On 9th March 2018, a 5 Judge Bench comprising Chief Justice Dipak Misra and Justices A K Sikri, A. M. Khanvilkar, D Y Chandrachud and Ashok Bhushan held that the right to die with dignity is a fundamental right. An individual's right to execute advance medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a State.
Chief Justice Dipak Misra authored an opinion on behalf of himself and Justice A. M. Khanwilkar. He writes that the question of whether a person should be allowed to refuse the extension of his life in case of a terminal illness has facets of legality, morality, and social issues, along with issues of the possibility of abuse.
The discussion on whether the right to live under Article 21 includes the Right to die began with P. Rathinam v. Union of India ((1994) 3 SCC 394). In this challenge to the constitutional validity of Section 309 of the Indian Penal Code, the Court drew a parallel between the other fundamental rights. The right to freedom of speech under Article 19 gives the right to speak but also includes the right to not speak. Similarly, the right to live under Article 21 includes the right to not live. Thus, Section 309 was held to be unconstitutional.
A year later, in Gian Kaur v. State of Punjab ((1996) SCC (2) 648) the constitutional validity of Section 309 of the Indian Penal Code was challenged. The contention was that a person abetting suicide is merely assisting in the enforcement of Article 2. The five-judge bench held overruled P. Rathinam. It held that P. Rathinam was wrong in basing its decision on the analogy that other fundamental rights include the “right not to”, since the right not to speak (going by the illustration P. Rathinam used) is a covert act. It is not an overt act such as taking one’s life. Although it included several extracts from Airedale N.H.S. Trust v. Bland ((1993) 2 WLR 316: (1993) 1 All ER 821, HL) the Court clarified that it will not be looking into the issue of Euthanasia, and also distinguished between right to die (unnaturally) and right to die with dignity (naturally). The constitutional validity of Section 306 and 309 IPC was upheld.
The question of the legality of euthanasia arose again in Aruna Ramachandra Shanbaug v. Union of India ((2011) 4 SCC 454). The Court interpreted that Gian Kaur allowed premature extinction of the life of someone in a permanent vegetative state or with a terminal illness. The Court defined “passive euthanasia” as withdrawing treatment with a deliberate intention of causing the patient’s death. It held that passive euthanasia is allowed if the doctors act on the basis of notified medical opinion and withdraw life support in the patient's best interest. Invoking the Parens Patriae principle (Latin for "parent of the nation", where the Court can step in and serve as a guardian) makes the Court the ultimate decider of what is best for the patient. It extended this power to the High Courts under Article 226. The Court held that Gian Kaur held that euthanasia can be made lawful only by legislation.
Analysis of Gian Kaur and Aruna Shanbaug
First, Chief Justice Misra writes that Gian Kaur only referred to parts of Airedale, and contrary to Aruna Shanbaug held, Airedale is not a part of the reasoning in Gian Kaur. Secondly, Gian Kaur did not decry euthanasia as a concept. In fact, it indicated that it may be a part of the right to life with dignity. It also distinguished between a positive overt act of ending one’s life and terminating one’s life by withdrawing medical assistance. Secondly, Aruna Shanbaug was incorrect in interpreting Gian Kaur as saying that euthanasia has to be introduced only by legislation.
Chief Justice Misra then discusses the issue at hand. He begins by defining Euthanasia. Broadly there are two types: Passive, which is not an overt act of administering drugs or substances that will end one’s life, and Active, which is an overt act. Passive euthanasia was allowed by Aruna Shanbaug, albeit with conditions and guidelines. Active euthanasia is not allowed. Further, euthanasia can be voluntary, where the person is capable of taking the decision, or non-voluntary. There is also ‘physician-assisted’ which is based on the advice of the doctor. Chief Justice Misra affirmed the reasoning in Rodriguez v. British Columbia (Attorney General) (85 C.C.C. (3d) 15 : (1993) 3 S.C.R. 519) and Vacco v. Quill (138 L Ed 2d 834 : 521 US 793 (1997)) that intention and cause of death is the distinguishing factor between active and passive euthanasia
Right to Refuse treatment
Chief Justice Misra recognises the right to freedom of competent adults to make choices about their medical care, as individual free choice and self-determination are fundamental constituents of life. Thus, any adult of sound mind has the right to refuse medical treatment. However, the choice of the person may be vitiated if the person not competent in law to make that choice if it is made it under undue influence, if the terms are ambiguous or uncertain, or if it is based on incorrect information.
Chief Justice Misra puts this right on a different pedestal as compared to suicide, physician-assisted suicide and euthanasia. He clarifies that refusal to take medical treatment is neither suicide (i.e. self initiated positive action with a specific intention to cause one‘s own death) nor euthanasia. (Schloendorff v. Society of New York Hospital; F v. R; Rogers v. Whitaker; Malette v. Shulman; Secretary, Department of Health and Community Services (NT) v. JWB and SMB)
He then discusses the emergency principle or principle of necessity, i.e. situations where the consent of the patient to the treatment is not practically possible. In such cases, the doctor must treat the patient as per what is in the patient’s best interests. Such an act would be necessitated by the inability to communicate with the patient and must be a step that a reasonable person would take in the best interests of the patient.
Passive Euthanasia and Article 21
It is important for the Court to conclude that passive euthanasia is allowed by Article 21, so that the Court can lay down the guidelines to regulate it. The power to lay down the guidelines is ‘Judicial Legisputation’ - the application of legislation to new or unforeseen needs and situations.
Chief Justice Misra affirmed that the interpretation of fundamental rights has to be dynamic as has been laid down in a plethora of judgments (Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Others; Maneka Gandhi v. Union of India and another; Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly and another; M. Nagaraj and others v. Union of India and others; V.C. Rangadurai v. D. Gopalan and others).
Individual dignity is a facet of Article 21, as has been reaffirmed in K.S. Puttaswamy v. Union of India ((2017) 10 SCC 1). Chief Justice Misra writes that allowing a patient to wait for death when he/she does not know if he/she is living ‘corrodes the essence of dignity’. As dignity does not need any nexus with the status of a person, death does not mean that dignity evaporates. Thus, a dying man who is terminally ill or in a persistent vegetative state can make a choice of premature extinction of his life under Article 21. There is no need for a law in this regard, as this is a natural human right. Chief Justice Misra clarifies that the only passive euthanasia would come within the ambit of Article 21.
Right to self-determination and individual autonomy
A person's exercise of self-determination and autonomy includes his/her willingness to submit or not submit himself/herself to medical procedures and treatments.
Aruna Shanbaug observed that autonomy and self-determination gives one the right to choose the manner of treatment. If the patient is incompetent to make choices, his wishes expressed in advance in the form of a Living Will, or the wishes of surrogates acting on his behalf ('substituted judgment') must be respected. The surrogate must do what is ‘best for the patient’, and must not be influenced by personal convictions, motives, or other considerations.
Chief Justice Misra writes that doctors are bound by the choice of the terminally ill patient, provided that they are convinced that the illness is incurable. No other consideration can pass off as being in the best interest of the patient.
Social morality, medical ethicality and State interest
Chief Justice Misra seeks to address these issues by clarifying that the withdrawal of treatment in an irreversible situation is different from not treating a patient. He adds that once passive euthanasia is recognized in law as protecting the right to die with dignity, such fears and guilt have no place.
Advance Directive/Advance Care Directive/Advance Medical Directive
‘Advance Directives’ specify an individual's health care decisions and identify those who will take those decisions in case the patient is unable to communicate his wishes to the doctor. Chief Justice Misra refused to use the term ‘living will’, and went on to provide guidelines for ‘Advance Medical Directives’ (AD).
ADs can be executed only by an adult who is of sound mind and in a position to communicate and comprehend the purpose and consequences of the AD. It must be voluntarily executed and without any coercion, inducement or compulsion. It must be in writing, clearly stating as to when and under what circumstances the medical treatment may be withheld or withdrawn. It should mention that the executor (i.e. the patient) may revoke the instructions at any time. It should specify the name of a guardian or close relative who will be authorized to give consent to refuse or withdraw medical treatment as per the AD. If there is more than one valid AD, the most recently signed AD will be considered.
The AD must be signed by the executor in the presence of two attesting witnesses the jurisdictional Judicial Magistrate of First Class (JMFC), who must record that the AD was executed voluntarily and without any coercion. A preliminary opinion must be given by a Medical Board constituted by the Hospital comprising at least three experts in the medical field with at least 20 years of experience in the medical profession. The board will visit the patient and decide whether to certify AD. The certification of the Hospital Medical Board will be looked at by a second Medical Board constituted by the District Collector. The decision of the Board must be then conveyed to the JMFC who will visit the patient and authorise the patient’s decision.
If the Medical Board does not permit the AD to be carried out, the patient, his family members, his doctor, or the hospital staff can approach the High Court under Article 226. A division bench constituted by the Chief Justice of the High Court will then decide whether to grant or refuse approval of the AD.
The AD can be withdrawn or altered at any time, in writing. The instructions in the document must be given due weight by the doctors, only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness is incurable. In those cases where there are no advance directives, the procedure is different only in the aspect of the first step, which is the execution of the advance directive.
These directions will remain in force till the Parliament makes a law.