An Analysis Of The ‘Euthanasia’ Guidelines Issued By The Supreme Court Of India By - Somya Kairon

An Analysis Of The ‘Euthanasia’ Guidelines Issued By The Supreme Court Of India

Authored By - Somya Kairon

In Gian Kaur v. State of Punjab[1], the Court overruled the P. Rathinam's[2] ruling and stated that there is no right to death or the right to suicide. The issue of the right to life is important in Euthanasia's discussion. “The topic of Euthanasia becomes controversial because it involves the intention of termination of human life. There are people who are suffering from terminal diseases and have to go through much pain as the diseases gradually worsen and ultimately kills them.” The pain is so unbearable that people sometimes think of ending their life rather than suffering from it. The question before us is whether these people should be left to cope with the unbearable pain or whether assistance should be provided in putting end to their life.

Euthanasia is one of the most debated topics in the world. The question that has put everyone in a great dilemma is whether it should be legalized or not. People have contrary views and arguments in this regard. Countries all around the world have different laws regarding Euthanasia. Euthanasia is legal in some countries while illegal in others. Euthanasia is an act where a third party puts an end to a person's life either actively or passively.

The term euthanasia is made up of two ancient Greek words. 'Eu' means good, and 'thantos' means death. Thus, the meaning of the word is a good death. It is the deliberate termination of a patient's life suffering from an incurable condition by either injecting him or removing the life support system. The intention is to relieve him from the pain. It is also known as mercy killing. The person is in such a condition that there are no chances of his survival. He painlessly ends his life. Mercy killing is used for assisted suicide.

According to Stedman's medical dictionary, “Euthanasia is an act by which a person suffering from incurable, painful diseases is put to death by artificial means.” Let's go by the meaning given in Collins English Dictionary. “Euthanasia is an act of killing a person by methods that do not cause any pain to the person to relieve him from an incurable disease.”

There are different forms of Euthanasia; “Active Euthanasia, Passive Euthanasia, Voluntary, and involuntary Euthanasia” are some necessary forms. Active Euthanasia is when some specific steps are taken by the third party to cause the person's death. For example- The doctor injects the person with poison. Active voluntary euthanasia is legal in countries like Belgium and Netherlands.[3] Passive Euthanasia is when medical treatment is withdrawn to kill the patient. For example- Removal of dialysis machine of a patient requiring kidney dialysis to survive. Passive Euthanasia is legal in the US. When a person requests that actions be taken to end his life, this is called voluntary Euthanasia. For example- the patient asks the doctors to withdraw the medical treatment. Non-voluntary Euthanasia is when a person's life is terminated without his consent. Due to his condition, he is not able to communicate his wishes and is not aware of things happening around him and acts on his behalf. When the death of the patient takes place with the help of a physician, then this is termed assisted suicide. It is legal in Switzerland, Montana, and Washington. Involuntary Euthanasia is when the patient has expressed his views to the contrary. He says that he does not wish to die.

1. 1. DIFFERENCE BETWEEN SUICIDE, EUTHANASIA, AND ASSISTED SUICIDE OR MERCY KILLING

When we are talking about suicide, a person tries to end his life intentionally. The person attempts to kill himself due to depression or any other reason deliberately. On the other hand, in Euthanasia, the death of the person takes place with the help of another person. In Euthanasia, a third party plays an important role and aids the killing of the person either actively or passively. It is essential to notice that there is a distinction between assisted Suicide and Euthanasia. In assisted suicide, a person helps another in committing suicide by providing him the means to do so. When a doctor helps a patient in committing suicide by giving him lethal medication, then this is called physician-assisted suicide. The person committing suicide is in complete control of the action as he is the one who is performing the act leading to his death. The other person is simply assisting him in carrying out the act. On the other hand, Euthanasia may be active or passive.

1. 1. JUDICIAL DEVELOPMENTS IN RESPECT OF EUTHANASIA

We have already discussed few relevant cases related to Section 309 of the Indian Penal Code, 1860, and the decision given by the Court in Gian Kaur v. State of Punjab. Now, we will deal with cases related to Euthanasia.

Naresh Marotrao Sakhre v. Union of India

In “Naresh Marotrao Sakhre v. Union of India”,[4] Justice Lodha observed that “Euthanasia and Suicide are two different things. Suicide is the act of self-destruction without the aid of any other human agency, while on the other hand, euthanasia or mercy killing requires the intervention of a human agency to bring about the death of the patient suffering from an incurable disease.” Euthanasia does not come under the category of suicide, and thus, the provisions of Section 309 of the Indian Penal Code, 1860 are not applicable in cases of Euthanasia. Euthanasia is nothing but a homicide.

In 2004, the Andhra Pradesh High Court dismissed a 25-year-old man's petition who wanted to end his life and donate his organs. He was on the life support system for a couple of months and had no hopes of surviving. The Court relied on the judgment given in Gian Kaur v. State of Punjab and dismissed the writ petition.

In Suchita Srivastava v. Chandigarh Administration,[5] the Supreme Court refused to terminate a fetus of a mentally disabled woman who was a victim of rape.

Aruna Ramchandra Shanbaug v. Union of India[6]

Aruna Shanbaug was the first case in which the Court addressed the subject of allowing euthanasia. Aruna Shanbaug worked as a hospital nurse. The hospital workers raped her in a horrible manner. She turned into a permanent vegetative state as a result of the incident. The nurses and physicians at the hospital cared for her for a long period, but her health did not improve. Pinki Virani, a social activist, filed a writ petition seeking Euthanasia authorization. The Court ruled that she could not be designated as a next friend. However, on the main issue, the Court relied on the House of Lords' decision in “Airedale NHS v. Anthony Bland,”[7] as well as other international jurisprudence, and held that passive Euthanasia may be permissible in cases where a person is terminally ill or in a permanent vegetative state—provided certain safeguards are followed. The Court went on to analyse the patient's autonomy, stating that if the patient is cognizant and, in a position, to consent to Euthanasia, his view must be considered. If the sufferer is unable to express himself, his next closest friend's viewpoint will be considered.

The case was referred to the High Court, where a division bench convened a panel of three doctors to examine the patient. If the doctors believe that the patient will be able to survive if suitable care is provided, then Euthanasia is not permitted. If the doctors believe that the patient has no prospect of survival and that postponing the process of Euthanasia will only lead him to suffer excruciating pain, then passive Euthanasia may be permitted.

Common cause (a regd. Society) v. Union of India[8]

In 2005, a registered non-governmental organization registered a PIL in the Supreme Court of India under Article 32 of the Indian Constitution to legalize passive Euthanasia and living will. The registered society wrote letters to several Government organizations but received no response; thus, was left with the option of filing a PIL in the Supreme Court. The petitioner contended that Article 21 provides a person with the right to live with dignity and such right is available to him till his death; thus, it would not be wrong to say that the right also includes the right to have a dignified death. The petitioner also contended that modern technology has developed to such an extent that it has unnecessarily prolonged the life of a person who is in an irremediable condition. The unnecessary extension of life causes much pain to the patient as well as his family. The petitioner further contended that living will be legalized. If a person is suffering from persistent pain and finding it difficult to cope with it, he should be allowed to give his consent to end his life and order his family to stop the treatment.

ISSUES:

1. Whether the right to life mentioned under Article 21 of the Constitution also includes the right to die?
2. Whether passive Euthanasia should be allowed provided that the patient has given his consent?
3. Whether there is any difference between active and passive Euthanasia?
4. Whether a person has the right to refuse medical treatment given to him? Whether Can he ask for the withdrawal of the life support system?

ARGUMENTS MOVED BY THE PETITIONERS:

- Every person has the right to self-determination. He should be allowed to choose his fate. If the patient does not want to go through the pain and wants to end his life, he should be allowed to do so.

- The advancement in the medical field has resulted in the development of drugs and medicines that prolong a person who has no chance of survival. This not only causes agony and distress to the patient but also to his family.

- It is better to die early and relieve oneself from persistent pain rather than go through much pain and live longer with the help of medication which only prolongs the life.

- A person should have the right to renounce treatment.

- In cases where a person is suffering from an incurable or debilitating condition, he

should be allowed to die with dignity. In these types of situations, a heavy burden is placed on the family members of the patient. They suffer mentally, emotionally, and financially. They have to spend money on the patient's medical treatment even when there is zero percent of his survival.

- Passive Euthanasia is not only giving relief to terminally ill patients, but is also providing an opportunity to those who need organ donation.

ARGUMENTS MOVED BY THE RESPONDENTS:

- Every citizen by birth inherits the right to life mentioned under Article 21 but when we talk about Euthanasia, it is a deliberate intervention done to end the life of a person, and thus, it is inconsistent with the concept of the right to life. It would be better to rely on the decision given in Gian Kaur to deal with this issue. The Court clearly stated that the right to life does not include the right to die. Therefore, passive Euthanasia should not be allowed.

- The state must protect the life of its citizens. If the Court legalizes passive Euthanasia, then it means that the state is undermining its duty of saving the life of its people.

- If Euthanasia is allowed, it will act as a discouragement for all those working for the cure of terminally ill patients. There would be no incentive for them to develop new medicines and treatments that can end the painful suffering of the patients.

- Euthanasia is not the solution to the suffering of terminally ill patients. There are alternatives available to this problem.

ANALYSIS:

i. Concept of Euthanasia was discussed in length.

The matter was brought before a five-judge bench comprising Dipak Mishar CJ, D.Y. Chandrachud, A.K. Sikri, A.M. Khanwilkar, and Ashok Bhushan JJ.

The bench discussed the decision given by the Apex court in Puttaswamy.[9] “They tried to derive the right to die with dignity from the privacy-autonomy-dignity matrix mentioned under Article 21. In the Puttaswamy case, it upheld that a person has the right to issue advance directives and attorney authorizations to allow the withdrawal of life support technology if he is terminally ill or in a permanent vegetative state.”[10] The Court had also given guidelines to ensure that these directives are not misused, and a proper balance between law and bioethics is maintained.[11]

The judges discussed the concept of advance directives in detail. They dealt with moral and jurisprudential issues relating to the concept of Euthanasia. Dipak Mishra C.J. and Khanwilkar J. cited various poets and authors who propounded the idea that death with dignity is much better than an undignified continuation of life. They also considered the social aspect of this issue, such as the stigma that may attach to the doctors who, instead of saving the patient, are removing the life support system. There is a requirement to draft a new law regarding advance directives.[12] Sikri J. relied on various international instruments, precepts of various religions, and Mill's conception of individual autonomy to understand the concept of the right to die with dignity.[13] Chandrachud J. also analyzed the issue of Euthanasia in the context of interrelationship between medicines, ethics, and the principles of autonomy and dignity mentioned in our Constitution. He says that there is a need to evaluate this right from an individual perspective and from a societal perspective.[14] Bhushan J. said that the medical professionals should apply best interest’s standard. The things which are in the best interests of the patient should be done. He referred to the writings of Plato and the Hippocratic oath and talked about life and death as mentioned in various religious teachings.[15]

The members then examined the judgments given in cases like Aruna Shanbaug and P. Rathinam. Chandrachud J. and Bhushan J. talked about Transplantation of Human Organs and Tissues Rules, 2014[16], which recognizes advance directive for transplantation of organs and Mental Health Care Act, 2017 that allows advance directives for persons who have mental illness. Mental Health Care Act talks about how the directives are to be implemented. The judges relied on the judgment given in Puttaswamy, wherein the Court said that dignity, privacy, and autonomy are interrelated and are essential for the foundation of the right to life. Decisions given by the Court in cases from Maneka to Puttaswamy have ingrained the concept of values and quality of life in our jurisprudence.[17]

ii. Comparative jurisprudence referred to by the Bench

The judges also referred the international jurisprudence to reach a meaningful conclusion. The decision of the “House of Lords in Airedale”,[18] wherein it was held that “passive Euthanasia is allowed for terminally ill patients or patients in a permanent vegetative state”. The Court further relied on “R (on the application of Pretty) v. Director of Public Prosecution”,[19] wherein the Court said that patients' autonomy should be respected and assisted dying should be allowed. The Court further referred to the case of “Cruzan v. Director, Missouri Department of Health”,[20] wherein the Court said that a physician is allowed to end a patient's life provided there is clear evidence showing that the patient wishes to end his life. The Court relied on the ruling given in “Vacco v. Quill”,[21] wherein “the Court distinguished between physician-assisted Suicide and the patient's refusal to the treatment”. The Court said that the latter is allowed as it is a part of individual autonomy. Chandrachud J. and Bhushan J. relied on the ruling given in Schloendorff v. New York Hospital Trust,[22] wherein the Court said that a terminally ill patient has the right to direct the removal of life support as a part of his autonomy. Mishra C.J. cited the case of Carter v. Canada,[23] wherein physician-assisted suicide was permitted when the patient was in irremediable condition. Chandrachud J. has elucidated upon the ECHR's rulings in Pretty v. the United Kingdom,[24] Haas v. Switzerland,[25] and Lambert v. France[26]. The Court referred to the law of various countries on this issue.

RATIO

The Court ruled that as part of the right to life provided by Article 21 of the Constitution, an individual has the right to die with dignity. As a result, the Court authorised the termination of life support in circumstances involving individuals suffering from terminal or incurable illnesses. The Court established a framework for the execution of advance directives as well as rules for implementing passive euthanasia.

FOUNDATIONAL PRINCIPLES FOR ADVANCE DIRECTIVE

As has been explained above, living wills gain their legality in India by way of the Common Cause judgement. The concepts that constitute the foundation of the verdict and the notion of advance directives are those of patient autonomy, right to self-determination and the concept of human dignity as has been embodied in article 21 of the Constitution.

The judges in elaborating on the basic principles got aid from works of many jurists and authors. For instance, the Supreme Court alluded the works of Hazel Biggs at several juncture. Hazel Biggs[27] has enunciated that the core principles of advance directives are patient autonomy and consent in the following terms:

“...Founded upon respect for individual autonomy this is a right that operates through the law of consent to protect patients from unfettered medical paternalism. Common law holds that patients with the capacity to give consent are also competent to refuse or withhold consent, even if a refusal may risk personal injury to health or even lead to premature death. Furthermore, a refusal of treatment can take the form of a declaration of intent never to consent to that treatment in the future, or never to consent in some future circumstances. Accordingly, any consent or refusal of consent made by a competent adult patient can also be valid in respect of the same treatment at any time in the future.”

Professor Glanville Williams writes, “Some doctors seem to fail to realize that if an adult patient has positively forbidden particular treatment, they act illegally if they administer it, and could be...prosecuted for assault.”[28] Further, Justice Cardozo in the landmark case of Schloendorff v. Society of New York Hospital[29] held that “every human being of adult years and sound mind has a right to determine what shall be done with his own body.”

The Supreme Court also took note of Kennedy’s[30] opinion that “paternalism practised by medical practitioners undermines the very valuable human right of right to self- determination. The medical decisions are invariable made for a person instead of by him, there is no problem with the same as long as the patient voluntarily desired the decision to be made by the doctors for him. In cases wherein a patient wishes to not undergo a certain treatment, then his decision should be respected and medical paternalism should not be practiced.”

The idea of advance medical directives emerged largely across jurisdictions to solve the problem of what to do when a patient's life was in danger and the patient was unable to communicate his or her wishes to doctors or family members. Advance medical directive proponents, who place a premium on respecting patients' right to decide for themselves how they want to be treated in the event of their incapacity, believe that patients' wishes should be carried out by finding ways for them to express those wishes before they become unable to do so themselves. It has also been argued that the Indian Constitution's protection of individual dignity, as outlined in Article 21, may be violated if advance medical instructions were not recognised. After reviewing previous cases, the Supreme Court's Common Cause decision established the following criteria for death with dignity:

a) Encompasses self-determination;

b) Maintains/ability to make autonomous choices;

c) Self-control i.e., same control as one exercised al throughout his life;

d) Law of consent;

e) Dignity should not be compromised by a prolonged process leading to dependency and incapacitation.

f) Respecting the intrinsic value of human life;

g) Avoidance of dependency;

h) Indefinite continuation of futile physical life is qualified as undignified;

i) Dignity commands emphatic respect;

j) Serenity and powerfulness must prevail and must have other positive qualities and emotions.

k) Observer’s Dignity aspect; if a person possessed of dignity at the end of life, then it may even bring peace and a sense of tranquillity to the observers and loved ones;

There are numerous advantages[31] of living will, “the most important one being that it implements the principle of patient autonomy, it also discharges the loved ones of excruciatingly difficult and painful decisions. Advance directive if reviewed periodically can be a great tool to facilitate patient’s right of self-determination. Also, a lot of people view living wills with scepticism, but a living will does not provide for anything illegal and works strictly within the framework of the law.”

Just because an advance directive provides for various advantages does not in any way mean that it does not have its share of short-comings,[32] “a person in a healthy state today may be in no condition to predict how or what he would want when he is in a debilitating situation, his refusal for treatment may be based on what he assumes and not what might be his actual state of mind at that point. Then with advances in science what seems like a path of no return today may actually end up being a very treatable condition in the future. A person’s wishes may change before he revokes or reviews his living will.”

The Supreme Court recognised the limitations of advance directives in the Common Cause case, but emphasised that the benefits of advance directives transcend the disadvantages since they represent patient autonomy and the right to self-determination. The court established a detailed process for the execution and implementation of advance medical directives to give respect to these fundamental values of human dignity and right of self-determination in the situation of patients.

THE PROCEDURE FOR EXECUTION AND IMPLEMENTATION

The Common Cause decision specifies three circumstances in which an advance medical directive in India can be implemented: when the patient is in the terminal phase of their illness, when they are in a permanently unconscious state, or when they are in the latter stages of their illness. There are two possible outcomes here: either the patient has a valid advance medical directive, or he does not, and he has reached a point where he is incompetent or has lost the capacity to exercise judgement and decide for himself. All scenarios are addressed in the rules, and the approach is, with a few tweaks, the same.

Procedure for execution of the advance directive

Only an adult of legal age who is both mentally stable and fully aware of the nature and scope of the directive can carry it out in India. Moreover, there should be zero compulsion or improper influence in the least in the issuance of the order. In the event that the executor becomes incapable or incompetent of making medical decisions, the advance directive should also identify a person to act as the executor's authorised agent.

Supreme Court in the Common Cause[33] judgement laid down the following procedure for execution of the advance directives:

i. The executor is required to sign the advance directive in presence of two, preferably independent, attesting witnesses.

ii. The advance directive shall then be countersigned by the jurisdictional Judicial Magistrate of First Class (hereinafter referred to as the JMFC).

iii. The jurisdictional JMFC and both the witnesses shall then record their satisfaction regarding the fact of voluntary execution and absence of any form of coercion or inducement or compulsion and that the document was executed with complete understanding of all the relevant information and consequences.

iv. There shall be multiple copies of the advance directive including a digital copy and each of the hardcopy of the document will be kept in custody of JMFC, the registry of the jurisdictional District Court and with the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat for being preserved.

v. Additionally, the JMFC shall also have the immediate family members of the executor informed regarding the advance directive and a copy will also be entrusted to the family physician.

After the above requirements have been complied with, the advance directive will be said to have been duly executed. It is pertinent to note that the same procedure is required to be followed in case of revocation of the advance directive. The Supreme Court has further laid down the procedure for the implementation of the advance directives which involves a long tedious process.

Procedure for implementation of the advance directive

The requirement for the advance directive to be enforced may arise after it has been correctly performed. The Supreme Court has outlined the following protocol for capital punishment in such cases:

i. The treating physician is responsible for verifying with the relevant JMFC that the advance directive is valid and legitimate.

ii. Depending on the circumstances, the guardian/close family or executor will then be informed by the attending physician about the type and severity of the sickness, the possible treatments, and the potential repercussions of declining medical care. In addition, the doctor must have reasonable grounds for concluding that the executor or guardian, as the case may be, understands all of the information presented, has carefully considered all of the available alternatives, and has concluded that withdrawal or refusal of medical treatment is the best course of action.

iii. If the patient or his guardian has made a choice about withdrawing from or refusing treatment, the hospital will convene a Medical Board consisting of the Head of the treating Department and three additional specialists from certain specialties to review the case. All of these professionals must have a minimum of twenty years of experience in the field, with an emphasis on critical care. The board will meet with the patient and his legal representative or other close family to discuss the patient's request for withdrawal or rejection of further medical treatment. The term "preliminary opinion" will be used to describe the Board's current ruling.

iv. After the preliminary opinion, the Collector having jurisdiction over the proposed withdrawal of treatment must be notified. After that, a new Medical Board will be appointed by the collector, with the district's top doctor serving as chairman, along with three additional specialists in the areas of medicine outlined in the ruling and all of whom have over 20 years of experience in their respective fields. The hospital made a huge mistake by putting up a Medical Board with these doctors. The certificate to carry out the living will's instructions must subsequently be endorsed by the medical board formed under the supervision of the jurisdictional collector.

v. The Collector's Medical Board Chairman must notify the relevant JMFC of the decision before the advance directive may be put into effect. The JMFC will then pay a visit to the patient, review all relevant information, and provide final approval for the decision to be carried out only if he is happy with the outcome.

When there is no living will, the hospital's medical board must meet with the patient's primary care doctor and family members and document their discussions. The Hospital Medical Board may certify the course of action to be pursued if the family members are informed of the potential outcomes of withdrawing or refusing further medical care for the patient and grant written approval for the withdrawal or refusal.

If a hospital's medical board decides not to honour an advance directive, that board must appeal that decision to the medical board formed by the jurisdictional collector, who will then decide what to do in light of the advance directive.

Furthermore, if the Medical Board formed by the jurisdictional collector denies the request to withdraw medical treatment, the executor of the Advance Directive, his family, the treating physician, or the hospital staff may file a writ petition with the High Court under Article 226 of the Constitution.

SHORTCOMINGS OF THE PROCEDURE LAID DOWN

The following only scratches the surface of the elaborate method outlined for the execution and implementation of the advance directives. With the proliferation of crooked ideas and shady methods, it's easy to see why this kind of extensive process is necessary. Independent witnesses are needed to verify documents, although this requirement is open to interpretation, and dishonest family members might still sign on as witnesses. An impartial witness must be present, and this must be the law.

As regards revocation, the executor has the right to cancel the advance directive at any time before it is carried out. Withdrawal or revocation of an advance directive must be made in writing and must follow the same procedure as the recording of an advance directive. This revocation method is unreasonable, since the process is very complicated and a patient who desires to revoke should be able to do so quickly and easily by informing either the JFMC or his treating physician of his decision. Sometimes, people who have made advance directives change their minds about whether or not they want life support to be turned off if they become incapacitated, but before they can go through the proper channels to do so, they pass away. For this reason, the process of revoking should be very straightforward so that serious mistakes are minimised. Because a person's beliefs might change drastically over time, advance directives should also include a necessary renewal provision.

The post-execution measures intended to enforce the advance medical directive are too onerous to be put into practise, especially in the current Indian context. The court's intention to prevent abuse by untrustworthy relatives and dishonest professionals is admirable, but the cumbersome procedure may discourage its usage. Given the patient's and his loved ones' circumstances, the three-step process involving decision-making bodies and authorities required before the living will may be executed is completely unrealistic. The duration of the procedure defies description, especially in light of the limited time frame they must work within. Constitution of boards in the hospital, formulation of another medical board by the jurisdictional magistrate, and asking the already overburdened JFMC to visit and analyse the matter before the living will is implemented may seem very good on paper and as a scheme to check nefarious practises, but what good is a scheme if it cannot be implemented.

Legal enforcement and avoiding superfluous issues that might lead to insufficient execution are crucial to living wills' practical importance.[34] When creating regulations, make sure they are reasonable and can really be followed; otherwise, there is no use in allowing the activity in question and then creating an onerous system that no one will actually use.

The protocol outlined here appears more reasonable than the one established in the Aruna Shanbaug case, in which it was ordered that doctors go to the high court before delaying or withdrawing life-sustaining care. Nonetheless, the present approach may prove to be as challenging in light of the Indian system. The rising number of patients, the already overburdened physicians (particularly in the government sector), the interminably long bureaucratic procedure that must be completed by the Boards, etc., have all put a strain on India's healthcare system.

Interviews with collectors and judicial magistrates show that no medical boards have been constituted by the collectors in their respective jurisdictions, and that the judicial magistrates are completely unaware of their responsibilities under the aforementioned guidelines, suggesting that implementation of these guidelines has not yet begun. The problem that has arisen is that while the court in the Aruna Shanbaug case outlined a seemingly inaccessible procedure for implementation, the court in the Common Cause case outlined a relatively more accessible process. However, because of the lack of a mechanism to facilitate the guideline, it seems that the process in the Aruna Shanbaug case was rather more accessible. In the backdrop of an ever changing medical and legal world, the Living Will may not be the perfect instrument to carry out the will of the patient, there are various drawbacks of a living will, it is often condition specific; it may become obsolete in reference to advancements in medical science; the instructions given may be too specific or broad; Issues of consent and execution; etc, but misuse or complexity of issues involved cannot be held to be a valid ground for rejecting advance directive, as was opined by the Law Commission of India in its 196th report[35] and 241st report.[36] Instead, attempt can be made to provide safeguards for exercise of such advance directive.

India ranks 67 out of 80 countries on the Quality of Death Index,[37] with such a poor ranking India cannot further afford to compromise on its end of life care because of shortcomings in the legal framework.

CONCLUSION

The Supreme Court of India has issued guidelines on euthanasia in the landmark judgment of Common Cause (A Regd. Society) v. Union of India and Others (2018). The court held that the right to die with dignity is a fundamental right guaranteed under Article 21 of the Indian Constitution, and that an individual has the right to refuse medical treatment or to seek passive euthanasia under certain circumstances.

The guidelines laid down by the Supreme Court provide a framework for the implementation of passive euthanasia in India. The court held that passive euthanasia may be allowed only in cases where the patient is suffering from an incurable disease or is in a permanent vegetative state, and where the patient has given a clear and unequivocal consent for the withdrawal of life support measures.

The judgment given in Common Cause v. Union of India[38] is the perfect example of the application of the doctrine of proportionality. The Court has succeeded in balancing two facets of the right to life under Article 21. While on the one hand, the right to life creates a duty on the State to protect the life of its citizens and on the other hand, it is also taking care of the individual autonomy to make any decisions concerning his/her own body. The court has done a proper analysis of the issues relating to euthanasia and came to a meaningful conclusion. The bench referred to a number of cases and finally decided that passive euthanasia can be practiced provided the guidelines are properly followed. The decision of the court is definitely a positive step taken to ensure individual autonomy.

The court also held that the decision to withdraw life support measures should be made by a medical board consisting of at least three doctors, including the treating doctor, and that the decision should be approved by a high court. The court further held that the decision to withdraw life support measures should be taken in the best interests of the patient and after taking into account the views of the patient's family members.

It is important to note that active euthanasia, which involves the deliberate termination of a patient's life by a physician or another person, is still illegal in India. The Supreme Court has made it clear that its guidelines apply only to passive euthanasia and not to active euthanasia.

In conclusion, the Supreme Court's guidelines on euthanasia provide a legal framework for individuals seeking the right to die with dignity in India. While passive euthanasia is allowed under certain circumstances, active euthanasia remains illegal. The guidelines aim to balance the right to die with dignity with the protection of the sanctity of life.

[1] Gian Kaur v. State of Punjab, 1969 AIR 946, 1996 SCC (2) 648

[2] P. Rathinam v. Union of India, 1994 AIR 1844, 1994 SCC (3) 394

[3] Steinbock B. Introduction Killing and Letting Die 2nd edition Ed. Steinbock B Norcross A. New York; Fordham University Press, 1994.

[4] Naresh Marotrao Sakhre v. Union of India 1995 Cri L J 96 (Bom) 29 C.A

[5] Suchita Srivastava v. Chandigarh Admn. (2009) 9 SCC 1.

[6] Aruna Ramchandra Shanbaug v. Union of India (2011) 4 SCC 454.

[7] Airedale NHS v. Anthony Bland (1993) AC 789 HL.

[8] Common Cause (a registered society) v. Union of India (2018) 5 SCC 1.

[9] Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, [‘Puttaswamy’].

[10] Supra note 19, at ¶¶187 and 202, 629.5, 629.10.

[11] Id at ¶¶197- 203, 508 -509.

[12] Id at ¶¶176-179.

[13] JOHN S. MILL, ON LIBERTY, (1859).

[14] Supra.

[15] Id.

[16] § 24, Transplantation of Human Organs and Tissues Act, 1994.

[17] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[18] Supra.

[19] R (on the application of Pretty) v. Director of Public Prosecutions [2001] UKHL 61.

[20] Cruzan v. Director, Missouri Department of Health497 U.S. 261 (1990).

[21] Vacco v. Quill521 U.S. 793 (1997).

[22] Schloendorff v. New York Hospital Trust211 N.Y. 125 (1914).

[23] Carter v. Canada (2015) SCC 5.

[24] Pretty v. United Kingdom [2002] All E.R. (D) 286 (Apr.).

[25] Haas v. Switzerland [2011] ECHR 2422.

[26] Lambert v. France[2015] ECHR 545.

[27] Hazel Biggs, Euthanasia, Death with Dignity and the Law 102 (Hart Publishing, Oxford, 2001).

[28] Glanville Williams, “Euthanasia” 41 Medico-Legal Journal 24 (1972).

[29] 211 N.Y. 125.

[30] Ian Kennedy, “Legal Effect Of Request By Terminally Ill And Aged Not To Receive Further Treatment” 73 Criminal Law review 217 (1976).

[31] Alec Samuels, “The Advance Directive (or Living Will)” 36 Medicine Science and Law Journal 2 (1996).

[32] (2011) 4 SCC 454.

[33] Supra.

[34] Parks H. Wilson, “The Living Will - Death with Dignity or Mechanical Vitality”10 Cumberland Law Review 163 (1979).

[35] Law Commission of India, “196th Report on Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners)” (Mar. 2006).

[36] Law Commission of India, “241st Report on Passive Euthanasia” (August 2012).

[37] The Economist Intelligence Unit, “The 2015 Quality of Death Index: Ranking palliative care across the world”(2015),availableat:https://eiuperspectives.economist.com/sites/default/files/2015%20EIU%20Quality%20of%20Death%20Index% 20Oct%2029%20FINAL.pdf (last visited on March 10, 2023).

[38] Common Cause (A Regd. Society) v. Union of India, (2017) 10 SCC 1.