SC allows passive euthanasia, upholds 'right to die with dignity'

In a landmark ruling, Supreme Court today legalised passive euthanasia, noting that an individual has the ''right to die with dignity''.

A Constitution Bench of Chief Justice of India Dipak Kumar Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan passed the verdict on a plea to allow "living will" that will authorise the withdrawal of all life support systems if in the opinion of the doctors the patient is in an irreversible stage of terminal illness.

The bench said that its guidelines and directives will remain in force till legislation is brought to deal with the issue.

Chief Justice Misra said the court has laid down guidelines on who would execute the will and how sanction for passive euthanasia would be granted by the medical board. The CJI said the other members of the bench have concurred on the guidelines and directives.

While reserving its orders on 11 October 2017, the Constitution Bench had observed that the right to die in peace could not be separated from the Right to Life under Article 21 of the Constitution. This fuelled the expectation that the court would allow the right to make "living will", which lets a person opt for passive euthanasia in the event of irreversible serious illness, but with strict conditions including a medical board certifying that a person is in an irreversible state of terminal illness.

A living will is a document made by a person in their lifetime under which they can give explicit instructions in advance on the process of medical treatment to be administered when they are terminally ill, or no longer able to express informed consent.

Passive euthanasia is a condition where there is withdrawal of medical treatment with the deliberate intention to hasten the death of a terminally-ill patient.

While reading out the judgment, the chief justice observed that though there were four separate opinions of the bench, all the judges were unanimous that 'living will' should be permitted. The bench observed that a person cannot be allowed to continue suffering in a comatose state when he or she doesn't wish to live.

The activist organisation Common Cause had moved the top court back in 2005 seeking the right to make a living will authorising withdrawal of life support system in the event of the will-maker reaching an irreversible vegetative state.

The central government had in the course of the current hearing told the court that passive euthanasia was the law of the land with safeguards by virtue of an earlier 2014 judgement of the top court in Aruna Shanbaug case.

The apex court by its order on 7 March, 2014 in the Shanbaug case had permitted passive euthanasia under certain circumstances, provided it was backed by the permission of the high court.

The Centre had also told the Constitution Bench that a draft bill permitting passive euthanasia with necessary safeguards was already before it for consideration.

However, the Centre had opposed permitting a living will both on the grounds of "principle and practicality" as it expressed apprehension of its possible misuse.

The Centre had opposed recognition of 'living will' and said the consent for removal of artificial support system given by a patient may not be an informed one and without being aware of medical advancements. It had cited examples of various countries in disallowing creation of living will by patients.

Advocate Prashant Bhushan, appearing for petitioner NGO Common Cause, argued that safeguards were needed while taking a decision by medical boards to withdraw life support of a patient.

On 15 January, 2016, the Centre had said the 241st report of the Law Commission stated that passive euthanasia should be allowed with certain safeguards and there was also a proposed law - Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practitioners) Bill, 2006.

It had said that on specific occasions, the question of withdrawing supporting devices to sustain cardio-pulmonary function even after brain death, shall be decided only by a doctors' team and not by the treating physician alone.

Besides, NGO Common Cause, the Constitution Bench was addressed by a number of interveners who had supported permitting the living will. A living will is made by a person in his normal state of mind that is to be executed in the event of a terminal illness if he reaches an irreversible vegetative state.

However, it was emphasised that living could only be executed after the opinion of the medical board certifying on the condition of the patient.