Common Cause (A Regd. Society) V. Union Of India
- The right to life which is revered under Article 21 of the Indian
constitution also comprises the liberty to lose one's life with nobility
- Is the institution of Passive euthanasia allowed in the living will of
patients in India?
- Whether there exists a difference between Passive and Active Euthanasia?
- Is there any advancement proposed by the law commission in India
regarding provisions of euthanasia?
- Whether any right is given to an individual to scrap medical treatment
consisting of termination from life-activating apparatus?
Citation: Air 2018 Sc 1665
Bench: Dipak Misra, Cji; Justice A.K. Sikri; Justice D.Y. Chnadrachud; Justice
Ashok Bhushan & Justice A.M. Khanwilkar.
Supreme Court Of India - Date Of Judgement- March 9th, 2018.
In Common Cause (A Regd. Society) v. Union of India, the discernment was
dispatched by a bench of 5 judges. The decision was given by Chief Justice and
other judges with distinct opinions. The main issue which evolved in the case
was whether the right to life includes the liberty to die under article 21.
Bench in Common Cause case considered that liberty to live with dignity consists
of flattening of procedure of demising if a patient is suffering from incurable
It is contended that Article 21 does not pursue to be negative in
nature but also has some positive content. The Fifth issue explanation-The
reasoning behind the discussion is, by announcing the liberty to die with
dignity as a basic right and by providing legitimate paramountcy to Advance
Medical guidelines, the liberty to die as a positive liberty is given to
patients by the court in situation of a sufferer who is not curable and the
physician has given a positive duty to observe such rights.
For example, suppose
a patient through Advance Medical guidelines states that, if he suffers from
cancer and is curable so treatment shall not be given to them. In such
situations, if the doctor thinks that a suffered is not curable then it is his
duty not to give such medicaments against the consent of the sufferer. So, the
sufferer going through a not curable disease through euthanasia can die
Hence, lacuna on the side of doctor by non-alteration of the not
curable sufferer would be a violation of his helpful obligation. Further, it can
be asserted that the legislation is given under Gian Kaur v. State of Punjab
in context of Article 21 that contended the liberty to die does not consider the
right to die has been moderately overrided in Common Cause to the scope that the
sufferers going through a disease that is not curable would now have a right to
die with dignity under Article 21.
The bench also contended that in Aruna Shanbaug case
, an error was reported on
the concept that Passive euthanasia could only be introduced through a law. The
court rationed that the right to isolation was discussed in Justice K.S.
Puttaswamy v. Union of India
mandated protected the integrity and privacy of an
individual based on his choice in the decisions in relation to his death and
life and further contended that these protections are part of their right to
privacy as in close relation to the elemental liberty to life and personal
liberty revered under our constitution.
The first issue mentioned above that is the liberty to die comes under article
twenty one was first raised in P. Rathinam v. Union of India,
constitutional viability of section 309 of the Indian Penal Code that states an
attempt to commit suicide was questioned & decision was given based on the
judgment given in Maruti Shripati Dubal v. the State of Maharashtra.
contended that a coin has two sides in the same way fundamental rights have both
positive and negative contents which mean the liberty to die comes under the
liberty to life and hence section 309 of the IPC was held constitutionally
invalid and held violative of article fourteen and twenty one of our
Hence, in Gian Kaur v. State of Punjab
intrinsic rationality of section 306 of
the IPC that talks about abetment to suicide, and section 309 of IPC was
challenged. The Apex court upheld the validity of these two provisions and
overruled the decision given in the P. Rathinam case.
The bench contended that
the right to life under article 21 did not consider the right to die. This was
expressed by giving the rationale based on the argument that right to life is an
innate liberty enshrined in our constitution under article twenty one and
suicide is an unusual way to end one's life and cannot be considered a
fundamental right under our constitution. The unnatural ending of life could not
come under liberty to life.
The bench additionally held that the decision given
in P. Rathinam failed to differentiate between the negative and positive aspects
of the right. The question regarding the right to die with dignity and the
liberty to die with unnatural death was dealt with in Airedale NHS Trust v.
Bland and it was contended viz. lawful legislation could make euthanasia legal.
The second issue can be answered by the judgment given in Gian Kaur and Aruna
Shanbaug case. Based on judgment given in the Gian Kaur case, the Apex court in
the Aruna Ram Chandra Shanbaug v. Union of India
allowed Passive Euthanasia &
invoked the principle of Parens Patriae meaning parents of the nation wherein
the court works as the guardian of the patient and is the final chooser decider
of what is better for the sufferer.
The court contended that passive euthanasia
can be legitimized and enlarged into India only by legislation. Writ remedy in
Passive euthanasia is available both under article 32 (in the case of the SC)
and under Article 226 (in the case of the HC) of the constitution. In the year
two thousand twelve, the Law Commission again advanced forming law on passive
euthanasia & composed a draft bill called the Medical Treatment of Terminally
Ill Patients (protection of patients and medical practitioners) bill which does
not proposed ending life by administering some external substance to speed the
The third issue can be answered by stating that there is a difference between
both types of Euthanasia. Passive Euthanasia means speeding death by
disconnecting the person's bearing complex and allowing death of innate
calamity. This technique involves omission of performing certain exceptional
operations such as the disconnecting the person's bearing complex, refusing bare
needs, or not considering Cardio Pulmonary Resuscitation. Active Euthanasia is
given to terminate the misery of person who is suffering through a painful and
meaningless life by administering some external substance to speed the death.
The Fourth Issue Explanation:
The Law Commission of India in its 196th report
advanced certain amendments in sections 306 and 299 of the IPC to protect the
people assisting terminally ill patients in committing euthanasia. The Law
Commission of India in its 210th report considered section 309 IPC inhumane. The
Law commission recognized the attempt to commit suicide as a visualization of
the suffering position of human brain and imposing subsequent sanction under
section 309 of IPC on the person who has already suffered agony and pain is
unjust and unfair.
The petitioner argued that every individual has a right to determine about
oneself and hence once can choose his own way. The use of modern medical
equipment only prolongs a life causing a lot of distress to the patients and
their relatives. If a patient is suffering from an incurable disease then he
should be allowed to die with dignity in the treatment of the patient who is
suffering from incurable disease lot of money, time, and mental, and physical
aspects are spent by the family, and then also no positive result comes out. The
liberty to scrap nursery medicaments is a law considered in India consisting
nursery care extent life of an individual.
The right to repudiate treatment
develops passive euthanasia. Euthanasia given to actively dying patients gives a
chance to propose organ giver. This would result in helping patients suffering
from organ failure. Passive Euthanasia not only provides the liberty to die to
incurable patients but also the right to life to organ-required sufferers.
The respondent contended that all deaths are not painful. The respondent's
argument was based on the judgment in the Gian Kaur case that the right to life
is an innate liberty and suicide is an unusual death. The respondent contended
that it is the obligation of the state to preserve and safeguard the survival of
an individual and euthanasia would underpin the duty of the physicians to give
care and save the life of the patients.
It would be difficult to search for and
invent latest medicaments & cures for not curable sufferers the respect of
society would be weakened on the sanctity of life if euthanasia would be
allowed. The stoppage of operative medicaments with the work of effective
suffering ease can be the best alternative to euthanasia.
Who can Execute Advanced Medical Guidelines or Directives (Living Will) and
How?- This can be exercised by a person of unsound mind, voluntarily, without
any coercion, inducement or compulsion, or undue influence, and shall be in
writing stating clearly medical support of any type which would have the effort
of hampering the procedure of dying or make of him/her free from pain, anguish,
The current study indicates that the debate regarding euthanasia is not
constrained to the topic of suicide but also has fundamental, significance and
doctrinal perspectives. Primarily, death was considered an innate phenomenon of
an individual. But, due to development in the nursing field, it has been now
become easy to cause death of a person through unnatural ways, which could
extent human life for an infinite period. Hence, it became important to pay
attention to trauma caused to terminally ill and untreatable patients for whom
death has become an undetermined incident.
As a precedent of a judicial verdict, there are various circumstances wherein
the absence of any law the affirmations are considered as a right of a person.
Passive euthanasia is one of the conditions or the situation which is considered
a right through judicial decision. Euthanasia must be legalized with kosher
caution in a situation where doctors are required to conduct euthanasia. In the
present world, many jurisdictions like the USA and the UK consider the liberty
of an individual to scrap care and to die with dignity.
The topic of passive
euthanasia is very controversial. It basically focuses on two groups i.e. a
regional group that does not consider the liberty to die under article 21 and
second group talks about the concept of consent i.e. to get consent from
terminally-ill patients to end their life. For the betterment of the people,
laws have been formed for euthanasia.
I would completely support the judgment as
those who are suffering from chronic diseases have been suffering from
persistent pain and suffering and the treatments of which is no cure, so for
them, the forum is correct in considering the liberty to die with regality and
helps them in reducing their pains and enduring from persistent surgeries and
care and will be apt to end their life in a dignifies form.
In my opinion, the current provision in relation to euthanasia and the current
situation in our country is prudent and just. Though there exists an ambiguous
element such as what comes under right to life i.e. in common cause case, right
to life includes the liberty to die with regality & concept of active euthanasia
needs to be clearly and properly examined by our judicial system forget a more
clear and crystal view of the provisions of euthanasia. Further, I would say by
promoting Advanced Medical Directive directives are helpful as it helps a
patient suffering from terminally ill disease to pre-decide to end his life.
- Gian Kaur v. State of Punjab, (1996) 2 SCC 648
- P. Rathinam v. Union of India, (1994) 3 SCC 394
- Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 524
Award Winning Article Is Written By: Ms.Palak Nigam
Authentication No: MA40585478299-26-0522