SC upholds 'living will', allows passive euthanasia for the terminally ill

Advance directives for terminally-ill patients could be issued and executed by the next friend and relatives of such person after which a medical board would consider it

In a landmark judgment, the Supreme Court on Friday recognised that a terminally ill patient or a person in a persistent vegetative state may execute an “advance medical directive” or a “living will” to refuse medical treatment, saying the right to live with dignity also included “smoothening” the process of dying.
 
A five-judge Constitution Bench headed by Chief Justice Dipak Misra observed that the failure to legally recognise advance medical directives might amount to “non-facilitation” of the right to smoothen the dying process, and dignity in that process was also part of the right to life under Article 21 of the Constitution.
 
The apex court laid down principles relating to the procedure for execution of advance directives and spelt out guidelines and safeguards to give effect to passive euthanasia in both circumstances, that is where there are advance directives and where there are none.
 
“The directive and guidelines shall remain in force till Parliament brings a legislation in the field,” CJI Misra, writing the judgment for himself and Justice A M Khanwilkar, said.
 
The other three judges of the bench, A K Sikri, D Y Chandrachud and Ashok Bhushan, penned separate concurring verdicts in the combined judgment running into 538 pages.
 
Justice Chandrachud, writing a separate 134-page verdict, said life and death were “inseparable” and it was necessary for the court to recognise that the dignity of citizens continued 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”.
 
“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,” he said.

In his 192-page judgment, the CJI noted that in case of a terminally-ill patient or a person in persistent vegetative state (PVS), where there was no hope of recovery, “accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity”.

The right to life and liberty as envisaged under Article 21 was “meaningless” unless it encompassed within its sphere the individual dignity, the CJI said, adding, “Though the sanctity of life has to be kept on a 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.”
 
Justice Sikri, who wrote a 112-page separate verdict, concurred with the directions given by the CJI and hoped that the legislature would step in at the earliest and enact a comprehensive law on “living will/advance directive” so that “there is a proper statutory regime to govern various aspects and nuances thereof which also take care of the apprehensions that are expressed against euthanasia.”
 
Writing a separate but concurring 100-page judgment, Justice Bhushan reiterated the conclusion arrived at in a 1996 judgment by a Constitution Bench in the Gian Kaur case, that the right to die with dignity was a fundamental right.
 
“We declare that an adult human being having mental capacity to take an informed decision has the right to refuse medical treatment, including withdrawal from life-saving devices,” Justice Bhushan said, adding a person of “competent mental faculty” was entitled to execute an advance medical directive in accordance with the safeguards spelt out by the court.
 
The top court also held that when passive euthanasia as a “situational palliative measure becomes applicable”, the best interest of the patient shall override the state interest. The CJI said though there was no legal framework in India as regards to the advance medical directive, the apex court was obliged to protect the right of citizens enshrined under Article 21 of the Constitution. The verdict came on a PIL filed by NGO Common Cause seeking recognition of “living will” made by terminally-ill patients for passive euthanasia.