Right to die with dignity...Living will allowed, procedure laid down

The plight of Aruna Shanbaug (background picture in black and white), a nurse who lived in a vegetative state for 42 years, had changed the nature of the national debate on the right to die with dignity. Picture shows a caregiver breaking down after Aruna died on May 18, 2015, of pneumonia (Fotocorp picture)

R. Balaji, TT,  Mar 9, 2018 New Delhi: The life of a patient in a permanently vegetative state can be ended with her or her family's consent if there's no hope of recovery, as certified by a medical board supervised by the first-class judicial magistrate, the Supreme Court ruled on Friday.

A five-judge constitution bench said this can be done in keeping with an "advance directive" put down in writing by the person himself on the lines of a "living will". If no such document exists, a medical board formed by the State can take the decision with the family's consent.

The judgment gives legal sanction to passive euthanasia - the withdrawal or withholding of treatment or artificial life support. But active euthanasia, which entails the use of lethal substances such as an injection, continues to be illegal in India.

The bench of Chief Justice Dipak Misra and Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan said Friday's directive would hold until Parliament passes a law on passive euthanasia. No such law exists now.

The ruling came on a petition moved by the NGO Common Cause seeking a direction to the government to enact a law to medically terminate the lives of terminally ill patients. Another NGO, Society for Right to Die with Dignity, had moved an intervention plea espousing a similar cause.

Both NGOs contended that the right to life guaranteed under Article 21 should include the "right to die with dignity" for terminally ill patients as prolonging their lives causes anguish to them and their families. They also cited the huge expenses caused to keep alive people with incurable ailments who had entered into a permanently vegetative state.

The court agreed that the right to die with dignity was an intrinsic facet of Article 21.

"There is little doubt that a dying man who is terminally ill or in a persistent vegetative state can make a choice of premature extinction of his life as being a facet of Article 21 of the Constitution. If that choice is guaranteed being part of Article 21, there is no necessity of any legislation for effectuating that fundamental right and, more so, his natural human right," the court said.

It added that the right could not be "absolute" and provided for "reasonable restrictions" and safeguards.

While Chief Justice Misra and Justice Khanwilkar authored the main judgment, Justices Sikri, Chandrachud and Bhushan wrote separate but concurring judgments.

On March 7, 2011, the apex court had permitted passive euthanasia in principle for patients in a permanently vegetative state but mandated that families or a "next friend" must approach a high court in each case for permission.

Friday's ruling removes this requirement, allows an "advance directive" and provides a standard legal procedure for passive euthanasia.

The court also referred to the Gian Kaur vs Punjab case of 1996, where a five-judge bench had made references to passive euthanasia in a case about a person's purported right to commit suicide. It had held a person had no right to commit suicide under Article 21.

"On a seemly understanding of the judgment in Gian Kaur, we do not find that it has decried euthanasia as a concept. On the contrary, it gives an indication that in such situations, it is the acceleration of the process of dying which may constitute a part of right to life with dignity so that the period of suffering is reduced," Friday's judgment said.