DIPAK MISRA, A. K. SIKRI, A. M. KHANWILKAR, ASHOK BHUSHAN, D. Y. CHANDRACHUD
Common Cause (A Regd. Society) – Appellant
Versus
Union of India – Respondent
The right to die with dignity is recognized as a fundamental right under Article 21 of the Constitution, forming an intrinsic part of the right to live with dignity, particularly for terminally ill patients or those in a persistent vegetative state (PVS) where recovery is hopeless, allowing acceleration of the natural death process to reduce suffering (!) .
There is an inherent distinction between active euthanasia (positive act to end life) and passive euthanasia (withholding or withdrawing life-prolonging measures), with passive euthanasia being permissible under Article 21 as it aligns with dignity, while active euthanasia remains impermissible without legislation (!) (!) (!) (!) .
The judgment in Gian Kaur did not approve foreign precedents on euthanasia but merely referenced them, and no binding view on euthanasia was expressed; passive euthanasia can be regulated judicially until Parliament legislates (!) (!) .
Passive euthanasia is lawful when it involves withholding or withdrawing treatment in the best interests of a terminally ill patient or one in PVS with no hope of recovery, prioritizing the patient's dignity over state interest (!) (!) .
Advance medical directives (living wills) are constitutionally valid as an exercise of self-determination and autonomy under Article 21, allowing competent adults to specify refusal of treatment in terminal conditions (!) (!) .
Execution of an advance directive requires the individual to be an adult of sound mind, executed voluntarily with informed consent, clearly stating treatment preferences, signed by two witnesses, and countersigned by a Judicial Magistrate First Class (JMFC) (!) (!) .
The advance directive must be preserved by the JMFC, forwarded to the District Court Registry, and copies provided to local authorities and family physician; it becomes operative only when the individual is terminally ill and incapacitated (!) (!) .
For enforcement, a hospital medical board assesses the directive's validity, followed by a collector-nominated board for certification, and final approval by the JMFC; revocation is possible anytime if the individual regains capacity (!) (!) .
In the absence of an advance directive, withdrawal of treatment for terminally ill patients follows a similar multi-tiered medical board process, culminating in JMFC approval, with High Court oversight if needed (!) .
The guidelines and procedures outlined remain in force until Parliament enacts legislation, ensuring protection against abuse while upholding dignity and autonomy (!) .
JUDGMENT :
Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]
INDEX
| S. No. | Heading | Page No. |
| A. | Prologue | 3 |
| B. | Contentions in the Writ Petition | 10 |
| C. | Stand in the counter affidavit and the applications for intervention | 14 |
| D. | Background of the Writ Petition | 18 |
| D.1 | P. Rathinam’s case – The question of unconstitutionality of Section 309 of the Indian Penal Code | 19 |
| D.2 | Gian Kaur’s case – The question of unconstitutionality of Section 306 of the Indian Penal Code | 22 |
| D.3 | The approach in Aruna Shanbaug qua Passive Euthanasia vis-à-vis India | 30 |
| D.4 | The Reference | 42 |
| E. | Our analysis of Gian Kaur | 45 |
| F. | Our analysis of Aruna Shanbaug qua legislation | 51 |
| G. | The Distinction between Active and Passive Euthanasia | 52 |
| H. | Euthanasia : International Position | 58 |
| H.1 | U.K. Decisions: | 58 |
| H.1.1 | Airedale Case | 58 |
| H.1.2 | Later Cases | 79 |
| H.2 | The Legal position in the United States | 89 |
| H.3 | Australian Jurisdiction | 96 |
| H.4 | Legal | |
Gobind v. State of Madhya Pradesh
People’s Union for Civil Liberties v. Union of India
Aruna Ramachandra Shanbaug v. Union of India
State of Himachal Pradesh v. Umed Ram Sharma
Airedale N.H.S. Trust v. Bland, (1993) 2 WLR 316: (1993) 1 All ER 821
Vikram Deo Singh Tomar v. State of Bihar
Charan Lal Sahu v. Union of India
State of Kerala v. N.M. Thomas
Rodriguez v. British Columbia (Attorney General)
Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly
Mehmood Nayyar Azam v. State of Chhattisgarh
Vikas Yadav v. State of Uttar Pradesh
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi
National Legal Services Authority v. Union of India
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi
Aruna Ramachandra Shanbaug v. Union of India and Others
Airedale N.H.S. Trust v. Bland
C.E.S.E. Limited v. Subhash Chandra Bose
Rustom Cavasjee Cooper v. Union of India
Maruti Sharipati Dubai v. State of Maharashtra
Prem Shankar Shukla v. UT of Delhi
Francis Coralie Mullin v. UT of Delhi
Bandhua Mukti Morcha v. Union of India
Khedat Mazdoor Chetna Sangath v. State of Madhya Pradesh
Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal
Mehmood Nayyar Azam v. State of Chhattisgarh
National Legal Services Authority v. Union of India
Shivashakti Sugars Ltd. v. Shree Renuka Sugar Limited
Aruna Ramachandra Shanbaug v Union of India
Pt. Parmanand Katara v Union of India
Maneka Gandhi v Union of India
Justice KS Puttaswamy (Retd.) v Union of India
Francis Coralie Mullin v. Administrator, Union Territory of Delhi
Aruna Ramachandra Shanbaug v. Union of India
JUSTICE K S PUTTASWAMY (RETD. ) VS UNION OF INDIA - 2017 0 Supreme(SC) 772: This case explicitly states that "The decision in M P Sharma and in Kharak Singh stands over-ruled," indicating that these earlier rulings are no longer good law. The case also emphasizes that privacy is an intrinsic part of fundamental rights, suggesting a clear rejection of prior jurisprudence that may have treated privacy differently. Therefore, cases that rely on or are based on the overruled decisions in M P Sharma and Kharak Singh are considered bad law.
Vishaka VS State Of Rajasthan - 1997 7 Supreme 323: This case sets guidelines in the absence of legislation but does not mention subsequent treatment, so it appears to be a foundational or guiding decision rather than one overruled or criticized.
Jeeja Ghosh VS Union of India - 2016 4 Supreme 243: This case discusses directions for modification of CAR 2014 and references constitutional articles without indicating subsequent treatment, suggesting it remains authoritative.
Mehmood Nayyar Azam VS State of Chattisgarh - 2012 5 Supreme 370: Addresses police custody humiliation; no indication of subsequent treatment or overruling.
Peoples Union For Civil Liberties VS Union Of India - 1996 8 Supreme 673: This case affirms the right to privacy as part of Article 21 and lays down procedural safeguards for telephone tapping. No subsequent treatment indicated, so it remains a valid precedent.
National Legal Services Authority VS Union of India - 2014 3 Supreme 66: Discusses rights of transsexual persons and entitlements, with no indication of subsequent treatment or overruling.
Maharashtra University of Health Sciences VS Satchikitsa Prasarak Mandal - 2010 2 Supreme 165: Clarifies the application of the ejusdem generis principle; no subsequent treatment indicated.
Gian Kaur: Surat Lal: Harbans Singh: Chandrabhushan: Dilbagh Singh: Lokendra Singh VS State Of Punjab: Raj Kumar: State Of Punjab: State Of Maharashtra: State Of H. P. : State Of M. P. - 1996 3 Supreme 1: Validates Sections 306 and 309 IPC and discusses the right to die, with no subsequent treatment indicated.
Selvi VS State of Karnataka - 2010 3 Supreme 558: Addresses scientific techniques and the right against involuntary procedures; no indication of subsequent treatment or overruling.
Vikas Yadav VS State of U. P. - 2017 1 Supreme 91: Discusses sentencing and death penalty modifications, with no indication of subsequent treatment.
SHIVASHAKTI SUGARS LIMITED VS RENUKA SUGAR LIMITED - 2017 4 Supreme 424: Clarifies the nature of administrative guidelines under the Sugarcane Control Order, no subsequent treatment indicated.
Aruna Ramchandra Shanbaug VS Union of India - 2011 2 Supreme 481: Addresses euthanasia and surrogate decision-making, with no subsequent treatment indicated.
M. Nagaraj VS Union of India - 2006 8 Supreme 89: Discusses constitutional amendments related to reservation policies; no subsequent treatment indicated.
STATE VS SANJAY KUMAR BHATIA - 1985 0 Supreme(Del) 145: Criticizes the criminalization of attempted suicide, indicating a shift in perspective, but no explicit mention of overruling previous case law.
SHABNAM VS UNION OF INDIA - 2015 4 Supreme 602: Addresses the execution of death sentences and legal remedies, with no indication of subsequent treatment or overruling.
All cases apart from JUSTICE K S PUTTASWAMY (RETD. ) VS UNION OF INDIA - 2017 0 Supreme(SC) 772 are treated as foundational or unchallenged based on the provided information. Since the list does not specify subsequent treatment for these cases, their current legal standing appears intact. However, without explicit references to whether they have been followed, distinguished, or criticized in later rulings, their treatment remains uncertain. Notably, JUSTICE K S PUTTASWAMY (RETD. ) VS UNION OF INDIA - 2017 0 Supreme(SC) 772 clearly states that previous cases (M P Sharma and Kharak Singh) are overruled, making it the only case with a clearly established treatment as bad law.
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