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The Euthanasia Judgement: Common Cause (A Registered Society) v. Union of India (2018) 5 SCC 1
The Common Cause in the year 2005, knocked the doors of the Supreme Court under Article 32 of the Constitution of India intending to declare 'Right to Die with Dignity' as a fundamental right under Article 21 and to issue directions to the Union Government to allow terminally ill patients and the patients in Persistent Vegetative State (TWS) or in state of permanent comas to execute ‘living wills’ for appropriate action in the beginning when they are admitted to hospitals. On 25th February 2014, the matter was referred to a larger bench, to issue a proper judgement in the matter of in conformity between the Aruna Ramchandra Shanbaug vs. Union of India & Ors (2011) 4 SCC 454. and Gian Kaur vs. the State of Punjab (1996) 2 SCC 648. The attention was also brought to the 241st law commission report titled “Passive Euthanasia – A Relook”. The constitutional bench was formed consisting of Hon’ble CJI Dipak Misra, Justice A.K Sikri, Justice D. Y Chandrachud, Justice Ashok Bhushan & Justice A.M Khanwilkar who summed up the matter to the following concerns where the petitioner’s side was represented by Adv. Prashant Bhushan.
The issues before the court were as follows:
- Can euthanasia, as per the Gian Kaur Judgement, be made legal only through legislation?
- To sum up the differences between passive euthanasia and active euthanasia?
- Can individuals be allowed to give ‘Advance Directives’, i.e. directives on medical treatment if they become incompetent or unable to communicate in the future or ‘living will’?
These contentions were demanded to declare the “right to die with dignity” within the ambit of “right to live with dignity” which is guaranteed under Article 21 of the Constitution of India.
While determining the question upon the subject of the right to die with dignity within the ambit of Article 21 the reliance was levied on the case of Aruna Shanbaug judgement where the question of the constitutionality of Section 309, IPC was discussed and emphasis was laid down that in cases of Persistent Vegetative State (PWS) the Right to Die could come into existence but denied the inclusion of the additional drugs which support the death of that individual. The constitutional bench in the present case came on the conclusion of inclusion of Right to Die with Dignity as part of Article 21 of the Constitution of India. The ruling permitted the removal of life-support systems in those cases where the patient is in a permanent coma or is terminally-ill and also laid down guidelines where the patient cannot speak for themselves or are not in the condition to express their will. Liberty was also granted by the Supreme Court to decide on the matter of artificial life-saving machines in the living will of the patient. The court disregarded certain excerpts of the Gian Kaur judgement in question in the present case by clearly stating that the Aruna Shanbaug Judgement mistakenly interpreted it in the wrong way and disregarded the impugned excerpt that stated ‘the euthanasia can only be legalised by the legislature’. The court in this matter also upheld the individual rights over the state responsibilities. The court ordered for the formation of a committee which would decide on the final approval of the living will and the execution of euthanasia.
The Bench also laid down the procedures and essentials for executing a living will or advance directive and came up with the guidelines in order to give effect to passive euthanasia. The court also came up with certain principles governing the directives. The court in the exercise of the power under Article 142 of the Constitution and the law stated in Vishaka and Others v. State of Rajasthan and Others (1997) 6 SCC 241 directed that the directives and guidelines laid down shall remain in force till the Parliament brings legislation in the field. The bench thereby laying down a distinct line of difference between the active and passive euthanasia held the former as illegal and unconstitutional. Additionally, specific guidelines were provided for implementing passive euthanasia in cases where there is no existing valid living will. The pressing need for the right balance of prolonged life along with the quality of life was sought from the matter since either one is totally meaningless without the other one. However, one important social aspect which was addressed by this judgement was that the profits of commercial private hospitals derived from the protracted hospitalisation of terminally ill individuals with no medical recourse and that affected the financially weak families to meet their ends in case they had no other options but to keep the patients in that state and pay for the medical bills for years and years.
Still the 500 pages judgement fails to address some of the practical challenges such as the mandatory components, scope and rightful implementation of the ‘living will’. Most importantly, legislation is needed to protect the right of terminally ill patients to refuse life-prolonging treatment where still after a long time after judgement there is no legislation to that effect.
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