In a landmark judgment, the Supreme Court Friday recognised that a terminally-ill patient or a person in persistent vegetative state can execute an “advance medical directive” or a “living will” to refuse medical treatment, saying the right to live with dignity also includes “smoothening” the process of dying.
A five-judge constitution bench headed by Chief Justice Dipak Misra observed that the failure to legally recognise advance medical directives may amount to “non-facilitation” of the right to smoothen the dying process and the dignity in that process was also a part of the right to life under Article 21 of the Constitution.
The apex court laid down principles relating to the procedure for execution of advance directive or ‘living will’ and spelt out guidelines and safeguards to give effect to passive euthanasia in both circumstances, that is where there are advance directives and where there are none.
“The directive and guidelines shall remain in force till Parliament brings a legislation in the field,” CJI Misra, writing the judgment for himself and Justice A M Khanwilkar, said.
The other three judges of the bench – Justices A K Sikri, D Y Chandrachud and Ashok Bhushan – penned separate concurring verdicts in the combined judgment running into 538 pages.
Justice Chandrachud, writing a separate 134-page verdict, said that life and death were “inseparable” and it was necessary for the court to recognise that dignity of citizens continues to be safeguarded by the Constitution even when the “life is seemingly lost and questions about our own mortality confront us in the twilight of existence.”
“Dignity in the process of dying is as much a part of the right to life under Article 21. To deprive an individual of dignity towards the end of life is to deprive the individual of a meaningful existence. Hence, the Constitution protects the legitimate expectation of every person to lead a life of dignity until death occurs,” he said.
In his 192-page judgment, the CJI noted that in case of a terminally-ill patient or a person in persistent vegetative state (PVS) where there was no hope of recovery, “accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.”
Right to life and liberty as envisaged under Article 21 is “meaningless” unless it encompasses within its sphere the individual dignity, the CJI said, adding, “Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally-ill persons or PVS patients where there is no hope for revival, priority shall be given to the advance directive and the right of self-determination.”
Justice Sikri, who wrote a 112-page separate verdict, concurred with the directions given by the CJI and hoped that the Legislature would step in at the earliest and enact a comprehensive law on ‘living will/advance directive’ so that “there is a proper statutory regime to govern various aspects and nuances thereof which also take care of the apprehensions that are expressed against euthanasia.”
Writing a separate but concurring 100-page judgment, Justice Bhushan reiterated the conclusion arrived at in a 1996 judgment by a constitution bench in the Gian Kaur case that the right to die with dignity is a fundamental right. “We declare that an adult human being having mental capacity to take an informed decision has the right to refuse medical treatment, including withdrawal from life-saving devices,” Justice Bhushan said, adding that a person of “competent mental faculty” is entitled to execute an advance medical directive in accordance with the safeguards spelt out by the court.
The top court also held that when passive euthanasia as a “situational palliative measure becomes applicable,” the best interest of the patient shall override the state interest.
The CJI said though there was no legal framework in India as regards to the advance medical directive, the apex court was obliged to protect the right of the citizens enshrined under Article 21 of the Constitution. “In our considered opinion, advance medical directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity,” he said. “The said directive, we think, 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,” the CJI said.
The apex court also laid down guidelines as to who could execute the advance directive and how, what should it contain, how should it be recorded and preserved, when and by whom can it be given effect to, what if permission is refused by the medical board and also in the event of revocation or inapplicability of advance directive.
The court also spelt the guidelines to be followed in cases where there would be no advance directive, saying that such persons cannot be “alienated.”
The verdict by the constitution bench came on a PIL filed by NGO Common Cause seeking recognition of ‘living will’ made by terminally-ill patients for passive euthanasia.