No person shall be deprived of his life or personal liberty except
according to the procedure established by law. (Art 21 of Indian
A five-judge bench, in Gian Kaur (1994) case had held that both assisted suicide
and euthanasia were unlawful. It stated that right to life (art 21) did not
include right to die, hence overruling the two-judge bench decision in
P.Rathinam which struck down sec 309, IPC (attempt to suicide) as
unconstitutional. In Gian Kaur, the apex court held that Art 21 speaks of life
with dignity, and only aspects of life which make it more dignified could read
into this article thereby pointing out that the right to die was inconsistent
However, later in Aruna Shanbaug (2011), it held that passive euthanasia could
be a nod in case of exceptional circumstances and under strict monitoring of the
apex court. After Aruna Shanbaug case, the 241st Report of the Law Commission of
India on Passive Euthanasia has also recognised passive euthanasia, but no law
has been enacted.
In this case, Aruna Shanbaug was a nurse working at the King Edward Memorial
Hospital, Mumbai, On 27 November 1973, she was sodomised by a sweeper. During
the attack, she was strangled in a chain, and the deprivation of oxygen has left
her in a vegetative state ever since. On behalf of Aruna, a social activist
filed a PTI in the Supreme Court arguing that the “continued existence of Aruna
is in violation of her right to live in dignity." She argued that with the
patient unable to see or speak properly, keeping her alive violated her basic
dignity. The Apex Court rejected the plea to discontinue Aruna's life support
but issued a set of broad guidelines legalising passive euthanasia in India. The
court's decision to reject the discontinuation of Aruna's life support was based
on the fact that the hospital staff who treat and take care of her did not
support euthanizing her. Aruna Shanbaug died in 2015.
To live with Dignity Also includes Right to Die with Dignity
In common cause (A regd. society) V Union of India
( AIR 2018 SC 1665) ,
a five judge a constitutional bench of Supreme Court unanimously ( albeit with
four separate concurring judgements) held that the right to die with dignity is
a component of the right to life under Art.21 of the constitution.
In doing so, there is no requirement of legislation to legalise passive
"The right of the individual to die with dignity takes precedence over of the
interest of the state in preserving the sanctity of life "
The Supreme Court judged the question of whether the right to life includes
right to a dignified death based on both legal and moral tests. According to
Justice D.Y. Chandrachud, “Dignity is the core value of life and personal
liberty which infuses every stage of human existence. Dignity in the process of
dying as well as dignity in death reflects along tearing through the ages that
the passage away from life should be bereft of suffering".
The court legalised living wills
or as they choose to call it advance
. A " living well" is a written document by way of which a patient
can give his explicit instructions in advance about medical treatment to be
administrated when he or she is terminally ill or no longer able to express
informed consent including withdrawing life support if a medical board declares
that all lifesaving medical options have been exhausted.
The living will or
advanced directive would specifically instruct next of kin and medical
professionals to not revive or allow for passive euthanasia in such situations.
Doctors allowing passive euthanasia on the basis of advance directives no longer
need to live in fear of legal against them.
The judgement overruled the finding of Aruna Shanbaug judgement viz. the
mechanism of passive euthanasia can only be provided for through legislation.
The basis for this finding is the individual's right to self-determination and
autonomy, we in includes a right to live with dignity. ‘to live with dignity
also includes a right to die with dignity
', held the Apex court. The court has
left the door open for appropriate legislation for passive euthanasia, with judgement to hold forth in the interim.
Accordingly, the Supreme Court provided a two-step vetting process by medical
experts and a final vetting by a judicial magistrate before an advance directive
could be given effect to. In such a case, the hospital treating the person would
first set up a medical board (comprising the head of the department treating him
plus three other medical experts) which has to rule in its favour.
will be conveyed to the district collector who will have this decision vetted by
another medical board consisting of the chief medical officer and three medical
experts of 20 years standing. Should this board to clear it, the magistrate will
ensure that it is carried out and the records kept with the high court for three
years. In case the person hasn’t registered such an advance care directive, his
family and friends could still set into motion the process to ensure that his
treatment is not prolonged through artificial means.