Unanimous decision of Constitutional Bench paves why for “Right to die with dignity” by allowing passive euthanasia

Vaishnavi Annasaheb Nirmal | Manikchand Pahade Law College, Aurangabad | 14th February 2020

Common Cause & Anr. vs. Union of India Anr.[Writ Petition (Civil) No. 215 of 2005]

Important Definition:

Passive Euthanasia – The withdrawal of medical treatment with the deliberate intension to hasten a terminally ill- patient’s death.

Fact of case:

In 2005, Common Cause (a registered NGO) filed PIL in the Apex Court under Art.32 of the Indian Constitution to permit living will and passive euthanasia. Prior to this, the NGO wrote letters to ministry of law and justice, ministry of health and family welfare with regard to passive euthanasia. The petitioners received no response from the government and thus filed the PIL. The petitioner’s contended that the right to live with dignity is a person’s right till his death so it can be extended to include the right to have a dignified death. And that the modern technology has given rise such a situation whereby life of the patient is unnecessarily extended causing distress and suffering to the patient and his relatives. The petitioners further contended for legalizing living wills whereby a person undergoing persistent pain and suffering can write about the medical treatment and authorize the family to stop such treatment.

Prior to this, a five Judge Bench of Supreme Court in Gian Kaur v. State of Punjab held that both euthanasia and assisted suicide are unlawful in India and overruled the judgement given in the case of P. Rathinam v. Union of India where the Court held that the right to life under Article 21 of the Constitution does not include right to die. But later in Aruna Ramchandra Shanbaug v. Union of India the Supreme Court held that passive euthanasia can be allowed under certain exceptional circumstances under the strict monitoring of the Court.

Issues:

1. Whether passive euthanasia, voluntary or even, in certain circumstances, involuntary, is legally permissible? If so, under what circumstances?
2. Whether a ‘living will’ or ‘advance directive’ should be legally recognised and can be enforced? If so, under what circumstances, and what are the precautions that must be taken while permitting it?

Judgement:

On the 9th March, 2018, the Supreme Court gave a landmark verdict making the way for passive euthanasia, which is also described as Physician Assisted Suicide (PAS). The Court reiterated that the Right to die with dignity is a fundamental right and declared 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.

The Apex Court concluded that a person of competent mental faculty is entitled to execute an advance medical directive. The 538 page judgment was delivered by the five- Judges Constitutional bench comprising the CJI. Mr. Justice Dipak Misra and other Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan.The judgment has paved the way for the terminally ill patients to seek death through the passive euthanasia under a “living will”. Euthanasia has been derived from the Greek word “euthanatos”, which means “good death”. There are two ways to seek euthanasia viz. passive and active. In passive euthanasia, there is withdrawal of medical treatment of terminally ill patients, whereas, in active euthanasia, injections or overdose of medicines is given to hasten their death, which is illegal in India. Passive euthanasia is considered morally superior to active euthanasia since it means allowing the patient to die and not killing him.