A 5-Judge Constitution Bench of the Hon’ble Supreme Court is hearing a petition seeking modification of its guidelines issued in 2018 in Common Cause v Union of India for the execution of living will/advance medical directive. The petition has been filed by Common Cause and the Indian Society of Critical Care.

According to the petition, the entire process is very “cumbersome”, making it difficult to implement them. The plea “contended that the three-step process encompassing onerous conditions has made the entire judgment nugatory, and that there has not been a single case where someone desirous of exercising the right to passive euthanasia could finally comply with the procedural requirements”.

Currently, the Living will should be signed in the presence of two witnesses who will attest the document. It also needs to be countersigned by a judicial magistrate. “It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.”

If the executor of the Living will becomes terminally ill with no hope of recovery, the treating doctor/hospital where the patient is undergoing treatment constitutes a medical board of three experts from the fields of general medicine, neurology, psychiatry, oncology, cardiology, or nephrology on the request of the family members. The hospital board however still needs to have the sanction of the district collector, even if their preliminary opinion recommends withdrawal of life support.

A second medical board with the CDMO and three experts again from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care, but different from the hospital board, is constituted by the collector, which will examine the findings of the hospital board. If the two decisions are in harmony, the decision will be communicated to the appropriate judicial magistrate before the decision is implemented. 

But, if the second medical board refuses permission to withdraw treatment, the executor or family members or the treating doctor can approach the High Court. The High Court then forms a new board of medical experts to assist the court in reaching a decision. The High Court is however expected to expedite the hearing and “shall render its decision at the earliest” acting in “the best interests of the patient”.

It is this lengthy and time-consuming process that the Hon’ble Supreme Court is looking to modify and make the present guidelines more implementable and less arduous for the patient and their families.

The Judgement

In the landmark judgment “Common Cause versus Union of India, 2018 (5) SCC 1” delivered in 2018, the Hon’ble Supreme Court of India held that the Right to die with dignity is now a fundamental right under Article 21 of Constitution of India. It has legalized passive euthanasia and advance medical derivative/living. In the same judgement, the Supreme Court also laid down guidelines for advance medical directives. These guidelines remain in force since the Parliament is yet to enact a legislation on passive euthanasia. In the same judgement, the Bench also drew a distinction between active and passive euthanasia. “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 patients life.” This difference has led to legalization of passive euthanasia by making a law or by judicial interpretation but has laid down strict guidelines on execution of the advance directive/living will to prevent its misuse.

The issue has been discussed earlier by the Supreme Court in the matter of “P Rathinam vs Union of India” in 1994 and “Gian Kaur V State of Punjab” in 1996. But it was only in 2011, in the case of “Aruna Ramchandra Shanbaug v. Union of India”, that the Supreme Court allowed for the first time passive euthanasia for a patient in a permanent vegetative state, but it had to have the sanction of the High Court. “Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedales case (supra). In our opinion, this is even more necessary in our country as we cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient.”

This judgement was undoubtedly a landmark judgement. It affords the terminally ill patient the right to die with dignity by allowing them to draft a living will specifying refusal of medical treatment including withdrawal from life saving devices. It recognizes the right to die as a fundamental right under Article 21 of the Constitution and protects the autonomy of the patient. As opposed to the Aruna Shanbaug case, the Common Cause judgement does away with the requirement of permission of the High Court to execute the decision of passive euthanasia.

The Central government has reportedly submitted through its counsel that “it had discussed and deliberated the issue and categorically decided against passing a law in this regard” (ET Bureau, Jan. 21, 2023). The government said that it had accepted the directions of the Court.

The Apex Court has however clarified that it is not reviewing the 2018 judgement. It may provide a timeline for the medical boards to come to a decision. But it remains to be seen what modifications the Apex Court comes up with. The court has asked the petitioners to prepare draft consensus guidelines for consideration by the court. An order from the 5-Judge Constitutional Bench to this effect is expected this week.

Needless to say, necessary safeguards are imperative. It is a tightrope to walk. One has to tread cautiously.

Netherlands was the first country to allow euthanasia and assisted suicide in 2002. Belgium followed suit as the second country to legalize euthanasia in the same year. Luxembourg, Australia, New Zealand, Spain, Austria, Colombia and Canada permit voluntary euthanasia. Canada may soon expand the purview of its law allowing euthanasia to include people suffering from mental health conditions. Assisted suicide is permissible in Germany, Switzerland and some states of the United States (California, Washington DC, Oregon, Vermont, Montana, and Colorado). All these countries have prescribed stringent rules under which euthanasia is permitted.