India now joins a club of few elite countries where passive euthanasia has been made legal and this will inspire certainly many other countries also to follow suit!
Sanjeev Sirohi
Passive euthanasia refers to speeding up the process of dying by withholding life-prolonging measures and resources. This could be either at the expression or implied request of the person (voluntary euthanasia) or in the absence of such approval/consent (non-voluntary euthanasia).
A five-Judge Constitution Bench of the Supreme Court led by Chief Justice of India Dipak Misra along with Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan in four separate and concurring opinions ruled explicitly on March 9, 2018 that the fundamental right to life and dignity under Article 21 of the Constitution includes the “right to die with dignity”. It ruled that “smoothening” the process of death for terminally ill patients with no chance of recovery was integral to life with dignity. The ruling came on a petition filed by a Non-Governmental Organisation named Common Cause.
The Apex Court has also upheld the right to give advanced medical directives or “Living Wills” spelling out views and wishes pertaining to medical treatment in terminally ill conditions or those in ‘Persistent and Incurable Vegetative State’ (PVS) to smoothen the dying process as part of the fundamental right to live with dignity. It also allows the families of those in incurable coma to withdraw such measures to reduce the period of suffering and provide a dignified exit by refusing medical treatment or life support.
Countries that allow Passive Euthanasia
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The Living Will
To be sure, the Bench of the Apex Court while rendering this landmark judgment made it amply clear that, “The ‘living will’ must be an informed consent by an adult while in a sound state of mind before a Judicial Magistrate of First Class and in the presence of two independent witnesses who will attest. The said instructions will unambiguously indicate when medical treatment is to be withdrawn and even name a guardian or close relative who will execute the said “will” in the event the patient slips into coma or persistent vegetative state (PVS).
A copy of the will shall be restored in the office of the Judicial Magistrate and the local municipality or panchayat.”
The Judges also stated that, “The right to live with dignity (a component of right to life and liberty under Article 21) also includes the smoothening of the process of dying in case of a terminally-ill patient or a person in PVS with no hope of recovery. A failure to recognise advance medical directives (or living will) may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity.”
It would be pertinent to underline that when the living will or medical directive is produced by the family to the treating doctor, the hospital shall constitute a Medical Board of three doctors of minimum 20 years standing to examine the patient and the feasibility of executing the “living will”. Their preliminary opinion will be forwarded to the District Collector who will constitute another Medical Board headed by Chief Medical Officer of the district and three other doctors. The Board will visit the patient and give its view on the opinion of the first medical board.
Other Prominent CasesIt may be recalled here that in 2011, the Supreme Court had recognised passive euthanasia in the Aruna Shanbaug case by which it had permitted withdrawal of life-sustaining treatment including withdrawal of life-sustaining treatment from patients not in a position to make an informed decision. It was in this landmark case that Supreme Court for the first time laid down guidelines for euthanasia and also made a distinction between active and passive euthanasia.
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Needless to say, if both the boards concur, the Collector will communicate the decision to the Judicial Magistrate, who will issue orders to execute the living will. However, in case of difference of opinion or rejection by the Medical Board on account of ambiguity in the advanced directive, the family or the hospital can approach the High Court that will expeditiously hear and decide the case. It will be open to the High Court too to constitute a Medical Board of its own.
The Condition of “No Cure”
It must be brought out here that the Chief Justice’s judgment detailed what the court meant by “no cure”. It read as follows: “The words ‘no cure’ have to be understood to convey that the patient remains in the same state of pain and suffering or the dying process is delayed by means of taking recourse to modern medical technology. It is a state where the treating physicians and the family members know full well that the treatment is administered only to procrastinate the continuum of breath of the individual and the patient is not even aware that he is breathing. Life as measured by artificial heartbeats and the patient has to go through this undignified state which is imposed on him.”
It also said that, “The dignity of life is denied to such a person as there is no other choice but to suffer an avoidable protracted treatment thereby thus indubitably casting a cloud and creating a dent in his right to live with dignity and face death with dignity, which is a preserved concept of bodily autonomy and right to privacy”.
Concurring with the CJI’s verdict, Justice Sikri said that, “A dreadful, painful death on a rational but incapacitated terminally ill patient is an affront to human dignity”. Making an interesting analysis of how passive euthanasia is opposed in the country both morally and religiously, the Judge voted in its favour citing human dignity and the cost benefit involved in opting for the same.
A Landmark Judgement
It is a landmark judgment with far reaching consequences. It ensures that those, whose recovery is not possible and who are medically unfit and want an end to their life, can avail of the benefit of passive euthanasia. It has also been stipulated in this landmark judgment that it should be ensured that relatives do not misuse this provision to get rid of those who are not fit!
For ensuring this, certain safeguards have been inserted and very rightly so! No doubt, India now joins a club of few elite countries where passive euthanasia has been made legal and this will inspire certainly many other countries also to follow suit! It is really a giant step in the right direction for which the Supreme Court certainly deserves full accolades! (The Writer is a lawyer)
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