Posted on 10.10.17 by Disha Chaudhry
On 10.10.2017, the first day of hearing in Common Cause vs. Union of India commenced before the 5 Judge Constitutional Bench comprising of the Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan.
Mr Prashant Bhushan, appearing for the petitioners, began by distinguishing between passive euthanasia, the subject matter of the reference, and active euthanasia, which was kept out of the purview of these proceedings. He noted that passive euthanasia has been recognised in numerous jurisdictions across the world, including in India through the Supreme Court’s decision in Aruna Shanbaug v Union of India (2011). However, the concept of ‘living wills’ has not received such widespread recognition. A ‘living will’ is a pre-emptive statement that the individual does not want their life to be extended by artificial means in certain circumstances. They are recognised in parts of the United States, Europe and Australia.
Justice Chandrachud pointed out that the choice to not prolong agony by artificially extending life is tied to the right to live with dignity. Mr Bhushan noted that it also enhances the right to life of other patients – denying this choice would amount to denying medical resources to others who may need it more.
The Chief Justice noted that this right must be governed by guidelines to avoid abuse. Mr Bhushan began by outlining the principles underlying this concept. Fundamentally, forcing medical treatment on a person who does not want it violates Article 21. He added that forcibly inserting a tube in one’s body amounts to assault and battery. The idea of living wills addresses the issue of ascertaining the individual’s wishes in such cases. Adequate safeguards could be put in place easily.
Mr Bhushan noted that the Law Commission has taken contradictory positions. On the one hand it has accepted the idea of passive euthanasia, but on the other, it has objected to the logical extension of this idea in the form of living wills.
The Chief Justice inquired who would have the final say on whether and when a living will was to be given effect. Mr Bhushan replied that the safeguards are needed on two levels – to ensure that the living will is an authentic document expressing the true intent of the person, and the presence of a Medical Board to determine the extent of deterioration of the patient’s medical condition.
Justice Chandrachud intervened to point out a larger philosophical predicament – the obligation of the State to protect life vis-à-vis the absolute right of an individual to abstain from medical treatment. He urged Mr Bhushan to view this not merely from the perspective of terminal cases, but also able-bodied persons. Could someone with diabetes or high cholesterol refuse medical treatment and allow their conditions to reach a terminal stage, or could the State intervene as there is a higher moral value to life?
The Chief Justice clarified that euthanasia was not an extension of the right to die but the right not to suffer while living. Justice Chandrachud pointed out that the elderly suffer the worst mistreatment, noting that the first safeguard of ensuring the authenticity of living wills is important in this context to ensure that elderly relatives were not taken advantage of. The second concern is – at what stage would the living will take effect. What is the standard of pain or imminence of death? How much proximity to death counts as imminent? Mr Bhushan replied that imminence of death may not be the appropriate standard –Aruna Shanbaug lived in a vegetative state for over 40 years. Justice Sikri suggested that the possibility of revival of the patient could be the standard. Mr Bhushan agreed, suggesting that if the person was conscious, their consent would be the predominant factor; but if the person is unable to express themselves, and if medical opinion is that they cannot be brought back to consciousness, only then should the living will be allowed to take effect.
The Chief Justice wondered what would happen in the case of persons with permanent conditions that were not terminal but caused suffering, such as incontinence? Mr Bhushan concluded his arguments by answering that this falls within the definition of active euthanasia, which is outside the purview of this reference. Justice Chandrachud noted the crucial difference – an intervention to end life is active euthanasia; while, withdrawal of an intervention, causing life to end on its own is passive euthanasia.
Mr P. S. Narasimha, Additional Solicitor General began his arguments by noting that passive euthanasia is permitted subject to the authorisation of the Medical Board. He noted that the family and the Medical Board make the decision, not the individual. What is sought here is inclusion of living will within the existing regime. The binding value of living wills differs across jurisdictions – in the United Kingdom, statutory provisions had been amended such that they only counted as a factor in making the final decision, not the factor. In India too, the Law Commission Report dealing with the issue had considered and rejected the concept of a binding living will. He noted that the Government was ready with a draft Bill on passive euthanasia, which too did not incorporate the notion of living wills. Mr. Narsimha was categorical in stating that government’s position is that living wills should not be permitted.
Mr Bhushan rose to question how the Union could permit passive euthanasia on the one hand, but still disallow a living will or advanced authorisation that only sought to aid the process. Justice Sikri however pointed out that the difference was that a living will did not merely aid the process, but had binding effect over and above it. The Chief Justice then enquired as to whether Medical Boards had been constituted in each district, to which Mr Narasimha responded that he would take instructions on this point. With this, the arguments concluded for the day and will continue tommorow
This post relies on contributions from Ms. Ashrutha Rai.
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