ii) The instructions in the document must be given due weight by the doctors.

(iii) 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 believes 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.

(iv) 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.

(v) 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 concerned district 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.

(vi) 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.

(vii) 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.

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

What if permission is refused by the Medical Board?

(i) 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.

(ii) 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.

(iii) 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".

Revocation or inapplicability of Advance Directive

(i) 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.

(ii) 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.

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

(iv) 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.

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:

(i) 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.

(ii) 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.

(iii) 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.

(iv) There may be cases where the Board may not take a decision to the effect of withdrawing medical treatment of the patient on 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"..

Conclusion:

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

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

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

(iv) The two-Judge bench in Aruna Shanbaug (supra) has erred in holding that this Court in Gian Kaur (supra) has approved the decision in Airedale case and that euthanasia could be made lawful only by legislation.

(v) There is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life.

(vi) In active euthanasia, a specific overt act is done to end the patient's life whereas in passive euthanasia, something is not done which is necessary for preserving a patient's life. It is due to this difference that most of the countries across the world have legalised passive euthanasia either by legislation or by judicial interpretation with certain conditions and safeguards.

(vii) Post Aruna Shanbaug (supra), the 241st report of the Law Commission of India on Passive Euthanasia has also recognized passive euthanasia, but no law has been enacted.

(viii) An inquiry into common law jurisdictions reveals that all adults with capacity to consent have the right of self-determination and autonomy. The said rights pave the way for the right to refuse medical treatment which has acclaimed universal recognition. A competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. The 'Emergency Principle' or the 'Principle of Necessity' has to be given effect to only when it is not practicable to obtain the patient's consent for treatment and his/her life is in danger. But where a patient has already made a valid Advance Directive which is free from reasonable doubt and specifying that he/she does not wish to be treated, then such directive has to be given effect to.

(ix) Right to life and liberty as envisaged Under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity.

With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty.

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

(xi) A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity. Further, a study of the position in other jurisdictions shows that Advance Directives have gained lawful recognition in several jurisdictions by way of legislation and in certain countries through judicial pronouncements.

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

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

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

Thus, petition allowed in below manner:

(a) The right to die with dignity as fundamental right has already been declared by the Constitution Bench judgment of this Court in Gian Kaur case (supra) which we reiterate.

(b) We declare that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life saving devices.

(c) A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards as referred to above.

Important Precedents

(i) P. Rathinam v. Union of India and Anr. MANU/SC/0433/1994

(ii) Gian Kaur v. State of Punjab MANU/SC/0335/1996

(iii) Aruna Ramachandra Shanbaug v. Union of India and Ors. MANU/SC/0176/2011