COMMON CAUSE VS UNION OF INDIA (RIGHT TO DIE OF TERMINALLY ILL PERSONS )
The Supreme Court in Common Cause Vs Union of India (2018) 6 SCR 1 held that right of live with dignity under Article 21 also includes the smoothening of process of dying in case of terminally ill patient or persons in Persistent Vegetative State with no hope for recovery.
FACTS OF THE CASE
Common Cause filed a Writ Petition under Article 32 of the Constitution of India seeking to declare “right to die with dignity” as a Fundamental Right within the fold of “right to die with dignity” guaranteed under Article 21 of the Constitution.
In P. Rathinam Vs Union of India (1994) 3 SCC 394, it was held that the right to live would include the right not to live i.e. right to die or to terminate one’s life. A person cannot be forced to enjoy the right to life to his detriment, disadvantage or disliking. Article 309 was declared ultra vires of the Constitution.
In Gian Kaur Vs. State of Punjab (1996) 2 SCC 648 the Supreme Court overruled P. Rathinam and held that by no stretch of imagination, extinction of life can be read to be included in protection of life because Article 21 in its ambit and sweep cannot include within it the right to die as a part of Fundamental Right guaranteed therein. The right to life including right to live with dignity would mean the existence of such a right up to end of natural life. In the context of a dying man who is terminally ill or in a persistent vegetative state, the Supreme Court observed that he may be permitted to terminate it by a premature extinction of his life in those circumstance. This category of cases may fall within the ambit of the “right to die” with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and process of natural death has commenced.
In Aruna Ramachandra Shanbaug Vs. Union of India (2011) 4 SCC 454 , the Supreme Court differentiated between active euthanasia and passive euthanasia and held that in cases of passive euthanasia High Court can grant approval for withdrawing life support of an incompetent person under Article 226 of the Constitution on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support of an incompetent person.
FINDINGS OF THE SUPREME COURT
The Supreme Court observed that in Gian Kaur, euthanasia as a concept has not been decried. On the contrary it gives 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.
The Supreme Court observed that Gian Kaur has neither given any definite opinion with regard to euthanasia nor has it stated that the same can be conceived of only by legislation.
Active and Passive Euthanasia
The Supreme Court observed that euthanasia is basically an intentional premature termination of another person’s life either by direct intervention (active euthanasia) or withholding life-prolonging measures and resources (passive euthanasia) either at the express or implied request of that persons (voluntary euthanasia) or in the absence of such approval/consent (non-voluntary euthanasia). Active euthanasia or positive euthanasia entails a positive act or affirmative action or act of commission entailing the use of lethal substances or forces to cause the intention death of a person by direct intervention e.g. a lethal injection given to a person with terminal illness who is in terrible agony. Passive euthanasia, on the other hand, also called “negative euthanasia” or “non-aggressive euthanasia” entails withdrawing of life support measures or withholding of medical treatment for continuance of life, e.g. withholding of antibiotics in case of a patient where death is likely to occur as a result of not giving the said antibiotics or removal of the heart lung machine from a patient in coma. Further, voluntary euthanasia is where the consent is taken from the patient and non-voluntary euthanasia is where the consent is unavailable, for instances when the patient is in coma or is otherwise unable to given consent.
The Supreme Court observed that most of the countries have legalized passive euthanasia either by way of legislations or through judicial interpretation but there remains uncertainty whether active euthanasia should be granted legal status.
Passive Euthanasia and Article 21
The Supreme Court observed that the language employed in the Constitutional provision should be liberally construed, for such provision can never remain static. The Court has a duty to interpret Article 21 in a further dynamic manner and it has to be stated without any trace of doubt that the right to life with dignity has to include the smoothening of the process of dying when the person is in a vegetative state or is living exclusively by the administration of artificial aid that prolongs the life by arresting the dignified and inevitable process of dying. Such a right will come within the ambit of Article 21. The Supreme Court enquiring into common law and statutory rights of terminally ill persons in other jurisdictions would indicate that all adults with the capacity to consent have the common law right to refuse medical treatment and the right of self-determination. Doctors would be bound by the choice of self-determination made by the patient who is terminally ill and undergoing a prolonged medical treatment or is surviving on life support, subject to being satisfied that the illness of the patient is incurable and there is no hope of his being cured. Any other consideration cannot pass off as being in the best interests of the patient.
Advance Directives
The Supreme Court observed that an inquiry into common law jurisdictions reveals that all adults with capacity to consent have the right of self-determination and autonomy. The said rights pave the way for the right to refuse medical treatment which has acclaimed universal recognition. A competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment even if such decision entails a risk of death. The “emergency principle” or the “principle of necessity” has to be given effect to only when it is not practicable to obtain the patient’s consent for treatment and his/her life is in danger. But where a patient has already made a valid advance directive which is free from reasonable doubt and specifying that he/she should not wish to be treated, then such directive has to be given effect to.
The Supreme Court observed that Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive will dispel many a doubt at the relevant time of need during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner. But advance medical directive cannot operate in abstraction. There has to be safeguards. They need to be spelt out. The Supreme court also issued several guidelines for execution of advance directives.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.