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Right to die with dignity – Apex court referred the case to the constitution bench due to conflicting of opinions = Common Cause (A Regd. Society) …. Petitioner (s) Versus Union of India …. Respondent(s) = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41246

Right to die with dignity – Apex court referred the case to the constitution bench due to conflicting of opinions =

 

This writ petition, under Article 32 of  the  Constitution  of  India,

has been filed by Common Cause-a  Society  registered  under  the  Societies

Registration Act, 1860 engaged in taking up various common problems  of  the

people for securing redressal, praying for  declaring  ‘right  to  die  with

dignity’ as a fundamental right within the  fold  of  ‘right  to  live  with

dignity’ guaranteed under Article  21  of  the  Constitution  and  to  issue

direction to the respondent, to adopt suitable procedures,  in  consultation

with the State Governments wherever necessary, to ensure  that  the  persons

with deteriorated health or terminally ill  should  be  able  to  execute  a

document, viz., ‘my living will  &  Attorney  authorization’  which  can  be

presented to hospital for appropriate action in the event of  the  executant

being admitted to the hospital  with  serious  illness  which  may  threaten

termination  of  life  of  the  executant  or  in  the  alternative,   issue

appropriate guidelines to this effect and to  appoint  an  Expert  Committee

consisting of doctors, social scientists  and  lawyers  to  study  into  the

aspect of issuing guidelines regarding execution of ‘Living Wills’.=

Apex court conclusion

Although  the

Constitution Bench in Gian Kaur (supra) upheld that the ‘right to live  with

dignity’ under Article 21 will be inclusive of ‘right to die with  dignity’,

the decision does not arrive at a conclusion for validity of  euthanasia  be

it active or passive. So, the only judgment that holds the field  in  regard

to euthanasia  in  India  is  Aruna  Shanbaug  (supra),  which  upholds  the

validity of passive euthanasia and lays  down  an  elaborate  procedure  for

executing the same on the wrong premise that the Constitution Bench in  Gian

Kaur (supra) had upheld the same.

 

17)   In view of  the  inconsistent  opinions  rendered  in  Aruna  Shanbaug

(supra) and also considering the important question of  law  involved  which

needs  to  be  reflected  in  the  light  of  social,  legal,  medical   and

constitutional perspective, it becomes extremely important to have  a  clear

enunciation of law. Thus,  in  our  cogent  opinion,  the  question  of  law

involved requires careful consideration by  a  Constitution  Bench  of  this

Court for the benefit of humanity as a whole.

 

18)    We refrain from framing any specific questions for  consideration  by

the Constitution Bench as we invite the Constitution Bench to  go  into  all

the aspects of the  matter  and  lay  down  exhaustive  guidelines  in  this

regard.

 

19)   Accordingly, we refer this matter to  a  Constitution  Bench  of  this

Court for an authoritative opinion.

 

 

2014(Feb.Part) judis.nic.in/supremecourt/filename=41246

P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
1 WRIT PETITION (CIVIL) NO. 215 OF 2005

 

 

Common Cause (A Regd. Society) …. Petitioner (s)

Versus

Union of India ….
Respondent(s)

2

 

 

O R D E R
P.Sathasivam, CJI.

1) This writ petition, under Article 32 of the Constitution of India,
has been filed by Common Cause-a Society registered under the Societies
Registration Act, 1860 engaged in taking up various common problems of the
people for securing redressal, praying for declaring ‘right to die with
dignity’ as a fundamental right within the fold of ‘right to live with
dignity’ guaranteed under Article 21 of the Constitution and to issue
direction to the respondent, to adopt suitable procedures, in consultation
with the State Governments wherever necessary, to ensure that the persons
with deteriorated health or terminally ill should be able to execute a
document, viz., ‘my living will & Attorney authorization’ which can be
presented to hospital for appropriate action in the event of the executant
being admitted to the hospital with serious illness which may threaten
termination of life of the executant or in the alternative, issue
appropriate guidelines to this effect and to appoint an Expert Committee
consisting of doctors, social scientists and lawyers to study into the
aspect of issuing guidelines regarding execution of ‘Living Wills’.

2) On 19.06.2002 and 25.06.2002, the petitioner-Society had written
letters to the Ministry of Law, Justice and Company Affairs and the
Ministry of Health and Family Welfare with a similar prayer as in this writ
petition. Concurrently, the petitioner also wrote letters to the State
Governments in this regard, as hospitals come within the jurisdiction of
both the State Governments and the Union of India.

3) In the above said communication, the petitioner had emphasized the
need for a law to be passed which would authorize the execution of the
‘Living Will & Attorney Authorization’. Further, in the second letter, the
petitioner-Society particularly relied on the decision of this Court in
Gian Kaur vs. State of Punjab (1996) 2 SCC 648 to support its request.
Since no reply has been received, the petitioner-Society has preferred this
writ petition.

4) Heard Mr. Prashant Bhushan, learned counsel for the petitioner-
Society, Mr. Sidharth Luthra, learned Additional Solicitor General for the
Union of India and Mr. V.A. Mohta, learned Senior Counsel and Mr. Praveen
Khattar, learned counsel for the intervenors.

Contentions:

5) According to the petitioner-Society, the citizens who are suffering
from chronic diseases and/or are at the end of their natural life span and
are likely to go into a state of terminal illness or permanent vegetative
state are deprived of their rights to refuse cruel and unwanted medical
treatment like feeding through hydration tubes, being kept on ventilator
and other life supporting machines, in order to artificially prolong their
natural life span. Thus, the denial of this right leads to extension of
pain and agony both physical as well as mental which the petitioner-Society
seeks to end by making an informed choice by way of clearly expressing
their wishes in advance called “a Living Will” in the event of their going
into a state when it will not be possible for them to express their wishes.
6) On the other hand, Mr. Sidharth Luthra, learned Additional Solicitor
General submitted on behalf of the Union of India that as per the
Hippocratic Oath, the primary duty of every doctor is to save lives of
patients. A reference was made to Regulation 6.7 of the Indian Medical
Council (Professional Conduct, Etiquette and Ethics) Regulations 2002,
which explicitly prohibits doctors from practicing Euthanasia. Regulation
6.7 reads as follows:-

“Practicing euthanasia shall constitute unethical conduct.
However, on specific occasion, the question of withdrawing
supporting devices to sustain cardiopulmonary function even
after brain death, shall be decided only by a team of doctors
and not merely by the treating physician alone. A team of
doctors shall declare withdrawal of support system. Such team
shall consist of the doctor in charge of the patient, Chief
Medical Officer/Medical Officer in charge of the hospital and a
doctor nominated by the in-charge of the hospital from the
hospital staff or in accordance with the provisions of the
Transplantation of Human Organ Act, 1994.”

In addition, the respondent relied on the findings of this Court in
Parmanand Katara vs. Union of India (1989) 4 SCC 286 to emphasise that
primary duty of a doctor is to provide treatment and to save the life
whenever an injured person is brought to the hospital or clinic and not
otherwise.

7) The petitioner-Society responded to the abovementioned contention by
asserting that all these principles work on a belief that the basic desire
of a person is to get treated and to live. It was further submitted that
when there is express desire of not having any treatment, then the said
person cannot be subjected to unwanted treatment against his/her wishes. It
was also submitted that subjecting a person, who is terminally ill and in a
permanently vegetative state with no hope of recovery, to a life support
treatment against his/her express desire and keeping him under tremendous
pain is in violation of his right to die with dignity.

8) Besides, the petitioner-Society also highlighted that the doctors
cannot, by some active means like giving lethal injections, put any person
to death, as it would amount to “active euthanasia” which is illegal in
India as observed in Aruna Ramchandra Shanbaug vs. Union of India (2011) 4
SCC 454. Therefore, the petitioner-Society pleads for reading the aforesaid
regulation only to prohibit the active euthanasia and the said regulation
should not be interpreted in a manner which casts obligation on doctors to
keep providing treatment to a person who has already expressed a desire not
to have any life prolonging measure. Thus, it is the stand of the
petitioner-Society that any such practice will not be in consonance with
the law laid down by this Court in Gian Kaur (supra) as well as in Aruna
Shanbaug (supra).

Discussion:

9) In the light of the contentions raised, it is requisite to comprehend
what was said in Gian Kaur (supra) and Aruna Shanbaug (supra) to arrive at
a decision in the given case, as the prayer sought for in this writ
petition directly places reliance on the reasoning of the aforesaid
verdicts.

10) In Gian Kaur (supra), the subject matter of reference before the
Constitution Bench was as to the interpretation of Article 21 relating to
the constitutional validity of Sections 306 and 309 of the Indian Penal
Code, 1860, wherein, it was held that ‘right to life’ under Article 21 does
not include ‘right to die’. While affirming the above view, the
Constitution Bench also observed that ‘right to live with dignity’ includes
‘right to die with dignity’. It is on the basis of this observation, the
Petitioner-Society seeks for a remedy under Article 32 of the Constitution
in the given petition.

11) Therefore, although the discussion on euthanasia was not relevant for
deciding the question of Constitutional validity of the said provisions,
the Constitution Bench went on to concisely deliberate on this issue as
well in the ensuing manner:-

“24. Protagonism of euthanasia on the view that existence in
persistent vegetative state (PVS) is not a benefit to the
patient of a terminal illness being unrelated to the principle
of Sanctity of life’ or the ‘right to live with dignity’ is of
no assistance to determine the scope of Article 21 for deciding
whether the guarantee of ‘right to life’ therein includes the
‘right to die’. The ‘right to life’ including the right to live
with human dignity would mean the existence of such a right up
to the end of natural life. This also includes the right to a
dignified life up to the point of death including a dignified
procedure of death. In other words, this may include the right
of a dying man to also die with dignity when his life is ebbing
out. But the ‘right to die’ with dignity at the end of life is
not to be confused or equated with the ‘right to die’ an
unnatural death curtailing the natural span of life.

25. A question may arise, in the context of a dying man, who is,
terminally ill or in a persistent vegetative state that he may
be permitted to terminate it by a premature extinction of his
life in those circumstances. 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 the process of natural
death has commenced. These are not cases of extinguishing life
but only of accelerating conclusion of the process of natural
death which has already commenced. The debate even in such cases
to permit physician assisted termination of life is
inconclusive. It is sufficient to reiterate that the argument to
support the view of permitting termination of life in such cases
to reduce the period of suffering during the process of certain
natural death is not available to interpret Article 21 to
include therein the right to curtail the natural span of life.”

In succinct, the Constitution Bench did not express any binding view on the
subject of euthanasia rather reiterated that legislature would be the
appropriate authority to bring the change.

12) In Aruna Shanbaug (supra), this Court, after having referred to the
aforesaid Para Nos. 24 and 25 of Gian Kaur (supra), stated as follows:-

“21. We have carefully considered paragraphs 24 and 25 in Gian
Kaur’s case (supra) and we are of the opinion that all that has
been said therein is that the view in Rathinam’s case (supra) that
the right to life includes the right to die is not correct. We
cannot construe Gian Kaur’s case (supra) to mean anything beyond
that. In fact, it has been specifically mentioned in paragraph 25
of the aforesaid decision that “the debate even in such cases to
permit physician assisted termination of life is inconclusive”.
Thus it is obvious that no final view was expressed in the
decision in Gian Kaur’s case beyond what we have mentioned above.”

It was further held that:-
101. The Constitution Bench of the Indian Supreme Court in Gian
Kaur vs. State of Punjab 1996 (2) SCC 648 held that both
euthanasia and assisted suicide are not lawful in India. That
decision overruled the earlier two Judge Bench decision of the
Supreme Court in P. Rathinam vs. Union of India 1994(3) SCC 394.
The Court held that the right to life under Article 21 of the
Constitution does not include the right to die (vide para 33).
In Gian Kaur’s case (supra) the Supreme Court approved of the
decision of the House of Lords in Airedale’s case (supra), and
observed that euthanasia could be made lawful only by
legislation.
13) Insofar as the above paragraphs are concerned, Aruna Shanbaug (supra)
aptly interpreted the decision of the Constitution Bench in Gian Kaur
(supra) and came to the conclusion that euthanasia can be allowed in India
only through a valid legislation. However, it is factually wrong to observe
that in Gian Kaur (supra), the Constitution Bench approved the decision of
the House of Lords in Airedale vs. Bland (1993) 2 W.L.R. 316 (H.L.). Para
40 of Gian Kaur (supra), clearly states that “even though it is not
necessary to deal with physician assisted suicide or euthanasia cases, a
brief reference to this decision cited at the Bar may be made…” Thus, it
was a mere reference in the verdict and it cannot be construed to mean that
the Constitution Bench in Gian Kaur (supra) approved the opinion of the
House of Lords rendered in Airedale (supra). To this extent, the
observation in Para 101 is incorrect.

14) Nevertheless, a vivid reading of Para 104 of Aruna Shanbaug (supra)
demonstrates that the reasoning in Para 104 is directly inconsistent with
its own observation in Para 101. Para 104 reads as under:-
“104. It may be noted that in Gian Kaur’s case (supra) although
the Supreme Court has quoted with approval the view of the House
of Lords in Airedale’s case (supra), it has not clarified who
can decide whether life support should be discontinued in the
case of an incompetent person e.g. a person in coma or PVS. This
vexed question has been arising often in India because there are
a large number of cases where persons go into coma (due to an
accident or some other reason) or for some other reason are
unable to give consent, and then the question arises as to who
should give consent for withdrawal of life support. This is an
extremely important question in India because of the unfortunate
low level of ethical standards to which our society has
descended, its raw and widespread commercialization, and the
rampant corruption, and hence, the Court has to be very cautious
that unscrupulous persons who wish to inherit the property of
someone may not get him eliminated by some crooked method.”
15) In Paras 21 & 101, the Bench was of the view that in Gian Kaur
(supra), the Constitution Bench held that euthanasia could be made lawful
only by a legislation. Whereas in Para 104, the Bench contradicts its own
interpretation of Gian Kaur (supra) in Para 101 and states that although
this court approved the view taken in Airedale (supra), it has not
clarified who can decide whether life support should be discontinued in the
case of an incompetent person e.g., a person in coma or PVS. When, at the
outset, it is interpreted to hold that euthanasia could be made lawful only
by legislation where is the question of deciding whether the life support
should be discontinued in the case of an incompetent person e.g., a person
in coma or PVS.

16) In the light of the above discussion, it is clear that although the
Constitution Bench in Gian Kaur (supra) upheld that the ‘right to live with
dignity’ under Article 21 will be inclusive of ‘right to die with dignity’,
the decision does not arrive at a conclusion for validity of euthanasia be
it active or passive. So, the only judgment that holds the field in regard
to euthanasia in India is Aruna Shanbaug (supra), which upholds the
validity of passive euthanasia and lays down an elaborate procedure for
executing the same on the wrong premise that the Constitution Bench in Gian
Kaur (supra) had upheld the same.

17) In view of the inconsistent opinions rendered in Aruna Shanbaug
(supra) and also considering the important question of law involved which
needs to be reflected in the light of social, legal, medical and
constitutional perspective, it becomes extremely important to have a clear
enunciation of law. Thus, in our cogent opinion, the question of law
involved requires careful consideration by a Constitution Bench of this
Court for the benefit of humanity as a whole.

18) We refrain from framing any specific questions for consideration by
the Constitution Bench as we invite the Constitution Bench to go into all
the aspects of the matter and lay down exhaustive guidelines in this
regard.

19) Accordingly, we refer this matter to a Constitution Bench of this
Court for an authoritative opinion.

 

 
……….…………………………CJI.
(P. SATHASIVAM)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
………….…………………………J.
(RANJAN GOGOI)

 

 

 

………….…………………………J.
(SHIVA KIRTI SINGH)

 

NEW DELHI;
FEBRUARY 25, 2014.

 

———————–
13

 

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