2018 Supreme(SC) 229

SUPREME COURT OF INDIA
DIPAK MISRA, CJI., A.K. SIKRI, A.M. KHANWILKAR, ASHOK BHUSHAN, D.Y. CHANDRACHUD, JJ.
Common Cause (A Regd. Society) – Petitioner
Versus
Union of India and Another – Respondents
Writ Petition (Civil) No. 215 of 2005
Decided On : 09-03-2018

IMPORTANT POINTS
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.
There is an inherent difference between active euthanasia and passive euthanasia.
The right to live with dignity has been recognized as a component of right to life and liberty.
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.
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.
In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable.
When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest.

Headnote:Per Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]

       (a) Euthanasia – Active and passive – Euthanasia, an intentional premature termination of another person’s life – Active, if by direct intervention – Passive if by withholding life-prolonging measures and resources – Again, passive euthanasia voluntary if at the express or implied request of that person – Non-voluntary if in the absence of such approval/consent – In passive euthanasia doctors not actually killing the patient, but merely not saving him and only accelerating the conclusion of the process of natural death which has already commenced – Passive euthanasia legalized in many countries – Patient’s best interest principle. (Para 44, 48, 49, 57)

       (2011) 4 SCC 454; (2011) 4 SCC 454 – Relied upon

       85 C.C.C. (3d) 15 : (1993) 3 S.C.R. 519; 98 N.J. 321 (1985) : (1985) 486 A.2d 1209 (N.J.); (1993) 2 WLR 316: (1993) 1 All ER 821, HL; [1989] 2 AllER 545 : [1990] 2 AC 1; [1957] 1 W.L.R. 582 : [1957] 2 AllER 118; [1990] 2 AC 1 : [1989] 2 WLR 1025 : [1989] 2 All ER 545; [1981] 1 WLR 1424 : [1990] 3 All ER 927; [1991] Fam 33 : [1990] 3 All ER 930 : [1991] 2 WLR 140; [2002] 1 FLR 1090 : [2002] 2 All ER 449; [2014] UKSC 38; [2009] NSWSC 761; [2009] WASC 229 : 40 WAR 84; [2009] ACTSC 105; 2015 SCC 5 – Referred

       (b) Euthanasia – Laying down or developing law – Involving and raising moral, social and legal issues – It is for Parliament to legislate considering all these issues – Judge made law, by necessity, may provide legal answer if Parliament fails to act. (Para 72)

       (c) International Covenant on Civil and Political Rights (ICCPR) – Article 2 – Voluntary euthanasia – Not violative of Article 2 – Balance should be struck between the sanctity of life on the one hand and the notions of quality of life and individual autonomy on the other. (Para 121)

       [2002] ECHR 423; [2011] ECHR 2422: (2011) 53 EHRR 33; [2015] ECHR 185 – Referred

       (d) Words and Phrases – Euthanasia – Origin – Greek words “eu” and “thanotos” literally meaning “good death” – Also described as “mercy killing” – “A deliberate intervention undertaken with the express intention of ending a life to relieve intractable suffering” – However, “medicalised killing of a person without the person’s consent, whether non-voluntary (where the person is unable to consent) or involuntary (against the person’s will) is not euthanasia: it is a murder.” (Para 122)

       (e) Euthanasia – Terminally ill patient refusing to take medical treatment – Can neither be termed as euthanasia nor as suicide – Such patient merely allows the disease to take its natural course – If, in this process, death occurs, the cause for it would primarily be the underlying disease and not any self initiated act – Voluntary decision of an adult person of sound mind as to what should be done to his or her body – Must be respected. (Para 131, 133)

       (1914) 105 NE 92 : (1914) 211 NY 125; (1983) 33 SASR 189; [1992] HCA 58 : (1992) 175 CLR 479; (1992) 66 AJLR 300 : (1992) 175 CLR 218 – Referred

       (f) Euthanasia – An adult – Presumed to be capable to consent to or to refuse medical treatment – Presumption rebuttable. (Para 134)

       [1997] EWCA Civ 3093 : [1997] 2 FLR 426 – Referred

       (g) Medical ethics – Principle of necessity – Treatment necessary for saving life of patient but not possible to obtain his consent – Cannot be administered against known will of the patient. (Para 136)

       (h) Passive euthanasia – If covered under Article 21, Constitution of India, Supreme Court can issue guidelines. (Para 144)

       (1996) 2 SCC 648; (2011) 4 SCC 454 – Relied upon

       (i) Interpretation – Constitution – Fundamental rights – Has to be dynamic – Article 21 – Dynamism infuses life into the Article – Fundamental rights engulf certain rights which really flow from the same – Interpretation is also a kind og legislation – In a sense. (Para 144, 145, 147, 148)

       (1986) 3 SCC 156; (2006) 8 SCC 212; (1979) 1 SCC 308 – Relied upon

       (j) Constitution of India – Article 21 – Article 1, Universal Declaration of Human Rights – Dignity of individual – Inextricable facet of right to life – A terminally ill person should not be made to wait on support system for some innovative method of cure to happen – a

       Right to life with dignity – Must include smoothening of the process of dying for a person in a vegetative state or living exclusively by administration of artificial aid prolonging the life – Right of choice of the person concerned would come within the ambit of Article 21. (Para 152, 153, 160)

       (2017) 10 SCC 1; (2006) 8 SCC 212; (2012) 8 SCC 1; (2016) 9 SCC 541; (1981) 1 SCC 608; (2014) 5 SCC 438; (2015) 6 SCC 702 – Relied upon

       [2002] ECHR 588; 1995 (3) SA 391; (1996) 2 SCC 648 – Referred

       (k) Constitution of India – Article 21 – Right of self-determination and individual autonomy – Right to chose how one lives his life – Right to decide whether and to what extent one is willing to submit himself/herself to medical procedures and treatments – Legal back-up – Like Advance Directives in the United States – Best interests of the patient. (Para 162, 163, 169)

       [2000] 1 AC 360, 379; (1993) 2 WLR 316: (1993) 1 All ER 821, HL; 355 A. 2d 647 : (1976) 70 NJ 10; (1987) 108 N.J. 394; 1980 2 SCR 880; (2011) 4 SCC 454 – Referred

       (l) Passive euthanasia – Social morality, medical ethicality and the State interest – Constitution of India – Article 21 – Withdrawal of treatment in irreversible situation , and not treating a patient – Distinction – Social morality or doctors’ dilemma – would have no place once passive euthanasia is recognized by law as a right under Article 21. (Para 171)

       (m) Passive euthanasia – Not an overt act on part of anybody – It is avoidance of unnecessary intrusion in the physical frame of a person. (Para 172)

       (n) Advance (medical) directive – Patient may become incompetent to take a decision as regards passive euthanasia at required time – But he may do so while still competent and give directions in advance – Living Will – Distinction. (Para 177, 178)

       (o) Living will – 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 health care provider. (Para 178)

       (p) Advance medical directive – Medical power of attorney – A document allowing an individual (principal) to appoint a trusted person (agent) to take health care decisions when the principal is not able to take such decisions – The agent can interpret the principal's decisions based on their mutual knowledge and understanding. (Para 180)

       (q) Advance directives – Procedures and safeguards for advance directives and also where there is no such directive – Laid down – To remain in force till the Parliament makes legislation – Article 142, Constitution of India. (Para 191, 192, 194)

       (1997) 6 SCC 241 – Relied upon

       Per A.K. Sikri, J. (Concurring)

       (r) Euthanasia – Painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma – Easy and gentle death – Human Rights principle of ‘right to life’ encompasses ‘right to die with dignity’ – Voluntary, non-voluntary and involuntary euthanasia – Legally, active and passive euthanasia – Active euthanasia legally impermissible – sections 306 and 307, Indian Penal Code, 1860. (Para 209, 210, 211, 212, 213)

       (2011) 4 SCC 454 – Relied upon

       (s) Passive euthanasia – Permissibility – Brain dead and Persistent Vegitative State (PVS) – Distinction – Supreme Court, in (2011) 4 SCC 454 allowing passive euthanasia in certain conditions and vesting discretion with High Court. (Para 219, 229)

       (2011) 4 SCC 454; (1997) 6 SCC 241 – Referred

       (t) Constitution of India – Article 21 – Right to life – Physical and mental health integral parts – Human dignity – Positive and negative aspects of fundamental rights – Right to live does not include right not to live or die – a (Para 232, 234, 235,

       (1964) 1 SCR 332; (2017) 10 SCC 1; (1992) 1 SCC 441 – Relied upon

       (1970) 1 SCC 248; (1985) CrLJ 931; (1987) CrLJ 743; (1983) CrLJ 549; (1994) 3 SCC 394 – Referred

       (u) Passive euthanasia – Medical Hippocratic oath, morality and possibility of misuse – Moral, philosophical and religious overtones – Value of life – ‘Sanctity of Life’ – ‘Advance directive’ or ‘living Will’ – Needs to be permitted, with certain safeguards. (Para 237, 238, 239, 241)

       (1994) 3 SCC 394; 198 US 45, 76 (1905) – Referred

       (v) Doctrine of human dignity – An aspect of Articles 21, Constitution of India – Individual’s right to refuse life prolonging medical treatment or terminate his life – Right to health – Cannot be implemented for every citizen because of rising medical expenses and poverty of individual – Right of dying in dignity recognized by Court – Danger of abuse of permitting passive euthanasia – Held, passive euthanasia can be permitted where condition of patient is irreversible or where he is brain-dead (Para 291, 296, 299, 301, 310, 316)

       (2017) 10 SCC 1; (1980) 3 SCC 526; (1981) 1 SCC 608; (1984) 3 SCC 161; (1994) 6 SCC 260; (2006) 8 SCC 212; (2010) 3 SCC 786; (2010) 7 SCC 263; (2012) 8 SCC 1; (2015) 6 SCC 702; (2016) 7 SCC 761; (2014) 5 SCC 438; (2011) 4 SCC 454; (2017) 7 SCC 729 – Relied upon

       (x) Living will or Advance directive – Article 21, Constitution of India – ‘Right to live with dignity’ includes ‘Right to die with dignity’ – Advance directive akin to common law right to refuse medical treatment – Right to privacy – Article 21 – Section 5, Mental Healthcare Act, 2017 recognising Advance directive – Possibility of misuse no ground for denial – Section 3, Transplantation of Human Organs and Tissues Act, 1994 and Form 7, Transplantation of Human Organs and Tissues Rules, 2014 – Safeguards and guidelines – Directions given. (Para 320, 321, 324, 328, 332)

       (2011) 4 SCC 454; (1996) 2 SCC 648; (2017) 10 SCC 1 – Relied upon

       (1992) 4 All ER 649; (2002) 2 All ER 449; 497 U.S. 261 (1990); 67 DLR (4th) 321 – Referred

       Per D.Y. Chandravhud, J. (Concurring)

       (y) Administration of justice – Screening of CD of Aruna Shanbaug in open court – On analogy with Nuremburg trials of Nazi war criminals – Disquieting. (Para 351)

       (2011) 15 SCC 480; (1996) 2 SCC 648; (1993) 2 WLR 316 (H.L) – Referred

       (z) Euthanasia – Voluntary, involuntary, non-voluntary – Presence or absence of consent – Involuntary euthanasia is illegal. (Para 367)

       (aa) Euthanasia – Active and passive – Passive – Withdrawal or withholding of medical treatment – Aruna Ramachandra Shanbaug proceeding on premise that passive euthanasia is ‘omission’ and omissions are not illegal – Not correct – Section 32, Indian Penal Code, 1860. (Para 375)

       (2011) 15 SCC 480 – Referred

       (ab) Sanctity of life and quality of life – Sanctity principle prohibits deliberate destruction of human life – It does not demand that life should always be prolonged for as long as possible – Withdrawal of life-prolonging treatment – An embodiment of sanctity principle. (Para 391)

       [2017] EWHC 1909 (Fam) – Referred

       (ac) Constitution of India – Article 21 – Euthanasia – End of life decisions and human dignity – Human dignity an essential element of meaningful existence – Constitutional expectation of providing dignity in death – Protected by Article 21 – Enforceable against State. (Para 412, 413)

       AIR 1989 SC 2039; (1978) 1 SCC 248; (2017) 10 SCC 1; (1981) 1 SCC 608 – Relied upon

       (ad) Constitution of India – Article 21 – Right to privacy – Intrinsic part of the right to life and liberty – Ability of individual to refuse medical treatment – Essential attribute of privacy. (Para 421)

       (2017) 10 SCC 1 – Relied upon

       (1976), 70 N.J. 10; 355 A.2d 647 (1976); Application no. 2346/02 (ECHR); Application no. 31322/07 (ECHR) – Referred

       (ae) Euthanasia – Active and passive – Mens rea – Passive euthanasia – Not intended to cause death but to prevent pain, suffering and indignity to a human being in terminal stage of an incurable illness or in a permanent vegetative state – Protected by section 43 and 92, Indian Penal Code, 1960 – Not constituting an act of gross negligence punishable under Section 304A, IPC – Authorisation committee – Transplantation of Human Organs and Tissues Act 1994. (Para 430, 431, 432)

       (2017) EWHC 2447 (Admin) – Referred

       (af) Passive euthanasia – Advance directive – Refusing medical intervention – Living Will – declaration determining the termination of life, testament permitting death, declaration for bodily autonomy, declaration for ending treatment, body trust – Instructions left by a patient subsequently facing loss of mental facility to decide – Patient autonomy and consent – Advance directives as part of a regime of constitutional jurisprudence – An essential attribute of right to life and personal liberty – Article 21, Constitution of India – Section 5, Mental Healthcare Act 2017 – Validity of advance directives recognized and role of nominated representatives delineated – Guidelines given. (Para 433, 434, 435, 436, 438, 450, 464, 467, 471)

       (1997) 6 SCC 241 – Relied upon

       105 N.E. 92, 93 (N.Y. 1914); [1942] 4 All ER 649; [1942] 4 All ER 649; [1994] 1 All ER 819; [1998] 3 WLR 936; [2002] 2 All ER 449; [2001] 1 FLR 129; [2003] 2 FLR 408; [2011] EWHC 2443 (Fam); [2013] UK SC 6 – Referred

       Per Ashok Bhushan, J. (Concurring)

       (ag) Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations, 2002 – Regulation 6.7 – Euthanasia – Unethical act – Exception – On specific occasion, even after brain death – To be decided by a team of doctors. (Para 502, 506)

       (1996) 2 SCC 648; (2011) 4 SCC 454; (1993) 1 All ER 821 – Referred

       (ah) Euthanasia – Article 21, Constitution of India – Right to die not a fundamental right – But right to life includes right to live with human dignity – Termination of life – Terminally ill or in a PVS state – “Right to die” with dignity – Within the ambit of under Article 21 – Gian Kaur not expressing any binding view on Euthanasia (Para 537, 539, 544)

       (1996) 2 SCC 648 – Relied upon

       (1993) A.C. 789; 2002 EWHC 429; (2002) 1 AC 800; 211 N.Y. 125; 497 U.W. 261; 521 US 702 : 138 L.Ed 2d 772; 521 US 793; 1993 (3) SCR 519 – Referred

       (ai) Euthanasia – Concept – Decision to refuse medical treatment – Decision to embrace death in natural way – Good death. (Para 550)

       1993 (2) W.L.R. 316 (H.L.) – Referred

       (aj) Constitution of India – Article 21 – Right to privacy – Includes right to refuse life-prolonging medical treatment to terminate life – Passive euthanasia – Withdrawal from live saving devices – An independent right – Can lawfully be exercised by informed decision. (Para 553, 557)

       (2017) 10 SCC 1; (2011) 4 SCC 454 – Relied upon

       (ak) Constitution of India – Article 21 – Right to refuse live saving medical assistance – Mentally competent and not so competent person – Both within fold of Article 21. (Para 558)

       (2017) 10 SCC 1 – Relied upon

       (al) Advance medical directive – Living will – A document wherein the person states his/her desire to have or not to have extraordinary life prolonging measures used when recovery is not possible from his/her terminal condition – Not exclusively associated with end of life decisions – To express choice of a person regarding medical treatment in an event when he looses capacity to take a decision – Mental Healthcare Act, 2017 – Section 5, 6 – Transplantation of Human Organs and Tissues Act, 1994 – Section 3 (1) and (2) – Transplantation of Human Organs and Tissues Rules, 2014 – Form 7. (Para 562, 563, 564, 565, 570)

       Facts of the case:

       The heart of this matter is whether the law permits for accelerating the process of dying sans suffering when life is on the path of inevitable decay (passive euthanasia) and if so, at what stage and to what extent.

       The instant Writ Petition preferred under Article 32 of the Constitution of India by the petitioner, a registered society, seeks to declare “right to die with dignity” as a fundamental right within the fold of “right to live with dignity” guaranteed under Article 21 of the Constitution; to issue directions to the respondents to adopt suitable procedure in consultation with the State Governments, where necessary; to ensure that persons of deteriorated health or terminally ill patients should be able to execute a document titled “My Living Will and Attorney Authorisation” which can be presented to the hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness which may threaten termination of the life of the executant; to appoint a committee of experts including doctors, social scientists and lawyers to study into the aspect of issuing guidelines as to the “Living Wills”; and to issue such further appropriate directions and guidelines as may be necessary.

       Finding of the Court:

       Passive euthanasia should be permissible. Guidelines given therefor as well as advance medical directives.

       Result: Reference answered in favour of petitioners.