RIGHT TO DIE WITH DIGNITY: AN EVOLUTION OF INDIAN

JURISPRUDENCE
K.Ramakanth Reddy 

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The Hon’ble Supreme Court has recently in Common Cause v. Union of India and another held that right
to die with dignity is a fundamental right which has led to legalizing passive euthanasia and a living will.
Though, guidelines have also been framed by the apex court in this regard. The Chief Justice of India
who headed the constitutional bench has set a new evolution in Indian Jurisprudence which has ruled to
give right to an individual to die in his terminally ill condition. It is a new evolution in context of Indian
Jurisprudence as it also permits to smooth the process of the death when there is no hope of recovery
and the person is in consistent vegetative condition.

The said matter has been raised in PIL filed by NGO common cause in 2005 in an attempt to legalize
passive euthanasia and “living will” in India. This matter has been referred by the Chief Justice P
Sathasivam to the constitutional bench when pleaded by the NGO Common cause that when a person is
going through a terminally ill disease then he should be relieved from that agony by removing the support
of artificial medical devices which is in medical term called as passive euthanasia. The passive
euthanasia is different from active euthanasia where something is stopped which could have prolonged
the life of the patient whereas in active euthanasia something is continued or done to take life of the
patient.

The concept of passive euthanasia has been evolved in many of the precedents which have led to this
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judgment. In Gian Kaur v. State of Punjab , the Supreme Court’s five judge bench had held that passive
euthanasia is illegal in India and so does the assisted suicide which in way has overruled the judgment of
both euthanasia and assisted suicide not lawful in India and overruled the two Judge Bench decision of P.
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Rathinam v. Union of India which has held that right to life excludes right to die under Article 21 of the
Constitution of India.
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However, later Supreme Court in Aruna Ramchandra Shanbaug v. Union of India has held that in
exceptional situations, passive euthanasia is allowed but under strict supervision and monitoring of Court.

In this recent verdict, the CJI in his words stated that “A failure to legally recognize advance medical
directives may amount to non-facilitation of the right to smoothen the dying process and the right to live
with dignity. 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. In the absence of Advance Directive, the procedure provided
for the said category hereinbefore shall be applicable. When passive euthanasia as a situational palliative
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measure becomes applicable, the best interest of the patient shall override the State interest” , this in a
way has smoothen the process of death for an incurable and terminally ill patient.

The CJI writing with Justice Khanwilkar the lead judgement stating that "A dying man who is terminally ill
or in PVS can make a choice of premature extinction of his life as being a facet of Article 21. We must
make it clear that as a part of the right to die with dignity in a case of a dying man who is terminally ill or in


Senior Standing Counsel for Maulana Azad National Urdu University, AP State Wakf Board
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Writ Petition (Civil) No. 215 of 2005
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Manu/SC/0335/1996
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Manu/SC/0433/1994
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MANU/SC/0176/2011
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Here Is What The 5 Judges Said While Recognizing Passive Euthanasia And Living Wills/ Advance Directives available at
http://www.livelaw.in/5-judges-said-recognizing-passive-euthanasia-living-wills-advance-directives/ dated 09/03/2018.

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PVS, only passive euthanasia would come within the ambit of Article 21 and not the one which would fall
within the description of active euthanasia in which positive steps are taken either by the treating
physician or some other person."

This historic judgment has also introduced a new concept of “Living Will” which is a written document that
allows a patient to provide in advance express instructions concerning the medical treatment to be
provided to him when he is terminally ill or not in position to give informed consent. At the same time it
authorize the person nominated in the will to withdraw or remove all the life support system only in case
where the medical expert declares that they are incapable and beyond any medical help to the patient.
Though during the hearing, the government opposed this concept apprehending that this living will be
misused by many and runs contrary to the public policy. However, the government agreed to permit the
passive euthanasia allowing the removal of life support system when in permanent vegetative state in a
way permitting the right to die.

The CJI also recommended Parliament to lay down norms which can govern on how such living wills be
made and executed. It also gives legal validity to the approval of a magistrate when a terminally ill patient
gives advance directive in the way of living will.

It is pertinent to note that this decision has still put the attempt to commit suicide under the statutory law
as suicide as observed go in contrary to the exclusive power of the state to take anybody’s life. This again
is an issue of introspection that if the state is not able to provide the basic human conditions, then would it
be good to restrain the person from his right to die? Supreme Court in this decision by permitting the
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continuation of Section 309 of IPC can be called as anachronism which is truly unworthy in this 21
century for human society. Section 309 of IPC is arbitrary in sense that it take into consideration all the
form of suicides in one frame and doesn’t take dive deep into the particular circumstances for committing
suicide.

It was observed in this matter that the better option would be not to punish anyone for attempt to suicide
and its criminalization should remain in the statute as there would be very high chances of its abuse if
deleted from the criminal statute.

Euthanasia and suicide are two different and distinct concepts, distinguishing euthanasia from suicide,
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Lodha J. in Naresh Marotrao Sakhre v. Union of India , observed:

“Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one’s own act
and without the aid or assistance of any other human agency. Euthanasia or mercy killing on the other
hand means and implies the intervention of other human agency to end the life. Mercy killing thus is not
suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts
are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the
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circumstances in which it is effected .”

In the context of the link between life and death with the dignity is that when a patient is surviving through
life support which merely continuing the heart beat and that patient doesn't even know that he is breathing
is taking away the dignity of a person who without any choice is suffering from an unavoidable protracted
treatment. The Supreme Court in these cases allows that patient right to remove or refuse the protracted
treatment.

Justice Sikri in his concurrent judgement laid down a non-conservative approach comparing different
rights said, "Right to health is part of Article 21. At the same time, it is also a harsh reality that everybody
is not able to enjoy that right because of poverty or other reasons. The state is not in a position to

6
1995 Cri L J 96 (Bom)
7
1995 Cri L J 99(Bom)

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translate into reality this right to health for all citizens. Thus, when citizens are not guaranteed the right to
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health, can they be denied the right to die in dignity? "

At the same time, he made serious observation about the limited and expensive life saving support
systems and facilities by the rich patients in the 'no return zone' which deprives poor people from reviving.

Justice Chandrachud on the other hand gives full autonomy to an individual over his body to live and die
stating that "The state cannot compel an unwilling individual to receive medical treatment. While an
individual cannot compel a medical professional to provide a particular treatment (this being in the realm
of professional medical judgment), it is equally true that the individual cannot be compelled to undergo
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medical intervention ."

Justice Bhushan who agrees with all others in his words by referring to acceptance of passive euthanasia
practised in Jainism and Buddhism that "An adult human being having mental capacity to take an
informed decision has the right to refuse medical treatment including withdrawal from live saving
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devices ."

CJI Misra and Justice Khanwilkar said, "His 'being' (existence) exclusively rests on the mercy of the
technology which can prolong the condition for some period. The said prolongation is definitely not in his
interest. On the contrary, it tantamount to destruction of his dignity which is the core value of life. In our
considered opinion, in such a situation, an individual's interest has to be given priority over state
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interest ."

However, the real image of the practice of passive euthanasia can be arbitrary and inconsistent as
highlighted by Justice Chandrachud that, “One of the reasons for passive euthanasia is that the patient or
his family could be running out of money. In some cases, this overlaps with the incurability of the disease.
In others, it may not. Costly medication and intervention is often withdrawn as the first step of this passive
euthanasia process. Sometimes patients are transferred to smaller (read cheaper) institutions or even
their homes, with the tacit understanding that this will hasten the inevitable.”

This method doesn't permits doctors to give life threatening drugs just to relieve the person from the
agony of pain and sufferings but still the onus lies on the patient to decide for any refusal of the medical
treatment when he is in conscious mind through living will so that he can die with dignity. This attribute in
a way guarantees Article 21 of the Constitution which gives protection to every person life and personal
liberty, which means no person, shall be deprived of his life or personal liberty except according to
procedure established by law,”

However, this judgment doesn’t in any way decriminalize abetment or attempt of suicide in India which
are still criminal offences in the eyes of law. The constitutional validity of Section 309 of IPC was

8
Common Cause (A Regd. Society) Vs. Union of India and Another, Writ Petition (Civil) No. 215 of 2005
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Id. At para 94
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Id at page 538
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Id. At page 130

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challenged in 1994 in P. Rathinam vs. Union of India before the Supreme Court which was declared
unconstitutional. In 1996, Section 306 of IPC was challenged contending that right to die should be
included in Article 21 by the reason that abetment of suicide is barely an assistance for enforcing Article
21 to which the Supreme Court held that nobody except the state has the right to decide taking away the
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life of any person, hence right to life doesn’t include right to die.

It was observed that in context of Suicide, abetment (Sec.306 of IPC) and attempt (Sec. 309 of IPC) are
two different and distinct offences which survive independently. It was evidently stated that any person
who attempts a suicide needs help and support and not punishment. So, it was suggested by Supreme
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Court to Parliament attempt to suicide should be decriminalize by deleting it from IPC .

From the perspective of Constitution of India, there are various threats which can be observed by
including the right to die under Article 21. Since, it is the responsibility of the State to preserve the life and
the Doctor’s duty to provide medical care but there is an equal apprehension that when euthanasia is
legalized then state might refuse to work and invest in health sector and there would be decline in the
kind of quality treatment provided to severely ill people by the doctors. Even though, passive euthanasia
has evolved the jurisprudence of right to life but to preserve the right to life of any terminally ill patient,
neither Supreme Court has observed in this judgment nor the state has taken any initiative by providing
medical care to preserve the life of terminally ill patients. Instead by virtue of this decision, there should
be more focus protecting the other basic ingredients of right to life i.e food, education, water, health care
etc. This legalization of passive euthanasia should not be considered as a way out or an escape of the
state from its duty to safeguard and care about life of people and especially for poor people/disabled who
would be compelled to go for passive euthanasia in lack of money.

It can surely be called as a new era for patients who are in vegetative state and incurable patients but
there should be harmony with the right to health of a person as it is also bestowed in the Right to life.

It can also be said in support of this concept that right to die is just like right of privacy of an individual as
propounded by the Courts in United states and England but when it is matter of life and death, more than
the autonomy/will (in this case the living will) of the person, his circumstances (Financial or living) and
medical conditions which has compelled him for death should be put at higher pedestal for determination.

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1994(3) SCC 394
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Gian Kaur vs. State of Punjab, 1996(2) SCC 648
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Aruna Ramchandra Shanbaug vs. Union of India & Ors. Writ Petition (Criminal) no. 115 of 2009

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