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A careful and precise perusal of the judgment in Gian Kaur (supra) case reflects the right of a dying man to die with dignity when life is ebbing out, and in the case of a terminally ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION March 09, 2018
WRIT PETITION (CIVIL) NO. 215 OF 2005
Common Cause (A Regd. Society) ...Petitioner(s)
Union of India and Another …Respondent(s)
J U D G M E N T
Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]
195. In view of the
aforesaid analysis, we record our conclusions in seriatim:-
(i) A careful and
precise perusal of the judgment in Gian Kaur (supra) case reflects the
right of a dying man to die with dignity when life is ebbing out, and in the
case of a terminally ill patient or a person in PVS, where there is no hope of
recovery, accelerating the process of death for reducing the period of suffering
constitutes a right to live with dignity.
(ii) The Constitution Bench in Gian Kaur (supra) has not approved
the decision in Airedale (supra) inasmuch as the
Court has only made a brief reference to the Airedale case.
(iii) It is not the ratio of Gian Kaur (supra) that passive
euthanasia can be introduced only by legislation.
(iv) The two-Judge bench in Aruna
Shanbaug (supra) has erred in holding that this Court in Gian Kaur (supra) has approved the
decision in Airedale case and that euthanasia
could be made lawful only by legislation.
(v) There is an inherent difference between
active euthanasia and passive euthanasia as the former entails a positive
affirmative act, while the latter relates to withdrawal of life support
measures or withholding of medical treatment meant for artificially prolonging
(vi) In active euthanasia, a specific overt
act is done to end the patient‘s life whereas in passive euthanasia, something
is not done which is necessary for preserving a patient's life. It is due to this
difference that most of the countries across the world have legalised passive
euthanasia either by legislation or by judicial interpretation with certain conditions
(vii) Post Aruna
Shanbaug (supra), the 241st report of the Law Commission of India on Passive Euthanasia has
also recognized passive euthanasia, but no law has been enacted.
(viii) An inquiry into common law
jurisdictions reveals that all adults with capacity to consent have the right
of self- determination and autonomy. The said rights pave the way for the right
to refuse medical treatment which has acclaimed universal recognition. A
competent person who has come of age has the right to refuse specific treatment
or all treatment or opt for an alternative treatment, even if such decision
entails a risk of death. The 'Emergency Principle' or the 'Principle of
Necessity' has to be given effect to only when it is not practicable to obtain
the patient's consent for treatment and his/her life is in danger. But where a patient
has already made a valid Advance Directive which is free from reasonable doubt
and specifying that he/she does not wish to be treated, then such directive has
to be given effect to.
(ix) Right to life and liberty as envisaged
under Article 21 of the Constitution is meaningless unless it encompasses
within its sphere individual dignity. With the passage of time, this Court has
expanded the spectrum of Article 21 to include within it the right to live with
dignity as component of right to life and liberty.
(x) It has to be stated without any trace of
doubt that the right to live with dignity 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.
(xi) 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. Further, a study of the position in
other jurisdictions shows that Advance Directives have gained lawful
recognition in several jurisdictions by way of legislation and in certain countries
through judicial pronouncements.
(xii) 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.
(xiii) In the absence of Advance Directive,
the procedure provided for the said category hereinbefore shall be applicable.
(xiv) When passive euthanasia as a situational
palliative measure becomes applicable, the best interest of the patient shall
override the State interest.
196. We have laid down the principles relating
to the procedure for execution of Advance Directive and provided the guidelines
to give effect to passive euthanasia in both circumstances, namely, where there
are advance directives and where there are none, in exercise of the power under
Article 142 of the Constitution and the law stated in Vishaka and
Others v. State of Rajasthan and Others, (1997) 6 SCC 241. The directive and guidelines shall remain in
force till the Parliament brings a legislation in the field.
197. The Writ Petition
is, accordingly, disposed of. There shall be no order as to costs.