“There is no antithesis between life and death. Death represents the culmination, dying is the process.”- Justice Chandrachud.
Actively engaging with philosophies of life, the Supreme Court five-judge Constitutional bench in the case of Common Cause v. UOI (2018), declared that “death with dignity” is a part of “meaningful existence”. This decision was an outcome of the PIL filed by the NGO Common Cause in 2005, prominently known as the case of Common Cause v. UOI (2005). The final hearing of the said PIL by a three-judge bench was stalled until 2014 due to the parallel pending plea of mercy killing by Aruna Shanbaug in 2011.
Identifying certain lacunae within the Aruna decision, the 2005 PIL was referred to a five-judge Constitutional bench, to encompass the principles laid down by the Court in the Aruna decision and settle the law on the legality of euthanasia. Last month, the Court, in Common Cause v. UOI (2018), recognised the right to refuse medical treatment and decide to die without suffering as the last vestige of dignity, encompassed under Article 21.
THE LEGAL DISCOURSE FROM P. RATHINAM TO THE COMMON CAUSE DECISION
The issue of legalisation of euthanasia was triggered with the case of P. Rathinam v UOI (1994), where the Supreme Court based its decision of unconstitutionality of Section 309 on the analogy that fundamental ‘rights to do’ include ‘the right not to’. Accordingly, The Court interpreted the “right to life” under Article 21 as inclusive of the “right to die”. Overruling the said analogy-based decision, the case of Gian Kaur v. State of Punjab (1996), identified the right to refuse medical assistance for survival as antithetical to the essential fabric of “right to life”. However, the Court refused to expressly determine the constitutional validity and legality of euthanasia.
Subsequently, the Supreme Court, in Aruna Ramchandra Shanbaug v. Union of India (2011), recognised passive euthanasia in exceptional medical circumstances under judicial monitoring. It provided guidelines for implementing passive euthanasia. The Court significantly differentiated passive euthanasia from active euthanasia. While active euthanasia entails deliberate infliction of lethal drugs which expedite death, passive euthanasia merely requires withdrawal of medical assistance necessary for the survival of the terminally ill patient without administration of active lethal drugs.
The moral distinction between active and passive euthanasia is ‘killing’ and ‘letting die’ respectively. Further distinction was drawn between active euthanasia and physician-assisted dying, based on who administers the lethal medication. In active euthanasia, a physician or third-party administers it themselves directly. In physician-assisted suicide, it is the patient who administers the drugs on the advice and dosage provided by the doctor.
COMPARING INDIAN REGULATIONS ON EUTHANASIA AND OREGON’S DEATH WITH DIGNITY ACT
In some countries, as in India, physician-assisted dying is legal, but if the physician administers the lethal dose it is illegal. The US state of Oregon’s Death with Dignity Act, 1997 recognised physician assisted suicide, not active euthanasia. Unlike India, the terminally ill citizens of Oregon, above the age of 18, can make a written or oral request to the physicians for additional medical assistance to accelerate their death and end their unbearable suffering. This Act extends the responsibility of the physicians from not only withdrawing life-supporting medical aids, but also actively providing lethal medical aid. The Netherlands has legally recognised both active and physician assisted euthanasia, provided the terminally ill patient demands euthanasia in “full consciousness”.
ROAD AHEAD OF THE ARUNA DECISION
In pursuance of the judicial directive, the Centre, through its draft “Management of patients with terminal illness-withdrawal of medical life support Bill’, tabled in Parliament in 2016, proposed passive euthanasia in cases of terminal illness with no recourse. However, the Centre vehemently opposed the proposal of recognizing a ‘living will’ in Aruna’s petition, on the apprehension of its excessive misuse.
Upholding Aruna Shanbaug’s decision, the 2018 five-bench decision in Common Cause went a step further by discussing the validity of ‘living wills’ beyond the mere validity of passive euthanasia. Finally, in March 2018, the Supreme Court settled the ongoing discourse by recognising ‘living wills/advance directives’ by terminally ill patients, and by laying down guidelines and safeguards.
LIVING WILLS AND ADVANCE DIRECTIVES
Living wills and advance directives provide patients with the right to pre-determine the manner of implementing euthanasia in case of terminal illness. The individual, in a sound and informed condition, can expressly pre-determine the implementation, degree and duration of the medical treatment to be subjected, when terminally ill or in coma. This legal instrument comes into force in the event of a terminal or incurable injury or illness, as certified by two physicians.
In the absence of such an instrument (living will or advance directive), the commencement of withdrawal of medical treatment is determined by the physicians and the relatives and not the terminally ill patient. In such a scenario, the Supreme Court imposes an excessive burden on the physician to determine the irretrievable terminal condition of the patient (Justice Sikri identifying cases of death of the brain or clinical death), only after which withdrawal of medical assistance would be permitted by the guardians of the patient. The Court gives the treating doctor a right to move the High Court, along with the dying person’s relatives or guardian, only in cases where the Medical Board has revoked permission for withdrawal of medical treatment leading to the death of the patient. There cannot be active injection or introduction of any medicines to expedite a patient’s death.
IMPACT ASSESSMENT OF THE 2018 DECISION
Moreover, the Bench laid down the principles governing the procedures and essentials for executing a living will or advance directive and the guidelines that give effect to passive euthanasia. The Chief Justice additionally provided specific guidelines for implementing passive euthanasia in cases where there is no existing valid living will. Justice Chandrachud highlighted the pressing need for the rightful balance of prolonged life along with quality of life, where one was meaningless without the other. This decision has indirectly restricted the profits of commercial private hospitals derived from the protracted hospitalisation of terminally ill individuals with no medical recourse.
While we welcome the progressive interpretation of Article 21 to include the right to die, there is still a lack of clarity with respect to the status of a death brought about in furtherance of the living will or advance directive as a ‘natural death’ for insurance purposes. Further, certain practical challenges such as the mandatory components, scope and rightful implementation of the ‘living will’ remain unaddressed by the Court. In any future litigation on this topic, the Court might supply a model of a living will or advance directive. Most importantly, detailed legislation is needed to protect the right of terminally ill patients to refuse life-prolonging treatment.