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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL ORIGINAL JURISDICTION  

WRIT PETITION (CIVIL) NO. 215 OF 2005  

Common Cause (A Regd. Society)         ...Petitioner(s)  

    Versus  

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.]  

I N D E X  

S. No. Heading Page No.  

A. Prologue 3  

B. Contentions in the Writ Petition 10  

C. Stand in the counter affidavit and the  applications for intervention    

14  

D. Background of the Writ Petition 18  

D.1 P. Rathinam’s case – The question of  unconstitutionality of Section 309 of  the Indian Penal Code  

19  

D.2 Gian Kaur’s case – The question of  unconstitutionality of Section 306 of  

22

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the Indian Penal Code  

D.3 The approach in Aruna Shanbaug qua  

Passive Euthanasia vis-à-vis India  

30  

D.4 The Reference 42  

E. Our analysis of Gian Kaur 45  

F. Our analysis of Aruna Shanbaug qua  

legislation  51  

G. The Distinction between Active and Passive  

Euthanasia  52  

H. Euthanasia : International Position 58  

H.1 U.K. Decisions: 58  

H.1.1 Airedale Case 58  

H.1.2 Later Cases 79  

H.2 The Legal position in the United  States  

89  

H.3 Australian Jurisdiction 96  

H.4 Legal position in Canada 99  

H.5 Other Jurisdictions 104  

H.6 International considerations and  decisions of the European Court of  Human Rights (ECHR)  

107  

I The 241st Report of The Law Commission of  India on Passive Euthanasia  

114  

J. Right to refuse treatment 120

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K. Passive Euthanasia in the context of Article  21 of the Constitution.  

126  

K.1 Individual Dignity as a facet of Article  21  

135  

L Right of self-determination and individual  autonomy  

149  

M. Social morality, medical ethicality and State  interest  

155  

N. Submissions of the States 157  

O. Submissions of the Intervenor (Society for  the Right to Die with Diginity)  

159  

P. Advance Directive/Advance Care Directive/  Advance Medical Directive  

160  

(a) Who can execute the Advance Directive  and how  

170  

(b) What should it contain? 171  

(c) How should it be recorded and  preserved  

172  

(d) When and by whom can it be given  effect to  

174  

(e) What if permission is refused by the  Medical Board  

179  

(f) Revocation or inapplicability of  Advance Directive  

181  

Q. Conclusions in seriatim  186  

A. Prologue:  

Life and death as concepts have invited many a thinker,  

philosopher, writer and physician to define or describe them.  

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Sometimes attempts have been made or efforts have been  

undertaken to gloriously paint the pictures of both in many a  

colour and shade. Swami Vivekananda expects one to  

understand that life is the lamp that is constantly burning out  

and further suggests that if one wants to have life, one has to  

die every moment for it.  John Dryden, an illustrious English  

author, considers life a cheat and says that men favour the  

deceit.  No one considers that the goal of life is the grave.  Léon  

Montenaeken would like to describe life as short, a little  

hoping, a little dreaming and then good night. The famous  

poet Dylan Thomas would state ―do not go gentle into that  

good night.‖ One may like to compare life with constant  

restless moment spent in fear of extinction of a valued vapour;  

and another may sincerely believe that it is beyond any  

conceivable metaphor. A metaphysical poet like John Donne,  

in his inimitable manner, says:-  

―One short sleep past, we wake eternally, And death  shall be no more; death, thou shalt die‖.   

 Some would say with profound wisdom that life is to be  

lived only for pleasure and others with equal wise pragmatism

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would proclaim that life is meant for the realization of divinity  

within one because that is where one feels the ―self‖, the  

individuality and one‘s own real identity. Dharmaraj  

Yudhisthira may express that though man sees that death  

takes place every moment, yet he feels that the silence of  

death would not disturb him and nothing could be more  

surprising than the said thought. Yet others feel that one  

should never be concerned about the uncertain death and live  

life embracing hedonism till death comes. Charvaka, an  

ancient philosopher, frowns at the conception of re-birth and  

commends for living life to the fullest. Thus, death is  

complicated and life is a phenomenon which possibly intends  

to keep away from negatives that try to attack the virtue and  

vigour of life from any arena. In spite of all the statements,  

references and utterances, be it mystical, philosophical or  

psychological, the fact remains, at least on the basis of  

conceptual majority, that people love to live – whether at  

eighty or eighteen – and do not, in actuality, intend to treat life  

like an ―autumn leaf‖. As Alfred Tennyson says:-

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―No life that breathes with human breath has ever  

truly longed for death.‖  

2. The perception is not always the same at every stage.   

There comes a phase in life when the spring of life is frozen,  

the rain of circulation becomes dry, the movement of body  

becomes motionless, the rainbow of life becomes colourless   

and the word ‗life‘ which one calls a dance  in space and time  

becomes still and blurred and the inevitable death comes near  

to hold it as an octopus gripping firmly with its tentacles so  

that the person ―shall rise up never‖.  The ancient Greet  

philosopher, Epicurus, has said, although in a different  

context:-    

 ―Why should I fear death?  

 If I am, then death is not.  

 If death is, then I am not.  

Why should I fear that which  

can only exist when I do not?‖  

  But there is a fallacy in the said proposition. It is because  

mere existence does not amount to presence. And sometimes  

there is a feebleness of feeling of presence in semi-reality state  

when the idea of conceptual identity is lost, quality of life is

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sunk and the sanctity of life is destroyed and such destruction  

is denial of real living. Ernest Hemingway, in his book ‗The Old  

Man and the Sea‘, expounds the idea that man can be  

destroyed, but cannot be defeated. In a certain context, it can  

be said, life sans dignity is an unacceptable defeat and life  

that meets death with dignity is a value to be aspired for and a  

moment for celebration.   

3. The question that emerges is whether a person should be  

allowed to remain in such a stage of incurable passivity  

suffering from pain and anguish in the name of Hippocratic  

oath or, for that matter, regarding the suffering as only a state  

of mind and a relative perception or treating the utterance of  

death as a ―word infinitely terrible‖ to be a rhetoric without  

any meaning.  In contradistinction to the same, the question  

that arises is should he not be allowed to cross the doors of  

life and enter,  painlessly and with dignity, into the dark  

tunnel of death whereafter it is said that there is resplendence.  

In delineation of such an issue, there emerges the question in  

law – should he or she be given such treatment which has

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come into existence with the passage of time and progress of  

medical technology so that he/she exists possibly not realizing  

what happens around him/her or should his/her individual  

dignity be sustained with concern by smoothening the process  

of dying.   

4. The legal question does not singularly remain in the set  

framework of law or, for that matter, morality or dilemma of  

the doctors but also encapsulates social values and the family  

mindset to make a resolute decision which ultimately is a  

cause of concern for all. There is also another perspective to it.  

A family may not desire to go ahead with the process of  

treatment but is compelled to do so under social pressure  

especially in a different milieu, and in the case of an  

individual, there remains a fear of being branded that he/she,  

in spite of being able to provide the necessary treatment to the  

patient, has chosen not to do so. The social psyche constantly  

makes him/her feel guilty. The collective puts him at the  

crossroads between socially carved out ‗meaningful guilt‘ and  

his constant sense of rationality and individual responsibility.

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There has to be a legalistic approach which is essential to  

clear the maze and instill awareness that gradually melts the  

idea of ―meaningful guilt‖ and ushers in an act of ―affirmative  

human purpose‖ that puts humanness on a high pedestal.   

5. There is yet another aspect.  In an action of this nature,  

there can be abuse by the beneficiaries who desire that the  

patient‘s heart should stop so that his property is inherited in  

promptitude and in such a situation, the treating physicians  

are also scared of collusion that may invite the wrath of  

criminal law as well as social stigma.  The medical, social and  

ethical apprehensions further cloud their mind to take a  

decision. The apprehension, the cultural stigma, the social  

reprehension, the allegation of conspiracy, the ethical dilemma  

and eventually the shadow between the individual desire and  

the collective expression distances the reality and it is here  

that the law has to have an entry to alleviate the agony of the  

individual and dispel the collective attributes and perceptions  

so that the imbroglio is clear. Therefore, the heart of the  

matter is whether the law permits for accelerating the process

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of dying sans suffering when life is on the path of inevitable  

decay and if so, at what stage and to what extent. The said  

issue warrants delineation from various perspectives.   

B.   Contentions in the Writ Petition:  

6.  The instant Writ Petition preferred under Article 32 of the  

Constitution of India by the petitioner, a registered society,  

seeks to declare ―right to die with dignity‖ as a fundamental  

right within the fold of ―right to live with dignity‖ guaranteed  

under Article 21 of the Constitution; to issue directions to the  

respondents to adopt suitable procedure in consultation with  

the State Governments, where necessary; to ensure that  

persons of deteriorated health or terminally ill patients should  

be able to execute a document titled ―My Living Will and  

Attorney Authorisation‖ which can be presented to the  

hospital for appropriate action in the event of the executant  

being admitted to the hospital with serious illness which may  

threaten termination of the life of the executant; to appoint a  

committee of experts including doctors, social scientists and  

lawyers to study into the aspect of issuing guidelines as to the

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―Living Wills‖; and to issue such further appropriate directions  

and guidelines as may be necessary.  

7. It is asserted that every individual is entitled to take  

his/her decision about the continuance or discontinuance of  

life when the process of death has already commenced and  

he/she has reached an irreversible permanent progressive  

state where death is not far away.  It is contended that each  

individual has an inherent right to die with dignity which is an  

inextricable facet of Article 21 of the Constitution.  That apart,  

it is set forth that right to die sans pain and suffering is  

fundamental to one‘s bodily autonomy and such integrity does  

not remotely accept any effort that puts the individual on life  

support without any ray of hope and on the contrary, the  

whole regime of treatment continues in spite of all being aware  

that it is a Sisyphean endeavour, an effort to light a bulb  

without the filament or to expect a situation to be in an apple  

pie order when it is actually in a state of chaos.   

8. It is put forth that the concept of sustenance of  

individual autonomy inheres in the right of privacy and also

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comes within the fundamental conception of liberty. To  

sustain the stand of privacy, reliance has been placed on the  

decisions in Kharak Singh v. State of U.P. and others1,  

Gobind v. State of Madhya Pradesh and another 2  and  

People’s Union for Civil Liberties v. Union of India and  

another3.  Inspiration has also been drawn from the decision  

of the United States in Cruzan v. Director, Missouri  

Department of Health 4 . It is averred that due to the  

advancement of modern medical technology pertaining to  

medical science and respiration, a situation has been created  

where the dying process of the patient is unnecessarily  

prolonged causing distress and agony to the patient as well as  

to the near and dear ones and, consequently, the patient is in  

a persistent vegetative state thereby allowing free intrusion. It  

is also contended that the petitioner-society is not claiming  

that the right to die is a part of the right to life but asserting  

the claim that the right to die with dignity is an inseparable  

                                                           1  (1964) 1 SCR 332 : AIR 1963 SC 1295  

2  (1975) 2 SCC 148  

3  (1997) 1 SCC 301  

4  111 L Ed 2d 224 : 497 US 261 (1990) : 110 S.Ct. 2841 (1990)  

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and inextricable facet of the right to live with dignity. The  

execution of a living will or issuance of advance directive has  

become a necessity in today‘s time keeping in view the  

prolongation of treatment in spite of irreversible prognosis and  

owing to penal laws in the field that creates a dilemma in the  

minds of doctors to take aid of the modern techniques in a  

case or not. A comparison has been made between the  

fundamental rights of an individual and the State interest  

focusing on sanctity as well as quality of life.  References have  

been made to the laws in various countries, namely, United  

Kingdom, United States of America, Australia, Denmark,  

Singapore, Canada, etc. The autonomy of the patient has been  

laid stress upon to highlight the right to die with dignity  

without pain and suffering which may otherwise be prolonged  

because of artificial continuance of life through methods that  

are really not of any assistance for cure or improvement of  

living conditions.    

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C. Stand in the counter affidavit and the applications  

for intervention:  

9. A counter affidavit has been filed by the Union of India  

contending, inter alia, that serious thought has been given to  

regulate the provisions of euthanasia. A private member‘s Bill   

and the 241st report of the Law Commission of India have been  

referred to. It has been set forth that the Law Commission had  

submitted a report on The Medical Treatment of Terminally-ill  

Patients (Protection of Patients and Medical Practitioners) Bill,  

2006 but the Ministry of Health and Family Welfare was not in  

favour of the enactment due to the following reasons:-  

―a) Hippocratic oath is against intentional/voluntary  

killings of patient.  

b) Progression of medical science to relieve pain,  suffering, rehabilitation and treatment of so-called  

diseases will suffer a set back.  

c) An individual may wish to die at certain point of  time, his/her wish may not be persistent and only a  

fleeting desire out of transient depression.  

d) Suffering is a state of mind and a perception,  which varies from individual to individual and  depends on various environmental and social  

factors.  

e) Continuous advancement in medical science has  made possible good pain management in patients of  cancer and other terminal illness. Similarly,

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rehabilitation helps many spinal injury patients in  leading near normal life and euthanasia may not be  

required.  

f) Wish of euthanasia by a mentally ill patient/in  depression may be treatable by good psychiatric  

care.  

g) It will be difficult to quantify suffering, which may  always be subject to changing social pressures and  

norms.  

h) Can doctors claim to have knowledge and  experience to say that the disease is incurable and  

patient is permanently invalid?  

i) Defining of bed-ridden and requiring regular  

assistance is again not always medically possible.  

j) There might be psychological pressure and  trauma to the medical officers who would be  

required to conduct euthanasia.‖  

10. The counter affidavit further states that after the  

judgment was delivered by this Court in Aruna  

Ramachandra Shanbaug v. Union of India and others5,  

the Ministry of Law and Justice opined that the directions  

given by this Court have to be followed in such cases and the  

said directions should be treated as law.  The Law Commission  

in its 241st Report titled ―Passive Euthanasia – A Relook‖ again  

proposed for making a legislation on ―Passive Euthanasia‖ and  

also prepared a draft Bill titled The Medical Treatment of  

                                                           5  (2011) 4 SCC 454

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Terminally Ill Patients (Protection of Patients and Medical  

Practitioners) Bill. The said Bill was referred to the technical  

wing of the Ministry of Health and Family Welfare (Directorate  

General of Health Services-Dte. GHS) for examination in June  

2014.  It is the case of the Union of India that two meetings  

were held under the chairmanship of Special Director General  

of Health Service which was attended by various experts. A  

further meeting was held under the chairmanship of  

Secretary, Ministry of Health and Family Welfare, on  

22.05.2015 to examine the Bill.  Thereafter, various meetings  

have been held by experts and the expert committee had  

proposed formulation of legislation on passive euthanasia.   

11. Counter affidavits have been filed by various States.  We  

need not refer to the same in detail. Suffice it to mention that  

in certain affidavits, emphasis has been laid on Articles 37, 39  

and 47 which require the States to take appropriate steps as  

envisaged in the said Articles for apposite governance.  That  

apart, it has been pronouncedly stated that the right to life  

does not include the right to die and, in any case, the right to

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live with dignity guaranteed under Article 21 of the  

Constitution means availability of food, shelter and health and  

does not include the right to die with dignity.  It is asseverated  

that saving the life is the primary duty of the State and,  

therefore, there is necessity for health care. It is also  

contended that the introduction of the right to die with dignity  

as a facet of the right under Article 21 will create a right that  

the said constitutional provision does not envisage and further  

it may have the potential effect to destroy the said basic right.  

12. An application for intervention has been filed by the  

―Society for the Right to Die with Dignity‖ whose prayer for  

intervention has been allowed. The affidavit filed by the said  

society supports the concept of euthanasia because it is a  

relief from irrecoverable suffering of which pain is a factor.  It  

has cited many an example from various texts to support  

passive euthanasia and suggested certain criteria to be  

followed.  It has also supported the idea of introduction of  

living will and durable power of attorney documents and has  

filed a sample of living will or advance health directive or

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advance declaration provided by Luis Kutner. Emphasis has  

been laid on peaceful exit from life and the freedom of choice  

not to live and particularly so under distressing conditions  

and ill-health which lead to an irrecoverable state. The  

management of terminally ill patients has been put at the  

centre stage.  It has been highlighted that determination of the  

seemly criteria will keep the element of misuse by the family  

members or the treating physician or, for that matter, any  

interested person at bay and also remove the confusion.   

We have heard Mr. Prashant Bhushan, learned counsel  

for the petitioner.  Mr. P.S. Narasimha, learned Additional  

Solicitor General for Union of India, Mr. Arvind P. Datar  

learned senior counsel and Mr. Devansh A. Mohta, learned  

counsel who have supported the cause put forth in the writ  

petition.  

D. Background of the Writ Petition:  

13. Before we engage ourselves with the right claimed, it is  

requisite to state that the present litigation has a history and  

while narrating the same, the assertions made in the Writ

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Petition and the contentions which have been raised during  

the course of hearing, to which we shall refer in due course,  

are to be kept in mind.   

D.1  P. Rathinam’s case – The question of  unconstitutionality of Section 309 of the Indian Penal  Code:  

14. Presently, it is necessary to travel backwards in time,  

though not very far.  Two individuals, namely, P. Rathinam  

and Nagbhushan Patnaik, filed two Writ Petitions under  

Article 32 of the Constitution which were decided by a two-

Judge Bench in P. Rathinam v. Union of India & another6.   

The writ petitions assailed the constitutional validity of Section  

309 of the Indian Penal Code (IPC) contending that the same is  

violative of Articles 14 and 21 of the Constitution.  The Court  

posed 16 questions. The relevant ones read thus:-  

―(1)  Has Article 21 any positive content or is it merely  negative in its reach?  

(2)  Has a person residing in India a right to die?  

 x  x  x  x  

(12)  Is suicide against public policy?  

                                                           6  (1994) 3 SCC 394

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(13) Does commission of suicide damage the  monopolistic power of the State to take life?  

(14) Is apprehension of ‗constitutional cannibalism‘  justified?  

(15)  Recommendation of the Law Commission of India  and follow-up steps taken, if any.  

(16)  Global view. What is the legal position in other  leading countries of the world regarding the  matter at hand?‖  

 15. Answering question No. (1), the Court, after referring to  

various authorities under Article 21, took note of the authority  

in State of Himachal Pradesh and another v. Umed Ram  

Sharma and others7 wherein it has been observed that the  

right to life embraces not only physical existence but also the  

quality of life as understood in its richness and fullness within  

the ambit of the Constitution. In the said case, the Court had  

held that for residents of hilly areas, access to road was access  

to life itself and so, necessity of road communication in a  

reasonable condition was treated as a constitutional  

imperative. P. Rathinam perceived the elevated positive  

content in the said ruling. Answering question No. (2), the  

Court referred to the decision of the Bombay High Court in  

                                                           7  (1986) 2 SCC 68 : AIR 1986 SC 847

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Maruti Shripati Dubal v. State of Maharashtra 8  that  

placed reliance on R.C. Cooper v. Union of India9 wherein it  

had been held that what is true of one fundamental right is  

also true of another fundamental right and on the said  

premise, the Bombay High Court had opined that it cannot be  

seriously disputed that fundamental rights have their positive  

as well as negative aspects.  Citing an example, it had stated  

that freedom of speech and expression includes freedom not to  

speak and similarly, the freedom of association and movement  

includes freedom not to join any association or move anywhere  

and, accordingly, it stated that logically it must follow that the  

right to live would include the right not to live, i.e., right to die  

or to terminate one‘s life.    

16. After so stating, this Court approved the view taken by  

the Bombay High Court in Maruti Shripati Dubal and  

meeting the criticism of that judgment from certain quarters,  

the two-Judge Bench opined that the criticism was only  

partially correct because the negative aspect may not be  

                                                           8  1987 Cri LJ 473 : (1986) 88 Bom LR 589   

9  (1970) 2 SCC 298 : AIR 1970 SC  1318

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inferable on the analogy of the rights conferred by different  

clauses of Article 19 and one may refuse to live if his life,  

according to the person concerned, is not worth living. One  

may rightly think that having achieved all worldly pleasures or  

happiness, he has something to achieve beyond this life. This  

desire for communion with God may rightly lead even a  

healthy mind to think that he would forego his right to live  

and would rather choose not to live. In any case, a person  

cannot be forced to enjoy the right to life to his detriment,  

disadvantage or disliking.  Eventually, it concluded that the  

right to live of which Article 21 speaks of can be said to bring  

in its trail the right not to live a forced life.  

17.  Answering all the questions, the Court declared Section  

309 IPC ultra vires and held that it deserved to be effaced from  

the statute book to humanize our penal laws.   

D.2  Gian Kaur’s case – The question of  unconstitutionality of Section 306 of the Indian  

Penal Code:  

18. The dictum laid down by the two-Judge Bench in P.  

Rathinam did not remain a precedent for long.  In Gian Kaur

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v. State of Punjab10, the Constitution Bench considered the  

correctness of the decision rendered in P. Rathinam.  In the  

said case, the appellants were convicted by the trial Court  

under Section 306 IPC and the conviction was assailed on the  

ground that Section 306 IPC is unconstitutional and to  

sustain the said argument, reliance was placed on the  

authority in P. Rathinam wherein Section 309 IPC was held  

to be unconstitutional being violative of Article 21 of the  

Constitution. It was urged that once Section 309 IPC had been  

held to be unconstitutional, any person abetting the  

commission of suicide by another is merely assisting in the  

enforcement of the fundamental right under Article 21 and,  

therefore, Section 306 IPC penalizing abetment of suicide is  

equally violative of Article 21. The two-Judge Bench before  

which these arguments were advanced in appeal referred the  

matter to a Constitution Bench for deciding the same.  In the  

course of arguments, one of the amicus curiae, Mr. F.S.  

Nariman, learned senior counsel, had submitted that the  

debate on euthanasia is not relevant for deciding the question  

                                                           10

(1996) 2 SCC 648

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of constitutional validity of Section 309 and Article 21 cannot  

be construed to include within it the so-called ―right to die‖  

since Article 21 guarantees protection of life and liberty and  

not its extinction. The Constitution Bench, after noting the  

submissions, stated:-  

―17. … We, therefore, proceed now to consider the  question of constitutional validity with reference to  Articles 14 and 21 of the Constitution. Any further  reference to the global debate on the desirability of  retaining a penal provision to punish attempted  suicide is unnecessary for the purpose of this  decision. Undue emphasis on that aspect and  particularly the reference to euthanasia cases tends  to befog the real issue of the constitutionality of the  provision and the crux of the matter which is  determinative of the issue.‖  

 19. Thereafter, the Constitution Bench in Gian Kaur (supra)  

scrutinized the reasons given in P. Rathinam and opined that  

the Court in the said case took the view that if a person has a  

right to live, he also has a right not to live. The Court in Gian  

Kaur (supra) observed that the Court in P. Rathinam (supra),  

while taking such a view, relied on the decisions which relate  

to other fundamental rights dealing with different situations  

and those decisions merely hold that the right to do an act

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also includes the right not to do an act in that manner. The  

larger Bench further observed that in all those decisions, it  

was the negative aspect of the right that was involved for  

which no positive or overt act was to be done.  The  

Constitution Bench categorically stated that this difference  

has to be borne in mind while making the comparison for the  

application of this principle.  

20. Delving into the facet of committing suicide, the larger  

Bench observed that when a man commits suicide, he has to  

undertake certain positive overt acts and the genesis of those  

acts cannot be traced to or be included within the protection of  

the ‗right to life‘ under Article 21. It also held that the  

significant aspect of ‗sanctity of life‘ should not be overlooked.  

The Court further opined that by no stretch of imagination,  

extinction of life can be read to be included in protection of life  

because Article 21, in its ambit and sweep, cannot include  

within it the right to die as a part of fundamental right  

guaranteed therein.  The Constitution Bench ruled:-  

―‗Right to life‘ is a natural right embodied in Article  21 but suicide is an unnatural termination or  extinction of life and, therefore, incompatible and

26    

inconsistent with the concept of ―right to life‖. With  respect and in all humility, we find no similarity in  the nature of the other rights, such as the right to  ―freedom of speech‖ etc. to provide a comparable  basis to hold that the ―right to life‖ also includes the  ―right to die‖. With respect, the comparison is  inapposite, for the reason indicated in the context of  Article 21. The decisions relating to other  fundamental rights wherein the absence of  compulsion to exercise a right was held to be  included within the exercise of that right, are not  

available to support the view taken in P. Rathinam  qua Article 21.‖  

 21. Adverting to the concept of euthanasia, the Court  

observed that protagonism of euthanasia on the view that  

existence in persistent vegetative state (PVS) is not a benefit to  

the patient of terminal illness being unrelated to the principle  

of ―sanctity of life‖ or the ―right to live with dignity‖ is of no  

assistance to determine the scope of Article 21 for deciding  

whether the guarantee of ―right to life‖ therein includes the  

―right to die‖. The ―right to life‖ including the right to live with  

human dignity would mean the existence of such a right up to  

the end of natural life. The Constitution Bench further  

explained that the said conception also includes the right to a  

dignified life up to the point of death including a dignified  

procedure of death or, in other words, it may include the right

27    

of a dying man to also die with dignity when his life is ebbing  

out. It has been clarified that the right to die with dignity at  

the end of life is not to be confused or equated with the ―right  

to die‖ an unnatural death curtailing the natural span of life.   

Thereafter, the Court proceeded to state:-  

―25. A question may arise, in the context of a dying  man who is terminally ill or in a persistent  vegetative state that he may be permitted to  terminate it by a premature extinction of his life in  those circumstances. This category of cases may fall  within the ambit of the ―right to die‖ with dignity as  a part of right to live with dignity, when death due  to termination of natural life is certain and  imminent and the process of natural death has  commenced. These are not cases of extinguishing  life but only of accelerating conclusion of the  process of natural death which has already  commenced. The debate even in such cases to  permit physician-assisted termination of life is  inconclusive. It is sufficient to reiterate that the  argument to support the view of permitting  termination of life in such cases to reduce the  period of suffering during the process of certain  natural death is not available to interpret Article 21  to include therein the right to curtail the natural  span of life.‖  

[Emphasis supplied]  

22. In view of the aforesaid analysis and taking into  

consideration various other aspects, the Constitution Bench  

declared Section 309 IPC as constitutional.   

28    

23. The Court held that the "right to live with human dignity"  

cannot be construed to include within its ambit the right to  

terminate natural life, at least before the commencement of the   

process of certain natural death. It then examined the question  

of validity of Section 306 IPC. It accepted the submission that  

Section 306 is constitutional. While adverting to the decision in  

Airedale N.H.S. Trust v. Bland11, the Court at the outset made  

it clear that it was not called upon to deal with the issue of  

physician-assisted suicide or euthanasia cases. The decision in  

Airedale‘s case (supra), was relating to the withdrawal of  

artificial measures for continuance of life by a physician. In the  

context of existence in the persistent vegetative state of no  

benefit to the patient, the principle of sanctity of life, which is  

the concern of the State, was stated to be not an absolute one.  

To bring home the distinction between active and passive  

euthanasia, an illustration was noted in the context of  

administering lethal drug actively to bring the patient's life to an  

end. The significant dictum in that decision has been extracted  

in Gian Kaur (supra) wherein it is observed that it is not lawful  

for a doctor to administer a drug to his patient to bring about  

                                                           11 (1993) 2 WLR 316: (1993) 1 All ER 821, HL

29    

his death even though that course is promoted by a  

humanitarian desire to end his suffering and however great that  

suffering may be. Further, to act so is to cross the rubicon  

which runs between the care of the living patient on one hand  

and euthanasia - actively causing his death to avoid or to end  

his suffering on the other hand. It has been noticed in Airedale   

that euthanasia is not lawful at common law. In the light of the  

demand of responsible members of the society who believe that  

euthanasia should be made lawful, it has been observed in that  

decision that the same can be achieved by legislation. The  

Constitution Bench has merely noted this aspect in paragraph  

41 with reference to the dictum in Airedale case.  

24. Proceeding to deal with physician assisted suicide, the  

Constitution Bench observed:-  

―42. The decision of the United States Court of  

Appeals for the Ninth Circuit in Compassion in  Dying v. State of Washington12, which reversed the  decision of United States District Court, W.D.  Washington reported in 850 Federal Supplement  1454, has also relevance. The constitutional validity  of the State statute that banned physician-assisted  suicide by mentally competent, terminally ill adults  was in question. The District Court held  

                                                           12

49 F 3d 586

30    

unconstitutional the provision punishing for  promoting a suicide attempt. On appeal, that  judgment was reversed and the constitutional  validity of the provision was upheld.‖  

 And again:-  

―43. This caution even in cases of physician- assisted suicide is sufficient to indicate that  assisted suicides outside that category have no  rational basis to claim exclusion of the fundamental  principles of sanctity of life. The reasons assigned  for attacking a provision which penalises attempted  suicide are not available to the abettor of suicide or  attempted suicide. Abetment of suicide or attempted  suicide is a distinct offence which is found enacted  even in the law of the countries where attempted  suicide is not made punishable. Section 306 IPC  enacts a distinct offence which can survive  independent of Section 309 in the IPC. The learned  Attorney General as well as both the learned amicus  curiae rightly supported the constitutional validity  of Section 306 IPC.‖  

Eventually, the Court in Gian Kaur (supra), apart from  

overruling P. Rathinam (supra), upheld the constitutional  

validity of Section 306 IPC.  

D.3 The approach in Aruna Shanbaug qua Passive  

Euthanasia vis-à-vis India:  

25. Although the controversy relating to attempt to suicide or  

abetment of suicide was put to rest, yet the issue of

31    

euthanasia remained alive.  It arose for consideration almost  

after a span of eleven years in Aruna Shanbaug (supra).  A  

writ petition was filed by the next friend of the petitioner  

pleading, inter alia, that the petitioner was suffering  

immensely because of an incident that took place thirty six  

years back on 27.11.1973 and was in a Persistent Vegetative  

State (PVS) and in no state of awareness and her brain was  

virtually dead. The prayer of the next friend was that the  

respondent be directed to stop feeding the petitioner and to  

allow her to die peacefully.  The Court noticed that there was  

some variance in the allegation made in the writ petition and  

the counter affidavit filed by the Professor and Head of the  

hospital where the petitioner was availing treatment. The  

Court appointed a team of three very distinguished doctors to  

examine the petitioner thoroughly and to submit a report  

about her physical and mental condition.  The team submitted  

a joint report.  The Court asked the team of doctors to submit  

a supplementary report by which the meaning of the technical  

terms in the first report could be explained.  Various other  

aspects were also made clear.  It is also worth noting that the

32    

KEM Hospital where the petitioner was admitted was  

appointed as the next friend by the Court because of its  

services rendered to the petitioner and the emotional bonding  

and attachment with the petitioner.  

26. In Aruna Shanbaug (supra), after referring to the  

authority in Vikram Deo Singh Tomar v. State of Bihar13,  

this Court reproduced paragraphs 24 and 25 from Gian  

Kaur‘s case and opined that the said paragraphs simply mean  

that the view taken in Rathinam’s case to the effect that the  

‗right to life‘ includes the ‗right to die‘ is not correct and para  

25 specifically mentions that the debate even in such cases to  

permit physician-assisted termination of life is inconclusive.   

The Court further observed that it was held in Gian Kaur that  

there is no ‗right to die‘ under Article 21 of the Constitution  

and the right to life includes the right to live with human  

dignity but in the case of a dying person who is terminally ill  

or in permanent vegetative state, he may be allowed a  

premature extinction of his life and it would not amount to a  

crime. Thereafter, the Court took note of the submissions of                                                              13

1988 Supp. SCC 734 : AIR 1988 SC 1782

33    

the learned amicus curiae to the effect that the decision to  

withdraw life support is taken in the best interests of the  

patient by a body of medical persons.  The Court observed that  

it is not the function of the Court to evaluate the situation and  

form an opinion on its own.  The Court further noted that in  

England, the parens patriae jurisdiction over adult mentally  

incompetent persons was abolished by statute and the Court  

has no power now to give its consent and in such a situation,  

the Court only gives a declaration that the proposed omission  

by doctors is not unlawful.  

27. After so stating, the Court addressed the legal issues,  

namely, active and passive euthanasia. It noted the  

legislations prevalent in Netherlands, Switzerland, Belgium,  

U.K., Spain, Austria, Italy, Germany, France and United States  

of America.  It also noted that active euthanasia is illegal in all  

States in USA, but physician-assisted death is legal in the  

States of Oregon, Washington and Montana.  The Court also  

referred to the legal position in Canada.  Dealing with passive  

euthanasia, the two-Judge Bench opined that passive  

euthanasia is usually defined as withdrawing medical

34    

treatment with a deliberate intention of causing the patient‘s  

death.  An example was cited by stating that if a patient  

requires kidney dialysis to survive, not giving dialysis although  

the machine is available is passive euthanasia and similarly,  

withdrawing the machine where a patient is in coma or on  

heart-lung machine support will ordinarily result in passive  

euthanasia. The Court also put non-administration of life  

saving medicines like antibiotics in certain situations on the  

same platform of passive euthanasia.  Denying food to a  

person in coma or PVS has also been treated to come within  

the ambit of passive euthanasia.  The Court copiously referred  

to the decision in Airedale. In Airedale case, as has been  

noted in Aruna Shanbaug, Lord Goff observed that  

discontinuance of artificial feeding in such cases is not  

equivalent to cutting a mountaineer‘s rope or severing the air  

pipe of a deep sea diver.  The real question has to be not  

whether the doctor should take a course in which he will  

actively kill his patient but whether he should continue to  

provide his patient with medical treatment or care which, if  

continued, will prolong his life.  

35    

28. Lord Browne–Wilkinson was of the view that removing  

the nasogastric tube in the case of Anthony Bland cannot be  

regarded as a positive act causing death.  The tube by itself,  

without the food being supplied through it, does nothing.  Its  

non-removal by itself does not cause death since by itself, it  

does not sustain life. The learned Judge observed that removal  

of the tube would not constitute the actus reus of murder  

since such an act by itself would not cause death.    

29. Lord Mustill observed:-  

―Threaded through the technical arguments  addressed to the House were the strands of a much  wider position, that it is in the best interests of the  

community at large that Anthony Bland’s life should  now end. The doctors have done all they can.  Nothing will be gained by going on and much will be  lost. The distress of the family will get steadily  worse. The strain on the devotion of a medical staff  charged with the care of a patient whose condition  will never improve, who may live for years and who  does not even recognise that he is being cared for,  will continue to mount. The large resources of skill,  labour and money now being devoted to Anthony  Bland might in the opinion of many be more  fruitfully employed in improving the condition of  other patients, who if treated may have useful,  healthy and enjoyable lives for years to come.‖  

36    

30. The two-Judge Bench further observed that the decision  

in Airedale by the House of Lords has been followed in a  

number of cases in U.K. and the law is now fairly well settled  

that in the case of incompetent patients, if the doctors act on  

the basis of notified medical opinion and withdraw the  

artificial life support system in the patient‘s best interest, the  

said act cannot be regarded as a crime.  The learned Judges  

posed the question as to who is to decide what is that patient‘s  

best interest where he is in a PVS and, in that regard, opined  

that it is ultimately for the Court to decide, as parens patriae,  

as to what is in the best interest of the patient, though the  

wishes of close relatives and next friend and the opinion of  

medical practitioners should be given due weight in coming to  

its decision. For the said purpose, reference was made to the  

opinion of Balcombe J. in Re J (A Minor) (Wardship: Medical  

Treatment)14 whereby it has been stated that the Court as  

representative of the Sovereign and as parens patriae will  

adopt the same standard which a reasonable and responsible  

parent would do.   

                                                           14

[1991] 2 WLR 140: [1990] 3 All ER 930: [1991] Fam 33

37    

31. The two-Judge Bench referred to the decisions of the  

Supreme Court of United States in Washington v.  

Glucksberg15 and Vacco v. Quill16 which addressed the issue  

whether there was a federal constitutional road to assisted  

suicide.   Analysing the said decisions and others, the Court  

observed that the informed consent doctrine has become  

firmly entrenched in American Tort Law and, as a logical  

corollary, lays foundation for the doctrine that the patient who  

generally possesses the right to consent has the right to refuse  

treatment.  

32. In the ultimate analysis, the Court opined that the  

Airedale case is more apposite to be followed.  Thereafter, the  

Court adverted to the law in India and ruled that in Gian  

Kaur case, this Court had approved the decision of the House  

of Lords in Airedale and observed that euthanasia could be  

made lawful only by legislation.  After so stating, the learned  

Judges opined:-  

―104. It may be noted that in Gian Kaur case  although the Supreme Court has quoted with  

approval the view of the House of Lords in Airedale                                                              15

138 L Ed 2d 772 : 521 US 702 (1997)  16

138 L Ed 2d 834 : 521 US 793 (1997)

38    

case, it has not clarified who can decide whether life  support should be discontinued in the case of an  incompetent person e.g. a person in coma or PVS.  This vexed question has been arising often in India  because there are a large number of cases where  persons go into coma (due to an accident or some  other reason) or for some other reason are unable to  give consent, and then the question arises as to who  should give consent for withdrawal of life support.  This is an extremely important question in India  because of the unfortunate low level of ethical  standards to which our society has descended, its  raw and widespread commercialisation, and the  rampant corruption, and hence, the Court has to be  very cautious that unscrupulous persons who wish  to inherit the property of someone may not get him  eliminated by some crooked method.‖  

 33. After so stating, the two-Judge Bench dwelled upon the  

concept of brain dead and various other aspects which  

included withdrawal of life support of a patient in PVS and, in  

that context, ruled thus:-  

―125. In our opinion, if we leave it solely to the  patient‘s relatives or to the doctors or next friend to  decide whether to withdraw the life support of an  incompetent person there is always a risk in our  country that this may be misused by some  unscrupulous persons who wish to inherit or  otherwise grab the property of the patient.  Considering the low ethical levels prevailing in our  society today and the rampant commercialisation  and corruption, we cannot rule out the possibility  that unscrupulous persons with the help of some  unscrupulous doctors may fabricate material to

39    

show that it is a terminal case with no chance of  recovery. There are doctors and doctors. While  many doctors are upright, there are others who can  do anything for money (see George Bernard Shaw‘s  

play The Doctor’s Dilemma). The commercialisation  of our society has crossed all limits. Hence we have  to guard against the potential of misuse (see Robin  

Cook‘s novel Coma). In our opinion, while giving  great weight to the wishes of the parents, spouse, or  other close relatives or next friend of the  incompetent patient and also giving due weight to  the opinion of the attending doctors, we cannot  leave it entirely to their discretion whether to  discontinue the life support or not. We agree with  

the decision of Lord Keith in Airedale case5 that the  approval of the High Court should be taken in this  connection. This is in the interest of the protection  of the patient, protection of the doctors, relatives  and next friend, and for reassurance of the patient‘s  family as well as the public. This is also in  

consonance with the doctrine of parens patriae  which is a well-known principle of law.‖  

 34. After so laying down, the Court referred to the authorities  

in Charan Lal Sahu v. Union of India 17  and State of  

Kerala and another v. N.M. Thomas and others 18  and  

further opined that the High Court can grant approval for  

withdrawing life support of an incompetent person under  

Article 226 of the Constitution because Article 226 gives  

abundant power to the High Court to pass suitable orders on  

                                                           17

(1990) 1 SCC 613  18

(1976) 2 SCC 310

40    

the application filed by the near relatives or next friend or the  

doctors/hospital staff praying for permission to withdraw the  

life support of an incompetent person. Dealing with the  

procedure to be adopted by the High Court when such  

application is filed, the Court ruled that when such an  

application is filed, the Chief Justice of the High Court should  

forthwith constitute a Bench of at least two Judges who  

should decide to grant approval or not and before doing so, the  

Bench should seek the opinion of a Committee of three  

reputed doctors to be nominated by the Bench after consulting  

such medical authorities/medical practitioners as it may deem  

fit.  Amongst the three doctors, as directed, one should be a  

Neurologist, one should be a Psychiatrist and the third a  

Physician.  The Court further directed:-  

―134. … The committee of three doctors nominated  by the Bench should carefully examine the patient  and also consult the record of the patient as well as  take the views of the hospital staff and submit its  report to the High Court Bench. Simultaneously  with appointing the committee of doctors, the High  Court Bench shall also issue notice to the State and  close relatives e.g. parents, spouse, brothers/  sisters, etc. of the patient, and in their absence  his/her next friend, and supply a copy of the report

41    

of the doctor‘s committee to them as soon as it is  available. After hearing them, the High Court Bench  should give its verdict.  

135. The above procedure should be followed all  over India until Parliament makes legislation on this  subject.  

136. The High Court should give its decision  speedily at the earliest, since delay in the matter  may result in causing great mental agony to the  relatives and persons close to the patient. The High  Court should give its decision assigning specific  reasons in accordance with the principle of ―best  interest of the patient‖ laid down by the House of  

Lords in Airedale case. The views of the near  relatives and committee of doctors should be given  due weight by the High Court before pronouncing a  final verdict which shall not be summary in nature.‖  

 35. We must note here that the two-Judge Bench declined to  

grant the permission after perusing the medical reports.  For  

the sake of completeness, we think it apt to reproduce the  

reasoning:-  

―122. From the above examination by the team of  doctors, it cannot be said that Aruna Shanbaug is  dead. Whatever the condition of her cortex, her  brainstem is certainly alive. She does not need a  heart-lung machine. She breathes on her own  without the help of a respirator. She digests food,  and her body performs other involuntary functions  without any help. From the CD (which we had  screened in the courtroom on 2-3-2011 in the  presence of the counsel and others) it appears that

42    

she can certainly not be called dead. She was  making some sounds, blinking, eating food put in  her mouth, and even licking with her tongue  morsels on her mouth. However, there appears little  possibility of her coming out of PVS in which she is  in. In all probability, she will continue to be in the  state in which she is in till her death.‖  

D.4 The Reference:  

 36. The aforesaid matter was decided when the present Writ  

Petition was pending for consideration.  The present petition  

was, thereafter, listed before a three-Judge Bench which noted  

the submissions advanced on behalf of the petitioner and also  

that of the learned Additional Solicitor General on behalf of the  

Union of India.  Reliance was placed on the decision in Aruna  

Shanbaug. The three-Judge Bench reproduced paragraphs 24  

and 25 from Gian Kaur and noted that the Constitution  

Bench did not express any binding view on the subject of  

euthanasia, rather it reiterated that the legislature would be  

the appropriate authority to bring the change.    

37. After so holding, it referred to the understanding of Gian  

Kaur in Aruna Shanbaug by the two-Judge Bench and  

reproduced paragraphs 21 and 101 from the said judgment:-

43    

―21. We have carefully considered paras 24 and  25 in Gian Kaur case and we are of the opinion  that all that has been said therein is that the  

view in Rathinam case that the right to life  includes the right to die is not correct. We cannot  

construe Gian Kaur case to mean anything  beyond that. In fact, it has been specifically  mentioned in para 25 of the aforesaid decision  that ‘the debate even in such cases to permit  physician-assisted termination of life is  inconclusive’. Thus it is obvious that no final view  was expressed in the decision in Gian Kaur case  beyond what we have mentioned above.  

 x  x  x  x   

―101. The Constitution Bench of the Supreme  Court in Gian Kaur v. State of Punjab held that  both euthanasia and assisted suicide are not  lawful in India. That decision overruled the  earlier two-Judge Bench decision of the Supreme  

Court in P. Rathinam v. Union of India. The Court  held that the right to life under Article 21 of the  Constitution does not include the right to die  

(vide SCC para 33). In Gian Kaur case the  Supreme Court approved of the decision of the  House of Lords in Airedale case and observed that  euthanasia could be made lawful only by  legislation.‖  

(Emphasis supplied)  

38. Commenting on the said analysis, the three-Judge Bench  

went on to say:-  

―13. Insofar as the above paragraphs are concerned,  

Aruna Shanbaug aptly interpreted the decision of

44    

the Constitution Bench in Gian Kaur and came to  the conclusion that euthanasia can be allowed in  India only through a valid legislation. However, it is  

factually wrong to observe that in Gian Kaur, the  Constitution Bench approved the decision of the  

House of Lords in Airedale N.H.S. Trust v. Bland.  Para 40 of Gian Kaur, clearly states that :  

―40. … Even though it is not necessary to deal  with physician-assisted suicide or euthanasia  cases, a brief reference to this decision cited at the  Bar may be made.‖  

(Emphasis supplied)  

Thus, it was a mere reference in the verdict and it  cannot be construed to mean that the Constitution  

Bench in Gian Kaur approved the opinion of the  House of Lords rendered in Airedale. To this extent,  the observation in para 101 of Aruna Shanbaug is  incorrect.‖  

 39. From the aforesaid, it is clear that the three-Judge Bench  

expressed the view that the opinion of the House of Lords in  

Airedale has not been approved in Gian Kaur (supra) and to  

that extent, the observation in Aruna Shanbaug (supra)  is  

incorrect.  After so stating, the three-Judge Bench opined that  

Aruna Shanbaug (supra) upholds the authority of passive  

euthanasia and lays down an elaborate procedure for  

executing the same on the wrong premise that the  

Constitution Bench in Gian Kaur (supra) had upheld the

45    

same.  Thereafter, considering the important question of law  

involved which needs to be reflected in the light of social, legal,  

medical and constitutional perspectives, in order to have a  

clear enunciation of law, it referred the matter for  

consideration by the Constitution Bench of this Court for the  

benefit of humanity as a whole. The three-Judge bench further  

observed that it was refraining from framing any specific  

questions for consideration by the Constitution Bench as it  

would like the Constitution Bench to go into all the aspects of  

the matter and lay down exhaustive guidelines.  That is how  

the matter has been placed before us.  

E. Our analysis of Gian Kaur:   

40. It is the first and foremost duty to understand what has  

been stated by the Constitution Bench in Gian Kaur‘s case. It  

has referred to the decision in Airedale (supra) that has been  

recapitulated in Aruna Shanbaug case which was a case  

relating to withdrawal of artificial measures of continuance of  

life by the physician.  It is relevant to mention here that the  

Constitution Bench in Gian Kaur categorically noted that it  

was not necessary to deal with physician–assisted suicide or

46    

euthanasia cases though a brief reference to the decisions  

cited by the Bar was required to be made. The Constitution  

Bench noted that Airedale held that in the context of  

existence in the persistent vegetative state of no benefit to the  

patient, the principle of sanctity of life, which is the concern of  

the State, was not an absolute one.  The larger bench further  

noticed that in Airedale, it had been stated that in such cases  

also, the existing crucial distinction between cases in which a  

physician decides not to provide or to continue to provide, for  

his patient, treatment or care which could or might prolong  

his life, and those in which he decides, for example, by  

administering a lethal drug actively to bring his patient‘s life to  

an end, was indicated. Thereafter, while again referring to  

Airedale case, the larger bench observed that it was a case  

relating to withdrawal of artificial measures for continuance of  

life by the physician.  After so stating, the Court reproduced  

the following passage from the opinion of Lord Goff of  

Chieveley:-  

―... But it is not lawful for a doctor to administer a  drug to his patient to bring about his death, even

47    

though that course is prompted by a humanitarian  desire to end his suffering, however great that  suffering may be : See Reg v. Cox, (unreported), 18  September (1992). So to act is to cross the Rubicon  which runs between on the one hand the care of  the living patient and on the other hand euthanasia  - actively causing his death to avoid or to end his  

suffering. Euthanasia is not lawful at common law.  It is of course well known that there are many  responsible members of our society who believe that  euthanasia should be made lawful; but that result  could, I believe, only be achieved by legislation  which expresses the democratic will that so  fundamental a change should be made in our law,  and can, if enacted, ensure that such legalised  killing can only be carried out subject to appropriate  supervision and control....‖   

(Emphasis supplied in Gian Kaur)  

41. After reproducing the said passage, the Court opined  

thus:-  

―41. The desirability of bringing about a change was  

considered to be the function of the legislature by  

enacting a suitable law providing therein adequate  

safeguards to prevent any possible abuse.‖  

42. At this stage, it is necessary to clear the maze whether  

the Constitution Bench in Gian Kaur had accepted what has  

been held in Airedale.  On a careful and anxious reading of  

Gian Kaur, it is noticeable that there has been narration,  

reference and notice of the view taken in Airedale case.  It is

48    

also worth noting that the Court was concerned with the  

constitutional validity of Section 309 IPC that deals with  

attempt to commit suicide and Section 306 IPC that provides  

for abetment to commit suicide. As noted earlier, the  

Constitution Bench, while distinguishing the case of a dying  

man who is terminally ill or in a persistent vegetative state and  

his termination or premature extinction of life, observed that  

the said category of cases may fall within the ambit of right to  

die with dignity as a part of right to life with dignity when  

death due to termination of natural life is inevitable and  

imminent and the process of natural death has commenced.  

The Constitution Bench further opined that the said cases do  

not amount to extinguishing the life but only amount to  

accelerating the process of natural death which has already  

commenced and, thereafter, the Constitution Bench stated  

that the debate with regard to physician assisted suicide  

remains inconclusive. The larger Bench has reiterated that the  

cases pertaining to premature extinction of life during the  

process of certain natural death of patients who are terminally  

ill or in persistent vegetative state were of assistance to

49    

interpret Article 21 of the Constitution to include therein the  

right to curtail the natural span of life.  On a seemly  

understanding of the judgment in Gian Kaur, we do not find  

that it has decried euthanasia as a concept. On the contrary,  

it gives an indication that in such situations, it is the  

acceleration of the process of dying which may constitute a  

part of right to life with dignity so that the period of suffering  

is reduced. We are absolutely conscious that a judgment is not  

to be construed as a statute but our effort is to understand  

what has been really expressed in Gian Kaur.  Be it clarified,  

it is understood and appreciated that there is a distinction  

between a positive or overt act to put an end to life by the  

person living his life and termination of life so that an  

individual does not remain in a vegetative state or, for that  

matter, when the death is certain because of terminal illness  

and he remains alive with the artificially assisted medical  

system. In Gian Kaur, while dealing with the attempt to  

commit suicide, the Court clearly held that when a man  

commits suicide, he has to undertake certain positive overt  

acts and the genesis of those acts cannot be tested to or be

50    

included within the protection of the expression ―right to life‖  

under Article 21 of the Constitution.  It was also observed that  

a dignified procedure of death may include the right of a dying  

man to also die with dignity when the life is ebbing out.  This  

is how the pronouncement in Gian Kaur has to be  

understood.  It is also not the ratio of the authority in Gian  

Kaur that euthanasia has to be introduced only by a  

legislation.  What has been stated in paragraph 41 of Gian  

Kaur is what has been understood to have been held in  

Airedale‘s case. The Court has neither expressed any  

independent opinion nor has it approved the said part or the  

ratio as stated in Airedale.  There has been only a reference to  

Airedale‘s case and the view expressed therein as regards  

legislation. Therefore, the perception in Aruna Shanbaug that  

the Constitution Bench has approved the decision in   

Airedale is not correct. It is also quite clear that Gian Kaur  

does not lay down that passive euthanasia can only be  

thought of or given effect to by legislation. Appositely  

understood, it opens an expansive sphere of Article 21 of the  

Constitution.  Therefore, it can be held without any hesitation

51    

that Gian Kaur has neither given any definite opinion with  

regard to euthanasia nor has it stated that the same can be  

conceived of only by a legislation.  

F. Our analysis of Aruna Shanbaug qua legislation:  

43. Having said this, we shall focus in detail what has been  

stated in Aruna Shanbaug.  In paragraph 101 which has  

been reproduced hereinbefore, the two-Judge Bench noted  

that Gian Kaur has approved the decision of the House of  

Lords in Airedale and observed that euthanasia could be  

made lawful only by legislation.  This perception, according to  

us, is not correct.  As already stated, Gian Kaur does not lay  

down that passive euthanasia could be made lawful only by  

legislation. In paragraph 41 of the said judgment, the  

Constitution Bench was only adverting to what has been  

stated by Lord Goff of Chieveley in Airedale‘s case. However,  

this expression of view of Aruna Shanbaug which has not  

been accepted by the referral Bench makes no difference to  

our present analysis.  We unequivocally express the opinion  

that Gian Kaur is not a binding precedent for the purpose of

52    

laying down the principle that passive euthanasia can be  

made lawful ―only by legislation.‖  

G. The Distinction between Active and Passive  

Euthanasia:  

44. As a first step, it is imperative to understand the concept  

of euthanasia before we enter into the arena of analysis of the  

expanded right of Article 21 in Gian Kaur and the  

understanding of the same. Euthanasia is basically an  

intentional premature termination of another person‘s life  

either by direct intervention (active euthanasia) or by  

withholding life-prolonging measures and resources (passive  

euthanasia) either at the express or implied request of that  

person (voluntary euthanasia) or in the absence of such  

approval/consent (non-voluntary euthanasia). Aruna  

Shanbaug has discussed about two categories of euthanasia -  

active and passive.  While dealing with active euthanasia, also  

known as ―positive euthanasia‖ or ―aggressive euthanasia‖, it  

has been stated that the said type of euthanasia entails a  

positive act or affirmative action or act of commission entailing  

the use of lethal substances or forces to cause the intentional

53    

death of a person by direct intervention, e.g., a lethal injection  

given to a person with terminal cancer who is in terrible  

agony. Passive euthanasia, on the other hand, also called  

―negative euthanasia‖ or ―non-aggressive euthanasia‖, entails  

withdrawing of life support measures or withholding of  

medical treatment for continuance of life, e.g., withholding of  

antibiotics in case of a patient where death is likely to occur as  

a result of not giving the said antibiotics or removal of the  

heart lung machine from a patient in coma.  The two-Judge  

Bench has also observed that the legal position across the  

world seems to be that while active euthanasia is illegal unless  

there is a legislation permitting it, passive euthanasia is legal  

even without legislation, provided certain conditions and  

safeguards are maintained. The Court has drawn further  

distinction between voluntary euthanasia and non-voluntary  

euthanasia in the sense that voluntary euthanasia is where  

the consent is taken from the patient and non-voluntary  

euthanasia is where the consent is unavailable, for instances  

when the patient is in coma or is otherwise unable to give  

consent.  Describing further about active euthanasia, the

54    

Division Bench has observed that the said type of euthanasia  

involves taking specific steps to cause the patient‘s death such  

as injecting the patient with some lethal substance, i.e.,  

sodium pentothal which causes, in a person, a state of deep  

sleep in a few seconds and the person instantly dies in that  

state.  That apart, the Court has drawn a distinction between  

euthanasia and physician assisted dying and noted that the  

difference lies in the fact as to who administers the lethal  

medication.  It has been observed that in euthanasia, a  

physician or third party administers it while in physician  

assisted suicide, it is the patient who does it though on the  

advice of the doctor.  Elaborating further, the two-Judge  

Bench has opined that the predominant difference between  

―active‖ and ―passive‖ euthanasia is that in the former, a  

specific act is done to end the patient‘s life while the latter  

covers a situation where something is not done which is  

necessary in preserving the patient‘s life.  The main idea  

behind the distinction, as observed by the Bench, is that in  

passive euthanasia, the doctors are not actively killing the  

patient, they are merely not saving him and only accelerating

55    

the conclusion of the process of natural death which has  

already commenced.  

45. The two-Judge Bench, thereafter, elaborated on passive  

euthanasia and gave more examples of cases within the ambit  

of passive euthanasia.  The learned Judges further categorized  

passive euthanasia into voluntary passive euthanasia and  

non-voluntary passive euthanasia. The learned Judges  

described voluntary passive euthanasia as a situation where a  

person who is capable of deciding for himself decides that he  

would prefer to die because of various reasons whereas non-

voluntary passive euthanasia has been described to mean that  

a person is not in a position to decide for himself, e.g., if he is  

in coma or PVS.   

46. While scrutinizing the distinction between active and  

passive euthanasia, the paramount aspect is ―foreseeing the  

hastening of death‖. The said view has been propagated in  

several decisions all over the world. The Supreme Court of  

Canada, in the case of Rodriguez v. British Columbia

56    

(Attorney General)19, drew the distinction between these two  

forms of euthanasia on the basis of intention. Echoing a  

similar view, the Supreme Court of the United States affirmed  

the said distinction on the basis of ―intention‖ in the case of  

Vacco (supra) wherein Chief Justice Rehnquist observed that  

the said distinction coheres with the fundamental legal  

principles of causation and intention. In case when the death  

of a patient occurs due to removal of life-supporting measures,  

the patient dies due to an underlying fatal disease without any  

intervening act on the part of the doctor or medical  

practitioner, whereas in the cases coming within the purview  

of active euthanasia, for example, when the patient ingests  

lethal medication, he is killed by that medication.  

47. This distinction on the basis of ―intention‖ further finds  

support in the explanation provided in the case In the matter  

of Claire C. Conroy20 wherein the Court made an observation  

that people who refuse life-sustaining medical treatment may  

not harbour a specific intent to die, rather they may fervently  

                                                           19

 85 C.C.C. (3d) 15 : (1993) 3 S.C.R. 519    20

98 N.J. 321 (1985) :  (1985) 486 A.2d 1209 (N.J.)

57    

wish to live but do so free of unwanted medical technology,  

surgery or drugs and without protracted suffering.  

48. Another distinction on the basis of ―action and non-

action‖ was advanced in the Airedale case. Drawing a crucial  

distinction between the two forms of euthanasia, Lord Goff  

observed that passive euthanasia includes cases in which a  

doctor decides not to provide, or to continue to provide, for his  

patient, treatment or care which could prolong his life and  

active euthanasia involves actively ending a patient‘s life, for  

example, by administering a lethal drug. As per the  

observations made by Lord Goff, the former can be considered  

lawful either because the doctor intends to give effect to his  

patient‘s wishes by withholding the treatment or care, or even  

in certain circumstances in which the patient is incapacitated  

from giving his consent. However, active euthanasia, even  

voluntary, is impermissible despite being prompted by the  

humanitarian desire to end the suffering of the patient.   

49. It is perhaps due to the distinction evolved between these  

two forms of euthanasia, which has gained moral and legal

58    

sanctity all over, that most of the countries today have  

legalized passive euthanasia either by way of legislations or  

through judicial interpretation but there remains uncertainty  

whether active euthanasia should be granted legal status.   

H. Euthanasia : International Position:  

H.1 U.K. Decisions:  

H.1.1 Airedale Case:   

50. In the obtaining situation, we shall now advert to the  

opinions stated in Airedale case.  In the said case, one  

Anthony Bland, a supporter of Liverpool Football Club, who  

had gone to Hillsborough Ground, suffered severe injuries as a  

result of which supply to his brain was interrupted.   

Eventually, he suffered an irreversible damage to the brain as  

a consequence of which he got into a condition of persistent  

vegetative state (PVS).  He became incapable of voluntary  

movement and could feel no pain.  He was not in a position to  

feel or communicate.  To keep him alive, artificial means were  

taken recourse to. In such a state of affairs, the treating  

doctors and the parents of Bland felt that no fruitful purpose  

would be served by continuing the medical aid.  As there were

59    

doubts with regard to stoppage of medical care which may  

incur a criminal liability, a declaration from the British High  

Court was sought to resolve the doubts.  The Family Division  

of the High Court granted the declaration which was affirmed  

by the Court of Appeal.  The matter travelled to the House of  

Lords.   

51. Lord Keith of Kinkel opined that regard should be had to  

the whole artificial regime which kept Anthony Bland alive and  

it was incorrect to direct attention exclusively to the fact that  

nourishment was being provided. In his view, the  

administration of nourishment by the means adopted involved  

the application of a medical technique.  

52. Lord Keith observed that in general, it would not be  

lawful for a medical practitioner who assumed responsibility  

for the care of an unconscious patient simply to give up  

treatment in circumstances where continuance of it would  

confer some benefit on the patient. On the other hand, a  

medical practitioner is under no duty to continue to treat such  

a patient where a large body of informed and responsible

60    

medical opinion is to the effect that no benefit at all would be  

conferred by continuance of treatment. Existence in a  

vegetative state with no prospect of recovery is, by that  

opinion, regarded as not being a benefit, and that, if not  

unarguably correct, at least forms a proper basis for the  

decision to discontinue treatment and care.  He was of the  

further opinion that since existence in PVS is not a benefit to  

the patient, the principle of sanctity of life is no longer an  

absolute one. It does not compel a medical practitioner to treat  

a patient, who will die if not treated, contrary to the express  

wishes of the patient. It does not compel the temporary  

keeping alive of patients who are terminally ill where to do so  

would merely prolong their suffering. On the other hand, it  

forbids the taking of active measures to cut short the life of a  

terminally ill patient.    

53. Lord Keith further stated that it does no violence to the  

principle  of sanctity of life to hold that it is lawful to cease to  

give medical treatment and care to a PVS patient who has  

been in that state for over three years considering that to do so  

involves invasive manipulation of the patient's body to which

61    

he has not consented and which confers no benefit upon him.   

He also observed that the decision whether or not the  

continued treatment and care of a PVS patient confers any  

benefit on him is essentially one for the practitioners in  

charge.    

54.  Lord Goff of Chieveley also held that the principle of  

sanctity of life is not an absolute one and there is no absolute  

rule that the patient's life must be prolonged by such  

treatment or care, if available, regardless of the  

circumstances.    

55. Lord Goff observed that though he agreed that the  

doctor's conduct in discontinuing life support can properly be  

categorised as an omission, yet discontinuation of life support  

is, for the present purposes, no different from not initiating life  

support in the first place as in such a case, the doctor is  

simply allowing his patient to die in the sense that he is  

desisting from taking a step which might, in certain  

circumstances, prevent his patient from dying as a result of  

his pre-existing condition; and as a matter of general

62    

principle, an omission such as this will not be unlawful unless  

it constitutes a breach of duty to the patient.  

56. The learned Law Lord further observed that the doctor's  

conduct is to be differentiated from that of, for example, an  

interloper who maliciously switches off a life support machine  

in the sense that although the interloper performs the same  

act as the doctor who discontinues life support, yet the doctor,  

in discontinuing life support, is simply allowing his patient to  

die of his pre-existing condition, whereas the interloper is  

actively intervening to stop the doctor from prolonging the  

patient's life, and such conduct cannot possibly be categorised  

as an omission. This distinction as per Lord Goff appears to be  

useful in the context as it can be invoked to explain how  

discontinuance of life support can be differentiated from  

ending a patient's life by a lethal injection. Lord Goff stated  

that the reason for this difference is that the law considers  

discontinuance of life support to be consistent with the  

doctor's duty to care for his patient, but it does not, for  

reasons of policy, consider that it forms any part of his duty to

63    

give his patient a lethal injection to put the patient out of his  

agony.  

57. Emphasising on the patient's best interest principle, Lord  

Goff referred to F v. West Berkshire Health Authority 21  

wherein the House of Lords stated the legal principles  

governing the treatment of a patient who, for the reason that  

he was of unsound mind or that he had been rendered  

unconscious by accident or by illness, was incapable of stating  

whether or not he consented to the treatment or care. In such  

circumstances, a doctor may lawfully treat such a patient if he  

acts in his best interests, and indeed, if the patient is already  

in his care, he is under a duty so to treat him.  

58. Drawing an analogy, Lord Goff opined that a decision by  

a doctor whether or not to initiate or to continue to provide  

treatment or care which could or might have the effect of  

prolonging such a patient's life should also be governed by the  

same fundamental principle of the patient's best interest. The  

learned Law Lord further stated that the doctor who is caring  

for such a patient cannot be put under an absolute obligation  

                                                           21

[1989] 2 All ER 545 : [1990] 2 AC 1

64    

to prolong his life by any means available to the doctor,  

regardless of the quality of the patient's life. Common  

humanity requires otherwise as do medical ethics and good  

medical practice accepted in the United Kingdom and  

overseas. Lord Goff said that the doctor's decision to take or  

not to take any step must be made in the best interests of the  

patient (subject to his patient's ability to give or withhold his  

consent).  

59. Lord Goff further stated that in such cases, the question  

is not whether it is in the best interests of the patient that he  

should die, rather the correct question for consideration is  

whether it is in the best interests of the patient that his life  

should be prolonged by the continuance of such form of  

medical treatment or care. In Lord Goff‘s view, the correct  

formulation of the question is of particular importance in such  

cases as the patient is totally unconscious and there is no  

hope whatsoever of any amelioration of his condition. Lord  

Goff opined that if the question is asked whether it is in the  

best interests of the patient to continue the treatment which  

has the effect of artificially prolonging his life, that question

65    

can sensibly be answered to the effect that the patient's best  

interests no longer require such a treatment to be continued.  

60. Lord Goff opined that medical treatment is neither  

appropriate nor requisite simply to prolong a patient's life  

when such treatment has no therapeutic purpose of any kind  

and such treatment is futile because the patient is  

unconscious and there is no prospect of any improvement in  

his condition. Thereafter, the learned Law Lord observed that  

regard should also be had to the invasive character of the  

treatment and to the indignity to which a patient is subjected  

by prolonging his life by artificial means which, in turn,  

causes considerable distress to his family. In such cases, Lord  

Goff said that it is the futility of the treatment which justifies  

its termination and in such circumstances, a doctor is not  

required to initiate or to continue life- prolonging treatment or  

care keeping in mind the best interests of the patient.  

61. Lord Goff, referring to West Berkshire Health  

Authority (supra), said that it was stated therein that where a  

doctor provides treatment to a person who is incapacitated

66    

from saying whether or not he consents to it, the doctor must,  

when deciding on the form of treatment, act in accordance  

with a responsible and competent body of relevant professional  

opinion on the principles set down in Bolam v. Friern  

Hospital Management Committee22. Lord Goff opined that  

this principle must equally be applicable to decisions to  

initiate or to discontinue life support as it is to other forms of  

treatment. He also referred to a Discussion Paper on  

Treatment of Patients in Persistent Vegetative State issued in  

September, 1992 by the Medical Ethics Committee of the  

British Medical Association pertaining to four safeguards in  

particular which, in the Committee's opinion, should be  

observed before discontinuing life support for such patients,  

which were: (1) every effort should be made at rehabilitation  

for at least six months after the injury; (2) the diagnosis of  

irreversible PVS should not be considered confirmed until at  

least 12 months after the injury with the effect that any  

decision to withhold life-prolonging treatment will be delayed  

for that period; (3) the diagnosis should be agreed by two other  

                                                           22

[1957] 1 W.L.R. 582 : [1957] 2 All ER 118

67    

independent doctors; and (4) generally, the wishes of the  

patient's immediate family will be given great weight.  

62. According to him, the views expressed by the  

Committee on the subject of consultation with the relatives of  

PVS patients are consistent with the opinion expressed by the  

House of Lords in West Berkshire Health Authority (supra)  

that it is good practice for the doctor to consult relatives. Lord  

Goff observed that the Committee was firmly of the opinion  

that the relatives' views would not be determinative of the  

treatment inasmuch as if that would have been the case, the  

relatives would be able to dictate to the doctors what is in the  

best interests of the patient which cannot be right. Even so, a  

decision to withhold life-prolonging treatment such as  

artificial feeding must require close cooperation with those  

close to the patient and it is recognised that, in practice, their  

views and the opinions of doctors will coincide in many cases.   

 63. Thereafter, Lord Goff referred to American cases, namely,  

Re Quinlan 23  and Superintendent of Belchertown State  

                                                           23

 355 A. 2d 647 : (1976) 70 NJ 10

68    

School v. Saikewicz24 wherein the American Courts adopted  

what is called the substituted judgment test which involves a  

detailed inquiry into the patient's views and preferences. As  

per the substituted judgment test, when the patient is  

incapacitated from expressing any view on the question  

whether life-prolonging treatment should be withheld, an  

attempt is made to determine what decision the patient  

himself would have made had he been able to do so. In later  

American cases concerning PVS patients, it has been held that  

in the absence of clear and convincing evidence of the patient's  

wishes, the surrogate decision-maker has to implement as far  

as possible the decision which the incompetent patient would  

have made if he was competent.  

64. However, Lord Goff acknowledged that any such test  

(substituted judgment test) does not form part of English law  

in relation to incompetent adults on whose behalf nobody has  

power to give consent to medical treatment. In contrast,  

England followed a straightforward test based on the best  

interests of the patient coined by the House of Lords in West                                                              24

 (1977) 373 Mass 728 : 370 N.E. 2d 417 (1977)

69    

Berkshire Health Authority (supra). He opined that the  

same test (patient's best interest) should be applied in the  

case of PVS patients where the question is whether life-

prolonging treatment should be withheld. The learned Law  

Lord further observed that consistent with the best interests  

test, anything relevant to the application of the test may also  

be taken into account and if the personality of the patient is  

relevant to the application of the test (as it may be in cases  

where the various relevant factors have to be weighed), it may  

be taken into account as was done in Re J. (A Minor)  

(Wardship: Medical Treatment) (supra). But where the  

question is whether life support should be withheld from a  

PVS patient, it is difficult to see how the personality of the  

patient can be relevant, though it may be of comfort to his  

relatives if they believe, as in the present case, and indeed  

may well be so in many other cases, that the patient would  

not have wished his life to be artificially prolonged if he was  

totally unconscious and there was no hope of improvement in  

his condition.

70    

65. As regards the extent to which doctors should, as a  

matter of practice, seek the guidance of the court by way of an  

application for declaratory relief before withholding life-

prolonging treatment from a PVS patient, Lord Goff took note  

of the judgment of Sir Stephen Brown P, the President of the  

Family Division, wherein he held that the opinion of the court  

should be sought in all cases of similar nature. Lord Goff also  

noted that Sir Thomas Bingham M.R. in the Court of Appeal  

expressed his agreement with Sir Stephen Brown P. in the  

following words:-  

"This was in my respectful view a wise ruling,  directed to the protection of patients, the protection  of doctors, the reassurance of patients' families and  the reassurance of the public. The practice  proposed seems to me desirable. It may very well be  that with the passage of time a body of experience  and practice will build up which will obviate the  need for application in every case, but for the time  being I am satisfied that the practice which the  President described should be followed.‖  

 66. It is worthy to mention that Lord Goff was of the view  

that there was a considerable cost involved in obtaining  

guidance from the court in cases of such nature.  He took note  

of the suggestions forwarded by Mr. Francis, the counsel for

71    

the respondents, to the effect that reference to the court was  

required in certain specific cases, i.e., (1) where there was  

known to be a medical disagreement as to the diagnosis or  

prognosis, and (2) problems had arisen with the patient‘s  

relatives-disagreement by the next of kin with the medical  

recommendation; actual or apparent conflict of interest  

between the next of kin and the patient; dispute between  

members of the patient‘s family; or absence of any next of kin  

to give consent. Lord Goff said that the President of the Family  

Division should be able to relax the present requirement so as  

to limit applications for declarations only to those cases in  

which there is a special need for the procedure to be invoked.  

67. Lord Mustill observed that an argument had been  

advanced that it was in the best interest of the community at  

large that Anthony Bland‘s life should end.  The doctors had  

done all they could have done.  It was a lose-lose situation as  

nothing would be gained by continuing Bland‘s treatment and  

much would be lost.  The distress of Bland‘s family members  

would steadily get worse and so would be the strain of the  

medical staff charged with the care of Bland despite the fact

72    

that Bland's condition would never improve and he would  

never recognize that he was being cared for. Further, the  

learned Law Lord observed that large resources in terms of  

skill, labour and money had been applied for maintaining  

Bland in his present condition which, in the opinion of many,  

could be fruitfully employed in improving the conditions of  

other patients who, if treated, may have useful, healthy and  

enjoyable lives for years to come.  

68. Lord Lowry, agreeing with the reasoning of Lord Goff of  

Chieveley with whom the other learned Law Lords were also in  

general agreement, dismissed the appeal. In coming to this  

conclusion, Lord Lowry opined that the court, in reaching a  

decision according to law, ought to give weight to informed  

medical opinion both on the point whether to continue the  

artificial feeding regime of a patient in PVS and also on the  

question of what is in the best interests of a patient. Lord  

Lowry rejected the idea that informed medical opinion in these  

respects was merely a disguise which, if accepted, would  

legalise euthanasia. Lord Lowry also rejected the Official  

Solicitor's argument that the doctors were under a "duty to

73    

feed" their patients in PVS as in the instant case, the doctors  

overwhelmingly held the opposite view which had been upheld  

by the courts below. The doctors considered that it was in the  

patient's best interests that they should stop feeding him. Lord  

Lowry observed that the learned Law Lords had gone further  

by saying that the doctors are not entitled to feed a patient in  

PVS without his consent which cannot be obtained.    

69. Lord Lowry further opined that there is no proposed  

guilty act in stopping the artificial feeding regime inasmuch as  

if it is not in the interests of an insentient patient to continue  

the life- supporting care and treatment, the doctor would be  

acting unlawfully if he continued the care and treatment and  

would perform no guilty act by discontinuing it.  There is a gap  

between the old law on the one hand and new medicine and  

new ethics on the other. It is important, particularly in the  

area of criminal law which governs conduct, that the society's  

notions of what the law is and what is right should coincide.  

One role of the legislator, as per Lord Lowry, is to detect any  

disparity between these notions and to take appropriate action  

to close the gap.

74    

70. Lord Browne-Wilkinson observed that the ability to  

sustain life artificially is a relatively recent phenomenon.  

Existing law may not provide an acceptable answer to the new  

legal questions which it raises.  

71. In the opinion of the learned Law Lord, there exists no  

doubt that it is for the Parliament and not the courts to decide  

the broader issues raised by cases of such nature. He  

observed that recent developments in medical science have  

fundamentally changed the meaning of death. In medicine, the  

cessation of breathing or of heartbeat is no longer death  

because by the use of a ventilator, lungs which in the unaided  

course of nature stop breathing can be made to breathe  

artificially thereby sustaining the heartbeat. Thus, people like  

Anthony Bland, who would have previously died through  

inability to swallow food, can be kept alive by artificial feeding.  

This has led the medical profession, in Lord Browne-

Wilkinson's view, to redefine death in terms of brain stem  

death, i.e., the death of that part of the brain without which  

the body cannot function at all without assistance.  He further  

said that if the judges seek to develop new law to regulate the

75    

new circumstances, the law so laid down will reflect the  

judges' views on the underlying ethical questions, questions  

on which there is a legitimate division of opinion. He  

proceeded to state that where a case raises wholly new moral  

and social issues, it is neither for the judges to develop new  

principles of law nor would it be legitimate for the Judges to  

arrive at a conclusion as to what is for the benefit of one  

individual whose life is in issue.  

72. For the said reasons, the learned Law Lord observed that  

it is imperative that the moral, social and legal issues raised  

by the case at hand should be considered by the Parliament  

and only if the Parliament fails to act, the judge-made law  

will, by necessity, provide a legal answer to each new question  

as and when it arises.  

73. The function of the court, in Lord Browne-Wilkinson's  

view, in such circumstances is to determine a particular case  

in accordance with the existing law and not to develop new  

law laying down a new regimen. He held that it is for the  

Parliament to address the wider problems which such a case  

raises and lay down principles of law generally applicable to

76    

the withdrawal of life support systems.  He explained why the  

removal of the nasogastric tube in the present case could not  

be regarded as a positive act causing death since the tube  

itself, without the food being supplied through it, does  

nothing. The removal of the tube by itself does not cause  

death since it does not sustain life by itself. Therefore, the  

removal of the tube would not constitute the actus reus of  

murder since such positive act would not be the cause of  

death.  

74. Thus, Lord Browne-Wilkinson observed that in case of an  

adult who is mentally competent, the artificial feeding regime  

would be unlawful unless the patient consented to it as a  

mentally competent patient can, at any time, put an end to life  

support systems by refusing his consent to their continuation.   

He also observed that the House of Lords in West Berkshire  

Health Authority (supra) developed the principle based on  

the concept of necessity under which a doctor can lawfully  

treat a patient who cannot consent to such treatment if it is in  

the best interests of the patient to receive such treatment. The  

learned Law Lord opined that the correct answer to the case at

77    

hand depends on the extent of the right to lawfully continue to  

invade the bodily integrity of Anthony Bland without his  

consent. To determine the extent of the said right, Lord  

Browne-Wilkinson observed that  it can be deduced from West  

Berkshire Health Authority (supra) wherein both Lord  

Brandon of Oakbrook and Lord Goff made it clear that the  

right to administer invasive medical care is wholly dependent  

upon such care being in the best interests of the patient and  

moreover, a doctor's decision whether to continue invasive  

care is in the best interests of the patient has to be assessed  

with reference to the test laid down in Bolam (supra).  

75. Lord Browne-Wilkinson held that if there comes a stage  

where a responsible doctor comes to the reasonable  

conclusion (which accords with the views of a responsible body  

of medical opinion) that further continuance of an intrusive  

life support system is not in the best interests of the patient,  

the doctor can no longer lawfully continue that life support  

system as to do so would constitute the crime of battery and  

the tort of trespass.

78    

76. In Lord Browne-Wilkinson‘s view, the correct legal  

question in such cases is not whether the court thinks it is in  

the best interests of the patient in PVS to continue to receive  

intrusive medical care but whether the doctor responsible has  

arrived at a reasonable and bona fide belief that it is not in the  

best interests of the patient to continue to receive artificial  

medical regime.  

77. Accordingly, Lord Browne-Wilkinson observed that on an  

application to the court for a declaration that the  

discontinuance of medical care will be lawful, the sole concern  

of the courts is to be satisfied that the doctor's decision to  

discontinue is in accordance with a respectable body of  

medical opinion and that it is reasonable. Adverting to various  

passages, Lord Browne-Wilkinson dismissed the appeal.  

78. It is pertinent to mention here that in adopting the ―best  

interests‖ principle in Airedale, the House of Lords followed  

its earlier decision in In re F (Mental Patient :  

Sterilisation] 25  and in adopting the omission/commission  

distinction, it followed the approach of the Court of Appeal in  

                                                           25

[1990] 2 AC 1 : [1989] 2 WLR 1025 : [1989] 2 All ER 545

79    

In re B (A Minor) (Wardship : Medical Treatment)26 and In  

re J (A Minor) (Wardship : Medical Treatment) 27  which  

raised the question of medical treatment for severely disabled  

children. In the context of cases where the patients are unable  

to communicate their wishes, it is pertinent to mention the  

observations made by Lord Goff in the Airedale case.  As  

observed by Lord Goff, the correct question in cases of this  

kind would be ―whether it is in his best interests that  

treatment which has the effect of artificially prolonging his life  

should be continued‖. Thus, it was settled in the case of  

Airedale that it was lawful for the doctors to discontinue  

treatment if the patient refuses such treatment.  And in case  

the patient is not in a situation permitting him to  

communicate his wishes, then it becomes the responsibility of  

the doctor to act in the ―best interest‖ of the patient.    

H.1.2 Later cases:  

79.  With reference to the ongoing debate pertaining to  

assisted dying, Lord Steyn in the case of R (on the  

                                                           26

[1981] 1 WLR 1424 : [1990] 3 All ER 927  27

[1991] Fam 33 : [1990] 3 All ER 930 : [1991] 2 WLR 140

80    

application of Pretty) v. Director of Public Prosecutions28  

explained that on one hand is the view which finds support in  

the Roman Catholic Church, Islam and other religions that  

human life is sacred and  the corollary is that euthanasia and  

assisted suicide are always wrong, while on the other hand, as  

observed by Lord Steyn, is the belief defended by millions that  

the personal autonomy of individuals is predominant and it is  

the moral right of individuals to have a say over the time and  

manner of their death.  Taking note of the imminent risk in  

legalizing assisted dying, Lord Steyn took note of the  

utilitarian argument that the terminally ill patients and those  

suffering great pain from incurable illnesses are often  

vulnerable and not all families, whose interests are at stake,  

are wholly unselfish and loving and there exists the probability  

of abuse in the sense that such people may be persuaded that  

they want to die or that they ought to want to die.  Further,  

Lord Steyn observed that there is also the view that if the  

genuine wish of a terminally ill patient to die is expressed by  

the patient, then they should not be forced against their will to  

                                                           28

[2002] 1 All ER 1 : [2001] UKHL 61

81    

endure a life that they no longer wish to endure. Without  

expressing any view on the unending arguments on either  

side, Lord Steyn noted that these wide-ranging arguments are  

ancient questions on which millions have taken diametrically  

opposite views and still continue to do.   In the case of In re B  

(Consent to Treatment – Capacity)29, the primacy of patient  

autonomy, that is, the competent patient‘s right to decide for  

herself whether to submit to medical treatment over other  

imperatives, such as her best interests objectively considered,  

was recognized thereby confirming the right of the competent  

patient to refuse medical treatment even if the result is death  

and thus, a competent, ventilator-dependent patient sought  

and won the right to have her ventilator turned off.    

80. Taking a slightly divergent view from Airedale, Lord  

Neuberger in R (on the application of Nicklinson and  

another) v. Ministry of Justice30 observed that the difference  

between administering fatal drug to a person and setting up a  

machine so that the person can administer the drug to himself  

is not merely a legal distinction but also a moral one and,                                                              29

[2002] 1 FLR 1090 : [2002] 2 All ER 449  30

[2014] UKSC 38

82    

indeed, authorizing a third party to switch off a person‘s life  

support machine, as in Airedale, is a more drastic  

interference and a more extreme moral step than authorizing a  

third party to set up a lethal drug delivery system to enable a  

person, only if he wishes, to activate the system to administer  

a lethal drug.  Elaborating further on this theory, the Law Lord  

explained that in those cases which are classified as  

―omission‖, for instance, switching off a life support machine  

as in Airedale and Re B (Treatment), the act which  

immediately causes death is that of a third party which may  

be wrong whereas if the final act is that of a person who  

himself carries it out pursuant to a voluntary, clear, settled  

and informed decision, that may be the permissible side of the  

line as in the latter case, the person concerned had not been  

―killed‖ by anyone but had autonomously exercised his right to  

end his life. The Law Lord, however, immediately clarified that  

it is not intended to cast any doubt on the correctness of the  

decisions in Airedale and Re B (Treatment).  

81. Suffice it to say, he concurred with the view in Airedale  

case which he referred to as Bland case. Lord Mance agreed

83    

with Lord Neuberger and Lord Sumption. In his opinion, he  

referred to Airedale case and thereafter pointed out that a  

blanket prohibition was unnecessary and stated in his  

observations that persons in tragic position represent a  

distinct and relatively small group, and that by devising a  

mechanism enabling careful prior review (possibly involving  

the Court as well as medical opinion), the vulnerable can be  

distinguished from those capable of forming a free and  

informed decision to commit suicide. Lord Mance  

acknowledged that the law and courts are deeply engaged in  

the issues of life and death and made a reference to the  

observations of Lord Neuberger.  

82. We may note with profit that the prayer of Mr. Nicklinson  

and Mr. Lamb were rejected by the Court of Appeal.   

83. Lord Mance referred to the expression by Rehnquist CJ  

in Washington (supra) in a slightly different context that   

there is ―an earnest and profound debate about the morality,  

legality, and practicality of …. assisted suicide‖ and ―our  

holding permits this debate to continue as it should in a  

democratic society‖.

84    

84. Lord Wilson concurred with the judgment rendered by  

Lord Neuberger, referred to Airedale case and said:-  

―As Hoffmann LJ suggested in his classic judgment  in the Court of Appeal in Airedale NHS Trust v  Bland [1993] AC 789 at 826, a law will forfeit  necessary support if it pays no attention to the  ethical dimension of its decisions. In para 209 below  Lord Sumption quotes Hoffmann LJ‘s articulation of  that principle but it is worth remembering that  Hoffmann LJ then proceeded to identify two other  ethical principles, namely those of individual  autonomy and of respect for human dignity, which  can run the other way.‖  

 And further:-    

―In the Pretty case, at para 65, the ECHR was later  to describe those principles as of the very essence of  the ECHR. It was in the light (among other things)  of the force of those two principles that in the Bland  case the House of Lords ruled that it was lawful in  certain circumstances for a doctor not to continue  to provide life-sustaining treatment to a person in a  persistent vegetative state…‖  

 200. I agree with the observation of Lord Neuberger  at para 94 that, in sanctioning a course leading to  the death of a person about which he was unable to  have a voice, the decision in the Bland case was  arguably more extreme than any step which might  be taken towards enabling a person of full capacity  to exercise what must, at any rate now, in the light  of the effect given to article 8 of the ECHR in the  Haas case at para 51, cited at para 29 above, be  regarded as a positive legal right to commit suicide.  Lord Sumption suggests in para 212-213 below that

85    

it remains morally wrong and contrary to public  policy for a person to commit suicide. Blackstone, in  his Commentaries on the Laws of England, Book 4,  Chapter 14, wrote that suicide was also a spiritual  offence ―in evading the prerogative of the Almighty,  and rushing into his immediate presence uncalled  for‖. If expressed in modern religious terms, that  view would still command substantial support and a  moral argument against committing suicide could  convincingly be cast in entirely non-religious terms.  Whether, however, it can be elevated into an overall  conclusion about moral wrong and public policy is  much more difficult.‖  

85. Lord Sumption commenced the judgment stating that  

English judges tend to avoid addressing the moral foundations  

of law. It is not their function to lay down principles of  

morality and the attempt leads to large generalisations which  

are commonly thought to be unhelpful. He further observed  

that in some cases, however, it is unavoidable and this is one  

of them. He referred to the opinion of Hoffmann LJ in  

Airedale case and the concept of sanctity of life and,  

eventually, reproduced a passage from Hoffmann LJ and  

opined:-  

―215. Why should this be so? There are at least  three reasons why the moral position of the suicide  (whom I will call ―the patient‖ from this point on,  although the term may not always be apt) is  different from that of a third party who helps him to

86    

kill himself. In the first place, the moral quality of  their decisions is different. A desire to die can only  result from an overpowering negative impulse  arising from perceived incapacity, failure or pain.  This is an extreme state which is unlikely to be  shared by the third party who assists. Even if the  assister is moved by pure compassion, he inevitably  has a greater degree of detachment. This must in  particular be true of professionals such as doctors,  from whom a high degree of professional objectivity  is expected, even in situations of great emotional  difficulty. Secondly, whatever right a person may  have to put an end to his own life depends on the  principle of autonomy, which leaves the disposal of  his life to him. The right of a third party to assist  cannot depend on that principle. It is essentially  based on the mitigating effect of his compassionate  motive. Yet not everyone seeking to end his life is  equally deserving of compassion. The choice made  by a person to kill himself is morally the same  whether he does it because he is old or terminally  ill, or because he is young and healthy but fed up  with life. In both cases his desire to commit suicide  may be equally justified by his autonomy. But the  choice made by a third party who intervenes to help  him is very different. The element of compassion is  much stronger in the former category than in the  latter. Third, the involvement of a third party raises  the problem of the effect on other vulnerable people,  which the unaided suicide does not. If it is lawful for  a third party to encourage or assist the suicide of a  person who has chosen death with a clear head,  free of external pressures, the potential arises for  him to encourage or assist others who are in a less  good position to decide. Again, this is a more  significant factor in the case of professionals, such  as doctors or carers, who encounter these dilemmas  regularly, than it is in the case of, say, family

87    

members confronting them for what will probably be  

the only time in their lives.‖  

86. Dealing with the appeal by Nicklinson, Lord Sumption  

referred to the view of the Canadian Supreme Court in  

Rodriguez (supra) and opined:-  

―….the issue is an inherently legislative issue for  Parliament, as the representative body in our  constitution, to decide. The question what  procedures might be available for mitigating the  indirect consequences of legalising assisted  suicide, what risks such procedures would entail,  and whether those risks are acceptable, are not  matters which under our constitution a court  should decide.‖    

87. Dealing with Martin‘s appeal, Lord Sumption dismissed  

the same. While doing so, he said:-  

―256. This state of English law and criminal  practice does not of course resolve all of the  problems arising from the pain and indignity of  the death which was endured by Tony Nicklinson  and is now faced by Mr Lamb and Martin. But it  is worth reiterating these well-established  propositions, because it is clear that many  medical professionals are frightened by the law  and take an unduly narrow view of what can  lawfully be done to relieve the suffering of the  terminally ill under the law as it presently  stands. Much needless suffering may be  occurring as a result. It is right to add that there  is a tendency for those who would like to see the  existing law changed, to overstate its difficulties.  This was particularly evident in the submissions

88    

of Dignity and Choice in Dying. It would be  unfortunate if this were to narrow yet further the  options open to those approaching death, by  leading them to believe that the current law and  practice is less humane and flexible than it really  

is.‖   

88. Lord Hughes agreed with the reasoning of Lord Sumption  

and dismissed the private appeals and allowed the Appeals  

preferred by the Director of Public Prosecutions.  Lord Clarke  

concurred with the reasoning given by Lord Sumption, Lord  

Reed and Lord Hughes. Lord Reed agreed with the view with  

regard to the dismissal of the appeals but observed some  

aspects with regard to the issue of compatibility.  

89. Lord Lady Hale entirely agreed with the judgment of Lord  

Neuberger.  Lord Kerr in his opinion stated:-  

―358. I agree with Lord Neuberger that if the store  put on the sanctity of life cannot justify a ban on  suicide by the able-bodied, it is difficult to see how  it can justify prohibiting a physically incapable  person from seeking assistance to bring about the  end of their life. As one of the witnesses for one of  the interveners, the British Humanist Association,  Professor Blackburn, said, there is ‗no defensible  moral principle‘ in denying the appellants the  means of achieving what, under article 8 and by all  the requirements of compassion and humanity, they  should be entitled to do. To insist that these  unfortunate individuals should continue to endure  the misery that is their lot is not to champion the

89    

sanctity of life; it is to coerce them to endure  

unspeakable suffering.‖  

 And again:-  

―360. If one may describe the actual administration  of the fatal dose as active assistance and the setting  up of a system which can be activated by the  assisted person as passive assistance, what is the  moral objection to a person actively assisting  someone‘s death, if passive assistance is  acceptable? Why should active assistance give rise  to moral corruption on the part of the assister (or,  for that matter, society as a whole), but passive  assistance not? In both cases the assister‘s aid to  the person who wishes to die is based on the same  conscientious and moral foundation. That it is that  they are doing what the person they assist cannot  do; providing them with the means to bring about  their wished-for death. I cannot detect the moral  distinction between the individual who brings a fatal  dose to their beloved‘s lips from the person who sets  up a system that allows their beloved to activate the  release of the fatal dose by the blink of an eye.‖  

    Eventually, Lady Hale dismissed the appeal and allowed  

the appeals of the Director of Public Prosecutions.  

H.2 The legal position in the United States:  

90. In the United States of America, active euthanasia is  

illegal but physician-assisted death is legal in the States of  

Oregon, Washington and Montana.  A distinction has been  

drawn between euthanasia and physician-assisted suicide. In

90    

both Oregon and Washington, only self-assisted dying is  

permitted. Doctor-administered assisted dying and any form of  

assistance to help a person commit suicide outside the  

provisions of the legislation remains a criminal offence.   

91. As far as the United States of America is concerned, we  

think it appropriate to refer to Cruzan  (supra).  The said case  

involved a 30 year old Missouri woman who was lingering in a  

permanent vegetative state as a result of a car accident.  

Missouri requires 'clear and convincing evidence' of patients'  

preferences and the Missouri Supreme Court, reversing the  

decision of the state trial court, rejected the parents' request to  

impose a duty on their daughter's physician to end life-

support. The United States Supreme Court upheld that States  

can require 'clear and convincing evidence' of a patient's desire  

in order to oblige physicians to respect this desire. Since  

Nancy Cruzan had not clearly expressed her desire to  

terminate life support in such a situation, physicians were not  

obliged to follow the parents' request.  

92. Chief Justice Rehnquist, in his opinion, stated:-

91    

―Every human being of adult years and sound mind  has a right to determine what shall be done with his  own body, and a surgeon who performs an  operation without his patient's consent commits an  

assault, for which he is liable in damages.‖  

  He further proceeded to state:-  

―The logical corollary of the doctrine of informed  consent is that the patient generally possesses the  right not to consent, that is, to refuse treatment.  Until about 15 years ago and the seminal decision  

in In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert.  denied sub nom. Garger v. New Jersey, 429 U.S. 922  (1976), the number of right-to-refuse-treatment  decisions were relatively few. Most of the earlier  cases involved patients who refused medical  treatment forbidden by their religious beliefs, thus  implicating First Amendment rights as well as  common law rights of self-determination. More  recently, however, with the advance of medical  technology capable of sustaining life well past the  point where natural forces would have brought  certain death in earlier times, cases involving the  right to refuse life-sustaining treatment have  

burgeoned.‖  

 93. Meeting the submissions on behalf of the petitioner, the  

learned Chief Justice opined:-  

―The difficulty with petitioners' claim is that, in a  sense, it begs the question: an incompetent person  is not able to make an informed and voluntary  choice to exercise a hypothetical right to refuse  treatment or any other right. Such a "right" must be  exercised for her, if at all, by some sort of surrogate.  Here, Missouri has in effect recognized that, under

92    

certain circumstances, a surrogate may act for the  patient in electing to have hydration and nutrition  withdrawn in such a way as to cause death, but it  has established a procedural safeguard to assure  that the action of the surrogate conforms as best it  may to the wishes expressed by the patient while  competent. Missouri requires that evidence of the  incompetent's wishes as to the withdrawal of  treatment be proved by clear and convincing  evidence. The question, then, is whether the United  States Constitution forbids the establishment of this  procedural requirement by the State. We hold that it  does not.‖    

94. The learned Chief Justice came to hold that there was no  

clear and convincing evidence to prove that the patient‘s desire  

was not to have hydration and nutrition.  In the ultimate  

analysis, it was stated:-  

―No doubt is engendered by anything in this record  but that Nancy Cruzan's mother and father are  loving and caring parents. If the State were required  by the United States Constitution to repose a right  of "substituted judgment" with anyone, the Cruzans  would surely qualify. But we do not think the Due  Process Clause requires the State to repose  judgment on these matters with anyone but the  patient herself. Close family members may have a  strong feeling -- a feeling not at all ignoble or  unworthy, but not entirely disinterested, either --  that they do not wish to witness the continuation of  the life of a loved one which they regard as  hopeless, meaningless, and even degrading. But  there is no automatic assurance that the view of  close family members will necessarily be the same

93    

as the patient's would have been had she been  confronted with the prospect of her situation while  competent. All of the reasons previously discussed  for allowing Missouri to require clear and convincing  evidence of the patient's wishes lead us to conclude  that the State may choose to defer only to those  wishes, rather than confide the decision to close  

family members.‖  

The aforesaid decision has emphasized on ―bodily  

integrity‖ and ―informed consent‖.  

95. The question that was presented before the Court was  

whether New York‘s prohibition on assisted suicide violates the  

Equal Protection Clause of the Fourteenth Amendment.  The  

Court held that it did not and in the course of the discussion,  

Chief Justice Rehnquist held:-  

―The Court of Appeals, however, concluded that  some terminally ill people—those who are on life- support systems— are treated differently from those  who are not, in that the former may ―hasten death‖  by ending treatment, but the latter may not ―hasten  death‖ through physician-assisted suicide. 80 F. 3d,  at 729. This conclusion depends on the submission  that ending or refusing lifesaving medical treatment  ―is nothing more nor less than assisted suicide.‖  Ibid. Unlike the Court of Appeals, we think the  distinction between assisting suicide and  withdrawing life-sustaining treatment, a distinction  widely recognized and endorsed in the medical  profession 6 and in our legal traditions, is both  important and logical; it is certainly rational.‖   

94    

Dealing with the conclusion in Cruzan (supra), it was  

held:-  

―This Court has also recognized, at least implicitly,  the distinction between letting a patient die and  making that patient die. In Cruzan v. Director, Mo.  Dept. of Health, 497 U. S. 261, 278 (1990), we  concluded that ―[t]he principle that a competent  person has a constitutionally protected liberty  interest in refusing unwanted medical treatment  may be inferred from our prior decisions,‖ and we  assumed the existence of such a right for purposes  of that case, id., at 279. But our assumption of a  right to refuse treatment was grounded not, as the  Court of Appeals supposed, on the proposition that  patients have a general and abstract ―right to  hasten death,‖ 80 F. 3d, at 727–728, but on well- established, traditional rights to bodily integrity and  freedom from unwanted touching, Cruzan, 497 U.  S., at 278–279; id., at 287– 288 (O‘Connor, J.,  concurring). In fact, we observed that ―the majority  of States in this country have laws imposing  criminal penalties on one who assists another to  commit suicide.‖ Id., at 280. Cruzan therefore  provides no support for the notion that refusing life- sustaining medical treatment is ―nothing more nor  less than suicide.‖  

  From the aforesaid passages, it is crystal clear that the  

U.S. Supreme Court has recognized that there is a distinction,  

in the context of the prevalent law, between letting a patient  

die and making that patient die.  Right to refuse treatment is  

not grounded on the proposition that the patients have general

95    

and abstract right to hasten death. The learned Chief Justice  

has also endorsed the view of the American Medical  

Association emphasizing the fundamental difference between  

refusing life-sustaining treatment and demanding a life-ending  

treatment.    

96. In Vacco (supra), while ruling that a New York ban on  

physician assisted suicide was constitutional, the Supreme  

Court of the United States applied the standard of intent to  

the matter finding that a doctor who withdraws life support at  

the request of his patient intends only to respect his patient‘s  

wishes. This, the Court said, is in sharp contrast to a doctor  

who honours a patient‘s request to end life which necessarily  

requires more than an intent to respect the patient‘s wishes,  

i.e., it requires the intent to kill the patient. A major difference,  

the Court determined, in the two scenarios is that the former  

may cause the patient to die from underlying causes while the  

latter will cause the patient to die. The Court noted that the  

law plainly recognized the difference between ―killing‖ and  

―letting die‖.  It also recognised that the State of New York had,  

as a matter of policy, a compelling interest in forbidding

96    

assisted suicide, while allowing a patient to refuse life support  

was simply an act of protecting a common law right which was  

the right to retain bodily integrity and preserve individual  

antonomy since the prevention of ―unwanted touching‖ was, in  

the opinion of the Court, a very legitimate right to protect.   

H.3  Australian Jurisdiction:  

97. Moving to Australian jurisdiction, in Hunter and New  

England Area Health Service v. A31, the Supreme Court of  

New South Wales considered the validity of a common law  

advance directive (there being no legislative provisions for such  

directives in NSW) given by Mr. A refusing kidney dialysis.   

One year after making the directive, Mr. A was admitted to a  

hospital emergency department in a critical state with  

decreased level of consciousness. His condition deteriorated to  

the point that he was being kept alive by mechanical  

ventilation and kidney dialysis. The hospital sought a judicial  

declaration to determine the validity of his advance directive.   

The Court, speaking through McDougall J., confirmed the  

directive and held that the hospital must respect the advance  

                                                           31

[2009] NSWSC 761

97    

directive.  Applying the common law principle, the Court  

observed:-  

―A person may make an 'advance care directive': a  statement that the person does not wish to receive  medical treatment, or medical treatment of specified  kinds. If an advance care directive is made by a  capable adult, and it is clear and unambiguous, and  extends to the situation at hand, it must be  respected. It would be a battery to administer  medical treatment to the person of a kind prohibited  

by the advance care directive.‖  

98. In Brightwater Care Group (Inc.) v. Rossiter 32 , the  

Court was concerned with an anticipatory refusal of treatment  

by Mr. Rossiter, a man with quadriplegia who was unable to  

undertake any basic human function including taking  

nutrition or hydration orally. Mr. Rossiter was not terminally  

ill, dying or in a vegetative state and had full mental capacity.  

He had ‗clearly and unequivocally‘ indicated that he did not  

wish to continue to receive medical treatment which, if  

discontinued, would inevitably lead to his death.  Martin, CJ,  

considering the facts and the common law principle, held :-  

―At common law, the answers to the questions  posed by this case are clear and straightforward.  

                                                           32

[2009] WASC 229 : 40 WAR 84

98    

They are to the effect that Mr Rossiter has the right  to determine whether or not he will continue to  receive the services and treatment provided by  Brightwater and, at common law, Brightwater would  be acting unlawfully by continuing to provide  treatment [namely the administration of nutrition  and hydration via a tube inserted into his stomach]  

contrary to Mr Rossiter's wishes.‖  

99. In Australian Capital Territory v. JT33, an application  

to stop medical treatment, other than palliative care, was  

rejected. The man receiving treatment suffered from paranoid  

schizophrenia and was, therefore, held not mentally capable of  

making a decision regarding his treatment. Chief Justice  

Higgins found that it would be unlawful for the service  

providers to stop providing treatment. The Chief Justice  

distinguished this situation from Rossiter as the patient  

lacked ‗both understanding of the proposed conduct and the  

capacity to give informed consent to it‘.   It is clear that mental  

capacity is the determining factor in cases relating to self-

determination. Since the right of self-determination requires  

the ability to make an informed choice about the future, the  

requirement of mental capacity would be an obvious  

prerequisite. Chief Justice Higgins undertook a detailed  

                                                           33

[2009] ACTSC 105

99    

analysis and rightly distinguished  Auckland Area Health  

Board v. Attorney-General34 in which a court similarly bound  

to apply the human right to life and the prohibition on cruel  

and degrading treatment found that futile treatment could be  

withdrawn from a patient in a persistent vegetative state. He  

agreed with Howie J. in Messiha v. South East Health35 that  

futility of treatment could only be determined by consideration  

of the best interests of the patient and not by reference to the  

convenience of medical cares or their institutions.    

100. The above decision basically considered the  

circumstances in which technically futile treatment may be  

withdrawn from patients at their direct or indirect request or  

in their best interests.  

H.4 Legal Position in Canada:  

101. In Canada, physician-assisted suicide is illegal as per  

Section 241(b) of the Criminal Code of Canada. The Supreme  

Court of Canada in Rodriguez (supra) has drawn a distinction  

between ―intentional actor‖ and ―merely foreseeing‖.   

Delivering the judgment on behalf of the majority, Justice                                                              34

[1993] NZLR 235  35

[2004] NSWSC 1061

100    

Sopinka rejected the argument that assisted suicide was  

similar to the withdrawal of life-preserving treatment at the  

patient‘s request. He also rejected the argument that the  

distinction between assisted suicide and accepted medical  

treatment was even more attenuated in the case of palliative  

treatment which was known to hasten death.  He observed:-  

―The distinction drawn here is one based upon  intention - in the case of palliative care the  intention is to ease pain, which has the effect of  hastening death, while in the case of assisted  suicide, the intention is undeniably to cause  

death.‖  

 He added:-  

―In my view, distinctions based on intent are  important, and in fact form the basis of our  criminal law. While factually the distinction may, at  

times, be difficult to draw, legally it is clear.‖       

102. The Supreme Court of Canada in Carter v. Canada  

(Attorney General)36 held that the prohibition on physician-

assisted death in Canada (in Sections 14 and 241(b) of the  

Canadian Criminal Code) unjustifiably infringed the right to  

life, liberty and security of the person in Article 7 of the  

Charter of Rights and Freedoms in the Canadian Constitution.  

                                                           36

2015 SCC 5

101    

103. The Supreme Court declared the infringing provisions of  

the Criminal Code void insofar as they prohibit physician-

assisted death for a competent adult person who (1) clearly  

consents to the termination of life; and (2) has a grievous and  

irremediable medical condition (including an illness, disease or  

disability) that causes enduring suffering that is intolerable to  

the individual in the circumstances of his or her condition.   

‗Irremediable‘, it should be added, does not require the patient  

to undertake treatments that are not acceptable to the  

individual.  

104. After the Supreme Court‘s decision, the Canadian  

Government appointed a Special Joint Committee on  

Physician-Assisted Dying to ‗make recommendations on the  

framework of a federal response on physician assisted dying in  

consonance with the Constitution, the Charter of Rights and  

Freedoms, and the priorities of Canadians‘.  The Special Joint  

Committee released its report in February 2016 recommending  

a legislative framework which would regulate ‗medical  

assistance in dying‘ by imposing both substantive and  

procedural safeguards, namely:-

102    

Substantive Safeguards:  

 A grievous and irremediable medical condition (including  an illness, disease or disability) is required;  

 Enduring suffering that is intolerable to the individual in  the circumstances of his or her condition is required;  

 Informed consent is required;  

 Capacity to make the decision is required at the time of  either the advance or contemporaneous request; and  

 Eligible individuals must be insured persons eligible for  publicly funded health care services in Canada.  

Procedural Safeguards:  

 Two independent doctors must conclude that a person is  eligible;  

 A request must be in writing and witnessed by two  independent witnesses;  

 A waiting period is required based, in part, on the  rapidity of progression and nature of the patient‘s  medical condition as determined by the patient‘s  attending physician;  

 Annual report analyzing medical assistance in dying  cases are to be tabled in Parliament;  

and  

 Support and services, including culturally and spiritually  appropriate end-of-life care services for indigenous  patients, should be improved to ensure that requests are  based on free choice, particularly for vulnerable people.

103    

105. It should be noted that physician assisted dying has  

already been legalized in the province of Quebec.  Quebec  

passed an Act respecting end-of-life care (the Quebec Act) in  

June 2014 with most of the Act coming into force on 10  

December, 2015.  The Quebec Act provides a ‗framework for  

end-of-life care‘ which includes ‗continuous palliative sedation‘  

and ‗medical aid in dying‘ defined as ‗administration by a  

physician of medications or substances to an end-of-life  

patient, at the patient‘s request, in order to relieve their  

suffering by hastening death.  In order to be able to access  

medical aid in dying under the Quebec Act, a patient must:-  

(1) be an insured person within the meaning of the Health  

Insurance Act (Chapter A-29);  

(2) be of full age and capable of giving consent to care;  

(3) be at the end of life;  

(4) suffer from a serious and incurable illness;  

(5) be in an advanced state of irreversible decline in  

capability; and  

(6) experience constant and unbearable physical or  

psychological suffering

104    

(7) which cannot be relieved in a manner the patient deems  

tolerable.  

106. The request for medical aid in dying must be signed by  

two physicians. The Quebec Act also established a  

Commission on end-of-life care to provide oversight and advice  

to the Minister of Health and Social Services on the  

implementation of the legislation regarding end-of-life care.  

H.5 Other Jurisdictions:   

107. Presently, we think it appropriate to deal with certain  

legislations in other countries and the decisions in other  

jurisdictions. In Aruna Shanbaug, the Court has in detail  

referred to the legislations in Netherlands, i.e., the  

Termination of Life on Request and Assisted Suicide (Review  

Procedures) Act, 2002 that regulates euthanasia.  The  

provisions of the said Act lay down that euthanasia and  

physician-assisted suicide are not punishable if the attending  

physician acts in accordance with the criteria of due care.  As  

the two-Judge Bench has summarized, this criteria concern  

the patient‘s request, the patient‘s suffering (unbearable and

105    

hopeless), the information provided to the patient, the  

presence of reasonable alternatives, consultation of another  

physician and the applied method of ending life. To  

demonstrate their compliance, the Act requires physicians to  

report euthanasia to a Review Committee. It has been  

observed that the said Act legalizes euthanasia and physician-

assisted suicide in very specific cases under three specific  

conditions and euthanasia remains a criminal offence in cases  

not meeting the laid down specific conditions with the  

exception of several situations that are not subject to  

restrictions of law at all because they are considered normal  

medical practice. The three conditions are : stopping or not  

starting a medically useless (futile) treatment, stopping or not  

starting a treatment at the patient‘s request and speeding up  

death as a side effect of treatment necessary for alleviating  

serious suffering.  

108. Reference has been made to the Swiss Criminal Code  

where active euthanasia has been regarded as illegal.  Belgium  

has legalized the practice of euthanasia with the enactment of  

the Belgium Act on Euthanasia of May 28th, 2002 and the

106    

patients can wish to end their life if they are under constant  

and unbearable physical or psychological pain resulting from  

an accident or an incurable illness. The Act allows adults who  

are in a ‗futile medical condition of constant and unbearable  

physical or mental suffering that cannot be alleviated‘ to  

request voluntary euthanasia. Doctors who practise  

euthanasia commit no offence if the prescribed conditions and  

procedure is followed and the patient has the legal capacity  

and the request is made voluntarily and repeatedly with no  

external pressure.  

109. Luxembourg too has legalized euthanasia with the  

passing of the Law of 16th March, 2009 on Euthanasia and  

Assisted Suicide (Lux.). The law permits euthanasia and  

assisted suicide in relation to those with incurable conditions  

with the requirements including repeated requests and the  

consent of two doctors and an expert panel.   

110. The position in Germany is that active assisted suicide is  

illegal. However, this is not the case for passive assisted  

suicide.  Thus, in Germany, if doctors stop life-prolonging  

measures, for instance, on the written wishes of a patient, it is

107    

not considered as a criminal offence.  That apart, it is legal for  

doctors in Germany to administer painkillers to a dying  

patient to ease pain.  The said painkillers, in turn, cause low  

breathing that may lead to respiratory arrest and, ultimately,  

death.    

H.6 International considerations and decisions of the  European Court of Human Rights (ECHR):   

 111. Certain relevant obligations when discussing voluntary  

euthanasia are contained in the International Covenant on  

Civil and Political Rights (ICCPR). The following rights in the  

ICCPR have been considered by the practice of voluntary  

euthanasia:   

 right to life (Article 6)   

 freedom from cruel, inhuman or degrading treatment  (Article 7)   

 right to respect for private life (Article 17)   

 freedom of thought, conscience and religion (Article 18).   

112. Right to life under Article 6(1) of the ICCPR provides:  

Every human being has the inherent right to life. This right  

shall be protected by law. No one shall be arbitrarily deprived  

of his life. The second sentence of Article 6(1) imposes a  

positive obligation on the States to provide legal protection of

108    

the right to life. However, the subsequent reference to life not  

being ‗arbitrarily deprived‘ operates to limit the scope of the  

right (and therefore the States‘ duty to ensure the right).  

Comments from the UN Human Rights Committee suggest  

that laws allowing for voluntary euthanasia are not necessarily  

incompatible with the States‘ obligation to protect the right to  

life.  

113. The UN Human Rights Committee has emphasised that  

laws allowing for euthanasia must provide effective procedural  

safeguards against abuse if they are to be compatible with the  

State‘s obligation to protect the right to life. In 2002, the UN  

Committee considered the euthanasia law introduced in the  

Netherlands. The Committee stated that:-  

―where a State party seeks to relax legal protection  with respect to an act deliberately intended to put  an end to human life, the Committee believes that  the Covenant obliges it to apply the most rigorous  scrutiny to determine whether the State party‘s  obligations to ensure the right to life are being  

complied with (articles 2 and 6 of the Covenant).‖  

114. The European Court of Human Rights (ECHR) has  

adopted a similar position to the UN Human Rights Committee  

when considering euthanasia laws and the right to life in

109    

Article 2 of the European Convention for the Protection of  

Human Rights and Fundamental Freedoms (European  

Convention). According to the ECHR, the right to life in Article  

2 cannot be interpreted as conferring a right to die or a right  

to self determination in terms of choosing death rather than  

life. However, the ECHR has held that a State‘s obligation to  

protect life under that Article does not preclude it from  

legalising voluntary euthanasia, provided adequate safeguards  

are put in place and adhered to. In Pretty v. United Kingdom  

(application no. 2346/02) 37 , the ECHR ruled that the  

decision of the applicant to avoid what she considered would  

be an undignified and distressing end to her life was part of  

the private sphere covered by the scope of Article 8 of the  

Convention.  The Court affirmed that the right of an individual  

to decide how and when to end her life, provided that the said  

individual was in a position to make up her own mind in that  

respect and to take the appropriate action, was one aspect of  

the right to respect for private life under Article 8 of the  

Convention.  The Court, thus, recognised, with conditions, a  

                                                           37

[2002] ECHR 423 (29 April, 2002)  

110    

sort of right to self-determination as to one‘s own death, but  

the existence of this right is subject to two conditions, one  

linked to the free will of the person concerned and the other  

relating to the capacity to take appropriate action.  However,  

respect for the right to life compels the national authorities to  

prevent a person from putting an end to life if such a decision  

is not taken freely and with full knowledge.   

115. In Hass v. Switzerland (application no. 31322/07)38,  

the ECHR explained that:-  

―creates for the authorities a duty to protect  vulnerable persons, even against actions by which  they endanger their own lives… this latter Article  obliges the national authorities to prevent an  individual from taking his or her own life if the  decision has not been taken freely and with full  

understanding of what is involved‖.   

Accordingly, the ECHR concluded that:-  

―the right to life guaranteed by Article 2 of the  Convention obliges States to establish a procedure  capable of ensuring that a decision to end one‘s life  does indeed correspond to the free will of the  

individual concerned.‖  

                                                           38

 [2011] ECHR 2422: (2011) 53 EHRR 33

111    

116. In a recent decision regarding end of life issues, Lambert  

and others v. France (application no. 46043/14) 39 , the  

ECHR considered whether the decision to withdraw artificial  

nutrition and hydration of Vincent Lambert violated the right  

to life in Article 2. Vincent Lambert was involved in a serious  

road accident which left him tetraplegic and with permanent  

brain damage. He was assessed in expert medical reports as  

being in a chronic vegetative state that required artificial  

nutrition and hydration to be administered via a gastric tube.  

117. Mr. Lambert‘s parents applied to the ECHR alleging that  

the decision to withdraw his artificial nutrition and hydration  

breached, inter alia, the State‘s obligations under Article 2 of  

the European Convention. The ECHR highlighted that Article 2  

imposes on the States both a negative obligation (to refrain  

from the ‗intentional‘ taking of life) and a positive obligation (to  

‗take appropriate steps to safeguard the lives of those within  

its jurisdiction‘). The Court held that the decision of a doctor  

to discontinue life-sustaining treatment (or ‗therapeutic  

abstention‘) did not involve the State‘s negative obligation  

                                                           39

[2015] ECHR 185

112    

under Article 2 and, therefore, the only question for the Court  

under Article 2 was whether it was consistent with the State‘s  

positive obligation.  

118. The ECHR emphasized that ‗the Convention has to be  

read as a whole‘, and, therefore:-  

―in a case such as the present one reference should  be made, in examining a possible violation of Article  2, to Article 8 of the Convention and to the right to  respect for private life and the notion of personal  

autonomy which it encompasses.‖  

 119. The Court noted that there was a consensus among  

European member States ‗as to the paramount importance of  

the patient‘s wishes in the decision-making process, however  

those wishes are expressed‘. It identified that in dealing with  

end of life situations, States have some discretion in terms of  

striking a balance between the protection of the patients‘ right  

to life and the protection of the right to respect their private  

life and their personal autonomy. The Court considered that  

the provisions of the Law of 22 April 2005 ‗on patients‘ rights  

and the end of life‘ promulgated in France making changes in  

the French Code of Public Health, as interpreted by the

113    

Conseil d’Etat, constituted a legal framework which was  

sufficiently clear to regulate with precision the decisions taken  

by doctors in situations such as in Mr. Lambert‘s case. The  

Court found the legislative framework laid down by domestic  

law, as interpreted by the Conseil d’État, and the decision-

making process which had been conducted in meticulous  

fashion, to be compatible with the requirements of the State‘s  

positive obligation under Article 2.  With respect to negative  

obligations, the ECHR observed that the ―therapeutic  

abstention‖ (that is, withdrawal and withholding of medical  

treatment) lacks the intention to end the patient‘s life and  

rather, a doctor discontinuing medical treatment from his or  

her patient merely intends to ―allow death to resume its  

natural course and to relieve suffering‖.  Therefore, as long as  

therapeutic abstention as authorised by the French Public  

Health Code is not about taking life intentionally, the ECHR  

opined that France had not violated its negative obligation to  

―refrain from the intentional taking of life‖.   

120. When considering the State‘s positive obligations to  

protect human life, the ECHR noted that the regulatory

114    

framework developed in the Public Health Code and the  

decision of the Conseil d’ Etat established several ―important  

safeguards‖ with respect to therapeutic abstention and the  

regulation is, therefore, ―apt to ensure the protection of  

patients‘ lives.‖  

121. All this compelled the ECHR to conclude that there was  

no violation of the State‘s positive obligation to protect human  

life which, together with the absence of violation of negative  

obligations, resulted in the conclusion that ―there would be no  

violation of Article 2 of the Convention in the event of  

implementation of the Conseil d’ Etat judgment.‖  Thus, the  

ECHR in the Lambert (supra) case struck the balance between  

the sanctity of life on the one hand and the notions of quality  

of life and individual autonomy on the other.  

I. The 241st Report of The Law Commission of India on  

Passive Euthanasia:  

122. After the judgment of Aruna Shanbaug was delivered,  

the Law Commission of India submitted its 241st report which  

dealt with ‗Passive Euthanasia – A Relook‘.  The report in its  

introduction has dealt with the origin of the concept of

115    

euthanasia.  It states that the word ―Euthanasia‖ is derived  

from the Greek words ―eu‖ and ―thanotos‖ which literally mean  

―good death‖ and is otherwise described as ―mercy killing‖.   

The word euthanasia, as pointed out in the Report, was used  

by Francis Bacon in the 17th Century to refer to an easy,  

painless and happy death as it is the duty and responsibility  

of the physician to alleviate the physical suffering of the body  

of the patient.  A reference has also been made in the Report  

to the meaning given to the term by the House of Lords.  The  

Select Committee on ―Medical Ethics‖ in England defined  

Euthanasia as ―a deliberate intervention undertaken with the  

express intention of ending a life to relieve intractable  

suffering‖. Impressing upon the voluntary nature of  

euthanasia, the report has rightly highlighted the clarification  

as provided by the European Association of Palliative Care  

(EAPC) Ethics Task Force in a discussion on Euthanasia in  

2003 to the effect that ―medicalised killing of a person without  

the person‘s consent, whether non-voluntary (where the  

person is unable to consent) or involuntary (against the  

person‘s will) is not euthanasia: it is a murder.‖

116    

123. The Commission in its report referred to the observations  

made by the then Chairman of the Law Commission in his  

letter dated 28th August, 2006 addressed to the Hon‘ble  

Minister which was extracted.  It is pertinent to reproduce the  

same:-  

―A hundred years ago, when medicine and  medical technology had not invented the artificial  methods of keeping a terminally ill patient alive by  medical treatment, including by means of  ventilators and artificial feeding, such patients were  meeting their death on account of natural causes.  Today, it is accepted, a terminally ill person has a  common law right to refuse modern medical  procedures and allow nature to take its own course,  as was done in good old times. It is well-settled law  in all countries that a terminally ill patient who is  conscious and is competent, can take an ‗informed  decision‘ to die a natural death and direct that he or  she be not given medical treatment which may  merely prolong life. There are currently a large  number of such patients who have reached a stage  in their illness when according to well-informed  body of medical opinion, there are no chances of  recovery. But modern medicine and technology may  yet enable such patients to prolong life to no  purpose and during such prolongation, patients  could go through extreme pain and suffering.  Several such patients prefer palliative care for  reducing pain and suffering and do not want  medical treatment which will merely prolong life or  postpone death.‖

117    

124. The report rightly points out that a rational and  

humanitarian outlook should have primacy in such a complex  

matter.  Recognizing that passive euthanasia, both in the case  

of competent and incompetent patients, is being allowed in  

most of the countries subject to the doctor acting in the best  

interests of the patient, the report summarized the broad  

principles of medical ethics which shall be observed by the  

doctor in taking the decision. The said principles as obtained  

in the report are the patient‘s autonomy (or the right to self-  

determination) and beneficence which means following a  

course of action that is best for the patient uninfluenced by  

personal convictions, motives or other considerations. The  

Report also refers to the observations made by Lord Keith in  

Airedale case providing for a course to safeguard the patient‘s  

best interest.  As per the said course, which has also been  

approved by this Court, the hospital/medical practitioner  

should apply to the Family Division of the High Court for  

endorsing or reversing the decision taken by the medical  

practitioners in charge to discontinue the treatment of a PVS  

patient.   With respect to the ongoing debates on ―legalizing

118    

euthanasia‖, the Report reiterates the observations made in  

Airedale that euthanasia (other than passive euthanasia) can  

be legalized by means of legislation only.  

125. The Report, in upholding the principle of the patient‘s  

autonomy, went on to state:-  

―…the patient (competent) has a right to refuse  medical treatment resulting in temporary  prolongation of life. The patient‘s life is at the brink  of extinction. There is no slightest hope of recovery.  The patient undergoing terrible suffering and worst  mental agony does not want his life to be prolonged  by artificial means. She/he would not like to spend  for his treatment which is practically worthless.  She/he cares for his bodily integrity rather than  bodily suffering. She/he would not like to live 28  like a ‗cabbage‘ in an intensive care unit for some  days or months till the inevitable death occurs. He  would like to have the right of privacy protected  which implies protection from interference and  bodily invasion. As observed in Gian Kaur‘s case,  the natural process of his death has already  commenced and he would like to die with peace and  dignity. No law can inhibit him from opting such  course. This is not a situation comparable to  suicide, keeping aside the view point in favour of  decriminalizing the attempt to suicide. The doctor or  relatives cannot compel him to have invasive  medical treatment by artificial means or treatment.‖    

126. The Report supports the view of several authorities  

especially Lord Browne-Wilkinson (in Airedale case) and

119    

Justice Cardozo that in case of any forced medical intervention  

on the body of a patient, the surgeon/doctor is guilty of  

‗assault‘ or ‗battery‘.  The Report also laid emphasis on the  

opinion of Lord Goff placing the right of self-determination on  

a high pedestal.  The said relevant observations of Lord Goff,  

as also cited in the Report, are as follows:-   

―I wish to add that, in cases of this kind, there is no  question of the patient having committed suicide,  nor therefore of the doctor having aided or abetted  him in doing so. It is simply that the patient has, as  he is entitled to do, declined to consent to treatment  which might or would have the effect of prolonging  his life, and the doctor has, in accordance with his  duty, complied with his patient's wishes.‖  

 127.  We have referred to the report of the Law Commission  

post Aruna Shanbaug only to highlight that there has been  

affirmative thought in this regard.  We have also been apprised  

by Mr. Narasimha, learned Additional Solicitor General  

appearing for the Union of India, that there is going to be a law  

with regard to passive euthanasia.  

120    

J. Right to refuse treatment:  

128.  Deliberating on the issue of right to refuse treatment,  

Justice Cardozo in Schloendorff v. Society of New York  

Hospital40 observed:-  

―Every human being of adult years and sound mind  has a right to determine what shall be done with his  own body; and a surgeon who performs the  operation without his patient‘s consent commits an  assault for which he is liable in damages.‖   

129. In a somewhat different context, King C.J. in  F v. R41  

identified ―the paramount consideration that a person is  

entitled to make his own decisions about his life‖.  The said  

statement was cited with approval by Mason CJ, Brennan,  

Dawson, Toohey and McHugh, JJ. in Rogers v. Whitaker42.  

Cardozo‘s statement has been cited and applied in many  

cases. Thus, in Malette v. Shulman43, Robins J.A.,  speaking  

with the concurrence of Catzman and Canthy JJA, said:-  

―A competent adult is generally entitled to reject a  specific treatment or all treatment, or to select an  alternative form of treatment even if the decision  may entail risks as serious as death and may  

                                                           40

(1914) 105 NE 92 : (1914) 211 NY 125  41

(1983) 33 SASR 189 at 193  42

[1992] HCA 58 : (1992) 175 CLR 479 at 487  43

67 DLR (4 th

) 321 (1990) : 72 OR (2d) 417  

121    

appear mistaken in the eyes of the medical  profession or of the community …. it is the patient  who has the final say on whether to undergo the  treatment.‖     

130. The recognition of the freedom of competent adults to  

make choices about their medical care necessarily  

encompasses recognition of the right to make choices since  

individual free choice and self-determination are themselves  

fundamental constituents of life.  Robins J.A. further clarified  

in Malette at page 334:-  

―To deny individuals freedom of choice with respect  to their health care can only lessen and not  enhance the value of life.‖     

131.  In the 21st century, with the advancement of technology  

in medical care, it has become possible, with the help of  

support machines, to prolong the death of patients for months  

and even years in some cases. At this juncture, the right to  

refuse medical treatment comes into the picture. A patient  

(terminally ill or in a persistent vegetative state) exercising the  

right to refuse treatment may ardently wish to live but, at the  

same time, he may wish to be free from any medical surgery,  

drugs or treatment of any kind so as to avoid protracted

122    

physical suffering. Any such person who has come of age  

and is of sound mind has a right to refuse medical treatment.   

This right stands on a different pedestal as compared to  

suicide, physician assisted suicide or even euthanasia. When a  

terminally ill patient refuses to take medical treatment, it can  

neither be termed as euthanasia nor as suicide. Albeit, both  

suicide and refusal to take treatment in case of terminal  

ailment shall result in the same consequences, that is, death,  

yet refusal to take treatment by itself cannot amount to  

suicide. In case of suicide, there has to be a self initiated  

positive action with a specific intention to cause one‘s own  

death. On the other hand, a patient‘s right to refuse treatment  

lacks his specific intention to die, rather it protects the patient  

from unwanted medical treatment.  A patient refusing medical  

treatment merely allows the disease to take its natural course  

and if, in this process, death occurs, the cause for it would  

primarily be the underlying disease and not any self initiated  

act.   

132. In Rodriguez (supra), Justice Sopinka, speaking for the  

Supreme Court of Canada, held:-

123    

―Canadian Court has recognized a common law  right of patients to refuse to consent to medical  treatment or to demand that the treatment, once  commenced, be withdrawn or discontinued. This  right has been specially recognized to exist even if  the withdrawal from or refusal of treatment may  result in death.‖    

133. In Secretary, Department of Health and Community  

Services (NT) v. JWB and SMB44, the High Court of Australia  

acknowledged the fundamental right of personal inviolability.  

Justice McHugh observed that the voluntary decision of an  

adult person of sound mind as to what should be done to his  

or her body must be respected. It was further observed that  

under the doctrine of trespass, the common law respects and  

protects the autonomy of adult persons and also accepts the  

right to self-determination in respect of his or her body which  

can be altered only with the consent of the person concerned.  

134.  There is a presumption of capacity whereby an adult is  

presumed to have the capacity to consent to or to refuse  

medical treatment unless and until that presumption is  

rebutted. Butler-Sloss LJ, in Re MB (Medical Treatment)45,  

stated that in deciding whether a person has the capacity to                                                              44

(1992) 66 AJLR 300 : (1992) 175 CLR 218  45

[1997] EWCA Civ 3093 : [1997] 2 FLR 426

124    

make a particular decision, the ultimate question is whether  

that person suffers from some impairment or disturbance of  

mental functioning so as to render him or her incapable of  

making the decision.  The consent may be vitiated if the  

individual concerned may not have been competent in law to  

give or refuse that consent; or even if the individual was  

competent in law, the decision has been obtained by undue  

influence or some other vitiating means; or the apparent  

consent or refusal does not extend to the particular situation;  

or the terms of the consent or refusal are ambiguous or  

uncertain; or if the consent or refusal is based on incorrect  

information or incorrect assumption. In circumstances where  

it is practicable for a medical practitioner to obtain consent to  

treatment, then, for the consent to be valid, it must be based  

on full information, including as to its risks and benefits.  

135. Where it is not practicable for a medical practitioner to  

obtain consent for treatment and where the patient‘s life is in  

danger if appropriate treatment is not given, then the  

treatment may be administered without consent.  This is  

justified by what is sometimes called the ―emergency principle‖

125    

or ―principle of necessity‖.  Usually, the medical practitioner  

treats the patient in accordance with his clinical judgment of  

what is in the patient‘s best interests.  Lord Goff of Chieveley  

has rightly pointed out in F v. West Berkshire Health  

Authority (supra) that for the principle of necessity to apply,  

two conditions must be met:-  

(a) There must be ―a necessity to act when it is not  

practicable to communicate with the assisted person‖; and  

(b) ―the action taken must be such as a reasonable person  

would in all the circumstances take, acting in the best  

interests of the assisted person.‖  

136. However, Lord Goff pointed out that the principle of  

necessity does not apply where the proposed action is contrary  

to the known wishes of the assisted person to the extent that  

he/she is capable of rationally forming such a wish.  It follows  

that the principle of necessity cannot be relied upon to justify  

a particular form of medical treatment where the patient has  

given an advance care directive specifying that he/she does  

not wish to be so treated and where there is no reasonable

126    

basis for doubting the validity and applicability of that  

directive.   

K. Passive Euthanasia in the context of Article 21 of the  

Constitution:   

137.  We have to restrict our deliberation to the issue whether  

euthanasia can come within the ambit and sweep of Article 21.  

Article 21 reads as follows:-  

―21. Protection of life and personal liberty.—No  person shall be deprived of his life or personal  liberty except according to procedure established by  law.‖    

138. The word ‗liberty‘ is the sense and realization of choice of  

the attributes associated with the said choice; and the term  

‗life‘ is the aspiration to possess the same in a dignified  

manner.  The two are intrinsically interlinked. Liberty impels  

an individual to change and life welcomes the change and the  

movement.  Life does not intend to live sans liberty as it would  

be, in all possibility, a meaningless survival. There is no doubt  

that no fundamental right is absolute, but any restraint  

imposed on liberty has to be reasonable. Individual liberty aids  

in developing one‘s growth of mind and assert individuality.  

She/he may not be in a position to rule others but

127    

individually, she/he has the authority over the body and  

mind. The liberty of personal sovereignty over body and mind  

strengthens the faculties in a person. It helps in their  

cultivation. Roscoe Pound, in one of his lectures, has aptly  

said:-  

―… although we think socially, we must still think of  individual interests, and of that greatest of all  claims which a human being may make, the claim  to assert his individuality, to exercise freely the will  and the reason which God has given him. We must  emphasize the social interest in the moral and  social life of the individual, but we must remember  that it is the life of a free-willing being.‖    

139. Liberty allows freedom of speech, association and  

dissemination without which the society may face hurdles in  

attaining the requisite maturity. History is replete with  

narratives how the thoughts of individuals, though not  

accepted by the contemporaneous society, later on gained not  

only acceptance but also respect.  One may not agree with  

Kantian rigorism, but one must appreciate that without the  

said doctrine, there could not have been dissemination of  

further humanistic principles. There is a danger in  

discouraging free thinking and curtailing the power of

128    

imagination.  Holmes in Adkins v. Children’s Hospital46 has  

observed:-  

―It is merely an example of doing what you want to  do, embodied in the word ―liberty‖.‖  

 140. The concept of liberty perceives a hazard when it feels it  

is likely to become hollow. This necessarily means that there  

would be liberty available to individuals subject to permissible  

legal restraint and it should be made clear that in that  

restraint, free ideas cannot be imprisoned by some kind of  

unknown terror.  Liberty cannot be a slave because it  

constitutes the essential marrow of life and that is how we  

intend to understand the conception of liberty when we read it  

in association with the term ‗life‘ as used in Article 21 of the  

Constitution. The great American playwright Tennessee  

Williams has said:-  

―To be free is to have achieved your life.‖  

141. Life as envisaged under Article 21 has been very broadly  

understood by this Court.  In Board of Trustees of the Port  

of Bombay v. Dilipkumar Raghavendranath Nadkarni and  

                                                           46

261 US 525, 568(1923)

129    

others47, the Court has held that the expression ―life‖ does not  

merely connote animal existence or a continued drudgery  

through life.  The expression ‗life‘ has a much wider meaning  

and, therefore, where the outcome of a departmental enquiry  

is likely to adversely affect the reputation or livelihood of a  

person, some of the finer graces of human civilization which  

make life worth living would be jeopardized and the same can  

be put in jeopardy only by law which inheres fair procedures.    

142. In Maneka Gandhi v. Union of India and another48,   

Krishna Iyer J., in his own inimitable style, states that among  

the great guaranteed rights, life and liberty are the first among  

equals carrying a universal connotation cardinal to a decent  

human order and protected by constitutional armour.  Once  

liberty under Article 21 is viewed in a truncated manner,  

several other freedoms fade out automatically.  To sum up,  

personal liberty makes for the worth of the human person.  

Travel makes liberty worthwhile. ‗Life‘ is a terrestrial  

opportunity for unfolding personality, rising to higher status,  

moving to fresh woods and reaching out to reality which                                                              47

(1983) 1 SCC 124  48

(1978) 1 SCC 248  

130    

makes our earthly journey a true fulfilment – not a tale told by  

an idiot full of sound and fury signifying nothing, but a fine  

frenzy rolling between heaven and earth. The spirit of man is  

at the root of Article 21. In the absence of liberty, other  

freedoms are frozen.    

143. In State of Andhra Pradesh v. Challa Ramkrishna  

Reddy and others49, this Court held that right to life is one of  

the basic human rights and it is guaranteed to every person by  

Article 21 of the Constitution and not even the State has the  

authority to violate that right. A prisoner, whether a convict or  

under-trial or a detenu, does not cease to be a human being.  

Even when lodged in jail, he continues to enjoy all his  

fundamental rights including the right to life guaranteed to  

him under the Constitution. The Court further ruled that on  

being convicted of crime and deprived of their liberty in  

accordance with the procedure established by law, prisoners  

still retain the residue of constitutional rights.  

144. Having said so, we are required to advert to the issue  

whether passive euthanasia can only be conceived of through  

                                                           49

AIR 2000 SC 2083 : (2000) 5 SCC 712

131    

legislation or this Court can, for the present, provide for the  

same. We have already explained that the ratio laid down in  

Gian Kaur does not convey that the introduction of passive  

euthanasia can only be by legislation.  In Aruna Shanbaug,  

the two-Judge Bench has placed reliance on the Constitution  

Bench judgment in Gian Kaur to lay down the guidelines.  If,  

eventually, we arrive at the conclusion that passive euthanasia  

comes within the sweep of Article 21 of the Constitution, we  

have no iota of doubt that this Court can lay down the  

guidelines.   

145. We may clearly state here that the interpretation of the  

Constitution, especially fundamental rights, has to be dynamic  

and it is only such interpretative dynamism that breathes life  

into the written words.  As far as Article 21 is concerned, it is  

imperative to mention that dynamism can, of course, infuse  

life into life and liberty as used in the said Article.  

146. In this regard,  we may  reproduce a  couple  of   

paragraphs from Central Inland Water Transport

132    

Corporation Limited and another v. Brojo Nath Ganguly  

and another50.  They read as under:-  

―25. The story of mankind is punctuated by  progress and retrogression. Empires have risen and  crashed into the dust of history. Civilizations have  nourished, reached their peak and passed away. In  the year 1625, Carew, C.J., while delivering the  

opinion of the House of Lords in Re the Earldom of  Oxford in a dispute relating to the descent of that  Earldom, said:  

―... and yet time hath his revolution, there  must be a period and an end of all temporal  

things, finis rerum, an end of names and  dignities, and whatsoever is terrene....‖  

The cycle of change and experiment, rise and fall,  growth and decay, and of progress and  retrogression recurs endlessly in the history of man  and the history of civilization. T.S. Eliot in the First  

Chorus from ―The Rock‖ said:  

―O perpetual revolution of configured stars,  

O perpetual recurrence of determined seasons,  

O world of spring and autumn, birth and dying;  

The endless cycle of idea and action,  

Endless invention, endless experiment.‖  

26. The law exists to serve the needs of the society  which is governed by it. If the law is to play its  allotted role of serving the needs of the society, it  must reflect the ideas and ideologies of that society.  It must keep time with the heartbeats of the society  and with the needs and aspirations of the people. As  

                                                           50

(1986) 3 SCC 156

133    

the society changes, the law cannot remain  immutable. The early nineteenth century essayist  and wit, Sydney Smith, said: ―When I hear any man  talk of an unalterable law, I am convinced that he is  an unalterable fool.‖ The law must, therefore, in a  changing society march in tune with the changed  ideas and ideologies‖  

[Emphasis added]  

147. We approve the view in the aforesaid passages.  Having  

approved the aforesaid principle, we are obliged to state that  

the fundamental rights in their connotative expanse are bound  

to engulf certain rights which really flow from the same.  In             

M. Nagaraj and others v. Union of India and others51, the  

Constitution Bench has ruled:-  

―19. The Constitution is not an ephemeral legal  document embodying a set of legal rules for the  passing hour. It sets out principles for an expanding  future and is intended to endure for ages to come  and consequently to be adapted to the various  crises of human affairs. Therefore, a purposive  rather than a strict literal approach to the  interpretation should be adopted. A constitutional  provision must be construed not in a narrow and  constricted sense but in a wide and liberal manner  so as to anticipate and take account of changing  conditions and purposes so that a constitutional  provision does not get fossilised but remains flexible  enough to meet the newly emerging problems and  challenges.‖  

                                                           51

(2006) 8 SCC 212

134    

And again:-  

―29. … constitutionalism is about limits and  aspirations. According to Justice Brennan,  interpretation of the Constitution as a written text is  concerned with aspirations and fundamental  principles. In his article titled ―Challenge to the  Living Constitution‖ by Herman Belz, the author  says that the Constitution embodies aspiration to  social justice, brotherhood and human dignity. It is  a text which contains fundamental principles. …‖  

148.   In this context, we may make a reference to a three-

Judge Bench decision in V.C. Rangadurai v. D. Gopalan and  

others52 wherein the majority, while dealing with Section 35(3)  

of the Advocates Act, 1961, stated:-  

―8. … we may note that words grow in content with  time and circumstance, that phrases are flexible in  semantics, that the printed text is a set of vessels  into which the court may pour appropriate judicial  meaning. That statute is sick which is allergic to  change in sense which the times demand and the  text does not countermand. That court is superficial  which stops with the cognitive and declines the  creative function of construction. So, we take the  view that 'quarrying' more meaning is permissible  out of Section 35(3) and the appeal provisions, in  the brooding background of social justice, sanctified  by Article 38, and of free legal aid enshrined by  Article 39A of the Constitution.‖  

                                                           52

(1979) 1 SCC 308

135    

 The learned Judges went on to say:-  

―11. … Judicial 'Legisputation' to borrow a telling  phrase of J. Cohen, is not legislation but application  of a given legislation to new or unforeseen needs  and situations broadly falling within the statutory  provision. In that sense, 'interpretation is  inescapably a kind of legislation' (The Interpretation  and Application of Statutes, Read Dickerson, p.  238). Ibid. p. 238. This is not legislation stricto  sensu but application, and is within the court's  province.‖  

149.  The aforesaid authorities clearly show the power that  

falls within the province of the Court.  The language employed  

in the constitutional provision should be  liberally construed,  

for such provision can never remain static. It is because  

stasticity would mar the core which is not the intent.   

K.1     Individual Dignity as a facet of Article 21:    

150. Dignity of an individual has been internationally  

recognized as an important facet of human rights in the year  

1948 itself with the enactment of the Universal Declaration of  

Human Rights. Human dignity not only finds place in the  

Preamble of this important document but also in Article 1 of  

the same.  It is well known that the principles set out in UDHR  

are of paramount importance and are given utmost weightage

136    

while interpreting human rights all over the world. The first  

and foremost responsibility fixed upon the State is the  

protection of human dignity without which any other right  

would fall apart. Justice Brennan in his book The Constitution  

of the United States: Contemporary Ratification has referred to  

the Constitution as "a sparkling vision of the supremacy of the  

human dignity of every individual."  

151. In fact, in the case of Christine Goodwin v. the United  

Kingdom53 the European Court of Human Rights, speaking in  

the context of the Convention for the Protection of Human  

Rights and Fundamental Freedoms, has gone to the extent of  

stating that "the very essence of the Convention is respect for  

human dignity and human freedom". In the South African  

case of S v. Makwanyane 54   O' Regan J. stated in the  

Constitutional Court that "without dignity, human life is  

substantially diminished."  

152. Having noted the aforesaid, it is worthy to note that our  

Court has expanded the spectrum of Article 21.  In the latest  

                                                           53

[2002] ECHR 588  54

1995 (3) SA 391

137    

nine-Judge Bench decision in K.S. Puttaswamy and another  

v. Union of India and others55, dignity has been reaffirmed  

to be a component under the said fundamental right. Human  

dignity is beyond definition. It may at times defy description.  

To some, it may seem to be in the world of abstraction and  

some may even perversely treat it as an attribute of egotism or  

accentuated eccentricity. This feeling may come from the roots  

of absolute cynicism.  But what really matters is that life  

without dignity is like a sound that is not heard. Dignity  

speaks, it has its sound, it is natural and human. It is a  

combination of thought and feeling, and, as stated earlier, it  

deserves respect even when the person is dead and described  

as a ‗body‘. That is why, the Constitution Bench in M. Nagaraj  

(supra) lays down:-  

―….It is the duty of the State not only to protect the  human dignity but to facilitate it by taking positive  steps in that direction. No exact definition of human  dignity exists. It refers to the intrinsic value of every  human being, which is to be respected. It cannot be  taken away. It cannot give (sic be given). It simply  is. Every human being has dignity by virtue of his  existence. …‖  

                                                           55

(2017) 10 SCC 1

138    

153. The concept and value of dignity requires further  

elaboration since we are treating it as an inextricable facet of  

right to life that respects all human rights that a person  

enjoys. Life is basically self-assertion. In the life of a person,  

conflict and dilemma are expected to be normal phenomena.   

Oliver Wendell Holmes, in one of his addresses, quoted a line  

from a Latin poet who had uttered the message, ―Death plucks  

my ear and says, Live- I am coming‖. That is the significance  

of living. But when a patient really does not know if he/she is  

living till death visits him/her and there is constant suffering  

without any hope of living, should one be allowed to wait?  

Should she/he be cursed to die as life gradually ebbs out from  

her/his being? Should she/he live because of innovative  

medical technology or, for that matter, should he/she  

continue to live with the support system as people around  

him/her think that science in its progressive invention may  

bring about an innovative method of cure? To put it  

differently, should he/she be ―guinea pig‖ for some kind of  

experiment? The answer has to be an emphatic ―No‖ because  

such futile waiting mars the pristine concept of life, corrodes

139    

the essence of dignity and erodes the fact of eventual choice  

which is pivotal to privacy. Recently, in K.S. Puttaswamy  

(supra), one of us (Dr. Chandrachud J.), while speaking about  

life and dignity, has observed:-  

―118. Life is precious in itself. But life is worth living  because of the freedoms which enable each  individual to live life as it should be lived. The best  decisions on how life should be lived are entrusted  to the individual. They are continuously shaped by  the social milieu in which individuals exist. The  duty of the State is to safeguard the ability to take  decisions — the autonomy of the individual — and  not to dictate those decisions. ―Life‖ within the  meaning of Article 21 is not confined to the integrity  of the physical body. The right comprehends one‘s  being in its fullest sense. That which facilitates the  fulfilment of life is as much within the protection of  the guarantee of life.  

 119. To live is to live with dignity. The draftsmen of  the Constitution defined their vision of the society in  which constitutional values would be attained by  emphasising, among other freedoms, liberty and  dignity. So fundamental is dignity that it permeates  the core of the rights guaranteed to the individual  by Part III. Dignity is the core which unites the  fundamental rights because the fundamental rights  seek to achieve for each individual the dignity of  existence. Privacy with its attendant values assures  dignity to the individual and it is only when life can  be enjoyed with dignity can liberty be of true  substance. Privacy ensures the fulfilment of dignity  and is a core value which the protection of life and  liberty is intended to achieve.‖

140    

154. In Mehmood Nayyar Azam v. State of Chhattisgarh  

and others56, a two-Judge Bench held thus:-  

―Albert Schweitzer, highlighting on Glory of Life,  pronounced with conviction and humility, "the  reverence of life offers me my fundamental principle  on morality". The aforesaid expression may appear  to be an individualistic expression of a great  personality, but, when it is understood in the  complete sense, it really denotes, in its conceptual  essentiality, and connotes, in its macrocosm, the  fundamental perception of a thinker about the  respect that life commands. The reverence of life is  insegragably associated with the dignity of a human  being who is basically divine, not servile. A human  personality is endowed with potential infinity and it  blossoms when dignity is sustained. The sustenance  of such dignity has to be the superlative concern of  every sensitive soul. The essence of dignity can  never be treated as a momentary spark of light or,  for that matter, 'a brief candle', or 'a hollow bubble'.  The spark of life gets more resplendent when man is  treated with dignity sans humiliation, for every man  is expected to lead an honourable life which is a  splendid gift of "creative intelligence"‖  

 155. The aforesaid authority emphasizes the seminal value of  

life that is inherent in the concept of life. Dignity does not  

recognize or accept any nexus with the status or station in life.   

The singular principle that it pleasantly gets beholden to is the  

integral human right of a person.  Law gladly takes cognizance  

                                                           56

(2012) 8 SCC 1  

141    

of the fact that dignity is the most sacred possession of a man.   

And the said possession neither loses its sanctity in the  

process of dying nor evaporates when death occurs. In this  

context, reference to a passage from Vikas Yadav v. State of  

Uttar Pradesh and others57 is note worthy.  The two Judge  

Bench of this Court, while dealing with the imposition of a  

fixed term sentence under Section 302 IPC, took note of the  

fact that the High Court had observed the magnitude of  

vengeance of the accused and the extent to which they had  

gone to destroy the body of the deceased.  Keeping in view the  

findings of the High Court, this Court stated:-  

―From the evidence brought on record as well as the  analysis made by the High Court, it is demonstrable  about the criminal proclivity of the accused persons,  for they have neither the respect for human life nor  did they have any concern for the dignity of a dead  person. They had deliberately comatosed the feeling  that even in death a person has dignity and when  one is dead deserves to be treated with dignity. That  is the basic human right. The brutality that has  been displayed by the accused persons clearly  exposes the depraved state of mind.‖  

                                                           57

(2016) 9 SCC 541

142    

The aforesaid passage shows the pedestal on which the  

Court has placed the dignity of an individual.  

156. Reiterating that dignity is the most fundamental aspect of  

right to life, it has been held in the celebrated case of Francis  

Coralie Mullin v. The Administrator, Union Territory of  

Delhi58:-  

"We think that the right to life includes the right to  

live with human dignity and all that goes along with  

it, namely, the bare necessaries of life such as  

adequate nutrition, clothing and shelter and  

facilities for reading, writing and expressing one-self  

in diverse forms, freely moving about and mixing  

and commingling with fellow human beings. Of  

course, the magnitude and content of the  

components of this right would depend upon the  

extent of the economic development of the country,  

but it must, in any view of the matter, include the  

right to the basic necessities of life and also the  

right to carry on such functions and activities as  

constitute the bare minimum expression of the  

human-self. Every act which offends against or  

impairs human dignity would constitute deprivation  

protanto of this right to live and it would have to be  

in accordance with reasonable, fair and just  

procedure established by law which stands the test  

of other fundamental rights. Now obviously, any  

form of torture or cruel, inhuman or degrading  

treatment would be offensive to human dignity and  

constitute an inroad into this right to live and it  

would, on this view, be prohibited by Article 21  

unless it is in accordance with procedure prescribed  

                                                           58

(1981) 1 SCC 608

143    

by law, but no law which authorises and no  

procedure which leads to such torture or cruel,  

inhuman or degrading treatment can ever stand the  

test of reasonableness and non-arbitrariness: it  

would plainly be unconstitutional and void as being  

violative of Articles 14 and 21. It would thus be seen  

that there is implicit in Article 21 the right to  

protection against torture or cruel, inhuman or  

degrading treatment which is enunciated in Article  

5 of the Universal Declaration of Human Rights and  

guaranteed by Article 7 of the International  

Covenant on Civil and Political Rights."  

 157. In National Legal Services Authority v. Union of  

India and others59, the Apex Court has held that there is a  

growing recognition that the true measure of development of a  

nation is not economic growth; it is human dignity.  

158. In Shabnam v. Union of India and another60, it has  

been further held that:-  

"This right to human dignity has many elements.  First and foremost, human dignity is the dignity of  each human being 'as a human being'. Another  element, which needs to be highlighted, in the  context of the present case, is that human dignity is  infringed if a person's life, physical or mental  welfare is armed. It is in this sense torture,  humiliation, forced labour, etc. all infringe on  human dignity.‖  

                                                           59

(2014) 5 SCC 438  60

(2015) 6 SCC 702

144    

 159.  In Gian Kaur (supra), the Constitution Bench indicates  

acceleration of the conclusion of the process of death which  

has commenced and  this indication, as observed by us, allows  

room for expansion. In the said case, the Court was primarily  

concerned with the question of constitutional validity of Sections  

306 and 309 of IPC. The Court was conscious of the fact that the  

debate on euthanasia was not relevant for deciding the question  

under consideration. The Court, however, in no uncertain terms  

expounded that the word "life" in Article 21 has been construed  

as life with human dignity and it takes within its ambit the "right  

to die with dignity" being part of the "right to live with dignity".  

Further, the "right to live with human dignity" would mean  

existence of such a right upto the end of natural life which would  

include the right to live a dignified life upto the point of death  

including the dignified procedure of death. While adverting to the  

situation of a dying man who is terminally ill or in a persistent  

vegetative state where he may be permitted to terminate it by a  

premature extinction of his life, the Court observed that the said  

category of cases may fall within the ambit of "right to die with  

dignity" as part of the right to live with dignity when death due to

145    

the termination of natural life is certain and imminent and the  

process of natural death has commenced, for these are not cases  

of extinguishing life but only of accelerating the conclusion of the  

process of natural death which has already commenced. The  

sequitur of this exposition is that there is little doubt that a  

dying man who is terminally ill or in a persistent vegetative state  

can make a choice of premature extinction of his life as being a  

facet of Article 21 of the Constitution. If that choice is  

guaranteed being part of Article 21, there is no necessity of any  

legislation for effectuating that fundamental right and more so  

his natural human right. Indeed, that right cannot be an  

absolute right but subject to regulatory measures to be  

prescribed by a suitable legislation which, however, must be  

reasonable restrictions and in the interests of the general public.  

In the context of the issue under consideration, we must make it  

clear that as part of the right to die with dignity in case of a dying  

man who is terminally ill or in a persistent vegetative state, only  

passive euthanasia would come within the ambit of Article 21  

and not the one which would fall within the description of active  

euthanasia in which positive steps are taken either by the

146    

treating physician or some other person. That is because the  

right to die with dignity is an intrinsic facet of Article 21.  The  

concept that has been touched deserves to be concretised, the  

thought has to be realized. It has to be viewed from various  

angles, namely, legal permissibility, social and ethical ethos  

and medical values.  

160. The purpose of saying so is only to highlight that the law  

must take cognizance of the changing society and march in  

consonance with the developing concepts. The need of the  

present has to be served with the interpretative process of law.  

However, it is to be seen how much strength and sanction can  

be drawn from the Constitution to consummate the changing  

ideology and convert it into a reality. The immediate needs are  

required to be addressed through the process of interpretation  

by the Court unless the same totally falls outside the  

constitutional framework or the constitutional interpretation  

fails to recognize such dynamism. The Constitution Bench in  

Gian Kaur, as stated earlier, distinguishes attempt to suicide  

and abetment of suicide from acceleration of the process of  

natural death which has commenced.  The authorities, we

147    

have noted from other jurisdictions, have observed the  

distinctions between the administration of lethal injection or  

certain medicines to cause painless death and non-

administration of certain treatment which can prolong the life  

in cases where the process of dying that has commenced is not  

reversible or withdrawal of the treatment that has been given  

to the patient because of the absolute absence of possibility of  

saving the life. To explicate, the first part relates to an overt  

act whereas the second one would come within the sphere of  

informed consent and authorized omission. The omission of  

such a nature will not invite any criminal liability if such  

action is guided by certain safeguards.  The concept is based  

on non-prolongation of life where there is no cure for the state  

the patient is in and he, under no circumstances, would have  

liked to have such a degrading state. The words ―no cure‖ have  

to be understood to convey that the patient remains in the  

same state of pain and suffering or the dying process is  

delayed by means of taking recourse to modern medical  

technology.  It is a state where the treating physicians and the  

family members know fully well that the treatment is

148    

administered only to procrastinate the continuum of breath of  

the individual and the patient is not even aware that he is  

breathing. Life is measured by artificial heartbeats and the  

patient has to go through this undignified state which is  

imposed on him.  The dignity of life is denied to him as there is  

no other choice but to suffer an avoidable protracted  

treatment thereby thus indubitably casting a cloud and  

creating a dent in his right to live with dignity and face death  

with dignity, which is a preserved concept of bodily autonomy  

and right to privacy. In such a stage, he has no old memories  

or any future hopes but he is in a state of misery which  

nobody ever desires to have. Some may also silently think that  

death, the inevitable factum of life, cannot be invited. To meet  

such situations, the Court has a duty to interpret Article 21 in  

a further dynamic manner and it has to be stated without any  

trace of doubt that the right to life with dignity has to include  

the smoothening of the process of dying when the person is in  

a vegetative state or is living exclusively by the administration  

of artificial aid that prolongs the life by arresting the dignified  

and inevitable process of dying.  Here, the issue of choice also

149    

comes in. Thus analysed, we are disposed to think that such a  

right would come within the ambit of Article 21 of the  

Constitution.  

L. Right of self-determination and individual autonomy:   

161. Having dealt with the right to acceleration of the process  

of dying a natural death which is arrested with the aid of  

modern innovative technology as a part of Article 21 of the  

Constitution, it is necessary to address the issues of right of  

self-determination and individual autonomy.  

162. John Rawls says that the liberal concept of autonomy  

focuses on choice and likewise, self-determination is  

understood as exercised through the process of choosing61.  

The respect for an individual human being and in particular  

for his right to choose how he should live his own life is  

individual autonomy or the right of self- determination. It is  

the right against non-interference by others, which gives a  

competent person who has come of age the right to make  

decisions concerning his or her own life and body without any  

                                                           61 Rawls, John, Political Liberalism 32, 33, New York: Columbia University Press, 1993.

150    

control or interference of others. Lord Hoffman, in Reeves v.  

Commissioner of Police of the Metropolis62 has stated:-  

"Autonomy means that every individual is sovereign  over himself and cannot be denied the right to  certain kinds of behaviour, even if intended to cause  his own death."  

163. In the context of health and medical care decisions, a  

person's exercise of self-determination and autonomy involves  

the exercise of his right to decide whether and to what extent  

he/she is willing to submit himself/herself to medical  

procedures and treatments, choosing amongst the available  

alternative treatments or, for that matter, opting for no  

treatment at all which, as per his or her own understanding, is  

in consonance with his or her own individual aspirations and  

values.  

164. In Airedale (supra), Lord Goff has expressed that it is  

established that the principle of self-determination requires  

that respect must be given to the wishes of the patient so that  

if an adult patient of sound mind refuses, however  

unreasonably, to consent to treatment or care by which  

                                                           62 [2000] 1 AC 360, 379

151    

his/her life would or might be prolonged, the doctors  

responsible for his/her care must give effect to his/her wishes,  

even though they do not consider it to be in his/her best  

interests to do so and to this extent, the principle of sanctity of  

human life must yield to the principle of self-determination.  

Lord Goff further says that the doctor's duty to act in the best  

interests of his patient must likewise be qualified with the  

patient's right of self determination. Therefore, as far as the  

United Kingdom is concerned, it is generally clear that  

whenever there is a conflict between a capable adult's exercise  

of the right of self-determination and the State's interest in  

preserving human life by treating it as sanctimonious, the  

right of the individual must prevail.  

165. In the United States, the aspect of self-determination and  

individual autonomy is concretised in law as all fifty States  

along with the District of Columbia, the capital, which is  

commonly referred as Washington D.C., have passed  

legislations upholding different forms of Advance Directives. In  

the United States, even before the enactment of the said laws,

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a terminally ill person was free to assert the right to die as an  

ancillary right to the constitutionally protected right to  

privacy. In In Re Quinlan (supra), where a 21 year old girl in  

chronic PVS was on ventilator support, the Court, while  

weighing Quinlan's right to privacy qua the State's interest in  

preserving human life, found that as the degree of bodily  

invasion increases and the prognosis for the patient's recovery  

dims, the patient's right to privacy increases and the State's  

interest weakens. The Supreme Court of New Jersey finally  

ruled that the unwritten constitutional right of privacy was  

broad enough to encompass a patient's decision to decline  

medical treatment in certain circumstances. Again, in Re  

Jobes63, which was also a case concerned with a PVS patient,  

the Court, following the decision in In Re Quinlan, upheld the  

principle of self determination and autonomy of an  

incompetent person.  

166. The Canadian Criminal Code asserts and protects the  

sanctity of life in a number of ways which directly confront the  

autonomy of the terminally ill in their medical decision  

                                                           63 (1987) 108 N.J. 394

153    

making. However, the Supreme Court of Canada in Reibl v.  

Hughes64 approved an oft-quoted statement of Cardozo J. in  

Scholoendorf (supra) that "every human being of adult years  

and sound mind has a right to determine what shall be done  

with his own body" and Chief Justice Laskin in Reibl (supra)  

has further added that battery would lie where surgery or  

treatment was performed without consent or where apart from  

emergency situations, surgery or medical treatment was given  

beyond that to which there was consent. Thus, the Supreme  

Court of Canada suggested that competent adults have the  

right to make their own medical decisions even if such  

decisions are unwise.  

167. In Aruna Shanbaug (supra), this Court has observed that  

autonomy means the right to self-determination where the  

informed patient has a right to choose the manner of his  

treatment. To be autonomous the patient should be competent to  

make decisions and choices. In the event that he is incompetent  

to make choices, his wishes expressed in advance in the form of  

a Living Will, or the wishes of surrogates acting on his behalf  

                                                           64

 [1980 2 SCR 880 at 890-891

154    

('substituted judgment') are to be respected. The surrogate is  

expected to represent what the patient may have decided had  

he/she been competent or to act in the patient's best interest. It  

is expected that a surrogate acting in the patient's best interest  

follows a course of action because it is best for the patient, and  

is not influenced by personal convictions, motives or other  

considerations.  

168. Thus, enquiring into common law and statutory rights  

of terminally ill persons in other jurisdictions would indicate  

that all adults with the capacity to consent have the common  

law right to refuse medical treatment and the right of self  

determination.  

169. We may, however, add a word of caution that doctors  

would be bound by the choice of self-determination made by  

the patient who is terminally ill and undergoing a prolonged  

medical treatment or is surviving on life support, subject to  

being satisfied that the illness of the patient is incurable and  

there is no hope of his being cured. Any other consideration  

cannot pass off as being in the best interests of the patient.  

155    

M.  Social morality, medical ethicality and State interest:   

170. Having dwelt upon the issue of self-determination, we  

may presently delve into three aspects, namely, social  

morality, medical ethicality and the State interest. The  

aforesaid concepts have to be addressed in the constitutional  

backdrop. We may clearly note that the society at large may  

feel that a patient should be treated till he breathes his last  

breath and the treating physicians may feel that they are  

bound by their Hippocratic oath which requires them to  

provide treatment and save life and not to put an end to life by  

not treating the patient.  The members of the family may  

remain in a constant state of hesitation being apprehensive of  

many a social factor which include immediate claim of  

inheritance, social stigma and, sometimes, the individual guilt.  

The Hippocratic oath taken by a doctor may make him feel  

that there has been a failure on his part and sometimes also  

make him feel scared of various laws.  There can be allegations  

against him for negligence or criminal culpability.    

171. In this regard, two aspects are to be borne in mind.   

First, withdrawal of treatment in an irreversible situation is

156    

different from not treating or attending to a patient and  

second, once passive euthanasia is recognized in law regard  

being had to the right to die with dignity when life is ebbing  

out and when the prolongation is done sans purpose, neither  

the social morality nor the doctors‘ dilemma or fear will have  

any place. It is because the sustenance of dignity and self-

respect of an individual is inhered in the right of an individual  

pertaining to life and liberty and there is necessity for this  

protection. And once the said right comes within the shelter of  

Article 21 of the Constitution, the social perception and the  

apprehension of the physician or treating doctor regarding  

facing litigation should be treated as secondary because the  

primacy of the right of an individual in this regard has to be  

kept on a high pedestal.    

172. It is to be borne in mind that passive euthanasia  

fundamentally connotes absence of any overt act either by the  

patient or by the doctors. It also does not involve any kind of  

overt act on the part of the family members.  It is avoidance of  

unnecessary intrusion in the physical frame of a person, for  

the inaction is meant for smooth exit from life. It is paramount

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for an individual to protect his dignity as an inseparable part  

of the right to life which engulfs the dignified process of dying  

sans pain, sans suffering and, most importantly, sans  

indignity.   

173. There are philosophers, thinkers and also scientists who  

feel that life is not confined to the physical frame and  

biological characteristics. But there is no denial of the fact that  

life in its connotative expanse intends to search for its  

meaning and find the solution of the riddle of existence for  

which some lean on atheism and some vouchsafe for faith and  

yet some stand by the ideas of an agnostic.  However, the legal  

fulcrum has to be how Article 21 of the Constitution is  

understood. If a man is allowed to or, for that matter, forced to  

undergo pain, suffering and state of indignity because of  

unwarranted medical support, the meaning of dignity is lost  

and the search for meaning of life is in vain.    

N.  Submissions of the States  

174. In this context, we may reflect on the submissions  

advanced on behalf of certain States.  As stated earlier, there

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is a categorical assertion that protection of human life is  

paramount and it is obligatory on behalf of the States to  

provide treatment and to see that no one dies because of lack  

of treatment and to realise the principles enshrined in Chapter  

IV of the Constitution. Emphasis has been laid on the State  

interest and the process of abuse that can take place in  

treating passive euthanasia as permissible in law.   To  

eliminate the possibility of abuse, safeguards can be taken  

and guidelines can be framed.  But on the plea of possibility of  

abuse, the dignity in the process of dying being a facet of  

Article 21 should not be curbed.    

Mr. Datar, learned senior counsel in the course of  

arguments, has advanced submissions in support of passive  

euthanasia and also given suggestions  spelling out  the  

guidelines for advance directive and also implementation of  

the same when the patient is hospitalized.  The said aspect  

shall be taken into consideration while giving effect to the  

advance directive and also taking steps for withdrawal of  

medical support.

159    

O.  Submissions of Intervenor (Society for the Right to  

Die with Dignity):  

 175. Mr. Mohta, learned counsel appearing for the intervenor,  

that is, Society for the Right to Die with Dignity, has drawn  

our attention to certain articles and submitted that from the  

days of Plato to the time of Sir Thomas More and other  

thinkers, painless and peaceful death has been advocated. He  

would also submit that ancient wisdom of India taught people  

not to fear death but to aspire for deathlessness and conceive  

it as ―Mahaprasthana‖. It is his submission that in the modern  

State, the State interest should not over-weigh the individual  

interest in the sphere of a desire to die a peaceful death which  

basically conveys refusal of treatment when the condition of  

the individual suffering from a disease is irreversible. The  

freedom of choice in this sphere, as Mr. Mohta would put it,  

serves the cause of humanitarian approach which is not the  

process to put an end to life by taking a positive action but to  

allow a dying patient to die peaceably instead of prolonging the  

process of dying without purpose that creates a dent in his  

dignity.

160    

176. The aforesaid argument, we have no hesitation to say,  

has force. It is so because it is in accord with the  

constitutional precept and fosters the cherished value of  

dignity of an individual. It saves a helpless person from  

uncalled for and unnecessary treatment when he is considered  

as merely a creature whose breath is felt or measured because  

of advanced medical technology.  His ―being‖ exclusively rests  

on the mercy of the technology which can prolong the  

condition for some period.  The said prolongation is definitely  

not in his interest. On the contrary, it tantamounts to  

destruction of his dignity which is the core value of life.  In our  

considered opinion, in such a situation, an individual interest  

has to be given priority over the State interest.   

P.  Advance Directive/Advance Care Directive/Advance  

Medical Directive:  

177. In order to overcome the difficulty faced in case of  

patients who are unable to express their wishes at the time of  

taking the decision, the concept of Advance Medical Directives  

emerged in various countries. The proponents of Advance  

Medical Directives contend that the concept of patient

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autonomy for incompetent patients can be given effect to, by  

giving room to new methods by which incompetent patients  

can beforehand communicate their choices which are made  

while they are competent. Further, it may be argued that  

failure to recognize Advance Medical Directives would amount  

to non-facilitation of the right to have a smoothened dying  

process.  That apart, it accepts the position that a competent  

person can express her/his choice to refuse treatment at the  

time when the decision is required to be made.   

178. Advance Directives for health care go by various names  

in different countries though the objective by and large is the  

same, that is, to specify an individual's health care decisions  

and to identify persons who will take those decisions for the  

said individual in the event he is unable to communicate his  

wishes to the doctor.  

179. The Black's Law Dictionary defines an advance medical  

directive as, "a legal document explaining one's wishes about  

medical treatment if one becomes incompetent or unable to  

communicate‖. A living will, on the other hand, is a document  

prescribing a person's wishes regarding the medical treatment

162    

the person would want if he was unable to share his wishes  

with the health care provider.  

180.  Another type of advance medical directive is medical  

power of attorney. It is a document which allows an individual  

(principal) to appoint a trusted person (agent) to take health  

care decisions when the principal is not able to take such  

decisions. The agent appointed to deal with such issues can  

interpret the principal's decisions based on their mutual  

knowledge and understanding.  

181. Advance Directives have gained lawful recognition in  

several jurisdictions by way of legislation and in certain  

countries through judicial pronouncements. In vast majority of  

the States in USA, it is mandatory for the doctors to give effect  

to the wishes of the patients as declared by them in their  

advance directives. California was the first State to legally  

sanction living will. The United States Congress in 1990, with  

the objective of protecting the fundamental principles of self-

autonomy and self-determination, enacted the Patient Self-

Determination Act (PSDA) which acknowledged the rights of  

the patient to either refuse or accept treatment. Following this,

163    

all 50 States enacted legislations adopting advance directives.  

Apart from this, several States of USA also permit the patients  

to appoint a health care proxy which becomes effective only  

when the patient is unable to make decisions.  

182. In order to deal with the technicalities and intricacies  

associated with an instrument as complex as an Advance  

Directive, several derivatives/versions have evolved over time.  

The National Right to Life Committee (NRLC) in the United  

States came up with a version of a living will which was called   

'Will to Live" which is a safeguard of the lives of patients who  

wish to continue treatment and not refuse life-sustaining  

treatment. This form of active declaration gains importance in  

cases where the will of the patient cannot be deciphered with  

certainty and the Courts order withdrawal of life supporting  

treatment where they deem the life of the patient as not  

worthwhile.  

183.  Yet another measure for finding and accessing the  

patient's advance directive was the setting up of the U.S.  

Living Will Registry. As per this model, it was obligatory on the  

part of the hospital administration to ask a patient, who would

164    

be admitted, if he/she had an advance directive and store the  

same on their medical file.  A special power to the Advance  

Directives introduced by Virginia was the "Ulysses Clause"  

which accords protection in situations when the patient goes  

into relapse in his/her condition, that is, schizophrenia and  

refuses treatment which they would not refuse if not for the  

said relapse.  

184.  A new type of advance directive is the "Do Not  

Resuscitate Order" (DNRO) in Florida which is a form of  

patient identification device developed by the Department of  

Health to identify people who do not wish to be resuscitated in  

the event of respiratory or cardiac arrest. In Florida State of  

United States, where an unconscious patient with the phrase  

"Do Not Resuscitate" tattooed on his chest was brought in  

paramedics, the doctors were left in a conundrum whether the  

message was not to provide any medical treatment to the  

patient and ultimately, the doctors opted not to perform any  

medical procedure and the patient, thereafter, died. This case  

highlights the dynamics involved in the concept of advanced  

directives due to the intricacies surrounding the concept.

165    

185. The Mental Capacity Act governs the law relating to  

advance directives in the UK. Specific guidelines as to the  

manner in which the advance directive should be drafted and  

the necessary conditions that need to be fulfilled in order to  

give effect to the directives have been categorically laid out in  

the said piece of legislation. A few specific requirements in  

case of refusal of life sustaining treatment is the verification of  

the decision-maker that the refusal operates even if life is at  

risk and that the directive should be in the written form and  

signed and witnessed. However, an advance directive refusing  

food and water has not been recognized under this statute.  

Further, the Act recognizes the rights of the patient to appoint  

a health care proxy who is referred to as "lasting power of  

attorney". In order for the proxy decision-maker so appointed  

to be competent to consent or refuse life-sustaining treatment  

of the decision-maker, an express provision delegating the said  

authority should be a part of the advance directive. In general,  

as per the settled law vide the decision in Airedale, life  

sustaining treatment including artificial nutrition and  

hydration can be withdrawn if the patient consents to it and in

166    

case of incompetent patients, if it is in their best interest to do  

so.  

186. Australia too, by way of legislation, has well established  

principles governing Advance Health Directives. Except  

Tasmania, all states have a provision for Advance Directives.  

The Advance Directives as postulated by the different  

legislations in each State in Australia differ in nature and their  

binding effect but the objective of every type remains the same,  

that is, preservation of the patient's autonomy. There are  

several circumstances when the advance health care directives  

or certain provisions contained therein become inoperative.  

187.  In Queensland, the directive becomes inoperative if the  

medical health practitioner is of the opinion that giving effect  

to the directive is inconsistent with good medical practice or in  

case of a change in circumstances, including new advances in  

medicine, medical practice and technology, to the extent that  

giving effect to the directive is inappropriate.  

188.  In the State of Victoria, an advance directive ceases to  

apply due to a change in the condition of the patient to the  

extent that the condition in relation to which the advance

167    

directive was given no longer exists. Further, South Australia  

permits a medical practitioner to refuse to comply with a  

certain provision in an advance directive in case he/she has  

enough reason to believe that the patient did not intend the  

provision to apply in certain conditions or the provision would  

not reflect the present wishes of the patient. In Western  

Australia, the occurrence of a change in circumstances which  

either the decision maker could have never anticipated at the  

time of making the directive or which could have the effect on  

a reasonable person in the position of the decision maker to  

change his/her mind regarding the treatment decision would  

invalidate the said treatment decision in the directive. In  

Northern Territory, an advance consent direction is  

disregarded in case giving effect to it would result in such  

unacceptable pain and suffering to the patient or would be so  

unjustifiable and rather it is more reasonable to override the  

wishes of the patient. Furthermore, if the medical practitioner  

is of the opinion that the patient would have never intended  

the advance consent direction to apply in the circumstances,  

then the advance consent direction need not be complied with.

168    

189. Canada does not have a federal legislation exclusively to  

regulate advance directives. Rather, there are eleven different  

provincial approaches governing the law on passive  

euthanasia and advance directives in Canada. The provinces  

of Alberta, Saskatchewan, Manitoba, Prince Edward Island,  

Newfoundland and Labrador and Northwest Territories have a  

provision for both proxy and instructional directives, whereas,  

the States of British Columbia, Ontario, Quebec and Yukon  

provide only for appointment of a proxy while simultaneously  

recognizing the binding nature of previously given  

instructions. The respective legislations of the  

provinces/territories differ from one another on several  

criteria, for instance, minimum age requirement and other  

formalities to be complied with, such as written nature of the  

advance directive, etc. Furthermore, some of the provinces  

mandate a prior consultation with a lawyer.   Wishes orally  

expressed have also been recognized by some provinces.  

190. Having dealt with the principles in vogue across the  

globe, we may presently proceed to deal with the issue of  

advance medical directive which should be ideal in our

169    

country. Be it noted, though the learned counsel for the  

petitioner has used the words ―living will‖, yet we do not intend  

to use the said terminology. We have already stated that  

safeguards and guidelines are required to be provided. First,  

we shall analyse the issue of legal permissibility of the advance  

medical directive. In other jurisdictions, the concepts of ―living  

will‖ and involvement of Attorney are stipulated. There is no  

legal framework in our country as regards the Advance  

Medical Directive but we are obliged to protect the right of the  

citizens as enshrined under Article 21 of the Constitution. It is  

our constitutional obligation. As noticed earlier, the two-Judge  

Bench in Aruna Shanbaug (supra) has provided for  

approaching the High Court under Article 226 of the  

Constitution. The directions and guidelines to be given in this  

judgment would be comprehensive and would also cover the  

situation dealt with Aruna Shanbaug case.     

191. In our considered opinion, Advance Medical Directive  

would serve as a fruitful means to facilitate the fructification of  

the sacrosanct right to life with dignity. The said directive, we  

think, will dispel many a doubt at the relevant time of need

170    

during the course of treatment of the patient. That apart, it  

will strengthen the mind of the treating doctors as they will be  

in a position to ensure, after being satisfied, that they are  

acting in a lawful manner. We may hasten to add that Advance  

Medical Directive cannot operate in abstraction. There has to  

be safeguards.  They need to be spelt out. We enumerate them  

as follows:-  

(a)  Who can execute the Advance Directive and how?  

(i) The Advance Directive can be executed only by  

an adult who is of a sound and healthy state of  

mind and in a position to communicate, relate  

and comprehend the purpose and consequences  

of executing the document.  

(ii) It must be voluntarily executed and without any  

coercion or inducement or compulsion and after  

having full knowledge or information.  

(iii) It should have characteristics of an informed  

consent given without any undue influence or  

constraint.

171    

(iv) It shall be in writing clearly stating as to when  

medical treatment may be withdrawn or no  

specific medical treatment shall be given which  

will only have the effect of delaying the process  

of death that may otherwise cause him/her  

pain, anguish and suffering and further put  

him/her in a state of indignity.  

(b) What should it contain?  

(i) It should clearly indicate the decision relating to  

the circumstances in which withholding or  

withdrawal of medical treatment can be resorted  

to.  

(ii) It should be in specific terms and the  

instructions must be absolutely clear and  

unambiguous.  

(iii) It should mention that the executor may revoke  

the instructions/authority at any time.

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(iv) It should disclose that the executor has  

understood the consequences of executing such  

a document.  

(v) It should specify the name of a guardian or close  

relative who, in the event of the executor  

becoming incapable of taking decision at the  

relevant time, will be authorized to give consent  

to refuse or withdraw medical treatment in a  

manner consistent with the Advance Directive.  

(vi)   In the event that there is more than one valid  

Advance Directive, none of which have been  

revoked, the most recently signed Advance  

Directive will be considered as the last  

expression of the patient‘s wishes and will be  

given effect to.  

(c) How should it be recorded and preserved?  

(i) The document should be signed by the executor  

in the presence of two attesting witnesses,  

preferably independent, and countersigned by

173    

the jurisdictional Judicial Magistrate of First  

Class (JMFC) so designated by the concerned  

District Judge.   

(ii) The witnesses and the jurisdictional JMFC shall  

record their satisfaction that the document has  

been executed voluntarily and without any  

coercion or inducement or compulsion and with  

full understanding of all the relevant information  

and consequences.  

(iii) The JMFC shall preserve one copy of the  

document in his office, in addition to keeping it  

in digital format.   

(iv) The JMFC shall forward one copy of the  

document to the Registry of the jurisdictional  

District Court for being preserved. Additionally,  

the Registry of the District Judge shall retain the  

document in digital format.  

(v) The JMFC shall cause to inform the immediate  

family members of the executor, if not present at

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the time of execution, and make them aware  

about the execution of the document.  

(vi) A copy shall be handed over to the competent  

officer of the local Government or the Municipal  

Corporation or Municipality or Panchayat, as the  

case may be. The aforesaid authorities shall  

nominate a competent official in that regard who  

shall be the custodian of the said document.  

(vii) The JMFC shall cause to handover copy of the  

Advance Directive to the family physician, if any.  

(d) When and by whom can it be given effect to?  

(i) In the event the executor becomes terminally ill  

and is undergoing prolonged medical treatment  

with no hope of recovery and cure of the ailment,  

the treating physician, when made aware about  

the Advance Directive, shall ascertain the  

genuineness and authenticity thereof from the  

jurisdictional JMFC before acting upon the  

same.

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(ii) The instructions in the document must be given  

due weight by the doctors. However, it should be  

given effect to only after being fully satisfied that  

the executor is terminally ill and is undergoing  

prolonged treatment or is surviving on life  

support and that the illness of the executor is  

incurable or there is no hope of him/her being  

cured.  

(iii) If the physician treating the patient (executor of  

the document) is satisfied that the instructions  

given in the document need to be acted upon, he  

shall inform the executor or his guardian / close  

relative, as the case may be, about the nature of  

illness, the availability of medical care and  

consequences of alternative forms of treatment  

and the consequences of remaining untreated.  

He must also ensure that he believes on  

reasonable grounds that the person in question  

understands the information provided, has

176    

cogitated over the options and has come to a  

firm view that the option of withdrawal or refusal  

of medical treatment is the best choice.  

(iv) The physician/hospital where the executor has  

been admitted for medical treatment shall then  

constitute a Medical Board consisting of the  

Head of the treating Department and at least  

three experts from the fields of general medicine,  

cardiology, neurology, nephrology, psychiatry or  

oncology with experience in critical care and  

with overall standing in the medical profession  

of at least twenty years who, in turn, shall visit  

the patient in the presence of his guardian/close  

relative and form an opinion whether to certify  

or not to certify carrying out the instructions of  

withdrawal or refusal of further medical  

treatment. This decision shall be regarded as a  

preliminary opinion.  

177    

(v) In the event the Hospital Medical Board certifies  

that the instructions contained in the Advance  

Directive ought to be carried out, the  

physician/hospital shall forthwith inform the  

jurisdictional Collector about the proposal. The  

jurisdictional Collector shall then immediately  

constitute a Medical Board comprising the Chief  

District Medical Officer of the concerned district  

as the Chairman and three expert doctors from  

the fields of general medicine, cardiology,  

neurology, nephrology, psychiatry or oncology  

with experience in critical care and with overall  

standing in the medical profession of at least  

twenty years (who were not members of the  

previous Medical Board of the hospital). They  

shall jointly visit the hospital where the patient  

is admitted and if they concur with the initial  

decision of the Medical Board of the hospital,

178    

they may endorse the certificate to carry out the  

instructions given in the Advance Directive.  

(vi)  The Board constituted by the Collector must  

beforehand ascertain the wishes of the executor  

if he is in a position to communicate and is  

capable of understanding the consequences of  

withdrawal of medical treatment. In the event  

the executor is incapable of taking decision or  

develops impaired decision making capacity,  

then the consent of the guardian nominated by  

the executor in the Advance Directive should be  

obtained regarding refusal or withdrawal of  

medical treatment to the executor to the extent  

of and consistent with the clear instructions  

given in the Advance Directive.  

(vii) The Chairman of the Medical Board nominated  

by the Collector, that is, the Chief District  

Medical Officer, shall convey the decision of the  

Board to the jurisdictional JMFC before giving

179    

effect to the decision to withdraw the medical  

treatment administered to the executor. The  

JMFC shall visit the patient at the earliest and,  

after examining all aspects, authorise the  

implementation of the decision of the Board.   

(viii) It will be open to the executor to revoke the  

document at any stage before it is acted upon  

and implemented.  

(e) What if permission is refused by the Medical Board?  

(i) If permission to withdraw medical treatment is  

refused by the Medical Board, it would be open  

to the executor of the Advance Directive or his  

family members or even the treating doctor or  

the hospital staff to approach the High Court by  

way of writ petition under Article 226 of the  

Constitution. If such application is filed before  

the High Court, the Chief Justice of the said  

High Court shall constitute a Division Bench to  

decide upon grant of approval or to refuse the

180    

same. The High Court will be free to constitute  

an independent Committee consisting of three  

doctors from the fields of general medicine,  

cardiology, neurology, nephrology, psychiatry or  

oncology with experience in critical care and  

with overall standing in the medical profession  

of at least twenty years.  

(ii) The High Court shall hear the application  

expeditiously after affording opportunity to the  

State counsel. It would be open to the High  

Court to constitute Medical Board in terms of its  

order to examine the patient and submit report  

about the feasibility of acting upon the  

instructions contained in the Advance Directive.  

 (iii)  Needless to say that the High Court shall render  

its decision at the earliest as such matters  

cannot brook any delay and it shall ascribe  

reasons specifically keeping in mind the  

principles of "best interests of the patient".

181    

(f)  Revocation or inapplicability of Advance Directive  

(i) An individual may withdraw or alter the  

Advance Directive at any time when he/she has the  

capacity to do so and by following the same  

procedure as provided for recording of Advance  

Directive.  Withdrawal or revocation of an Advance  

Directive must be in writing.  

(ii) An Advance Directive shall not be applicable to  

the treatment in question if there are reasonable  

grounds for believing that circumstances exist  

which the person making the directive did not  

anticipate at the time of the Advance Directive and  

which would have affected his decision had he  

anticipated them.    

(iii) If the Advance Directive is not clear and  

ambiguous, the concerned Medical Boards shall not  

give effect to the same and, in that event, the

182    

guidelines meant for patients without Advance  

Directive shall be made applicable.    

(iv) Where the Hospital Medical Board takes a  

decision not to follow an Advance Directive while  

treating a person, then it shall make an application  

to the Medical Board constituted by the Collector for  

consideration and appropriate direction on the  

Advance Directive.  

192. It is necessary to make it clear that there will be cases  

where there is no Advance Directive. The said class of persons  

cannot be alienated. In cases where there is no Advance  

Directive, the procedure and safeguards are to be same as  

applied to cases where Advance Directives are in existence and  

in addition there to, the following procedure shall be followed:-  

(i)  In cases where the patient is terminally ill and  

undergoing prolonged treatment in respect of ailment  

which is incurable or where there is no hope of being  

cured, the physician may inform the hospital which,  

in turn, shall constitute a Hospital Medical Board in

183    

the manner indicated earlier. The Hospital Medical  

Board shall discuss with the family physician and the  

family members and record the minutes of the  

discussion in writing. During the discussion, the  

family members shall be apprised of the pros and  

cons of withdrawal or refusal of further medical  

treatment to the patient and if they give consent in  

writing, then the Hospital Medical Board may certify  

the course of action to be taken. Their decision will be  

regarded as a preliminary opinion.  

(ii) In the event the Hospital Medical Board certifies the  

option of withdrawal or refusal of further medical  

treatment, the hospital shall immediately inform the  

jurisdictional Collector. The jurisdictional Collector  

shall then constitute a Medical Board comprising the  

Chief District Medical Officer as the Chairman and  

three experts from the fields of general medicine,  

cardiology, neurology, nephrology, psychiatry or  

oncology with experience in critical care and with

184    

overall standing in the medical profession of at least  

twenty years. The Medical Board constituted by the  

Collector shall visit the hospital for physical  

examination of the patient and, after studying the  

medical papers, may concur with the opinion of the  

Hospital Medical Board. In that event, intimation shall  

be given by the Chairman of the Collector nominated  

Medical Board to the JMFC and the family members  

of the patient.  

(iii)  The JMFC shall visit the patient at the earliest and  

verify the medical reports, examine the condition of  

the patient, discuss with the family members of the  

patient and, if satisfied in all respects, may endorse  

the decision of the Collector nominated Medical Board  

to withdraw or refuse further medical treatment to the  

terminally ill patient.  

(iv)   There may be cases where the Board may not take a  

decision to the effect of withdrawing medical treatment of  

the patient on the Collector nominated Medical Board may

185    

not concur with the opinion of the hospital Medical Board.  

In such a situation, the nominee of the patient or the family  

member or the treating doctor or the hospital staff can seek  

permission from the High Court to withdraw life support by  

way of writ petition under Article 226 of the Constitution in  

which case the Chief Justice of the said High Court shall  

constitute a Division Bench which shall decide to grant  

approval or not. The High Court may constitute an  

independent Committee to depute three doctors from the  

fields of general medicine, cardiology, neurology,  

nephrology, psychiatry or oncology with experience in  

critical care and with overall standing in the medical  

profession of at least twenty years after consulting the  

competent medical practitioners. It shall also afford an  

opportunity to the State counsel. The High Court in such  

cases shall render its decision at the earliest since such  

matters cannot brook any delay. Needless to say, the High  

Court shall ascribe reasons specifically keeping in mind the  

principle of "best interests of the patient"..

186    

193. Having said this, we think it appropriate to cover a vital  

aspect to the effect the life support is withdrawn, the same shall  

also be intimated by the Magistrate to the High Court. It shall be  

kept in a digital format by the Registry of the High Court apart  

from keeping the hard copy which shall be destroyed after the  

expiry of three years from the death of the patient.     

194. Our directions with regard to the Advance Directives and  

the safeguards as mentioned hereinabove shall remain in force  

till the Parliament makes legislation on this subject.  

Q. Conclusions in seriatim:  

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

187    

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

188    

withholding of medical treatment meant for  

artificially prolonging life.     

(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 and safeguards.    

(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

189    

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

190    

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

191    

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 65 .  The  

directive and guidelines shall remain in force till the  

Parliament brings a legislation in the field.  

                                                           65 (1997) 6 SCC 241   

192    

197. The Writ Petition is, accordingly, disposed of. There shall  

be no order as to costs.   

                                                     ………………………….CJI                                                        (Dipak Misra)                                                                                                                                                   ..…………….…………….J.                                                        (A.M. Khanwilkar)                                                      New Delhi;  March 09, 2018

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 215 OF 2005

COMMON CAUSE (A REGD. SOCIETY) .....PETITIONER(S)

VERSUS

UNION OF INDIA AND ANOTHER .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Michael Kirby, a former Judge of the Australian High Court,

while discussing about the role of judiciary in the context of HIV

law1,  talks about  the consciousness with  which the judiciary is

supposed to perform its role.  In this hue, while discussing about

the responsibility of leadership which the society imposes upon

Judges, he remarks:  “Nowhere more is that responsibility tested

than when a completely new and unexpected problem presents

itself to society.  All the judges’ instincts for legality, fairness and

reasonableness must then be summoned up, to help lead society

towards an informed, intelligent and just solution to the problem.”

1 ‘The Role of Judiciary and HIV Law’ –  Michael Kirby,  published in the book titled ‘HIV Law, Ethics and Human Rights’, edited by D.C. Jayasuriya.

Writ Petition (Civil) No. 215 of 2005 Page 1 of 112

The problem at hand, just solution whereof is imminently needed,

is  that  of  Euthanasia.   This  Court  is  required  to  summon  up

instincts for legality, fairness and reasonableness in order to find

just solution to the problem.  In this process, the Court is duty

bound to look into the relevant provisions of the Constitution of

India, particularly those pertaining to the fundamental rights, and

to discharge the task of  expounding those basic human rights

enshrined in the Chapter relating to Fundamental  Rights.  The

issue of euthanasia, with the seminal importance that is attached

to it,  has thrown the challenge of  exposition,  development and

obligation of the constitutional morality and exhorts the Court to

play its creative role so that a balanced approach to an otherwise

thorny and highly debatable subject matter is found.

2) The  Courts,  in  dispensation  of  their  judicial  duties  of  deciding

cases,  come  across  all  types  of  problems  which  are  brought

before them.  These cases may be broadly classified into three

categories: (i) the easy cases, (ii) the intermediate cases, and (iii)

the hard cases.  Professor Ronald Dworkin2 has argued that each

legal problem has one lawful solution and even in the hard cases,

the Judge is never free to choose among alternatives that are all

inside  the  bounds  of  law.   This  may  not  be  entirely  correct

2 Dworkin, “Judicial Discretion,” 6 J. of Phil. 624 (1963)

Writ Petition (Civil) No. 215 of 2005 Page 2 of 112

inasmuch as judicial discretion does exist.  This is true, at least, in

solving ‘hard cases’3.   It  is found that meaning of certain legal

norms, when applied with respect to a given system of facts, is so

simple  and  clear  that  their  application  involves  no  judicial

discretion.  These are termed as the ‘easy cases’.  This may even

apply to ‘intermediate cases’.  These would be those cases where

both sides appear to have a legitimate legal argument supporting

their  position  and  a  conscious  act  of  interpretation  is  noted,

before a Judge can conclude which side is right in law and there

is only one lawful situation.  However, when it comes to the hard

cases, the Court is faced with number of possibilities, all of which

appear to be lawful within the context of the system.  In these

cases,  judicial  discretion  exists  as  the  choice  is  not  between

lawful and unlawful, but between lawful and lawful.  A number of

lawful solutions exist.  In this scenario, the Court is supposed to

ultimately choose that solution which is in larger public interest.

In  other  words,  there  are  limitations  that  find  the  Court  with

respect  to  the  manner  in  which  it  choses  among  possibilities

(procedural limitations) and with respect to the considerations it

takes into account in the choice (substantive limitations).  Thus,

discretion  when  applied  to  a  cout  of  justice  means  sound

3 See Aharon Barak: Judicial Discretion, Yale University Press.

Writ Petition (Civil) No. 215 of 2005 Page 3 of 112

discretion guided by law.  It must be govered by legal rules.  To

quote Justice Cardozo:

“Given  freedom  of  choice,  how  shall  the  choice  be guided?  Complete freedom – unfettered and undirected – there never is.  A thousand limitations – the product some  of  statute,  some  of  precedent,  some  of  vague tradition  or  of  an  immemorial  technique  –  encompass and  hedge  us  even  when  we  think  of  ourselves  as ranging  freely  and  at  large.   The  inscrutable  force  of professional  opinion  presses  upon  us  like  the atmosphere,  though  we  are  heedless  of  its  weight. Narrow at best is any freedom that is allotted to us4

3) Thus, though the judicial discretion is with the Court, the same is

limited and not absolute.  The Court is not entitled to weigh any

factor  as  it  likes.   It  has  to  act  within  the  framework  of  the

limitations,  and  after  they  have  been  exhausted,  there  is  a

freedom  of  choice  which  can  also  described  as  ‘sovereign

prerogative of choice’5.   Instant case falls in the category of ‘hard

cases’ and the Court has endeavoured to make a choice, after

evaluating all the pros and cons, which in its wisdom is the “just

result” of the contentious issue.

4) Adverting to the Indian precedents in the first instance, we have

before us two direct  judgments of  this  Court  which may throw

some light on the subject and demonstrate as to how this topic

has  been  dealt  with  so  far.   The  first  judgment  is  that  of  a

4 B. Cardozo: The Growth of the Law 144 (1924), at 60-61 5 Justice O. Holmes opined this expression in ‘Collected Legal Papers’ 239 (1921)

Writ Petition (Civil) No. 215 of 2005 Page 4 of 112

Constitution  Bench  in  the  case  titled  Gian  Kaur  v.  State  of

Punjab6.   Second  case  is  known  as  Aruna  Ramachandra

Shanbaug  v.  Union of India and Others7,  which is a Division

Bench  judgment  that  takes  note  of  Gian  Kaur  and  premised

thereupon goes much farther in accepting passive euthanasia as

a facet of Article 21 of the Constitution.

5) In the instant  case,  while  making reference to the Constitution

Bench vide its order dated February 25, 20148, the three Judge

Bench has expressed its reservation in the manner the ratio of

the Constitution Bench in  Gian Kaur  is applied by the Division

Bench in Aruna Ramachandra Shanbaug.  This reference order

accepts that  Aruna Ramachandra Shanbaug rightly interpreted

the decision in Gian Kaur insofar as it held that euthanasia can

be allowed in India only through a valid legislation.  However, the

reference order declares that  Aruna Ramachandra Shanbaug

has committed a factual error in observing that in Gian Kaur the

Constitution Bench approved the decision of the House of Lords

in Airedale N.H.S. Trust  v.  Bland9.  As per the reference order,

Gian Kaur merely referred to the said judgment which cannot be

construed  to  mean  that  the  Constitution  Bench  in  Gian  Kaur

6  (1996) 2 SCC 648 7  (2011) 4 SCC 454 8  Reported as (2014) 5 SCC 338 9  (1993) 2 WLR 316 (HL)

Writ Petition (Civil) No. 215 of 2005 Page 5 of 112

approved the opinion of the House of Lords rendered in  Bland.

The reference order also accepts the position that in Gian Kaur

the Constitution Bench approved that  ‘right  to live with dignity’

under Article 21 of the Constitution will be inclusive of ‘right to die

with dignity’.  However, it further notes that the decision does not

arrive at  a conclusion for validity of  euthanasia, be it  active or

passive.  Therefore, the only judgment that holds the field in India

is Aruna Ramachandra Shanbaug, which upholds the validity of

passive euthanasia  and lays down an elaborate  procedure for

executing the same on  ‘the wrong premise that the Constitution

Bench in Gian Kaur had upheld the same’.

6) The  aforesaid  discussion  contained  in  the  reference  order

prompted  the  reference  court  to  refer  the  matter  to  the

Constitution  Bench.   No  specific  questions  were  framed  for

consideration by the Constitution Bench.  However, importance of

the  issue  has  been  highlighted  in  the  reference  order  in  the

following manner:   

“17.  In  view  of  the  inconsistent  opinions  rendered in Aruna Shanbaug and also considering the important question of law involved which needs to be reflected in the  light  of  social,  legal,  medical  and  constitutional perspectives, it becomes extremely important to have a clear enunciation of law. Thus, in our cogent opinion, the  question  of  law  involved  requires  careful consideration by a Constitution Bench of this Court for the benefit of humanity as a whole.

Writ Petition (Civil) No. 215 of 2005 Page 6 of 112

18.  We refrain from framing any specific questions for consideration by the Constitution Bench as we invite the Constitution Bench to go into all the aspects of the matter  and  lay  down  exhaustive  guidelines  in  this regard.  Accordingly,  we  refer  this  matter  to  a Constitution Bench of  this  Court  for  an authoritative opinion.”

7) I have given a glimpse of the narratives for the simple reason that

the  Hon’ble  the  Chief  Justice,  in  his  elaborate  opinion,  has

already discussed this aspect in detail.  Likewise, it can be found

in the separate judgments authored by my esteemed brethren –

Chandrachud, J. and Bhushan, J.  Those judgments discuss in

detail  the  law  laid  down  in  Gian  Kaur as  well  as  Aruna

Ramachandra Shanbaug,  including critique thereof.   To avoid

repetition, I have eschewed that part of discussion.  For the same

reason, I have also not ventured to discuss the law in some other

countries and historic judgments rendered by the courts of foreign

jurisdiction,  as  this  aspect  is  also  taken  care  of  by  them.

However, my analysis of the above two judgments is limited to the

extent it is necessitated for maintaining continuum and clarity of

thought.

8) At  the outset,  I  say that  I  am in complete agreement  with the

conclusion and also the directions given therein in the judgment

of the Hon’ble the Chief Justice and also with the opinions and

Writ Petition (Civil) No. 215 of 2005 Page 7 of 112

reasoning of my other two learned brothers.  My purpose is not to

add my ink to the erudite opinion expressed in otherwise eloquent

opinions  penned  by  my  learned  brothers.   At  the  same  time,

having  regard  to  the  importance  of  the  issue  involved,  I  am

provoked to express my own few thoughts, in my own way, which

I express hereinafter.

9) In the writ petition filed by the petitioner – Common Cause, it has

made the following prayers:

“a) declare ‘right to die with dignity’ as a fundamental right  within  the  fold  of  Right  to  Live  with  dignity guaranteed  under  Article  21  of  the  Constitution  of India;

b) issue direction to the Respondent, to adopt suitable procedures,  in  consultation  with  State  Governments where  necessary,  to  ensure  that  persons  of deteriorated health or terminally ill  should be able to execute  a  document  titled  “MY  LIVING  WILL  & ATTORNEY  AUTHORISATION”  which  can  be presented to hospital for appropriate action in event of the  executant  being  admitted  to  the  hospital  with serious illness which may threaten termination of life of  the  executants  or  in  the  alternative,  issue appropriate guidelines to this effect;

c)  appoint  an expert  committee of  experts  including doctors, social scientists and lawyers to study into the aspect of issuing guidelines as to the Living Wills;

d) pass such other and further order/s as this Hon’ble Court may deem fit and proper on the facts and in the circumstances of the case.”

 10) Having regard to the aforesaid prayers, the reference order and

the arguments which were addressed by Mr. Prashant Bhushan,

Writ Petition (Civil) No. 215 of 2005 Page 8 of 112

learned counsel who appeared for the petitioner, and Mr. Arvind

Datar, learned senior counsel who made elaborate submissions

on behalf of the interveners – Vidhi Centre for Legal Policy, and

Mr.  R.R.  Kishore,  Advocate,  who  gave  an  altogether   new

dimension  to  the  seminal  issue,  I  find  that  following

issues/questions of law of relevance need to be discussed:

(i) Whether  the  Right  to  Live  under  Article  21  of  the

Constitution includes the Right to Die? {Now that attempt to

commit suicide is not a punishable offence under Section

309 of the Indian Penal Code, 1860 (for short, ‘IPC’) vide

Section 115 of the Mental Healthcare Act, 2017 (Act No. 10

of 2017)}

(ii) Whether the ‘right to die with dignity’ as a fundamental right

falls within the folds of the  ‘right to live with dignity’ under

Article 21 of the Constitution?

(iii) Whether  the  observations  in  Aruna  Ramachandra

Shanbaug that  the  Constitution  Bench  in  Gian  Kaur

permitted passive euthanasia stand correct?

(iv) Whether there exists inconsistency in the observations in

Aruna Ramachandra Shanbaug with regard to what has

been held in Gian Kaur?

(v) Whether mere reference to verdict  in a judgment can be

Writ Petition (Civil) No. 215 of 2005 Page 9 of 112

construed  to  mean  that  the  verdict  is  approved?  {with

respect  to  Article  141  –  What  is  binding?;  whether  the

Constitution Bench in  Gian Kaur approved the decision of

the House of Lords in Bland?}

(vi) Whether  the law on passive euthanasia,  as held valid  in

Aruna Ramachandra Shanbaug, holds true in the present

times as well? {The Treatment of Terminally-ill Patients Bill,

2016 is based on the aforementioned judgment}

(vii) Whether active euthanasia is legal in India?

(viii) Whether assisted suicide/physician administered suicide is

legal  in  India?  {The 2016 bill  in  the  current  form,  under

Clause 5(3) permits for physician assisted suicide}

(ix) Whether  there  exists  a  right  to  a  Living  Will/Advance

Directives? Whether there exists the fundamental right to

choose  one’s  own  medical  treatment?  {With  Right  to

Privacy  now  a  fundamental  right  under  Article  21,  the

principle of self-determination in India stands on a higher

footing than before}

(x) Definition of ‘Terminal Illness’.

11) It is not necessary for me to answer all the aforesaid questions.  I

say so for the reason that all these aspects are dealt with by the

Writ Petition (Civil) No. 215 of 2005 Page 10 of 112

Hon’ble  the  Chief  Justice  in  his  opinion.   Therefore,  in  this

‘addendum’, I would be focusing myself to the core issues.

EUTHANASIA DEFINED

12) The  Oxford  English  Dictionary  defines  ‘euthanasia’ as  ‘the

painless killing of a patient suffering from an incurable and painful

disease or in an irreversible coma’.  The word appears to have

come into usage in the early 17th century and was used in the

sense  of  ‘easy  death’.   The  term  is  derived  from  the  Greek

‘euthanatos’,  with  ‘eu’ meaning  well,  and  ‘thanatos’ meaning

death.  In ancient Greece and Rome, citizens were entitled to a

good death to end the suffering of a terminal illness.  To that end,

the City Magistrates of Athens kept a supply of poison to help the

dying ‘drink the hemlock’10.

13) The above Greek definition of  euthanasia apart,  it  is  a loaded

term.  People have been grappling with it for ages.  Devised for

service in a rhetoric of persuasion, the term ‘euthanasia’ has no

generally accepted and philosophically warranted core meaning.

It is also defined as:  killing at the request of the person killed.

That  is  how the  Dutch  medical  personnel  and  civil  authorities

define euthanasia.  In Nazi discourse, euthanasia was any killing

carried out by medical means or medically qualified personnel, 10  Michael Manning, Euthanasia and Physician-Assisted Suicide (Paulist Press, 1998).

Writ Petition (Civil) No. 215 of 2005 Page 11 of 112

whether  intended for  the termination of  suffering and/or  of  the

burden  or  indignity  of  a  life  not  worth  living  (Lebensunwertes

Leben),  or  for  some  more  evidently  public  benefit  such  as

eugenics (racial  purity and hygiene),  Lebensraum (living space

for  Germans),  and/or  minimizing  the  waste  of  resources  on

‘useless  mouths’.  Understandably,  in  today’s  modern

democracies  these  Nazi  ideas  and  practices  cannot  be

countenanced.   Racist  eugenics  are  condemned,  though  one

comes  across  discreet  allusions  to  the  burden  and  futility  of

sustaining  the  severely  mentally  handicapped.   The  popular

conception which is widely accepted is that some sorts of life are

not worth living; life in such a state demeans the patient’s dignity,

and  maintaining  it  (otherwise  than  at  the  patient’s  express

request) insults that dignity; proper respect for the patient and the

patient’s best interests requires that that life be brought to an end.

In this thought process, the basic Greek ideology that it signifies

‘an easy and gentle death’ still remains valid.  Recognition is to

the Human Rights principle that  ‘right to life’ encompasses ‘right

to die with dignity’.

14) In common parlance, euthanasia can be of three types, namely,

‘voluntary  euthanasia’ which  means killing  at  the  request  of  a

Writ Petition (Civil) No. 215 of 2005 Page 12 of 112

person  killed  which  is  to  be  distinguished  from  ‘non-voluntary

euthanasia’,  where  the  person  killed  is  not  capable  of  either

making  or  refusing  to  make such  a  request.   Second type  of

euthanasia  would  be involuntary  euthanasia  where the person

killed is capable of making such a request but has not done so 11.

These terms can be described as under:

(i) Voluntary  Euthanasia:  People  concerned  to  legalize  the

termination of life on medical grounds have always concentrated

on Voluntary Euthanasia (this implies that the patient specifically

requests that his life be ended.)  It is generally agreed that the

request must come from someone who is either; (a) in intolerable

pain or (b) who is suffering from an illness which is agreed as

being terminal.  It may be prior to the development of the illness

in question or during its course.  In either case it must not result

from any pressure from relatives or those who have the patients

in their care.  Both active and passive euthanasia can be termed

as forms of voluntary euthanasia.

(ii) Non-Voluntary Euthanasia: Seen by some as sub-variety of

voluntary euthanasia.  This involves the death, ostensibly for his

own good,  of  someone who cannot  express any views on the

matter and who must, therefore, use some sort of proxy request

11 These definitions of voluntary, non-voluntary and involuntary euthanasia correspond to those employed by the House of Lords Select Committee on Medical Ethics (Walton Committee)  

Writ Petition (Civil) No. 215 of 2005 Page 13 of 112

that his/her life be ended.  This form of Euthanasia is that which

most intimately concerns the medical profession.  Selective non-

treatment of the new-born or the doctor may be presented with

demented  and  otherwise  senilely  incompetent  patients.   In

practice, non-voluntary euthanasia presents only as an arguable

alternative to non treatment.

(iii) Involuntary Euthanasia: It involves ending the patient’s life

in the absence of either a personal or proxy invitation to do so.

The motive ‘The relief of suffering’ may be the same as voluntary

euthanasia-but its only justification - “a paternalistic decision as to

what is best for the victim of the disease.”  In extreme cases it

could be against the patient’s wishes or could be just for social

convenience.  It is examples of the latter which serve as warnings

as to those who would invest the medical professional with more

or unfettered powers over life and death12.  

15) Contrary to the above, in legal  parlance, euthanasia has since

come to be recognised as of two distinct types: the first is active

euthanasia,  where  death  is  caused by  the  administration  of  a

lethal  injection  or  drugs.   Active  euthanasia  also  includes

physician-assisted  suicide,  where  the  injection  or  drugs  are

supplied  by  the  physician,  but  the  act  of  administration  is

12 See Euthanasia  and Its Legality  and Legitimacy from Indian and International  Human Right Instruments Perspectives published in Human Rights & Social Justice by Muzafer Assadi

Writ Petition (Civil) No. 215 of 2005 Page 14 of 112

undertaken  by  the  patient  himself.   Active  euthanasia  is  not

permissible  in  most  countries.   The  jurisdictions  in  which  it  is

permissible  are  Canada,  the Netherlands,  Switzerland and the

States of  Colorado,  Vermont,  Montana,  California,  Oregon and

Washington  DC  in  the  United  States  of  America.   Passive

euthanasia occurs when medical practitioners do not provide life-

sustaining treatment (i.e. treatment necessary to keep a patient

alive)  or  remove  patients  from life  sustaining  treatment.   This

could  include  disconnecting  life  support  machines  or  feeding

tubes or not carrying out life saving operations or providing life

extending drugs.   In  such cases,  the omission by the medical

practitioner  is  not  treated  as  the  cause  of  death;  instead,  the

patient  is  understood  to  have  died  because  of  his  underlying

condition.   

16) In Aruna Ramachandra  Shanbaug, the Court recognised these

two types of euthanasia i.e. active and passive.  It also noted that

active  euthanasia  is  impermissible,  which  was so  held  by  the

Constitution Bench in  Gian Kaur.  Therefore, without going into

further  debate  on  differential  that  is  assigned  to  the  term

euthanasia, ethically, philosophically, medically etc., we would be

confining ourselves to the aforesaid legal meaning assigned to

Writ Petition (Civil) No. 215 of 2005 Page 15 of 112

active  and  passive  euthanasia.   Thus,  insofar  as  active

euthanasia  is  concerned,  this  has  to  be  treated  as  legally

impermissible, at least for the time being.  It is more so, as there

is absence of any statutory law permitting active euthanasia.  If at

all, legal provisions in the form of Sections 306 and 307 IPC etc.

point  towards  its  criminality.   The  discussion  henceforth,

therefore, would confine to passive euthanasia.   

PASSIVE EUTHANASIA AND ARUNA RAMACHANDRA SHANBAUG

17) In Aruna Ramachandra Shanbaug, a two Judges’ Bench of this

Court  discussed  in  much  greater  detail  various  nuances  of

euthanasia by referring to active and passive euthanasia as well

as  voluntary  and  involuntary  euthanasia;  legality  and

permissibility thereof; relationship of euthanasia vis-a-vis offences

concerned under the IPC and doctor assisted death; etc.

18) The Court also took note of legislations in some countries relating

to  euthanasia  or  physician  assisted  death.   Thereafter,  it

discussed in detail the judgment in  Bland wherein the House of

Lords had permitted the patient to die.  Ratio of Bland was culled

out in the following manner:

“Airedale  (1993) decided by the House of Lords has been followed in a number of cases in UK, and the law is  now  fairly  well  settled  that  in  the  case  of incompetent patients, if the doctors act on the basis of

Writ Petition (Civil) No. 215 of 2005 Page 16 of 112

informed medical  opinion,  and withdraw the artificial life support system if it is in the patient’s best interest, the said act cannot be regarded as a crime.”

19) The Court was of the opinion that this should be permitted when

the patient is in a Persistent Vegitative State (PVS) and held that

it is ultimately for the Court to decide, as  parens patriae, as to

what is in the best interest of the patient.  The wishes of the close

relatives and next friends and opinion of the medical practitioners

should be given due weight by the Court in coming to its decision.

The Court then noted the position of euthanasia with reference to

Section 306 (abetment of suicide) and Section 309 (attempt to

commit suicide) of the IPC, inasmuch as, even allowing passive

euthanasia  may come in  conflict  with  the  aforesaid  provisions

which  make  such  an  act  a  crime.   While  making  a  passing

observation that Section 309 should be deleted by the Parliament

as it  has become anachronistic,  the Court went into the vexed

question as to who can decide whether life support  should be

discontinued in the case of an incompetent person, e.g. a person

in  coma or  PVS.   The  Court  pointed  out  that  it  was  a  vexed

question, both because of its likely misuse and also because of

advancement in medical science.  It noted:

“104. It may be noted that in Gian Kaur case although the Supreme Court has quoted with approval the view of  the  House  of  Lords  in  Airedale  case,  it  has  not

Writ Petition (Civil) No. 215 of 2005 Page 17 of 112

clarified who can decide whether life support  should be discontinued in the case of an incompetent person e.g.  a person in coma or PVS. This vexed question has been arising often in India because there are a large number of  cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question  arises  as  to  who  should  give  consent  for withdrawal  of  life  support.  This  is  an  extremely important question in India because of the unfortunate low level of ethical standards to which our society has descended,  its  raw  and  widespread commercialisation,  and  the  rampant  corruption,  and hence,  the  Court  has  to  be  very  cautious  that unscrupulous persons who wish to inherit the property of  someone  may  not  get  him  eliminated  by  some crooked method.

105.  Also, since medical  science is advancing fast, doctors must not declare a patient to be a hopeless case  unless  there  appears  to  be  no  reasonable possibility  of  any  improvement  by  some  newly discovered medical method in the near future. In this connection we may refer to a recent news item which we have come across on the internet of an Arkansas man Terry Wallis, who was 19 years of age and newly married with a baby daughter when in 1984 his truck plunged through a guard rail, falling 25 feet. He went into coma in the crash in 1984, but after 24 years he has  regained  consciousness.  This  was  perhaps because  his  brain  spontaneously  rewired  itself  by growing  tiny  new  nerve  connections  to  replace  the ones  sheared  apart  in  the  car  crash.  Probably  the nerve fibres from Terry Wallis' cells were severed but the  cells  themselves  remained  intact,  unlike  Terri Schiavo,  whose  brain  cells  had  died  (see Terri Schiavo case on Google). However, we make it clear that  it  is  experts  like  medical  practitioners  who  can decide whether there is any reasonable possibility of a new  medical  discovery  which  could  enable  such  a patient to revive in the near future.”

20) It  held  that  passive  euthanasia  would  be  permissible  when  a

person is ‘dead’ in clinical sense.  It chose to adopt the standard

Writ Petition (Civil) No. 215 of 2005 Page 18 of 112

of ‘brain death’, i.e. when there is an ‘irreversible cessation of all

functions of the entire brain, including the brain stem’.  The Court

took note of  President’s  Committee on Bioethics in  the United

States of America which had come up with a new definition of

‘brain death’ in the year 2008, according to which a person was

considered to be braindead when he could no longer perform the

fundamental human work of an organism.  Three such situations

contemplated in that definition are the following:

“(1) openness to the world, that is receptivity to stimuli and signals from the surrounding environment,

(2)  the  ability  to  act  upon  the  world  to  obtain selectively what it needs, and

(3)  the  basic  felt  need  that  drives  the  organism  to act ... to obtain what it needs.”

21) The Court held that when the aforesaid situation is reached, a

person can be presumed to be dead.  In paragraph 115 of the

judgment, the position is summed up as under:

“When  this  situation  is  reached,  it  is  possible  to assume that the person is dead, even though he or she, through mechanical stimulation, may be able to breathe, his or her heart might be able to beat, and he or she may be able to take some form of nourishment.  It  is  important,  thus,  that  it  be medically proved that a situation where any human functioning would be impossible should have been reached for there to be a declaration of brain death —situations  where  a  person  is  in  a  persistent vegetative state but can support breathing, cardiac functions, and digestion without any mechanical aid are necessarily those that will not come within the ambit of brain death.”

Writ Petition (Civil) No. 215 of 2005 Page 19 of 112

22) The Court clarified that brain death was not the same as PVS

inasmuch as in PVS the brain stem continues to work and so

some degree of  reactions may occur,  though the possibility  of

regaining consciousness is relatively remote.

23) The Court further opined that position in the case of euthanasia

would  be  slightly  different  and  pointed  out  that  the  two

circumstances in which it would be fair to disallow resuscitation of

a person who is incapable of expressing his or her consent to the

termination of his or her life.  These are:

“(a) When a person is only kept alive mechanically i.e.  when  not  only  consciousness  is  lost,  but  the person  is  only  able  to  sustain  involuntary functioning through advanced medical technology— such as  the  use  of  heart-lung machines,  medical ventilators, etc.

(b)  When  there  is  no  plausible  possibility  of  the person ever being able to come out of this stage. Medical “miracles” are not unknown, but if a person has been at a stage where his life is only sustained through medical technology, and there has been no significant alteration in the person's condition for a long  period  of  time—at  least  a  few  years—then there  can  be  a  fair  case  made  out  for  passive euthanasia.”

24) Taking a clue from the judgment in Vishaka and Others v. State

of Rajasthan and Others13, the Court laid down the law, while

allowing passive euthanasia, i.e. the circumstances when there

13 (1997) 6 SCC 241

Writ Petition (Civil) No. 215 of 2005 Page 20 of 112

could be withdrawal of life support of a patient in PVS.  This is

stated in  paragraph 124 of  the judgment,  which we reproduce

below:

“124.  There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person  in  PVS  or  who  is  otherwise  incompetent  to take a decision in this connection. We agree with Mr Andhyarujina  that  passive  euthanasia  should  be permitted in our country in certain situations, and we disagree  with  the  learned  Attorney  General  that  it should  never  be  permitted.  Hence,  following  the technique  used  in Vishaka  case [Vishaka v. State  of Rajasthan,  we  are  laying  down  the  law  in  this connection  which  will  continue  to  be  the  law  until Parliament  makes  a  law  on  the  subject:

(i)  A  decision  has  to  be  taken  to  discontinue  life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the  doctors  attending  the  patient.  However,  the decision should be taken bona fide in the best interest of the patient.

In the present case, we have already noted that Aruna Shanbaug's parents are dead and other close relatives are  not  interested  in  her  ever  since  she  had  the unfortunate assault on her. As already noted above, it is the KEM Hospital staff, who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms Pinki Virani who has only visited her on few occasions and written a book on her. Hence it is for the KEM Hospital staff to take  that  decision.  KEM  Hospital  staff  have  clearly expressed their wish that Aruna Shanbaug should be allowed to live.

Mr  Pallav  Shishodia,  learned  Senior  Counsel, appearing  for  the  Dean,  KEM  Hospital,  Mumbai, submitted that Ms Pinki Virani has no locus standi in this case. In our opinion it is not necessary for us to go into this question since we are of the opinion that it is

Writ Petition (Civil) No. 215 of 2005 Page 21 of 112

the KEM Hospital staff who is really the next friend of Aruna Shanbaug.

We do not mean to decry or disparage what Ms Pinki Virani  has  done.  Rather,  we  wish  to  express  our appreciation  of  the  splendid  social  spirit  she  has shown.  We have seen on the internet  that  she has been espousing many social causes, and we hold her in high esteem. All that we wish to say is that however much her interest in Aruna Shanbaug may be it cannot match the involvement of the KEM Hospital staff who have been taking care of Aruna day and night for 38 years.

However,  assuming  that  the  KEM  Hospital  staff  at some future time changes its mind, in our opinion in such a situation KEM Hospital would have to apply to the Bombay High Court for approval of the decision to withdraw life support.

(ii)  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 Airedale case.

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.”

25) It can be discerned from the reading of the said judgment that

court  was concerned with the question as to whether one can

seek right to die? This question has been dealt with in the context

of Article 21 of the Constitution, namely, whether this provision

gives any such right.  As is well-known, Article 21 gives ‘right to

life’ and it is guaranteed to all the citizens of India.  The question

was as to whether ‘right to die’ is also an integral part of ‘right to

Writ Petition (Civil) No. 215 of 2005 Page 22 of 112

life’.  In Gian Kaur this ‘right to die’ had not been accepted as an

integral part of ‘right to life’.  The Court in Aruna Ramachandra

Shanbaug  maintained  this  position  insofar  as  an  active

euthanasia is concerned.  However, passive euthanasia, under

certain circumstances, has been accepted.

26) It may be pertinent to mention that the petitioner (Aruna) in the

said case was working as a nurse in the King Edward Memorial

Hospital (KEM), Parel, Mumbai. The tragic incident happened on

the evening of 27th November, 1973. Aruna was attacked by a

sweeper in  the hospital  who wrapped a dog chain around her

neck and yanked her back with it.  He tried to rape her but on

finding  that  she  was  menstruating,  he  sodomized  her.  To

immobilize her during this act, he twisted the chain around her

neck.  She was found unconscious by one cleaner on the next

day. Her body was on the floor and blood was all over the floor.

The incident did not allow oxygen to reach her brain as a result of

which her brain got damaged.

27) The petition was filed by Ms. Pinki Virani as next friend of Aruna

Shanbaug.  According  to  facts  of  the  case,  Aruna  has  been

surviving on mashed food as she was not able to chew or taste

any food and she could not move her hands or legs. It is alleged

Writ Petition (Civil) No. 215 of 2005 Page 23 of 112

that there is not the slightest possibility of any improvement in her

condition and her body lies on the bed in the KEM Hospital like a

dead animal, and this has been the position for the last 36 years.

The prayer of the petitioner was that the respondents be directed

to stop feeding Aruna, and let her die peacefully.

28) The  court  appointed  a  team  of  three  eminent  and  qualified

doctors  to  investigate  and  report  on  the  medical  condition  of

Aruna.  The  team  included,  Dr.  J.V.  Divatia14,  Dr.  Roop

Gursahani15 and Dr. Nilesh Shah16.  The team of doctors studied

her  medical  history  and  observed  that  Aruna  would  get

uncomfortable if  the room in which she was located was over

crowded, she was calm when fewer people were around her. In

fact, the hospital staff had taken care and was willing to continue

to do so.  Moreover, Aruna’s body language did not suggest that

she wants to die.  Therefore, the doctors opined that there is no

need for euthanasia in the instant case.

29) Reliance was placed on the landmark judgment of the House of

Lords in Bland, where for the first time in the English history, the

right  to  die was allowed through the withdrawal  of  life support

14 Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial  Hospital, Mumbai.

15 Consultant Neurologist at P.D. Hinduja, Mumbai. 16 Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation  

Medical College and General Hospital.  

Writ Petition (Civil) No. 215 of 2005 Page 24 of 112

systems including food and water. This case placed the authority

to decide whether a case is fit or not for euthanasia in the hands

of  the court.  In  this  case,  Aruna did  not  have the capacity  to

consent for the proposed medical  process. Therefore,  the next

big question that was to be answered was who should decide on

her behalf.  

30) Since, there was no relative traced directly, nor did she have any

frequent visitor who could relate to her, it was extremely crucial

for the court to declare who should decide on her behalf. As there

was  lack  of  acquaintance,  it  was  decided  by  beneficence.

Beneficence is acting in the interest that is best for the patient,

and is not influenced by personal convictions, motives or other

considerations. Public interest and the interests of the state were

also considered in the said matter.

31) On  the  aforesaid  principle  of  beneficence  and  studying  the

position in some other countries, the court in its judgment said,

the right to take decision on behalf of Aruna was vested with the

hospital and its management and not Ms. Pinki. The court also

said that allowing euthanasia would mean reversing the efforts of

the  hospital  and  its  staff.  In  order  to  ensure  that  there  is  no

misuse  of  this  technique,  the  Supreme  Court  has  vested  the

Writ Petition (Civil) No. 215 of 2005 Page 25 of 112

power with the High Court to decide if life is to be terminated or

not.  

32) Thus, the Supreme Court allowed passive euthanasia in certain

conditions, subject to the approval by the High Court following the

due  procedure.  It  held  that  when  an  application  for  passive

euthanasia  is  filed  the  Chief  Justice  of  the High Court  should

forthwith constitute a Bench of at least two Judges who should

decide  to  grant  approval  or  not.  Before  doing  so,  the  Bench

should seek the opinion of a committee of three reputed doctors

to  be  nominated  by  the  Bench  after  consulting  such  medical

authorities/medical  practitioners  as  it  may  deem  fit.

Simultaneously  with  appointing  the  committee  of  doctors,  the

High Court Bench shall also issue notice to the State and close

relatives  e.g.  parents,  spouse,  brothers/sisters  etc.  of  the

committee to them as soon as it is available. After hearing them,

the  High  Court  Bench  should  give  its  verdict.  The  above

procedure  should  be  followed  all  over  India  until  Parliament

makes  legislation  on  this  subject.   I  am  not  carrying  out  the

critique of this judgment at this stage and the manner in which it

has been analysed by those who are the proponents of passive

euthanasia and those who are against it.  It is, more so, when my

Writ Petition (Civil) No. 215 of 2005 Page 26 of 112

Brother, Chandrachud, J., has dealt with this aspect in detail in

his  discourse.   In  any  case,  as  noted  above,  in  view  of  the

reference  order  dated  February  25,  2014,  the  validity  of  this

aspect has to be examined, which exercise is undertaken by me

at an appropriate stage.

EUTHANASIA: A COMPLEX CONCEPT

33) As discussed hereinafter, issue of euthanasia is a complexed and

complicated issue over which there have been heated debates,

not  only  within  the  confines  of  courts,  but  also  among  elites,

intelligentsia  and  academicians  alike.   Some  of  these

complexities may be captured at this stage itself.

34) The legal regime webbed by various judgments rendered by this

Court  would  reflect  that  the  Indian  position  on  the  subject  is

somewhat complex and even complicated to certain extend. First,

let us touch the topic from the constitutional angle.

35) Article 21 of the Constitution mandates that no person shall be

deprived of  his life or personal liberty,  except according to the

procedure established by law.  This Article has been interpreted

by the Court in most expansive terms, particularly when it comes

to  the  meaning  that  is  assigned  to  ‘right  to  life’.   It  is  not

necessary to take stock of various faces of right to life defined by

Writ Petition (Civil) No. 215 of 2005 Page 27 of 112

this Court.  What is important for our purpose is to point out that

right  to  life  has  been  treated  as  more  than  ‘mere  animal

existence’.  In Kharak Singh v. State of U.P. & Ors.17 it was held

that the word ‘life’ in Article 21 means right to live with human

dignity and it  does not  merely connote continued drudgery.   It

takes  within  its  fold  “some  of  the  finer  graces  of  human

civilisation, which makes life worth living” and that the expanded

concept of life would mean the “tradition, culture and heritage” of

the concerned person.   This  concept  has been reiterated and

reinforced, time and again, in a series of judgments.  It may not

be necessary to refer to those judgments.  Suffice is to mention

that  a  nine  Judge  Constitution  Bench  of  this  Court  in  K.S.

Puttaswamy and Another  v.  Union of India and Others18 has

taken stock of  all  important  judgments which have echoed the

message enshrined in Kharak Singh’s case.  We may, however,

point  out  that  in  the case of  C.E.S.E.  Limited and Others  v.

Subhash Chandra Bose and Others19, Justice K. Ramaswamy

observed that physical and mental health have to be treated as

integral part of right to life, because without good health the civil

and  political  rights  assured  by  our  Constitution  cannot  be

17 (1964) 1 SCR 332

18 (2017) 10 SCC 1 19 (1992) 1 SCC 441

Writ Petition (Civil) No. 215 of 2005 Page 28 of 112

enjoyed.  Though Justice Ramaswamy rendered minority opinion

in that case, on the aforesaid aspect, majority opinion was not

contrary to the views expressed by Justice Ramaswamy.  Thus,

Article 21 recognizes right to live with human dignity20.

36) The question that arises at this juncture is as to whether right to

life enshrined in Article 21 of the Constitution includes right to die.

If  such  a  right  is  recognised,  that  would  provide  immediate

answer to the issue involved, which is pertaining to voluntary or

passive euthanasia.  However, the judgments of this Court,  as

discussed hereinafter, would demonstrate that no straightforward

answer  is  discernible  and,  as  observed  above,  the  position

regarding euthanasia is somewhat complex in the process.

37) It  would  be  interesting  to  point  out  that  in  Rustom Cavasjee

Cooper v. Union of India21 the Court held that what is true of one

fundamental right is also true of another fundamental right.  This

Court  also  made  a  specific  observation  that  there  cannot  be

serious  dispute  about  the  proposition  that  fundamental  rights

have their  positive  as well  as  negative  aspect.   For  example,

freedom  of  speech  and  expression  includes  freedom  not  to

speak.  Likewise, freedom of association and movement includes

20 Aspects of human dignity as right  to life in the context  of  euthanasia shall  be discussed in greater detail at the relevant stage.

21 (1970) 1 SCC 248

Writ Petition (Civil) No. 215 of 2005 Page 29 of 112

freedom not to join any association or move anywhere.  Freedom

of business includes freedom not to do any business.   In  this

context, can it be said that right to life includes right to die or right

to  terminate  ones  own life?   The  Constitution  Bench  in  Gian

Kaur, however, has taken a view that right to live will not include

right not to live.

38) We have already pointed out that Section 306 of the IPC makes

abetment to suicide as a punishable offence.  Likewise, Section

309  IPC  makes  attempt  to  commit  suicide  as  a  punishable

offence.  Intention to commit suicide is an essential ingredient in

order to constitute an offence under this provision.   Thus, this

provision specifically prohibits a person from terminating his life

and negates right to die.  Constitutional validity of this provision,

on the touchstone of Article 21, was the subject matter of  Gian

Kaur’s case22.  The Court held Sections 306 and 309 IPC to be

constitutionally valid.  While so holding, the Court observed that

when  a  man  commits  suicide,  he  has  to  undertake  certain

22 It may be noted that the Delhi High Court in State v. Sanjay Kumar, (1985) Crl.L.J. 931, and the Bombay High Court in Maruti Sharipati Dubai v. State of Maharashtra, (1987) Crl.L.J. 743, had taken the view that Section 309 of IPC was unconstitutional, being violative of Articles 14 and 21 of the Constitution.  On the other hand, the Andhra Pradesh High Court in  C. Jagadeeswar v. State of Andhra Pradesh, (1983) Crl.L.J. 549, had upheld the validity of Section 309 holding that it did not offend either Article 14 or Article 21 of the Constitution.  A Division Bench of this Court in R. Rathinam v. Union of India and Another, (1994) 3 SCC 394, had held that Section 309 IPC deserves to be effaced from the statute book to humanise our penal laws, terming this provision as cruel  and irrational,  which results in punishing a person again who had already suffered agony and would be undergoing ignominy because of his failure to commit suicide.  It is in this backdrop Gian Kaur’s case was referred to and decided by the Constitution Bench.

Writ Petition (Civil) No. 215 of 2005 Page 30 of 112

positive overt acts and the genesis of those acts cannot be traced

to, or be included within the protection of the ‘right to life’ under

Article 21.  The significant aspect of ‘sanctity of life’ is also not to

be overlooked.  Article 21 is a provision guaranteeing protection

of life and personal liberty and by no stretch of imagination can

‘extinction of  life’ be read to be included in  ‘protection of  life’.

Whatever  may  be  the  philosophy  of  permitting  a  person  to

extinguish his life by committing suicide, the Court found it difficult

to construe Article 21 to include within it the ‘right to die’ as a part

of the fundamental right guaranteed therein.  ‘Right to life’ is a

natural right embodied in Article 21 but suicide is an unnatural

termination or extinction of life and, therefore, incompatible and

inconsistent with the concept of ‘right to life’.

Thus,  the legal  position which stands as of  today is  that

right to life does not include right to die.  It is in this background

we have to determine the legality of passive euthanasia.

39) Matter gets further complicated when it is examined in the context

of morality of medical science (Hippocratic Oath).  Every doctor is

supposed to take specific oath that he will make every attempt to

safe the life of the patient whom he/she is treating and who is

under his/her treatment.  The Hippocratic Oath goes on to say:

“I  swear  by  Apollo the Healer,  by  Asclepius,  by

Writ Petition (Civil) No. 215 of 2005 Page 31 of 112

supporting instruments.  Paradoxically, advancement in medical

science has compounded the issue further.  There has been a

significant advancement in medical science.  Medical scientists

have  been,  relentlessly  and  continuously,  experimenting  and

researching to find out better tools for not only curing the disease

with which human beings suffer from time to time, noble attempt

is to ensure that human life is prolonged and in the process of

enhancing  the  expectancy  of  life,  ailments  and  sufferings

therefrom are reduced to the minimal.  There is, thus, a fervent

attempt to impress the quality of life.  It is this very advancement

in the medical  science which creates dilemma at  that  juncture

when,  in  common  perception,  life  of  a  person  has  virtually

become  unlivable  but  the  medical  doctors,  bound  by  their

Hippocratic Oath, want to still spare efforts in the hope that there

may still be a chance, even if it is very remote, to bring even such

a person back to life.  The issue, therefore, gets compounded

having counter  forces of  medical  science,  morality  and ethical

values, the very concept of life from philosophical angle.  In this

entire process, as indicated in the beginning and demonstrated in

detail  at  the  appropriate  stage,  the  vexed  question  is  to  be

ultimately  decided  taking  into  consideration  the  normative law,

and in particular, the constitutional values.

Writ Petition (Civil) No. 215 of 2005 Page 33 of 112

41) Then,  there  is  also  a  possibility  of  misuse  and  it  becomes  a

challenging  task  to  ensure  that  passive  euthanasia  does  not

become a tool of corruption and a convenient mode to ease out

the life of a person who is considered inconvenient.  This aspect

would be touched upon at some length at the appropriate stage.

This point is highlighted at this juncture just to demonstrate the

complexity of the issue.

42) I may add that the issue is not purely a legal one.  It has moral

and philosophical overtones.  It has even religious overtones.  As

Professor  Upendra Baxi rightly remarks that judges are, in fact,

not  jurisprudes.   At  the same time, it  is  increasingly becoming

important  that  some  jurisprudential  discussion  ensues  while

deciding those cases which have such more and philosophical

overtones as  well.   Such  an analyses  provides not  only  legal

basis for  the conclusions arrived at  but it  also provides logical

commonsense  justification  as  well.   Obviously,  whenever  the

court is entering into a new territory and is developing a new legal

norm,  discussion  on  normative  jurisprudence assumes  greater

significance as the court is called upon to decide what the legal

norm should be.  At the same time, this normative jurisprudence

discourse has to be preceded by analytical jurisprudence, which

Writ Petition (Civil) No. 215 of 2005 Page 34 of 112

is  necessary  for  the  court  to  underline  existing  nature  of  law.

That  would  facilitate  knowing  legal  framework  of  what  is  the

current scenario and, in turn, help in finding the correct answers.

When we discuss about the philosophical aspects of the subject

matter, it is the ‘value of life’ which becomes the foremost focus of

discussion.   The discussion which follows hereinafter  keeps in

mind these parameters.

THE TWO ISSUES

43) As already stated above, as of now insofar ‘active euthanasia’ is

concerned,  it  is  legally  impermissible.  Our  discussion  centres

around ‘passive euthanasia’.  Another aspect which needs to be

mentioned at this stage is that in the present petition filed by the

petitioner, the petitioner wants that ‘advance directive’ or ‘living

will’ should be legally recognised.  In this backdrop, two important

questions arise for considerations, viz.,  

(I) whether passive euthanasia,  voluntary or  even, in certain

circumstances,  involuntary,  is  legally  permissible?   If  so

under what circumstances (this question squarely calls for

answer having regards to the reference order made in the

instant petition)? and

(II) whether a ‘living will’ or ‘advance directive’ should be legally

Writ Petition (Civil) No. 215 of 2005 Page 35 of 112

recognised  and  can  be  enforced?   If  so,  under  what

circumstances  and  what  precautions  are  required  while

permitting it?

44) Answers to these questions have been provided in the judgment

of  Hon’ble  The  Chief  Justice,  with  excellent  discourse  on  all

relevant aspects in an inimitable and poetic style.  I entirely agree

with the reasoning and outcome.  In fact, with the same fervour

and conclusion, separate judgments are written by my brothers,

Dhananjay  Chandrachud  and  Ashok  Bhushan,  JJ.  exhibiting

expected eloquence and erudition.  I  have gone through those

opinions  and  am  in  complete  agreement  thereby.   In  this

scenario,  in  my  own  way,  I  intend  to  deal  with  the  aforesaid

questions on the following hypothesis:

(i) Issue  of  passive  euthanasia  is  highly  debatable,

controversial and complex (already indicated above).

(ii) It  is an issue which cannot be put strictly within the legal

confines, but has social, philosophical, moral and even religious

overtones.

(iii) When the issue of passive euthanasia is considered on the

aforesaid  parameters,  one would  find equally  strong views on

both sides.   That  is  the reason which  makes it  a  thorny and

Writ Petition (Civil) No. 215 of 2005 Page 36 of 112

complex issue and brings within the category of ‘hard cases’.

(iv) In this entire scenario when the issue is considered in the

context of dignity of the person involved, one may tend to tilt in

favour of permitting passive euthanasia.

(v) At the same time, in order to achieve a balance, keeping in

view the competing and conflicting interests, care can be taken to

confine permissibility of passive euthanasia only in rare cases,

particularly, when the patient is declared ‘brain dead’ or ‘clinically

dead’ with virtually no chances of revival.

(vi) In this process, as far as ‘living will’ or ‘advance directive’ is

concerned,  that  needs  to  be  permitted,  along  with  certain

safeguards.  It would not only facilitate prevention of any misuse

but  take  care  of  many  apprehensions  expressed  about

euthanasia.   

With the outlining of the structured process as aforesaid, I

proceed to discuss these aspects in detail hereinafter.

45) As pointed out above, Aruna Ramachandra Shanbaug decides

that  passive  euthanasia,  even  involuntary,  in  certain

circumstances  would  be  justified.   The  reference  order  in  the

instant  case,  however,  mentions  that  for  coming  to  this

conclusion, the Bench relied upon Gian Kaur, but that case does

Writ Petition (Civil) No. 215 of 2005 Page 37 of 112

not provide any such mandate.  In this backdrop, we take up the

first question about the legality of passive euthanasia.

FIRST ISSUE

Whether  passive euthanasia,  voluntary  or  even,  in

certain  circumstances,  involuntary,  is  legally

permissible?  If so under what circumstances (this

question squarely calls for answer having regards to

the reference order made in the instant petition)?

46) I  intend  to  approach  this  question  by  discussing  the  following

facets thereof:

(a) Philosophy of euthanasia

(b) Morality of euthanasia

(c) Dignity in euthanasia

(d) Economics of euthanasia

(A) Philosophy of Euthanasia

“I am the master of my fate; I am the captain of my soul” - William Ernest Henley23

“Death is our friend … he delivers us from agony.  I do not want to die of a creeping paralysis of my faculties – a

defeated man.” - Mahatma Gandhi24

“When a man’s circumstances contain a preponderance of things in accordance with nature, it is appropriate for

him to remain alive; when possess or sees in prospect a majority of contrary, it is appropriate for him to depart

from life.” - Marcus Tullius Cicero

23 As quoted in P. Rathinam v. Union of India & Anr., (1994) 3 SCC 394 24 Same as in 14 above.

Writ Petition (Civil) No. 215 of 2005 Page 38 of 112

“Euthanasia, and especially physician-assisted suicide, appears as the ultimate post-modern demand for dignity

in an era of technologically-mediated death.” - Dr. Jonathan Moreno

47) The  afore-quoted  sayings  of  some  great  persons  bring  out  a

fundamental  truth  with  universal  applicability.   Every  persons

wants to lead life with good health and all kinds of happiness.  At

the same time, nobody wants any pain, agony or sufferings when

his or her life span comes to an end and that person has to meet

death.   The  following  opening  stanza  from  a  song  in  a  film

captures this message beautifully:

ररोतत हहए आतत हह सब, हहंसतत हहआ जरो जतएगत वरो महक़द्दर कत ससकन्दर जतनतमन कहलतएगत

“Every person in this world comes crying.  However, that person who leaves the world laughing/smiling will be the luckiest of all”

(Hindi Film – Muqaddar Ka Sikandar)

48) It became unbearable for young prince Siddharth when he, for the

first time, saw an old crippled man in agony and a dead body

being taken away.  He did not want to encounter such a situation

in his old life and desired to attain Nirvana which prompted him to

renounce the world so that he could find the real purpose of life;

could  lead  a  life  which  is  worth  living;  and  depart  this  world

peacefully.   He  successfully  achieved  this  purpose  of  life  and

became  Gautam  Buddha.  There  are  many  such  similar

Writ Petition (Civil) No. 215 of 2005 Page 39 of 112

examples.

Life is mortal.  It is transitory.  It is as fragile as any other

object.   It  is  a  harsh  reality  that  no  human being,  or  for  that

matter, no living being, can live forever.  Every creature who takes

birth on this planet earth has to die one day.  Life has a limited

shelf  age.   In  fact,  unlike  the  objects  and  articles  which  are

produced by human beings and may carry almost same life span,

insofar as humans themselves are concerned, span of life is also

uncertain.  Nobody knows how long he/she will  be able to live.

The  gospel  truth  is  that  everybody  has  to  die  one  day,

notwithstanding  the  pious  wish  of  a  man to  live  forever25.   As

Woody Allen said  once:  ‘I  do  not  want  to  achieve  immortality

through my work.  I want to achieve it through not dying’.  At the

same time, nobody wants to have a tragic end to life.  We all want

to leave the world in a peaceful manner.  In this sense, the term

‘euthanasia’ which has its origin in Greek language signifies ‘an

easy and gentle death’.

49) According to Charles I. Lugosi, the sanctity of life ethic no longer

dominates American medical philosophy.  Instead, quality of life

has become the modern approach to manage human life that is

25 It is well known that medical scientists are intensely busy in finding the ways to become ageless and immortal, but till date have remained unsuccessful in achieving this dream.

Writ Petition (Civil) No. 215 of 2005 Page 40 of 112

at the margin of utility26.  It is interesting to note that the issue of

euthanasia was debated in India in 1928.  Probably this was the

first  public  debate  on  euthanasia  to  be  reported.   A Calf  in

Gandhi’s ashram was ailing under great pain.  In spite of every

possible treatment and nursing…the condition of the calf was so

bad that it could not even change its side or even it could not be

lifted about in order to prevent pressure ulcers/sores.  It could not

even take nourishment and was tormented by flies.  The surgeon

whose advice was sought in this matter declared the case to be

past help and past  hope.   After  painful  days of  hesitation and

discussions with the managing committee of Goseva Sangh and

the inmates of the ashram, Gandhi made up his mind to end the

life  of  the  calf  in  a  painless  way  as  possible.   There  was  a

commotion in orthodox circles and Gandhi critically examined the

question through his article which appeared in Navajivan (dated

30-9-1928) and Young India (4-10-1928).  Probably this was the

first  public  debate  on  euthanasia  and  animal/veterinary

euthanasia  and  the  debate  also  covered  the  issue  of  human

euthanasia.  It is equally interesting to note that Gandhi and his

critics discussed the issue of ‘painlessly ending the life to end

suffering’ without using the term ‘euthanasia’.  But, he meant the

26 Charles I. Lugosi, ‘Natural Disaster, Unnatural Deaths: The Killings on the Life Care Floors at Tenet’s Memorial Centre after Hurricane Katrina’, Issues in Law and Medicine, Vol. 23, Summer, 2007.

Writ Petition (Civil) No. 215 of 2005 Page 41 of 112

same.   Further  it  is  more  interesting  to  learn  that  at  various

instances Gandhiji  had touched upon the issues of the present

day debates on Voluntary euthanasia, Non-voluntary euthanasia,

Involuntary  euthanasia,  as  well  as  passive  euthanasia,  active

euthanasia,  physician-assisted  euthanasia  and  the  rejection  or

‘termination of treatment’.  Gandhi advocated the development of

positive outlook towards life and strived for the humane nursing

and medical care even when cure was impossible. It was the way

he analysed Karma and submitted to the will of the God.

50) Mahatma Gandhi said:

“In these circumstances I felt that humanity demanded that

the agony should be ended by ending life itself.  The matter was

placed before  the whole  ashram.   At  the discussion a  worthy

neighbour vehemently opposed the idea of  killing even to end

pain.  The ground of his opposition was that one has no right to

take away life which one cannot create.  His argument seemed

to me to be pointless here.  It would have point if the taking of life

was actuated by self-interest.  Finally, in all humility but with the

clearest of convictions, I got in my presence a doctor kindly to

administer the calf  a quietus by means of  a position injection.

The whole thing was over in less than two minutes.

But the question may very legitimately be put to me: would I

Writ Petition (Civil) No. 215 of 2005 Page 42 of 112

apply the same principle to human beings? Would I like it to be

applied in my own case?  My reply is ‘yes’; the same law holds

good in both the cases.  The law, ‘as with one so with all’, admits

of no exceptions, or the killing of the calf was wrong and violent.

In practice, however, we do not cut short the sufferings of our

ailing dear ones by death because, as a rule, we have always

means at our disposal to help them and they have the capacity to

think and decide for themselves.  But supposing that in the case

of an ailing friend, I am unable to render any aid whatever and

recovery  is  out  of  question  and  the  patient  is  lying  in  an

unconscious state in the throes of agony, then I would not see

any himsa in putting an end to his suffering by death.

Just as a surgeon does not commit himsa but practices the

purest  ahimsa  when  he  wields  his  knife,  one  may  find  it

necessary, under certain imperative circumstances, to go a step

further and sever life from the body in the interest of the sufferer.

It  may  be  objected  that  whereas  the  surgeon  performs  his

operation to save the life of the patient, in the other case we do

just the reverse.  But on a deeper analysis it will be found that the

ultimate  object  sought  to  be  served  in  both  the  cases  is  the

same, namely, to relieve the suffering soul within from pain.  In

the one case you do it by severing the diseased portion from the

Writ Petition (Civil) No. 215 of 2005 Page 43 of 112

body, in the other you do it by severing from the soul the body

that has become an instrument of torture to it.  In either case it is

the relief of the soul within from pain that is aimed at, the body

without the life within being incapable of feeling either pleasure or

pain.  

To conclude then, to cause pain or wish ill to or to take the

life of any living being out of anger or a selfish intent, is  himsa.

On the other  hand,  after  a calm and clear  judgment  to  kill  or

cause pain to a living being from a pure selfless intent may be

the purest  form of  ahimsa.   Each  such case  must  be  judged

individually and on its own merits.  The final test as to its violence

or non-violence is after all the intent underlying the act.”

51) Ethical  Egoism propounded  in  modern  times  by  Thomas

Hobbes in “Leviathan” also operates from the general rule that if

any  action  increases  my  own  good,  then  it  is  right.   Ethical

egoism in the context of euthanasia would mean that if a person

wants or does not want to end his/her life using euthanasia, this

desire is presumed to be motivated by a need for self benefit, and

is  therefore  an  ethical  action27.  The  perspective  of  the  world

community is gradually shifting from sanctity of life to quality of

27 John  Keown,  Euthanasia,  Ethics  and  Public  Policy,  (Cambridge:  Cambridge University Press, (2002) p. 37

Writ Petition (Civil) No. 215 of 2005 Page 44 of 112

life sustained and preserved.  

52) Philosophers believe that we have to control switch that can end

it  all,  on  request.   In  medical/legal  parlance,  it  is  called

euthanasia:  ‘an  easy  and  gentle  death’.   Philosophically,  this

debate is about our right, when terminally ill, to choose how to

die.  It is about the right to control how much we have to suffer

and when and how we die.  It is about having some control over

our dying process in a system that can aggressively prolong life

with invasive technology.  Luckily, we also have the technology

that allows us to experience  a gentle death  on our own terms,

rather  than  by  medically  set  terms.   In  his  famous  essay  on

Liberty,  John  Stuart  Mill  argues  strongly  for  our  right  to  self-

determination.  He writes:  “over himself, over his own body and

mind,  the  individual  is  sovereign...he  is  the  person  most

interested in his own well being.”  These words were written over

a century ago.

53) Philosophically, therefore, one may argue that if a person who is

undergoing miserable and untold sufferings and does not want to

continue dreadful agony and is terminally ill, he should be free to

make his choice to terminate his life and to put an end to his life

so that he dies peacefully.

Writ Petition (Civil) No. 215 of 2005 Page 45 of 112

54) At the same time, Buddhism, Jainism and Hinduism are against

euthanasia. However, their concept of  ‘good death’ is extremely

interesting – specially principles of Buddhism as they are echoed

in  the  present  day  understanding  of  euthanasia.   Without

elaborating and to put it in nutshell:

 Buddhism,  Jainism,  and  Hinduism,  in  particular,  embrace

the concept of the  good death  as a means of achieving dignity

and  spiritual  fulfilment  at  the  end  of  life  without  resorting  to

artificially shortening its span.

 Buddhists believe that human existence is rare and rebirth

as  a  human is  rarer  still.  Consequently  it  is  best  approached

cautiously  without  attempting  to  exert  control  over  the  dying

process.  At  the  point  of  dying,  a  Buddhist  should  ideally  be

conscious, rational and alert.

 Traditional  Hindu  religious  culture  also  emphasizes  the

good death as a reflection of the quality of life that preceded it. If

a good, dignified death is attained, it is perceived as evidence of

having lived a worthy life because “the manner of one’s passing

out-weighs  all  previous  claims  and  intimations  of  one’s  moral

worth”28.

28

T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine 425–32.  

Writ Petition (Civil) No. 215 of 2005 Page 46 of 112

 “a good death certifies a good life”29.

 The  good  death  is  achieved  when  death  occurs  in  full

consciousness, in a chosen place and at a chosen time; and

 As  with  Buddhism  great  significance  is  attached  to  the

element of choice and the maintenance of control,30   so if at all

possible, “one must be in command and should not be overtaken

by death. To be so overtaken is the loss of dignity”.31   Thus the

final moments of life should be calm, easy and peaceful if dignity

is to be preserved.

Many of the insights of these traditional religions are echoed

in the modern Western understanding of euthanasia, as a means

of  achieving  death  with  dignity,  which  focuses  on  avoiding

dependence and loss  of  control.  Choosing  to  deliberately  end

one’s life allows control over the time, place and method of one’s

dying and explains why euthanasia appears to offer death with

dignity.  Rather  than  active  euthanasia  these  ancient  religions

advocate calm, control and compassion as a means of achieving

dignity.  

(B) Morality of Euthanasia

55) At  the  outset,  I  would  like  to  clarify  that  while  discussing  a 29  T N Madan, “Living and Dying” in Non-Renunciation: Themes and Interpretations of the Hindu

Culture (New Delhi, Oxford University Press, 1987).  30  J Parry, Death and the Regeneration of Life (Cambridge, Cambridge University Press, 1982) 31 T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine 425–32.

Writ Petition (Civil) No. 215 of 2005 Page 47 of 112

particular  norm  of  law,  the  law  per  se  is  to  be  applied  and,

generally speaking, it is not the function of the Courts to look into

the moral  basis of  law.  At  the same time, some legal  norms,

particularly  those which are jurisprudentially  expounded by the

Courts  or  developed  as  common  law  principles,  would  have

moral backing behind them.  In that sense moral aspects of an

issue may assume relevance.   This relevancy and rationale is

quite evident in the discussion about euthanasia.  In fact, the very

concept  of  dignity  of  life  is  substantially  backed  by  moral

overtones.  We may remind ourselves with the following classical

words uttered by Immanuel Kant:

“We must not expect a good constitution because those who make it are moral men.  Rather it is because of a good  constitution  that  we  may  expect  a  society composed of moral men.”

56) It  is well  known that  Justice Holmes’ legal philosophy revolved

around its central theme that law and morals are to be kept apart,

maintaining a sharp distinction between them.  Notwithstanding,

even he  accepted  that  under  certain  circumstances  distinction

between law and morals loses much of its importance.  To quote:

“I do not say say that there is not a wider point of view  from  which  the  distinction  between  law  and morals  becomes  of  secondary  importance,  as  all mathematical distinctions vanish in the presence of the infinite”.32

32 Justice Holmes: The Path of the Law, 10 Harvard Law review 457-78, at p. 459 (1897)

Writ Petition (Civil) No. 215 of 2005 Page 48 of 112

57) Euthanasia is one such critical issue where the law relating to it

cannot be divorced from morality.  Lon L. Fuller33 has argued with

great emphasis that it is the morality that makes the law possible.

He also points towards morality as the substantive aims of law. In

fact, as would be noticed later, the conceptualisation of doctrine

of dignity by Ronald Dworkin is supported with moral ethos.  With

the aid of dignity principle, he has argued in favour of euthanasia.

Likewise, and ironically, John Finnis, Professor of Law and Legal

Philosophy Emeritus in the University of Oxford, while opposing

euthanasia, also falls back on the morality conception thereof.  It

is  this peculiar  feature which drives us to discuss the issue of

euthanasia from the stand point of morality.

58) Influenced  primarily  by  the  aforesaid  considerations,  I  deem it

relevant to indulge into discussion on morality.

59) When we come to the moral aspects of ‘end of life’ issues, we

face the situation of dilemma.  On the one hand, it is an accepted

belief that every human being wants to die peacefully.  Nobody

wants to undergo any kind of suffering in  his last days.  So much

so a person who meets his  destiny by sudden death or easy

death is often considered as a person who would have lived his

life by practicing moral and ethical values.  Rightly or wrongly, it is 33 Lon L. Fuller: The Morality of Law (Revised Edition), Yale University Press

Writ Petition (Civil) No. 215 of 2005 Page 49 of 112

perceived that such a person who exhibited graceful behaviour

while living his life is bestowed grace by the death when time to

depart came.  However, it does not happen to most of the people.

Ageing  is  a  natural  phenomena.  No  doubt,  as  the  person

advances in age, he becomes mature in his wisdom.  However,

old age brings, along with it,  various ailments and diseases as

well.  Physical health and physical functioning declines over the

life course, particularly, in later life.   A rise in chronic disease and

other conditions such as arthritis, high blood pressure and obesity

can  cause  loss  in  function  and  lead  to  generally  decreasing

trajectory for  health over  the lifespan.   Thus,  ageing has both

positive and negative aspects.  This ageing leads to extinction of

human life which may generally be preceded by grave sickness

and disease.

60) Horace, Roman poet in his poem on  the ‘Ages of Man’ wrote

quiet scathingly of the attributes of old age:

“Many ills encompass an old man, whether because he seeks,  gain,  and then miserably  holds  aloof  from His store and fears to use it, because, in all that he does, he lacks  fire  and  courage,  is  dilatory  and  slow  to  form hopes, is sluggish and greedy of a longer life, peevish, surly, given to praising the days he spent as a boy, and to reproving and condemning the young.

(Ars Poetica, pp.169-74)

We find a more contemporary echo of  this  in William Shakespeare’s  (1564-1616)  famous  verse  ‘All  the

Writ Petition (Civil) No. 215 of 2005 Page 50 of 112

World’s a Stage’:

all the word’s stage, and all the men and women merely players;

they have their exits and their entrances, and one man in his time plays many parts,  his acts being seven ages....Last scene of all, that ends this strange eventful history,  is second childishness and mere oblivion,  sans teeth, sans eyes, sans taste, sans everything.

(As You Like It, Act II, scene VII)”

It may, however, be added (for the sake of clarification) that

advent of disease is not the confines of old age only.  One may

become  terminally  ill  at  any  age.   Such  a  disease  may  be

acquired even at birth.

61) The moral dilemma is that it projects both the sides--protracted as

well as intractable.  On the one hand, it is argued by those who

are  the  proponents  of  a  liberal  view  that  a  right  to  life  must

include  a  concomitant  right  to  choose  when  the  life  becomes

unbearable and not so worth living, when such a stage comes

and the sufferer feels that that the life has become useless, he

should have right to die.  Opponents, on the other hand, project

‘Sanctity of Life’ (SOL) as the most important factor and argue

that this ‘SOL’ principle is violated by self-styled angles of death.

Protagonists  on  ‘SOL’  principle  believe  that  life  should  be

preserved at  all  costs  and the least  which is  expected is  that

Writ Petition (Civil) No. 215 of 2005 Page 51 of 112

there should not be a deliberate destruction of human life, though

it does not demand that life should always be prolonged as long

as possible.

62) It might therefore be argued, as Emily Jackson (2008) cogently

does, that the law’s recognition that withdrawal of life-prolonging

treatment is sometimes legitimate is not so much an exception to

the SOL principle, as an embodiment of it.

63) In the most secular judicial interpretation of the SOL doctrine yet,

Denman J of the UKHL explicated thus:

“in respect a person’s death, we are also respecting their life – giving it sanctity...A view that life must be preserved at all costs does not sanctify life.,..to care for the dying, to love and cherish them, and to free them from suffering rather  than  simply  to  postpone  death  is  to  have fundamental respect for the sanctity of life and its end.”

64) Hence, as the process of dying is an inevitable consequence of

life, the right to life necessarily implies the right to have nature

take its course and to die a natural death.  It also encompasses a

right, unless the individual so wishes, not to have life artificially

maintained by the provision of nourishment by abnormal artificial

means  which  have  no  curative  effect  and  which  are  intended

merely to prolong life.

65) A  moral  paradox  which  emerges  is  beautifully  described  by

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Sushila Rao34, in the following words:

“Several commentators have justified the active/passive distinction by averring that there is an important moral difference between killing a patient by administering, say, a  lethal  injection,  and  withdrawing  treatment  which  is currently keeping her alive.  Active euthanasia, runs the argument,  interferes  with  nature’s  dominion,  whereas withdrawal of treatment restores to nature her dominion.

Here too, an absolutist version of the SOL principle rears its unseemly head.  In a plethora of cases in the UK, a course of action which would lead to the patient’s action which would lead to the patient’s death was held to be compatible  with  the  “best  interests”  test.  Indeed,  a majority  in  the  House  of  Lords  in  Bland  explicitly accepted  that  the  doctor’s  intention  in  withdrawing artificial  nutrition  and  hydration  was,  in  Lord  Browne- Wilkinson’s words, to “bring about the death of Anthony Bland”.  Lord Lowry said that “the intention to bring about the patient’s  death is  there”  and Lord Mustill  admitted that “the proposed conduct has the aim.. of terminating the life of  Anthony Bland”.   I  each case, however,  life could be brought  to an end only  because the doctors had recourse to a course of action which could plausibly be described as a “failure to prolong life”.

The SOL principle thus works insidiously to ensure that only certain types of death—namely, those achieved by suffocation,  dehydration,  starvation  and  infection, through  the  withdrawal  or  withholding  of,  respectively, ventilation,  ratification  nutrition  and  hydration,  and antibiotics-can lawfully be brought about.  More crucially, the  SOL  principle  prohibits  doctors  from  acting  to achieve  that  end  quickly,  and  more  humanly,  by  the administration of a single lethal injection.

Lord Browne-Wilkinson lamented this paradox in Bland in the following words:

“How can it  be lawful  to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by a lethal  injection,  thereby  saving  his  family  from  yet

34  Sushila Rao : Economic and Political Weekly, Vol. 46, No. 18 (April 30-May 6, 2011), pp. 13-16

Writ Petition (Civil) No. 215 of 2005 Page 53 of 112

another ordeal  to add to the tragedy that  has already struck them?  I find it difficult to find a moral answer to that question.

As  Simon  Blackburn  (2001)  puts  it,  differentiating between withdrawal of treatment and killing may salve some  consciences,  but  it  is  very  doubtful  whether  it ought  to.   It  often condemns the subject  to  a  painful, lingering death, fighting for breath or dying of thirst, while those who could do something stand aside, withholding a merciful death.”

66) Interestingly, Sushila Rao concludes that even the active-passive

distinction  is  not  grounded  much  in  morality  and  ethics  as  in

‘reasons of policy’.

67) John Finnis strongly believes that moral norms rule out the central

case  of  euthanasia  and  discards  the  theory  of  terminating

people’s life on the ground that doing so would be benefecial by

alleviating human suffering or burdens.  He also does not agree

that euthanasia would benefit ‘other people’ at least by alleviating

their proportionately greater burdens35.

68) Moral discourse of  John Finnis  proceeds on the ‘intention of the

person  who  is  facing  such  a  situation’.   He  draws  distinction

between what one intends (and does) and what one accepts as

35 According  to  John  Finnis,  there  is  no  real  and  morally  relevant  distinction  between  active euthanasia  and  passive  euthanasia  inasmuch  as  one  employs  the  method  of  deliberate omissions (or forbearances or abstentions) in order to terminate life (passive euthanasia) and other  employs  ‘a  deliberate  intervention’ for  the  same purpose  (active  euthanasia).   In  this sense, in both the cases, it is an intentional act whether by omission or by intervention, to put an end to somebody’s life and, therefore, morally wrong.

Writ Petition (Civil) No. 215 of 2005 Page 54 of 112

foreseen side effects is significant by giving importance to free

choice.  There would be free choice, he argues, only when one is

rationally  motivated  towards  incompatible  alternative  possible

purposes.  Therefore, there may be a possibility that a person

may choose euthanasia but not as a free choice and it would be

morally  wrong.   In  a  situation  where  that  person  is  not  in  a

position to make a choice (for e.g. when he is in comma) this

choice  shall  be  exercised  by  others  which,  according  to  him,

violates the autonomy of the person involved.  It is significant to

mention  that  Finnis  accepts  that  autonomy  of  the  patient  or

prospective patient counts.  It reads:

“Is  this  to  say  that  the  autonomy  of  the  patient  or prospective patient  counts  for  nothing? By no means. Where one does not know that the requests are suicidal in intent, one can rightly, as a healthcare professional or as someone responsible for the care of people, give full effect  to  requests  to  withhold  specified  treatments  or indeed any and all treatments, even when one considers the  requests  misguided  and  regrettable.   For  one  is entitled  and  indeed  ought  to  honour  these  people's autonomy, and can reasonably accept their death as a side effect of doing so.”36

69) He, however, explains thereafter  that even if such a decision is

taken, said person would be proceeding on one or both of two

philosophically and morally erroneous judgments: (i) that human

life  in  certain  conditions  or  circumstances  retains  no  intrinsic

36 John Finnis: “Human Rights and Common Good: Collected Essays”, Volume III

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value and dignity;  and/or  (ii)  that  the world  would  be a  better

place  if  one’s  life  were  intentionally  terminated.   And  each  of

these  erroneous  judgments  has  very  grave  implications  for

people who are in poor shape and/or whose existence creates

serious burdens for others.

It  is,  thus,  clear  that  taking  shelter  of  same  morality

principles, jurists have reached opposing conclusions.  Whereas

euthanasia is  morally  impermissible in the estimation of  some,

others treat it as perfectly justified.  As would be noted later, riding

on these very moral principles, Dworkin developed the dignity of

life argument and justified euthanasia.

The aforesaid discussion on the philosophy of euthanasia,

coupled with its morality aspect, brings out the conflicting views.

Though philosophical as well as religious overtones may indicate

that  a  person  does  not  have  right  to  take  his  life,  it  is  still

recognised that a human being is justified in his expectation to

have a peaceful and dignified death.  Opposition to euthanasia,

on moral grounds, proceeds primarily on the basis that neither the

concerned person has a right to take his own life, which is God’s

creation, nor anybody else has this right.  However, one startling

feature  which  is  to  be  noted  in  this  opposition  is  that  while

opposing  euthanasia,  no  segregated  discussion  on  active  and

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passive  euthanasia  is  made.   It  also  does  not  take  into

consideration permissibility of passive euthanasia under certain

specific circumstances.  Clarity on this aspect is achieved when

we discus the issue of euthanasia in the context of dignity.

(C) Dignity in Euthanasia

70) This  Court  acknowledges  its  awareness  of  the  sensitive  and

emotional nature of euthanasia controversy, and the vigours of

opposing views, even within the medical fraternity, and seemingly

absolute  convictions  that  the  subject  inspires.   This  is  so

demonstrated  above  while  discussing  philosophical,  moral,

ethical  and religious overtones of  the subject  involved.  These

valid aspects, coupled with one’s attitude towards life and family

and  their  values,  are  likely  to  influence  and  to  colour  one’s

thinking and conclusions about euthanasia.  Notwithstanding the

same, these aspects make the case as ‘hard case’.  However, at

the  end  of  the  day,  the  Court  is  to  resolve  the  issue  by

constitutional measurements, free of emotion and of predilection.

One has to bear in mind what Justice Oliver Wendell Holmes Jr.

said in his dissenting judgment in Lochner v. New York37, which

is reproduced below:

“[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain

37 198 US 45, 76 (1905)

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opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether  statutes  embodying  them  conflict  with  the Constitution of the United States.”

71) With these preliminary remarks we return to the doctrine of dignity

as an aspect of Article 21 of the Constitution, a brief reference to

which has already been made above.

72) Let me first discuss certain aspects of human dignity in general.

Insofar as concept of human dignity is concerned, it dates back to

thousands of  years.   Historically,  human dignity,  as a concept,

found  its  origin  in  different  religions  which  is  held  to  be  an

important component of their theological approach. Later, it was

also  influenced  by  the  views  of  philosophers  who  developed

human dignity  in  their  contemplations38.  Jurisprudentially,  three

types of models for determining the content of the constitutional

value of human dignity are recognised.  These are: (i) Theological

Model,  (ii)   Philosophical  Model,  and (iii)  Constitutional  Model.

Legal  scholars  were  called  upon  to  determine  the  theological

basis  of  human  dignity  as  a  constitutional  value  and  as  a

constitutional right.  Philosophers also came out with their views

justifying  human  dignity  as  core  human  value.  Legal

understanding  is  influenced  by  theological  and  philosophical 38 Though western thinking is that the concept of human dignity has 2500 years' history, in many  

eastern civilizations including India human dignity as core human value was recognised  thousands of years ago  

Writ Petition (Civil) No. 215 of 2005 Page 58 of 112

views, though these two are not identical.  Aquinas, Kant as well

as  Dworkin discussed  the  jurisprudential  aspects  of  human

dignity. Over a period of time, human dignity has found its way

through constitutionalism, whether written or unwritten.

Theological Model of Dignity

'Amritasya Putrah Vayam'

[We are all begotten of the immortal.]  This is how Hinduism introduces human beings.

'Every individual soul is potentially divine' – proclaimed Swami Vivekananda

73) Hinduism  doesn't  recognize  human  beings  as  mere  material

beings.   Its  understanding  of  human  identity  is  more  ethical-

spiritual than material.  That is why a sense of immortality and

divinity  is  attributed  to  all  human  beings  in  Hindu  classical

literature.

74) Professor  S.D.  Sharma,  sums  up  the  position  with  following

analysis39:

“Consistent with the depth of Indian metaphysics, the human  personality  was  given  a  metaphysical interpretation.   This  is  not  unknown  to  the  modern occidental  philosophy.   The  concept  of  human personality in Kant's philosophy of law is metaphysical entity  but  Kant  was  not  able  to  reach  the  subtler unobserved  element  of  personality,  which  was  the basic  theme of  the  concept  of  personality  in  Indian legal philosophy”

39 Prof. S.D. Sharma : “Administration of Justice in Ancient Bharat”, (1988).

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75) It is on the principle that the soul that makes the body of all living

organisms its abode is in fact an integral part of the Divine Whole

– Paramaatman – that the Vedas declare unequivocally:

Ajyesthaaso Akanisthaasa Yete; Sam Bhraataro Vaavrudhuh Soubhagaya

[No one is superior or inferior; all are brothers; all should strive for the interest of all and progress collectively]

– RigVeda, Mandala-5, Sukta-60, Mantra-5

76) Even in Islam, tradition of human rights became evident in the

medieval ages.  Being inspired by the tenets of the Holy Koran, it

preaches  the  universal  brotherhood,  equality,  justice  and

compassion.   Islam believes that man has special status before

God.   Because  man  is  a  creation  of  God,  he  should  not  be

harmed.  Harm to a human being is harm to a God.  God, as an

act of love, created man and he wishes to grant him recognition,

dignity and authority.  Thus, in Islam, human dignity stems from

the belief that man is a creation of God –  the creation that God

loves more than any other.

77) The  Bhakti  and  Sufi  traditions  too  in  their  own  unique  ways

popularized the idea of  universal  brotherhood.   It  revived and

regenerated the cherished Indian values of truth, righteousness,

justice and morality.

Writ Petition (Civil) No. 215 of 2005 Page 60 of 112

78) Christianity believes that the image of God is revealed in Jesus

and through him to human kind.  God is rational and determines

his goals for himself.  Man was created in the image of God, and

he too is rational and determines his own goals, subject to the

God as a rational creation.  Man has freedom of will.  This is his

dignity.  He is free to choose his goals, and he himself is a goal.

His supreme goal is to know God.  Thus he is set apart from a

slave and from all the creations under him.  When a man sins, he

loses his human dignity.  He becomes an object40.

Philosophical Model of Dignity

79) The modern conception of  human dignity  was affected by the

philosophy  of  Kant41.   Kant's  moral  theory  is  divided  into  two

parts: ethics and right (jurisprudence).  The discussion of human

dignity  took  place  within  his  doctrine  of  ethics  and  does  not

appear in his jurisprudence42.  Kant's jurisprudence features the

concept of a person's right to freedom as a human being.

80) According to Kant, a person acts ethically when he acts by force

of a duty that a rational agent self-legislates onto his own will.

This  self-legislated  duty  is  not  accompanied  by  any  right  or

coercion, and is not correlative to the rights of others.  For Kant,

40 Based on the approach of Thomas Aquinas (1225-1274) in his work Summa Theologia 41 See Toman E. Hill, 'Humanity as an End in itself' (1980) 91 Ethics 84 42 See Pfordten, 'On the Dignity of Man in Kant'

Writ Petition (Civil) No. 215 of 2005 Page 61 of 112

ethics includes duties to oneself (e.g. to develop one's talents)

and to others (e.g. to contribute to their happiness).  This ability is

the human dignity of man.  This is what makes a person different

than an object.   This ability makes a person into an end, and

prevents her from being a mere means in the hands of another.

81) Professor  Upendra  Baxi  in  his  First  Justice  H.R.  Khanna

Memorial Lecture43, on the topic Protection of Dignity of Individual

under  the  Constitution  of  India has  very  aptly  remarked  that

dignity notions, like the idea of human rights, are supposed to be

the gifts of the West to the Rest, though, this view is based on the

prescribed  ignorance  of  the  rich  traditions  of  non-European

countries. He, then, explains Eurocentric view of human dignity

by pointing out that it views dignity in terms of personhood (moral

agency) and autonomy (freedom of choice). Dignity here is to be

treated as  'empowerment' which makes a triple demand in the

name of respect for human dignity, namely:

1. Respect for one's capacity as an agent to make one's own

free choices.

2. Respect for the choices so made.

3. Respect for one's need to have a context and conditions in

which one can operate as a source of free and informed

43 Delivered on 25th February, 2010 at Indian Institute of Public Administration, New Delhi.

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choice.

82) To the aforesaid, Professor Baxi adds:

“I  still  need  to  say  that  the  idea  of  dignity  is  a metaethical one, that is it marks and maps a difficult terrain of what it may mean to say being 'human' and remaining 'human', or put another way the relationship between 'self', 'others', and 'society'. In this formulation the word 'respect' is the keyword: dignity is respect for an individual person based on the principle of freedom and  capacity  to  make  choices  and  a  good  or  just social order is one which respects dignity via assuring 'contexts'  and 'conditions'  as the 'source of free and informed choice'.  Respect for dignity thus conceived is empowering overall and not just because it, even if importantly,  sets  constraints  state,  law,  and regulations.”

83) Jeremy Waldron44 opines that dignity is a sort of status-concept: it

has to do with the standing (perhaps the formal legal standing or

perhaps, more informally, the moral presence) that a person has

in a society and in her  dealings with others.  He has ventured

even to define this term “dignity” in the following manner:

“Dignity is the status of a person predicated on the fact that she is recognized as having the ability to control and regulate her actions in accordance with her own apprehension of norms and reasons that apply to her; it assumes she is capable of giving and entitled to give an account of herself (and of the way in which she is regulating  her  actions  and  organizing  her  life),  an account  that  others  are  to  pay  attention  to;  and  it means finally that she has the wherewithal to demand that  her  agency  and  her  presence  among  us  as human being be taken seriously and accommodated in the lives of others, in others' attitudes and actions towards her, and in social life generally”.

44 See Article of Jeremy Waldron : “How Law Protects Dignity”

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84) Kant, on the other hand, has initially used dignity as a 'value idea',

though in his later work he also talks of 'respect' which a person

needs to accord to other person, thereby speaking of it more as a

matter of status.

Constitutional Perspective of Dignity

85) The most important lesson which was learnt as a result of Second

World War was the realization by the Governments of  various

countries about the human dignity which needed to be cherished

and protected. It is for this reason that in the  U.N. Charter, 1945,

adopted immediately after the Second World War, dignity of the

individuals  was  mentioned  as  of  core  value.  The  almost

contemporaneous Universal Declaration of Human Rights (1948)

echoed same sentiments.

86) Article 3 of the Geneva Conventions explicitly prohibits “outrages

upon  personal  dignity”.  There  are  provisions  to  this  effect  in

International Covenant on Civil and Political Rights (Article 7) and

the  European  Convention  of  Human Rights  (Article  3)  though

implicit.  However, one can easily infer the said implicit message

in these documents about human dignity.  The ICCPR begins its

preamble with the acknowledgment that the rights contained in

the  covenant  “derive  from  the  inherent  dignity  of  the  human

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person”.  And some philosophers say the same thing. Even if this

is not a connection between dignity and law as such, it certainly

purports to identify a wholesale connection between dignity and

the branch of law devoted to human rights.  One of the key facets

of  twenty-first  century  democracies  is  the  primary  importance

they  give  to  the  protection  of  human  rights.   From  this

perspective, dignity is the expression of a basic value accepted in

a  broad  sense  by  all  people,  and  thus  constitutes  the  first

cornerstone in the edifice of human rights.  Therefore, there is a

certain fundamental value to the notion of human dignity, which

some would consider a pivotal right deeply rooted in any notion of

justice, fairness, and a society based on basic rights.

87) Aharon  Barak,  former  Chief  Justice  of  the  Supreme  Court  of

Israel, attributes two roles to the concept of human dignity as a

constitutional value, which are:

1. Human dignity lays a foundation for all the human rights as

it is the central argument for the existance of human rights.   

2. Human dignity as a constitutional value provides meaning to

the norms of the legal system.  In the process, one can discern

that  the  principle  of  purposive  interpretation  exhorts  us  to

interpret all the rights given by the Constitution, in the light of the

human  dignity.   In  this  sense,  human  dignity  influences  the

Writ Petition (Civil) No. 215 of 2005 Page 65 of 112

purposive interpretation of the Constitution.  Not only this, it also

influences the interpretation of every sub-constitutional norm in

the legal system.  Moreover, human dignity as a constitutional

value also influences the development of the common law.   

88) Within  two  years  of  the  adoption  of  the  aforesaid  Universal

Declaration of Human Rights that all human beings are born free

and equal in dignity and rights, India attained independence and

immediately  thereafter  Members  of  the  Constituent  Assembly

took up the task of framing the Constitution of this Country. It was

but natural to include a Bill  of Rights in the Indian Constitution

and the Constitution Makers did so by incorporating a Chapter on

Fundamental Rights in Part III  of the Constitution.  However, it

would  be  significant  to  point  out  that  there  is  no  mention  of

“dignity” specifically in this Chapter on Fundamental Rights.  So

was the position in the American Constitution. In America, human

dignity as a part of human rights was brought in as a Judge-made

doctrine. Same course of action followed as the Indian Supreme

Court  read  human  dignity  into  Articles  14  and  21  of  the

Constitution.

89) Before  coming  to  the  interpretative  process  that  has  been

developed by this Court  in evolving the aura of  human dignity

Writ Petition (Civil) No. 215 of 2005 Page 66 of 112

predicated  on  Articles  14  and  21  of  the  Constitution,  I  am

provoked to discuss as to how  Dworkin  perceives interpretative

process adopted by a Judge.

90) Dworkin, being a philosopher – jurist, was aware of the idea of a

Constitution and of a constitutional right to human dignity.  In his

book, Taking Rights Seriously, he noted that everyone who takes

rights seriously must give an answer to the question why human

rights vis-a-vis the State exist.  According to him, in order to give

such an answer one must  accept,  as  a  minimum, the idea of

human dignity.  As he writes:

“Human dignity....associated with Kant, but defended by philosophers of  different schgools,  supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community,  and  holds  that  such  treatment  is profoundly unjust.”45

91) In his Book, “Is Democracy Possible Here?”46 Dworkin develops

two principles about the concept of human dignity.  First principle

regards the intrinsic value of every person, viz., every person has

a special objective value which value is not only important to that

person alone but success or failure of the lives of every person is

important  to  all  of  us.   The  second  principle,  according  to

Dworkin,  is  that  of  personal  responsibility.   According  to  this 45 Ibid., 1 46 Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton  

University Press, 2006).

Writ Petition (Civil) No. 215 of 2005 Page 67 of 112

principle, every person has the responsibility for success in his

own life and, therefore, he must use his discretion regarding the

way of life that will be successful from his point of view.  Thus,

Dworkin's jurisprudence  of  human  dignity  is  founded  on  the

aforesaid two principles which, together, not only define the basis

but the conditions for human dignity.  Dworkin went on to develop

and expand these principles in his book,  Justice for Hedgehogs

(2011)47.

92) When speaking of rights, it  is impossible to envisage it  without

dignity.  In  his  pioneering  and  all  inclusive  “Justice  for

Hedgehogs”, he proffered an approach where respect for human

dignity, entails two requirements; first, self-respect, i.e., taking the

objective importance of one’s own life seriously; this represents

the free will of the person, his capacity to think for himself and to

control  his  own life  and  second,  authenticity,  i.e.,  accepting  a

“special,  personal  responsibility  for  identifying  what  counts  as

success” in one’s own life and for  creating that  life “through a

coherent narrative” that one has chosen.48 According to Dworkin,

these principles form the fundamental  criteria supervising what

we should do in order to live well.49 They further explicate the

47 Ibid 13 48  Kenneth W. Simons, Dworkin’s Two Principle of Dignity: An unsatisfactory Nonconsequentialist Account of  

Interpersonal Moral Duties, 90 Boston law Rev. 715 (2010) 49 Ibid  

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rights that individuals have against their political community,50 and

they provide a rationale for the moral duties we owe to others.

This notion of dignity, which Dworkin gives utmost importance to,

is  indispensable  to  any  civilised  society.  It  is  what  is

constitutionally recognised in our country and for good reason.

Living well is a moral responsibility of individuals; it is a continuing

process that is not a static condition of character but a mode that

an individual constantly endeavours to imbibe. A life lived without

dignity, is not a life lived at all for living well implies a conception

of human dignity which Dworkin interprets includes ideals of self-

respect and authenticity.

93) This  constitutional value of human dignity, has been beautifully

illustrated by Aharon Barak, as under:

“Human  dignity as a constitutional value is the factor that unites the human rights into one whole. It ensures the normative unity  of  human rights.  This  normative unity is expressed in the three ways: first, the value of human  dignity  serves  as  a  normative  basis  for constitutional rights set out in the constitution; second, it serves as an interpretative principle for determining the scope of constitutional rights, including the right to human dignity; third, the value of human dignity has an important role in determining the proportionality of a statute limiting a constitutional right.”51

94) We have to keep in  mind that  while  expounding the aforesaid

notion of dignity,  Dworkin  was not interpreting any Constitution.

50  Supra 15 51  Aharon Barak, Human Dignity : The Constitutional Value and the Constitutional Right

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This notion of dignity, as conceptualised by  Dworkin, fits like a

glove in  our  constitutional  scheme.   In  a  series  of  judgments,

dignity, as an aspect of Article 21, stands firmly recognised.  Most

of  the  important  judgments  have  been  taken  note  of  and

discussed in K.S. Puttaswamy52.

95) In K.S. Puttaswamy, the Constitution Bench has recognised the

dignity of existence.  Liberty and autonomy are regarded as the

essential attributes of a life with dignity.  In this manner, sanctity

of  life  also  stands  acknowledged,  as  part  of  Article  21  of  the

Constitution.  That apart, while holding the right of privacy as an

intrinsic part of right to life and liberty in Article 21, various facets

thereof  are discussed by the learned Judges in  their  separate

opinions.  A common theme which flows in all these opinions is

that that privacy recognises the autonomy of the individual; every

person  has  right  to  make  essential  choices  which  affect  the

course of life; he has to be given full liberty and freedom in order

to achieve his desired goals of life; and the concept of privacy is

contained not merely in personal liberty, but also in the dignity of

the  individual.   Justice  Chelameshwar,  in  K.S.  Puttaswamy,

52 Prem Shankar Shukla v. UT of Delhi, (1980) 3 SCC 526; Francis Coralie Mullin v. UT of Delhi, (1981)  1  SCC 608;  Bandhua  Mukti  Morcha  v.  Union  of  India,  (1984)  3  SCC 161;  Khedat Mazdoor Chetna Sangath v. State of Madhya Pradesh, (1994) 6 SCC 260; M. Nagaraj v. Union of India, (2006) 8 SCC 212, Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786; Selvi  v.  State of Karnataka, (2010) 7 SCC 263; Mehmood Nayyar Azam v. State of Chhattisgarh, (2012) 8 SCC 1; Shabnam v. Union of India, (2015) 6 SCC 702; Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.

Writ Petition (Civil) No. 215 of 2005 Page 70 of 112

made  certain  specific  comments  which  are  reflective  of

euthanasia,  though  this  term  is  not  specifically  used.   He

observed: “forced feeding of certain persons by the State raises

concerns of privacy and individual’s right to refuse life prolonging

medical treatment or terminate his life is another freedom which

falls within the zone of privacy.”

96) Liberty by itself, which is a facet of Article 21 of the Constitution,

duly recognised in  K.S. Puttaswamy,  ensures and guarantees

such a choice to the individual.  In fact, the entire structure of civil

liberties presupposes that freedom is worth fostering.  The very

notion of liberty is considered as good for the society.  It is also

recognised  that  there  are  some  rights,  encompassing  liberty,

which are needed in order to protect freedom.  David Feldman53

beautifully describes as to why freedom (or liberty) is given:

“The  guiding  principle  for  many  liberal  rights  theorists may be seen as respect for individuals’ own aspirations, as  a  means  of  giving  the  fullest  expression  to  each individual’s  moral  autonomy.   A fundamental  principle entailed by respect for moral autonomy is that individuals should prima facie be free to select their own ideas of the Good, and develop a plan for life, or day-to-day strategy, accordingly.   Their  choice  of  goods  should  be constrained  only  to  the  extent  necessary  to  protect society and the similar liberties of other people.  The law should protect at least the basic liberties, that is, those necessary  to  the  pursuit  of  any  socially  acceptable conception of the good life.  This is the approach which John Rawls adopts in  A Theory of Justice.   It  requires that  basic  liberties  be  given considerable  respect,  and

53 David Feldman: Civil Liberties & Human Rights in England & Wales

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that they should have priority over the pursuit of social goods (such as economic development) perhaps even to the  extent  of  giving  them  the  status  of  entrenched, constitutional  rights,  in  order  to  shield  them  from challenge in the day-to-day rough and tumble of political contention.  This gives liberty a priority over other values, which, whether viewed as a description of liberal society or  as  a  prescription  for  its  improvement,  is  very controversial.  Philosophers have doubted whether there are adequate grounds for the priority of liberty.  Professor H.L.A. Hart has argued that (at least in a society where there is limited abundance of wealth and resources) it is rational  to  prefer  basic  freedoms to  an  improvement  I material  conditions only if  one harbours the ideal  of  ‘a public-spirited  citizen  who  prizes  political  activity  and service to others as among the chief goods of life and could not contemplate as tolerable an exchange of the opportunities of such activity for mere material goods or contentment’.

A rather different thesis runs through Professor Joseph Raz’s  book,  The  Morality  of  Freedom:  people  are autonomous  moral  actors,  and  autonomy  is  given expression  primarily  through  making  one’s  own decisions, but such freedom is valuable partly because it advances  social  ends.   Raz  points  out  that  the identification of basic liberties therefore depends, in pat at least, on governmental notions of the public good.  In respect  of  rights  to  freedom  of  expression,  privacy, freedom of religion, and freedom from discrimination, for example, ‘one reason for affording special protection to individual  interests  is  that  thereby  one also  protects  a collective good,  an aspect  of  a public  culture’.   At  the same time, certain social goods are needed if freedom is to have value.  Freedom is useful only if the social and economic structure of society provides a sufficient range of  choices  to  allow people’s  capacity  for  choice  to  be exercised.  Accordingly, freedom is seen as a collective rather than an individual good.  This may constrain the range of freedoms and the purposes to which they may morally  be  put:  a  decision  to  make  a  freedom into  a constitutional  right  is  an  expression  of  the  collective political  culture  of  a  community.   This  thesis  does  not make the morality of freedom depend on people striving for perfection: individuals may not always, or ever, think about the moral consequences of their decisions, or may consciously make decisions which do not make for self-

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improvement.   Instead,  it  looks  only  for  a  social commitment  to  the  idea  of  the  moral  significance  of individual choice.  Raz marries the idea of the individual to that of society by recognizing that individual freedom of choice is contingent on social arrangements.”

97) In his Article, Life’s Dominion, Ronald Dworkin, while building the

hypothesis on dignity concept, exhorts that people must decide

about their own death, or someone else’s in three main kind of

situations, namely, (i)  conscious and competent: it is a situation

where a person is suffering from some serious illness because of

which  he  is  incapacitated  but  he  is  still  conscious  and  also

competent to decide about his fate, he should be given a choice

to decide as to whether he wants to continue to get the treatment;

(ii)  unconscious:  where  the  patient  is  unconscious  and  dying,

doctors are often forced to decide whether to continue life support

for him or not under certain circumstances relatives have to take

a  decision.   However,  at  times,  unconscious  patients  are  not

about to die.  At the same time, they are either in coma or in PVS.

In either case, they are conscious.  In such a situation, where

recovery is impossible, it should be left to the relatives to decide

as to  whether  they want  the patient  to  remain on life  support

(ventilator,  etc.);  and  (iii)  conscious  but  incompetent.   These

factors may support,  what is known as  ‘living will’ or  ‘advance

directive’, which aspect is dealt with specifically while answering

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the second issue.

98) When  a  person  is  undergoing  untold  suffering  and  misery

because of the disease with which he is suffering and at times

even unable to bear the same, continuing to put him on artificial

machines to prolong his vegetable life would amount to violating

his dignity.  These are the arguments which are raised by some

jurists and sociologists54.

99) There is  a related,  but  interesting,  aspect of  this  dignity  which

needs to be emphasised.  Right to health is a part of Article 21 of

the Constitution.  At the same time, it is also a harsh reality that

everybody is not able to enjoy that right because of poverty etc.

The State is not in a position to translate into reality this right to

health for all citizens.  Thus, when citizens are not guaranteed the

right to health, can they be denied right to die in dignity?

100) In the context of euthanasia, ‘personal autonomy’ of an individual,

as  a  part  of  human  dignity,  can  be  pressed  into  service.   In

National  Legal  Services  Authority   v.  Union  of  India  and

Others55, this Court observed:

“Article  21,  as  already  indicated,  guarantees  the protection of “personal autonomy” of an individual. In

54 (I) Morris: Voluntary Euthanasia (ii) LW Sumner: Dignity through Thick and Thin, in Sebastian Muders, “Human Dignity and  

Assisted Death (Oxford University Press, 2017). 55 (2014) 5 SCC 438

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Anuj Garg v.  Hotel  Assn.  of  India [(2008) 3 SCC 1] (SCC  p.  15,  paras  34-35),  this  Court  held  that personal autonomy includes both the negative right of not  to  be  subject  to  interference by  others  and the positive right  of  individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is  an  integral  part  of  personal  autonomy  and  self- expression  and  falls  within  the  realm  of  personal liberty guaranteed under Article 21 of the Constitution of India.”

101) In addition to personal autonomy, other facets of human dignity,

namely, ‘self expression’ and ‘right to determine’ also support the

argument that it is the choice of the patient to receive or not to

receive treatment.

102) We may again mention that talking particularly about certain hard

cases involving moral overtones,  Dworkin  specifically discussed

the issues pertaining to abortion and euthanasia with emphasis

that both supporters and critics accept the idea of sanctity of life.

Decisions  regarding  death  –  whether  by  abortion  or  by

euthanasia  –  affect  our  human  dignity.   In  Dworkin's opinion,

proper recognition of human dignity leads to the recognition of the

freedom of the individual.  Freedom is a necessary condition for

self worth.  Dworkin adds:  “Because we cherish dignity, we insist

on  freedom  .…  Because  we  honour  dignity,  we  demand

democracy.”56

56 Ibid., at 239

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103) Dignity is, thus, the core value of life and dying in dignity stands

recognised  in  Gian  Kaur.   It  becomes  a  part  of  right  of  self

determination.

104) The  important  message  behind  Dworkin’s  concept  of  human

dignity can be summarised in the following manner:

(1) He describes belief in individual human dignity as the most

important feature of  Western political  culture giving people the

moral  right  “to confront  the most fundamental  questions about

the meaning and value of their own lives”57.

(2) In an age when people value their independence and strive

to live independent and fulfilled lives it is important “that life ends

appropriately,  that  death keeps faith  with the way we want  to

have lived”58.

(3) Death  is  “not  only  the  start  of  nothing  but  the  end  of

everything”59   

and,  therefore,  it  should  be  accomplished  in  a

manner compatible with the ideals sought during life.

105) Taking into consideration the conceptual aspects of dignity and

the manner  in  which it  has been judicially  adopted by various

judgments,  following elements of  dignity can be highlighted (in

57  R Dworkin, Life’s Dominion (London, Harper-Collins, 1993) at 166.  58  R Dworkin, Life’s Dominion (London, HarperCollins, 1993) at 179. 59  Ibid.

Writ Petition (Civil) No. 215 of 2005 Page 76 of 112

the context of death with dignity):

(I)  Encompasses  self-determination;  implies  a  quality  of  life

consistent with the ability to exercise self-determined choices;

(ii) Maintains/ability to make autonomous choices; high regard

for individual autonomy that is pivotal to the perceived quality of a

person’s life;

(iii)  Self-control (retain a similar kind of  control  over dying as

one has exercised during life – a way of achieving death with

dignity);

(iv) Law of consent: The ability to choose - orchestrate the timing

of their own death;

(v)  Dignity  may  be  compromised  if  the  dying  process  is

prolonged and involves becoming incapacitated and dependent;  

(vi)  Respect for  human dignity  means respecting the  intrinsic

value of human life;

(vii)  Avoidance of dependency;

(viii)  Indefinite continuation of futile physical life is regarded as

undignified;  

(ix) Dignity commands emphatic respect60;

 Reason  and  emotion  are  both  significant  in  treatment

decisions, especially at the end of life where compassion

60 A Kolnai, “Dignity”, in R S Dillon (ed.) Dignity, Character, and Self-Respect (London, Routledge, 1995) 53–75, at 55.  

Writ Petition (Civil) No. 215 of 2005 Page 77 of 112

is a natural response to appeals made on the basis of

stifled self-determination;

 Compassion  represents  a  collision  of  “imaginative

insight” and empathy; and

 Compassion  is  here  distinguished  from  pity,  which  is

regarded  as  “inappropriate  to  the  dignity  of  the

autonomous  person,  especially  its  overtones  of

paternalism”,61   

because  compassion  is  believed  to

provoke  an  active,  and  by  implication  positive,

response.62

(x)  Dignity  engenders  a  sense  of  serenity  and

powerfulness, fortified by “qualities of composure, calmness,

restraint,  reserve,  and  emotions  or  passions  subdued  and

securely controlled without being negated or dissolved”63;  and

(x)  Observer’s Dignity aspect:

 a person possessed of dignity at the end of life, might

induce  in  an  observer  a  sense  of  tranquility  and

admiration  which  inspires  images  of  power  and  self-

assertion through restraint and poised composure; and

 dignity clearly does play a valuable role in contextualizing

61 R S Downie, K S Calman,  Healthy Respect: Ethics in Health Care  (Oxford, Oxford University Press, 1994) at 51–53.

62  Ibid. 63  A Kolnai, “Dignity”, in R S Dillon (ed.) Dignity, Character, and Self-Respect (London, Routledge, 1995)

53–75, at 56.

Writ Petition (Civil) No. 215 of 2005 Page 78 of 112

people’s perceptions of death and dying, especially as it

appears  to  embody  a  spirit  of  self-determination  that

advocates of voluntary euthanasia crave.

106) Once we examine the matter  in  the aforesaid perspective,  the

inevitable conclusion would be that passive euthanasia and death

with dignity are inextricably linked, which can be summed up with

the following pointers:

(i) The opportunity  to  die  unencumbered by the intrusion of

medical  technology  and  before  experiencing  loss  of

independence  and  control,  appears  to  many  to  extend  the

promise  of  a  dignified  death.  When  medical  technology

intervenes  to  prolong  dying  like  this  it  does  not  do  so

unobtrusively;

(ii) Today  many  patients  insist  on  more  than  just  a  right  to

health  care in  general.   They seek  a  right  to  choose specific

types of  treatment,  able to retain control  throughout the entire

span  of  their  lives  and  to  exercise  autonomy  in  all  medical

decisions concerning their welfare and treatment;

(iii) A dreadful,  painful  death  on  a  rational  but  incapacitated

terminally ill patient are an affront to human dignity.

107) The  aforesaid  discussion  takes  care  of  those  who  oppose

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euthanasia on moral and ethical principles.  We feel that at least

the  case  for  passive  euthanasia  is  made  out.   Certain  moral

dilemma as to what is the exact stage when such a decision to

withdraw  medical  support,  would  still  remain.   At  times,  a

physician would be filled with profound ethical uncertainties when

a person is suffering unbearable pain and agony, the question

would be as to whether  such suffering has reached the stage

where it is incurable and, therefore, decision should be taken to

allow such person to pass away in peace and dignity of hastening

the process of death or the situation may be reversible,  though

chances  thereof  are  far  remote.   Dr.  R.R.  Kishore,  who

possesses medical as well as law degree at the same time, lists

the following  questions  which  a  physician  will  have  to  answer

while taking such a decision:

(i) Is it professionally permissible to kill or to help in dying a

terminally ill and incurable patient?

(ii) How does such a decision affect the person concerned and

the society in general?

(iii) What are the values that are attracted in such situations?

(iv) How to assess that the individual’s urge to die is based on

cool  and  candid  considerations  and  is  not  an  impulsive  act

reflecting  resources  constraints,  inadequate  care  or

Writ Petition (Civil) No. 215 of 2005 Page 80 of 112

discrimination?

(v) What are the practical risks involved in case a decision is

taken to terminate the life of the patient?

(vi) Where should the physician look for guidance in situations

of such moral dilemma?

(vii) Does the physician’s or the patient’s religion play any role in

decision making process?

108) What  are  the parameters  to  be kept  in  mind and the dangers

which may be encountered while taking decision on the aforesaid

questions, is beautifully  explained by  Dr. R.R. Kishore64 in the

following words:

“Contemporary world order is founded on reason, equity and  dignity.   Reason  envisages  definition  and distinctness.  What is the distinction between ‘killing’ and ‘letting  die’?  or,  in  other  words,  what  is  the  difference between ‘causing death’ and ‘denial to prevent death’? Also, can the prolongation of life be ever ‘unnecessary’? And, if  yes, what are the criteria to determine the life’s worth?   Equity  mandates  equality  of  opportunity, balancing  of  interests  and  optimization  of  resources. This means addressing questions such as; for how long one should live?  Who should die first? What should be the  ideal  method  of  terminating  one’s  life?   Dignity imposes obligation to preserve life at all costs and in the4 event of an individual’s conscious expression to end his life,  contemplates  a  valid  purpose  and  truly  informed consent.  Deo0ntologically, in the context of sanctity of life,  there is  not  much of  conflict  between secular  and religious concepts as both consider life  as sacred and worthy of protection.  But, the differences appear in the face of application of advanced technology which has the

64  Dr.R.R. Kishore,MD, LLB – End of Life Issues and the Moral Certainty: A Discovery through  Hinduism

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potential of keeping alive the terminally ill and incurable persons  who  would  have  otherwise  died.   Since  the technological  resources  are  not  unlimited  prioritization becomes  a  functional  imperative,  bringing  in  the concepts  of  worth  and  utility.   In  other  words,  the questions like whose life is more precious and worthy of protection have to be answered.   This  is  a  formidable task, attracting multiple and diverse perspectives, moral as  well  as  strategic,  leading  to  heterogeneous approaches  and  despite  agreement  on  fundamental issue of value of life the decisions may seem to be at variance.   A  fair  and  objective  decision  in  such circumstances  may  be  a  difficult  exercise  and  any liberalization is fraught with following apprehensions:

 Danger of abuse  Enhanced vulnerability to the poor  Slippery slope outcome  Weakening of protection of life notions

Any ethical model governing end of life decisions should therefore be impervious to all extraneous forces such as, the  utilitarian  bias,  poverty,  and  subjectivity  i.e., inadequate  appreciation  of  socio-economic,  family, cultural and religious perspectives of the individual.  The poor and resourceless are likely to face deeper and more severe pain and agony before dying and as such may request  their  physicians  to  terminate  their  lives  much earlier than those who have better access to resource. This  poverty-death  nexus makes  an objective  decision difficult, constituting a formidable challenge to committed physicians and others involved with the end of life issues. Taking a decision on case to case basis, depending on individual’s  material  constraints  and  inadequacies, enhances the problem rather than solving it, as it reduces the  life  from  an  eternal  bliss  to  a  worldly  award, subjecting its preservation to socio-economic exigencies. For  these reasons many  feel  that  the  safer  and more respectable course to improve death is to provide good palliative  care  and  emotional  support  rather  than assisting  the  end  of  life.   The  moral  ambiguities notwithstanding, decision to assist or not to assist the act of dying by correctly interpreting the patient’s wish and the  accompanying  circumstances,  including  the  moral dictates, constitutes a practical problem. Let us see how Hinduism addresses these issues.”

Writ Petition (Civil) No. 215 of 2005 Page 82 of 112

109) In  the article, End of Life Issues and the Moral Certainty65, the

author after posing the moral dilemma, noted above, discusses

the approach to find the solutions.

110) I had indicated at the earlier stage that Hippocratic Oath, coupled

with  ethical  norms of  medical  profession,  stand  in  the  way of

euthanasia.   It  brings  about  a  situation of  dilemma insofar  as

medical practitioner is concerned.  On the one hand his duty is to

save the life of a person till he is alive, even when the patient is

terminally ill and there are no chances of revival.  On the other

hand, the concept of dignity and right to bodily integrity,  which

recognises legal right of autonomy and choice to the patient (or

even to his relations in certain circumstances, particularly when

the patient  is unconscious or incapacitated to take a decision)

may lead to exercising his right of euthanasia.

111) Dignity implies, apart from a right to life enjoyment of right to be

free  of  physical  interference.   At  common  law,  any  physical

interference with a person is, prima facie, tortious.  If it interferes

with  freedom  of  movement,  it  may  constitute  a  false

imprisonment.  If it involves physical touching, it may constitute a

battery.  If it puts a person in fear of violence, it may amount to an

65 See Footnote 63.

Writ Petition (Civil) No. 215 of 2005 Page 83 of 112

assault.   For  any of  these wrongs,  the victim may be able  to

obtain damages.

112) When  it  comes  to  medical  treatment,  even  there  the  general

common law principle is that any medical treatment constitutes a

trespass  to  the  person  which  must  be  justified,  by  reference

either to the patient’s consent or to the necessity of saving life in

circumstances where the patient is unable to decide whether or

not to consent.

113) Rights with regard to medical treatment fall  essentially into two

categories:  first,  rights  to  receive  or  be  free  of  treatment  as

needed  or  desired,  and  not  to  be  subjected  involuntarily  to

experimentation  which,  irrespective  of  any  benefit  which  the

subjects  may  derive,  are  intended  to  advance  scientific

knowledge and benefit people other than the subject in the long

term; secondly, rights connected incidentally with the provision of

medical  services,  such  as rights  to  be  told  the truth  by  one’s

doctor.

114) Having regard to the aforesaid right of the patients in common

law, coupled with the dignity and privacy rights, it can be said that

passive euthanasia, under those circumstances where patient is

in PVS and he is terminally ill, where the condition is irreversible

Writ Petition (Civil) No. 215 of 2005 Page 84 of 112

or where he is braindead, can be permitted.  On the aforesaid

reasoning,  I  am  in  agreement  with  the  opinion  of  the  other

members  of  this  Bench  in  approving  the  judgment  in  Aruna

Ramachandra Shanbaug.

(D) Economics of Euthanasia

115) This is yet another reason for arriving at the same conclusion.

116) When we  consider  the  matter  of  euthanasia  in  the  context  of

economic principles, it  becomes another reason to support the

aforesaid conclusion.  This aspect can be dealt with in two ways.

117) First, because of rampant poverty where majority of the persons

are not able to afford health services, should they be forced to

spend  on  medical  treatment  beyond  their  means  and  in  the

process compelling them to sell their house property, household

things  and  other  assets  which  may  be  means  of  livelihood

Secondly,  when  there  are  limited  medical  facilities  available,

should a major part thereof be consumed on those patients who

have no chances of  recovery?  In Economic & Political  Weekly

dated February 10, 2018, it is reported:

“India  is  one of  the worst  India  is  one of  the worst countries to die in, especially for those suffering from terminal illnesses. In 2015, the Economist Intelligence Unit  brought  out  a  Quality  of  Death  Index,  which ranked  India  67th  out  of  the  80  countries  it  had

Writ Petition (Civil) No. 215 of 2005 Page 85 of 112

surveyed. In December 2017, a joint report published by the World Health Organization and the World Bank revealed  that  49  million  Indians  are  pushed  into poverty  every  year due to out-of-pocket  expenditure on healthcare,  accounting for  half  of  the 100 million who  meet  such  a  fate  worldwide.  India’s  Central Bureau of Health Intelligence data puts the figure even higher.  This  unconscionable  situation  is  the  direct outcome of the sorry state of our public health system. India’s spending on health is among the lowest in the world. The  Economic Survey 2017–18shows that the government spends only 1.4% of its gross domestic product  (GDP) on health.  The 2017 National  Health Policy,  which  otherwise  exudes  piety  in  its abstractions,  aims  to  increase  government expenditure to 2.5% of GDP by 2025. By all accounts, this is too little too late.

The situation improves only marginally for the better- off sections. With over 90% of intensive care units in the private healthcare sector, it is largely this section that can access expensive treatments. But this does not improve end-of-life situations for them. Awareness and  training  in  palliative  care  remain  grossly inadequate.  For  those  making  profit  in  the  private healthcare sector, there is no incentive to provide such treatment.  Instead,  treatment  for  the  terminally  ill continues  to  involve  prolonging  life  with  expensive, invasive, and painful treatment with very little concern for the patients themselves or their families.”

118) Some of the apprehensions expressed in ethical debates about

euthanasia  can  be  answered  when  the  ethical  debate  about

euthanasia  is  not  divorced from an economic consideration  of

cost and benefits of euthanasia to society.  P.R. Ward66 argues

that ethics is concerned with individuals and, therefore, does not

take into account the societal perspective.  On the other hand,

economics  is  sought  to  be  concerned  with  relative  costs  and

66 Healthcare rationing: can we afford to ignore euthanasia? Health Services Management  Research 1997; 10; 32-41

Writ Petition (Civil) No. 215 of 2005 Page 86 of 112

benefits to society and can help to determine if euthanasia is of

benefit to the majority in society.  According to him, the net benefit

to the individual (from ethical considerations) can be compared

with the net benefit  to society (from economics), and that both

can be included in an overall decision rule for whether or not to

legalise  euthanasia.   Ward  draws  on  the  health  economics

literature  (for  example,  Mooney67)  to  suggest  that  a  positive

answer  to  this  question  ins  implicit  in  many  health-rationing

decisions and is applicable to the euthanasia decision.  He also

asserts  that  ‘introducing  an  economic  perspective  is  not

incompatible with ethical issues’.

119) No doubt, protagonists of ethical aspects of euthanasia oppose

the aforesaid view.  According to them, euthanasia also involves

the specific act of a medical professional killing a patient and the

ethical status of this act has implications both for individuals and

for society.  Their counter argument, therefore, is that to be able

to make an economic assessment of euthanasia, we would have

to be able to evaluate the cost and benefits of this act of killing.

However, even they accept that if the act of killing by euthanasia

is  ethically  acceptable  in  some  circumstances,  it  would  be

appropriate to consider the net benefits of the act to the individual

67 Mooney, G.  The Valuation of Human Life. London: Macmillan Press, 1977

Writ Petition (Civil) No. 215 of 2005 Page 87 of 112

patient along with the wider economic considerations68.   In the

instant case, we have come to the conclusion that under certain

circumstances,  i.e.  when  the  patient  is  in  PVS  or  braindead/

clinically  dead,  at  least  passive  euthanasia  would  even  be

ethically acceptable, on the application of doctrine of dignity.  In

such a situation, the economic considerations would strengthen

the aforesaid conclusion.

120) At  times,  for  deciding  legal  issues,  economic  analysis  of  law

assumes  importance69.   It  is  advocated  that  one  of  the  main

reasons which should prompt philosophers of law to undertake

economic analysis seriously is that the most basic notion in the

analysis  –  efficiency  or  Pareto  optimality70 -  was  originally

introduced to help solve a serious objection to widely held moral

theory, utilitarian.  Utilitarians hold that the principle of utility is the

criterion of the right conduct.  If one has to evaluate policies in

virtue of their effect on individual welfare or utility, one norm of

utility has to be compared with that of another.  We may clarify

that this economic principle has been applied in a limited sense

only  as  a  supporting  consideration  with  the  aim  to  promote

68 See – Economics and Euthanasia by Stephen Heasell, Department of Economics and Politics,  Nottingham Trent University, and David Paton, Nottingham University Business School.

69 This  aspect  is  discussed  in  some detail  by  this  Court  in  Shivashakti  Sugars  Ltd.  v.  Shree Renuka Sugar Limited and Other, (2017) 7 SCC 729

70 Jeffrie G. Murphy & Jules L. Coleman: Philosophy of Law (An introduction to Jurisprudence)

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efficiency.

121) If  we  understand  correctly  the  logic  behind  opposition  to

euthanasia, particularly,  passive euthanasia, it  proceeds on the

basis that third person should not have right to take a decision

about one’s life and, more importantly, it is difficult to ascertain, at

a particular stage, as to whether time has come to take such a

decision, namely, withdraw the medical support.  Insofar as latter

aspect  is  concerned,  we  feel  that  in  Aruna  Ramachandra

Shanbaug,  this  Court  has  taken  due  care  in  prescribing  the

circumstances,  namely,  when  the  person  is  in  a  Permanent

Vegetative State (PVS) with no reversible chance or when he is

‘brain  dead’  or  ‘clinically  dead’.   Insofar  as  first  aspect  is

concerned, the subject matter of the present writ petition takes

care of that.

THE SECOND ISSUE

122) With this,  we advert  to the second question formulated above,

which is as under:

Whether a ‘living will’ or ‘advance directive’ should

be legally recognised and can be enforced?  If  so,

under what circumstances and what precautions are

required while permitting it?

123) In this writ  petition, the petitioner has sought a direction to the

Writ Petition (Civil) No. 215 of 2005 Page 89 of 112

respondents to adopt suitable procedures to ensure that persons

of deteriorated health or terminally ill should be able to execute a

document  titled  ‘living  will  and/or  advance authorisation’ which

can be  presented  to  the  hospital  for  appropriate  action  in  the

event of the executant being admitted to the hospital with serious

illness which may threaten termination of life of the executant.  In

nutshell,  the petitioner  wants that  citizens should have right  to

decide in advance not to accept any kind of treatment at a stage

when they  are  terminally  ill.   Expressing  this  in  advance in  a

document is known as ‘living will’ or ‘advance directive’, whereby

the aforesaid self-determination of the person is to be acted upon

when he reaches PVS or his brain dead/clinically dead.   

124) It  is  an  undisputed  that  Doctors’  primary  duty  is  to  provide

treatment  and save life but not in the case when a person has

already expressed his desire of not being subjected to any kind of

treatment.  It  is a common law right of people, of any civilized

country, to refuse unwanted medical treatment and no person can

force him/her  to  take any medical  treatment  which the person

does not desire to continue with.  The foundation of the aforesaid

right  has  already  been  laid  down  by  this  Court  in  Aruna

Ramachandra  Shanbaug while  dealing  with  the  issue  of

Writ Petition (Civil) No. 215 of 2005 Page 90 of 112

‘involuntary passive euthanasia’.  To quote:

“66.  Passive  euthanasia  is  usually  defined  as withdrawing  medical  treatment  with  a  deliberate intention of causing the patient's death. For example, if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available, is passive euthanasia. Similarly, if  a patient is in coma or on a heart-lung machine,  withdrawing of  the machine will ordinarily  result  in  passive  euthanasia.  Similarly  not giving life-saving medicines like antibiotics in certain situations may result in passive euthanasia. Denying food to a person in coma or PVS may also amount to passive euthanasia.

67. As already stated above, euthanasia can be both voluntary  or  non-voluntary.  In  voluntary  passive euthanasia a person who is capable of  deciding for himself decides that he would prefer to die (which may be for various reasons e.g. that he is in great pain or that the money being spent on his treatment should instead be given to his family who are in greater need, etc.), and for this purpose he consciously and of his own free will refuses to take life-saving medicines. In India, if a person consciously and voluntarily refuses to take life-saving medical treatment it is not a crime...

xxx xxx xxx

78.  ... First, it is established that the principle of self- determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound  mind  refuses,  however  unreasonably,  to consent to treatment or care by which his life would or might  be  prolonged,  the  doctors  responsible  for  his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so [see Schloendorff v. Society of New York Hospital [211 NY  125  :  105  NE  92  (1914)]  ,  NE  at  p.  93,  per Cardozo,  J.;  S.  v.  McC.  (Orse  S.)  and  M  (D.S. Intervener)  [1972 AC 24 (HL)],  W  v.  W; AC at p. 43, per Lord Reid; and Sidaway v. Board of Governors of the Bethlem Royal Hospital  [1985 AC 871 : (1985) 2 WLR 480 : (1985) 1 All ER 643 (HL)] AC at p. 882, per Lord  Scarman].  To  this  extent,  the  principle  of  the sanctity  of  human life  must  yield  to  the  principle  of self-determination [see (Court  of  Appeal  transcript  in

Writ Petition (Civil) No. 215 of 2005 Page 91 of 112

the present case, at p. 38 F per Hoffmann, L.J.)], and, for  present  purposes  perhaps  more  important,  the doctor's duty to act in the best interests of his patient must likewise be qualified. On this basis, it has been held  that  a  patient  of  sound  mind  may,  if  properly informed,  require  that  life  support  should  be discontinued: see Nancy B.  v.  Hotel Dieu de Quebec [(1992) 86 DLR (4th) 385 (Que SC)] . Moreover the same principle applies where the patient's refusal to give  his  consent  has  been  expressed  at  an  earlier date,  before  he  became  unconscious  or  otherwise incapable  of  communicating  it;  though  in  such circumstances  especial  care  may  be  necessary  to ensure that the prior refusal of consent is still properly to  be  regarded  as  applicable  in  the  circumstances which have subsequently occurred [see e.g. T. (Adult: Refusal of Treatment), In re [1993 Fam 95 : (1992) 3 WLR 782 : (1992) 4 All ER 649 (CA)] ]. I wish to add that, in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so. It  is simply  that  the patient  has,  as  he  is  entitled  to  do, declined to consent to treatment which might or would have the effect of prolonging his life, and the doctor has,  in  accordance with  his  duty,  complied  with  his patient's wishes...”

125) The aforesaid principle has also been recognised by this Court in

its Constitution Bench judgment passed in Gian Kaur wherein it

was held that although ‘Right to Life’ under Article 21 does not

include ‘Right to Die’, but ‘Right to live with dignity’ includes ‘Right

to die with dignity’.  To quote:

“24.  Protagonism  of  euthanasia  on  the  view  that existence in persistent vegetative state (PVS) is not a benefit  to  the  patient  of  a  terminal  illness  being unrelated  to  the  principle  of  “sanctity  of  life”  or  the “right  to  live  with  dignity”  is  of  no  assistance  to determine the scope of Article 21 for deciding whether the  guarantee  of  “right  to  life”  therein  includes  the “right to die”. The “right to life” including the right to live

Writ Petition (Civil) No. 215 of 2005 Page 92 of 112

with human dignity would mean the existence of such a right up to the end of natural life. This also includes the  right  to  a  dignified life  up to  the  point  of  death including  a  dignified  procedure  of  death.  In  other words, this may include the right of  a dying man to also die with dignity when his life is ebbing out. But the “right to die” with dignity at the end of life is not to be confused  or  equated  with  the  “right  to  die”  an unnatural  death  curtailing  the  natural  span  of  life.

25.  A question may arise,  in  the context  of  a dying man who is terminally ill or in a persistent vegetative state  that  he may be permitted to terminate it  by  a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the “right to die” with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. The debate  even  in  such  cases  to  permit  physician- assisted  termination  of  life  is  inconclusive.  It  is sufficient to reiterate that the argument to support the view of permitting termination of life in such cases to reduce the period of  suffering during the process of certain natural death is not available to interpret Article 21 to  include therein  the  right  to  curtail  the  natural span of life.”

 126) In fact, the Law Commission of India was asked to consider on

the  feasibility  of  making  legislation  on  euthanasia,  taking  into

account the earlier 196th Report of the Law Commission as well

as  the  judgment  of  this  Court  in  Aruna  Ramachandra

Shanbaug.  In August, 2012, Law Commission came out with a

detailed 241st Report on the issue of passive euthanasia, wherein

it approved the concept of Right to Self Determination also.  The

Law Commission made some important observations in its report

Writ Petition (Civil) No. 215 of 2005 Page 93 of 112

such as:

“2.4 The following pertinent observations made by the then Chairman of the Law Commission in the forwarding letter dated 28 August 2006 addressed to the Hon’ble Minister are extracted below:  

“A  hundred  years  ago,  when  medicine  and medical  technology  had  not  invented  the artificial  methods  of  keeping  a  terminally  ill patient  alive  by  medical  treatment,  including by means of ventilators and artificial feeding, such  patients  were  meeting  their  death  on account  of  natural  causes.  Today,  it  is accepted, a terminally ill person has a common law right to refuse modern medical procedures and allow nature to take its own course, as was done in good old times. It is well-settled law in all countries that a terminally ill patient who is conscious  and  is  competent,  can  take  an ‘informed decision’ to die a natural death and direct  that  he  or  she  be  not  given  medical treatment which may merely prolong life. There are currently a large number of such patients who have reached a stage in their illness when according  to  well-informed  body  of  medical opinion, there are no chances of recovery. But modern  medicine  and  technology  may  yet enable  such  patients  to  prolong  life  to  no purpose and during such prolongation, patients could go through extreme pain and suffering. Several such patients prefer palliative care for reducing pain and suffering and do not  want medical  treatment  which  will  merely  prolong life or postpone death.”

xxx xxx xxx

5.2 The 196th Report of the Law Commission stated the  fundamental  principle  that  a  terminally  ill  but competent  patient  has  a  right  to  refuse  treatment including  discontinuance of  life  sustaining  measures and the same is binding on the doctor, “provided that the decision of the patient is an ‘informed decision’ ”. ‘Patient’ has been defined as a person suffering from terminal  illness.  “Terminal  illness”  has  also  been defined  under  Section  2  (m).  The  definition  of  a ‘competent  patient’  has  to  be  understood  by  the definition  of  ‘incompetent  patient’.  ‘Incompetent

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patient’ means a patient who is a minor or a person of unsound mind or  a patient  who is  unable to weigh, understand or retain the relevant information about his or  her  medical  treatment  or  unable  to  make  an ‘informed  decision’  because  of  impairment  of  or  a disturbance in the functioning of the mind or brain or a person who is  unable  to  communicate the informed decision regarding medical treatment through speech, sign or language or any other mode (vide Section 2(d) of  the  Bill,  2006).  “Medical  Treatment”  has  been defined  in  Section  2(i)  as  treatment  intended  to sustain, restore or replace vital functions which, when applied  to  a  patient  suffering  from  terminal  illness, would serve only to prolong the process of dying and includes life  sustaining treatment  by way of  surgical operation or  the administration of  medicine etc.  and use  of  mechanical  or  artificial  means  such  as ventilation, artificial nutrition and cardio resuscitation. The  expressions  “best  interests”  and  “informed decision” have also been defined in the proposed Bill. “Best  Interests”,  according  to  Section  2(b),  includes the best interests of both on incompetent patient and competent  patient  who  has  not  taken  an  informed decision  and  it  ought  not  to  be  limited  to  medical interests  of  the  patient  but  includes  ethical,  social, emotional and other welfare considerations. The term ‘informed decision’ means, as per Section 2 (e) “the decision  as  to  continuance  or  withholding  or withdrawing medical treatment taken by a patient who is competent and who is, or has been informed about – (i) the nature of his or her illness, (ii) any alternative form  of  treatment  that  may  be  available,  (iii)  the consequences of  those forms of  treatment,  and (iv) the consequences of remaining untreated.

xxx xxx xxx

5.8 The Law Commission of India clarified that where a competent  patient  takes  an  ‘informed  decision’ to allow nature to have its course, the patient is, under common law, not guilty of attempt to commit suicide (u/s  309  IPC)  nor  is  the  doctor  who  omits  to  give treatment, guilty of abetting suicide (u/s 306 IPC) or of culpable homicide (u/s 299 read with Section 304 of IPC).

xxx xxx xxx

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7.2 In this context, two cardinal principles of medical ethics  are  stated  to  be  patient  autonomy  and beneficence (vide P. 482 of SCC in Aruna’s case):

1.  “Autonomy means  the  right  to  self-determination, where the informed patient has a right to choose the manner  of  his  treatment.  To  be  autonomous,  the patient  should  be  competent  to  make  decision  and choices. In the event that he is incompetent to make choices, his wishes expressed in advance in the form of a living will, OR the wishes of surrogates acting on his behalf (substituted judgment) are to be respected. The  surrogate  is  expected  to  represent  what  the patient  may  have  decided  had  she/she  been competent, or to act in the patient’s best interest.

2. Beneficence is acting in what (or judged to be) in the patient’s best interest. Acting in the patient’s best interest means following a course of action that is best for  the patient,  and is  not  in  influenced by personal convictions, motives or other considerations……..

xxx xxx xxx

11.2 The discussion in  the foregoing paras and the weighty opinions of  the Judges of  highest  courts as well as the considered views of Law Commission (in 196th report)  would furnish an answer to the above question in clearest terms to the effect that legally and constitutionally, the patient (competent) has a right to refuse  medical  treatment  resulting  in  temporary prolongation of life. The patient’s life is at the brink of extinction. There is no slightest hope of recovery. The patient undergoing terrible suffering and worst mental agony  does  not  want  his  life  to  be  prolonged  by artificial means. She/he would not like to spend for his treatment which is practically worthless. She/he cares for  his  bodily  integrity  rather  than  bodily  suffering. She/he would not  like to  live  like a  ‘cabbage’ in  an intensive care unit  for  some days or  months till  the inevitable death occurs. He would like to have the right of  privacy  protected  which  implies  protection  from interference and bodily invasion. As observed in Gian Kaur’s  case,  the  natural  process  of  his  death  has already  commenced  and  he  would  like  to  die  with peace and dignity. No law can inhibit him from opting

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such  course.  This  is  not  a  situation  comparable  to suicide,  keeping  aside  the  view  point  in  favour  of decriminalizing the attempt to suicide. The doctor or relatives cannot compel him to have invasive medical treatment by artificial means or treatment. If there is forced medical intervention on his body, according to the decisions cited supra (especially  the remarks of Lord Brown Wilkinson in Airdale’s case), the doctor / surgeon is guilty of ‘assault’ or ‘battery’. In the words of Justice Cardozo, “every human being of adult years and sound mind has a right to determine what shall be done with his own body and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” Lord Goff in Airedale’s case places the right to self determination on  a  high  pedestal.  He  observed  that  “in  the circumstances such as this, the principle of sanctity of human  life  must  yield  to  the  principle  of  self determination and the doctor’s duty to act in the best interests of the patient must likewise be qualified by the wish of the patient.” The following observations of Lord Goff deserve particular notice:

“I wish to add that, in cases of this kind, there is no  question  of  the  patient  having  committed suicide, nor therefore of the doctor having aided or abetted him in doing so. It  is simply that the patient has,  as he is entitled to do, declined to consent to treatment which might or would have the  effect  of  prolonging  his  life,  and the  doctor has,  in accordance with his duty,  complied with his patient's wishes.”  

 127) And  finally,  the  Law  Commission  in  its  241st Report  gave

Summary of Recommendations as under:

“14. Summary of Recommendations  

14.1 Passive euthanasia, which is allowed in many countries,  shall  have  legal  recognition  in  our country  too  subject  to  certain  safeguards,  as suggested  by  the  17th  Law Commission  of  India and  as  held  by  the  Supreme  Court  in  Aruna Ramachandra’s case [(2011) 4 SCC 454)]. It is not objectionable from legal and constitutional point of

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view.

14.2  A  competent  adult  patient  has  the  right  to insist  that  there  should  be  no  invasive  medical treatment  by  way  of  artificial  life  sustaining measures / treatment and such decision is binding on the doctors / hospital attending on such patient provided that the doctor is satisfied that the patient has  taken  an  ‘informed  decision’  based  on  free exercise of his or her will. The same rule will apply to  a  minor  above  16  years  of  age  who  has expressed  his  or  her  wish  not  to  have  such treatment provided the consent has been given by the major spouse and one of the parents of such minor patient.

14.3 As regards an incompetent patient such as a person  in  irreversible  coma  or  in  Persistent Vegetative State and a competent patient who has not  taken  an  ‘informed  decision’,  the  doctor’s  or relatives’  decision  to  withhold  or  withdraw  the medical treatment is not final.  The relatives, next friend,  or  the  doctors  concerned  /  hospital management shall get the clearance from the High Court  for  withdrawing  or  withholding  the  life sustaining  treatment.  In  this  respect,  the recommendations  of  Law  Commission  in  196th report is somewhat different. The Law Commission proposed an enabling provision to move the High Court.

14.4  The  High  Court  shall  take  a  decision  after obtaining the opinion of a panel of  three medical experts  and  after  ascertaining  the  wishes  of  the relatives of the patient. The High Court, as parens patriae  will  take  an  appropriate  decision  having regard to the best interests of the patient.

14.5  Provisions  are  introduced  for  protection  of medical practitioners and others who act according to the wishes of the competent patient or the order of  the  High  Court  from  criminal  or  civil  action. Further, a competent patient (who is terminally ill) refusing medical treatment shall not be deemed to be guilty of any offence under any law.

14.6 The procedure for  preparation of  panels  has been  set  out  broadly  in  conformity  with  the recommendations  of  17th  Law  Commission. Advance  medical  directive  given  by  the  patient

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before his illness is not valid.

14.7  Notwithstanding  that  medical  treatment  has been withheld or withdrawn in accordance with the provisions referred to above, palliative care can be extended  to  the  competent  and  incompetent patients. The Governments have to devise schemes for palliative care at affordable cost to terminally ill patients undergoing intractable suffering.

14.8 The Medical Council of India is required issue guidelines  in  the  matter  of  withholding  or withdrawing of medical treatment to competent or incompetent  patients  suffering  from  terminal illness.

14.9  Accordingly,  the  Medical  Treatment  of Terminally  Ill  Patients  (Protection  of  Patients  and Medical Practitioners) Bill, 2006, drafted by the 17th Law  Commission  in  the  196th  Report  has  been modified  and  the  revised  Bill  is  practically  an amalgam  of  the  earlier  recommendations  of  the Law Commission and the views / directions of the Supreme Court  in  Aruna  Ramachandra  case.  The revised Bill is at Annexure I.”

 128) I am also of the view that such an advance authority is akin to

well  recognised common law right  to  refuse medical  treatment

(See:  Re  T  (Adult:  Refusal  of  Medical  Treatment71),  Re  B

(Adult:  Refusal  of Medical Treatment72),  Crazan v.  Director,

Missouri Department of Health73, Malette v. Shulam74.   

129) In  a  recent  landmark judgment  of  the  nine  Judge Constitution

Bench in the case of  K.S. Puttaswamy authoritatively held that

right to life enshrined in Article 21 includes right to privacy.  One

71 (1992) 4 All  ER 649 72 (2002) 2 All ER 449 73 497 U.S. 261 (1990) 74 67 DLR (4th) 321

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of the facet of this right acknowledged is an individual’s decision

to refuse life prolonging medical treatment or terminate his life.

Justice Chelameswar in his separate opinion has described the

same in the following manner:

“373. Concerns of privacy arise when the State seeks to  intrude  into  the  body  of  subjects.  [Skinner v. Oklahoma, 1942 SCC OnLine US SC 125 : 86 L Ed 1655 : 316 US 535 (1942)“20. There are limits to the extent  to  which  a  legislatively  represented  majority may conduct biological experiments at the expense of the  dignity  and personality  and natural  powers  of  a minority—even those who have been guilty  of  what the majority defines as crimes.” (SCC OnLine US SC para 20)—Jackson,  J.]  Corporeal  punishments  were not  unknown  to  India,  their  abolition  is  of  a  recent vintage.  Forced  feeding  of  certain  persons  by  the State raises concerns of privacy. An individual's rights to  refuse  life  prolonging  medical  treatment  or terminate his life is another freedom which falls within the zone of the right to privacy. I am conscious of the fact that the issue is pending before this Court. But in various other jurisdictions, there is a huge debate on those issues though it  is  still  a  grey area. [  For the legal debate in this area in US, See Chapter 15.11 of American  Constitutional  Law by  Laurence  H.  Tribe, 2nd Edn.]  A woman's freedom of  choice whether to bear a child or abort her pregnancy are areas which fall  in the realm of privacy. Similarly, the freedom to choose  either  to  work  or  not  and  the  freedom  to choose the  nature  of  the  work  are  areas  of  private decision-making  process.  The  right  to  travel  freely within the country or go abroad is an area falling within the  right  to  privacy.  The  text  of  our  Constitution recognised  the  freedom  to  travel  throughout  the country under Article 19(1)(d). This Court has already recognised that such a right takes within its sweep the right  to  travel  abroad.  [Maneka  Gandhi v. Union  of India,  (1978)  1  SCC  248]  A  person's  freedom  to choose the place of his residence once again is a part of  his  right  to  privacy  [Williams v. Fears,  1900  SCC OnLine US SC 211 : 45 L Ed 186 : 179 US 270 (1900) —“8. Undoubtedly the right of locomotion, the right to

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remove  from  one  place  to  another  according  to inclination, is an attribute of personal liberty….” (SCC OnLine US SC para 8)] recognised by the Constitution of India under Article 19(1)(e) though the predominant purpose  of  enumerating  the  above-mentioned  two freedoms in Article 19(1) is to disable both the federal and State Governments from creating barriers which are incompatible with the federal nature of our country and its  Constitution.  The choice  of  appearance and apparel are also aspects of the right to privacy. The freedom  of  certain  groups  of  subjects  to  determine their appearance and apparel (such as keeping long hair and wearing a turban) are protected not as a part of the right to privacy but as a part of their religious belief. Such a freedom need not necessarily be based on  religious  beliefs  falling  under  Article  25. Informational  traces  are  also  an  area  which  is  the subject-matter of huge debate in various jurisdictions falling  within  the  realm of  the  right  to  privacy,  such data  is  as  personal  as  that  of  the  choice  of appearance  and  apparel.  Telephone  tappings  and internet hacking by State, of personal data is another area which falls within the realm of privacy. The instant reference arises out of such an attempt by the Union of  India  to  collect  biometric  data  regarding  all  the residents  of  this  country.  The  above-mentioned  are some  of  the  areas  where  some  interest  of  privacy exists.  The examples  given  above indicate to  some extent the nature and scope of  the right to privacy.”

 NATURE OF LIVING WILL OR ADVANCE DIRECTIVE

130) Advance  directives  are  instruments  through  which  persons

express  their  wishes  at  a  prior  point  in  time,  when  they  are

capable of making an informed decision, regarding their medical

treatment in the future, when they are not in a position to make an

informed decision, by reason of being unconscious or in a PVS or

in a coma.  A medical power of attorney is an instrument through

which  persons  nominate  representatives  to  make  decisions

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regarding  their  medical  treatment  at  a  point  in  time when  the

persons executing the instrument are unable to make informed

decisions  themselves.   Clause  11  of  the  draft  Treatment  of

Terminally-III  Patients  (Protection  of  Patients  and  Medical

Practitioners) Bill, 2016 states that advance directives or medical

power of attorney shall be void and of no effect and shall not be

binding on any medical practitioner.  This blanket ban, including

the failure even to give some weight to advance directives while

making  a  decision  about  the  withholding  or  withdrawal  of  life-

sustaining treatment is disproportionate.  It does not constitute a

fair, just or reasonable procedure, which is a requirement for the

imposition  of  a  restriction  on  the  right  to  life  (in  this  case,

expressed as the right to die with dignity) under Article 21.   

131) At  this  juncture,  we may again reiterate that  on the one hand

autonomy of an individual gives him right to choose his destiny

and,  therefore,  he  may  decide  before  hand,  in  the  form  of

advance  directive,  at  what  stage  of  his  physical  condition  he

would not like to have medical treatment, and on the other hand,

there are  dangers  of  misuse thereof  as  well.   David  Feldman

explained the same in the following manner:

“...However, while it is undoubtedly a criminal act to do anything  intending  to  hasten  another  person’s  death, there is no absolute duty on a doctor to try to save the life

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of a patient, for two reasons.

The first is that any treatment is prima facie a trespass to the person, and if the patient is adult and competent to consent it will be unlawful without that consent.  A doctor therefore  acts  lawfully  –  indeed,  could  not  lawfully  act otherwise – when he withholds treatment at the request of a terminally ill patient.  This has been called passive, as  distinct  from  active,  euthanasia.   To  ensure  that medical  staff  know of  their  wishes,  some people have executed what are sometimes called ‘living wills’, giving directions  to  medical  staff  to  withhold  treatment  in specified circumstances, and making their wishes known to  anyone  who  might  be  appointed  as  their representative in the event that they become in capable for any reason.  The efficacy of such prior indications was accepted,  obiter, by Lord Goff in  Airedale NHS Trust  v. Bland,  above.   In  such  circumstances,  the  patient voluntarily accepts non-treatment while in a state to do so rationally.  However, where there is the slightest doubt about  the  wishes  of  a  patient,  that  patient  should  be treated,  because  the  paternalism  which  decides  for someone else when it is best to die is effectively denying them the opportunity to make the most of their lives as autonomous individuals.  Furthermore, it would seem to be wrong in principle to put pressure to bear on a patient to  elect  to  die.   In  those  states  of  the  USA where voluntary euthanasia is lawful,  the ethical  problems for patients,  doctors,  next  of  kin,  and  nursing  staff  are immense.  Where the patient is not mentally competent to confirm the choice to die at the time when the choice is about to be given effect, it will also be impossible to know whether the choice expressed earlier was truly voluntary, whether the consent was informed, and whether or not the patients would want to reconsider were he able to do so.   In  the  Netherlands,  where  it  is  lawful  to  practice voluntary  euthanasia,  it  seems  that  the  procedural safeguards  designed  to  protect  people  against involuntary euthanasia are very hard to enforce and are regularly flouted.

Secondly, the doctrine of double effect allows the doctor to take steps which carry a substantial risk to life in order to  treat,  in  good  faith  and  with  the  patient’s  consent, some disease or symptom.  This is essential,  because virtually any treatment carries some risk to the patient.  It is particularly relevant to the euthanasia issue in cases

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where  the primary  object  (e.g.  pain  control  in  terminal cancer treatment) can only be achieved by administering drugs  at  a  level  which  is  likely  to  shorten  life,  but enhances  the  quality  of  life  while  it  lasts.   A trade-off between length of life and quality of life is permissible.”

132) At the same time, possibility of misuse cannot be held to be a

valid ground for rejecting advance directive, as opined by the Law

Commission  of  India  as  well  in  its  196th and  241st Report.

Instead, attempt can be made to provide safeguards for exercise

of such advance directive.  For example, Section 5 of the Mental

Healthcare Act, 2017 recognises the validity of advance directives

for the treatment of mental illness under the Mental Healthcare

Act,  2017.   The  draft  Mental  Healthcare  Regulations  have

recently been made available for public comment by the Ministry

of Health and Family Welfare.  These prescribe the form in which

advance  directives  may  be  made.   Part  II,  Chapter  1  of  the

Regulations allow a Nominated Representative to be named in

the Advance Directive.  An advance directive is to be in writing

and  signed  by  two  witnesses  attesting  to  the  fact  that  the

Directive  was  executed  in  their  presence.   A Directive  to  be

registered  with  the  Mental  Health  Review  Board.   It  may  be

changed as many times as desired by the person executing it and

the treating mental health professional must be informed of such

change.   Similarly,  Section 3  of  the Transplantation of  Human

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Organs and Tissues Act,  1994 allows persons to authorise the

removal  of  human  organs  and  tissues  from their  body  before

death.   The form in  which this  authorisation is  to  be made is

prescribed in Form 7 of  the Transplantation of  Human Organs

and Tissues Rules, 2014.  This is also to be in writing and in the

presence of two witnesses.  A copy of the pledge is to be retained

at  the  institution  where  the  pledge  is  made  and  the  person

making the pledge has the option to withdraw the pledge at any

time.   Where  such  authorisation  had  been  made,  the  person

lawfully in charge of the donor’s body after his death is required

to  grant  the  concerned  medical  practitioner  all  reasonable

facilities for the removal of human organs or tissues, unless such

person has  reason to  believe  that  the  donor  had  substantially

revoked his authority.   

133) Mr. Datar, learned counsel appearing for the intervenor, has also

brought  to  our  notice various safeguards for  advance directive

provided in other jurisdiction in many ways i.e. by prescribing the

form that the directive must take, by specifying who may act as

witnesses,  by  allowing  the  possibility  of  amendment  and  by

allowing the validity of the directive to be challenged.  Some of

these examples are as follows:  

Writ Petition (Civil) No. 215 of 2005 Page 105 of 112

(a) In U.K., under Section 24 of the Mental Capacity Act, 2005, a

person above the age of 18 years who has capacity may execute

an  advance  directive.   A person  is  said  to  lack  capacity  if  in

relation to a matter at the material time, he is unable to make a

decision for himself because of an impairment of or disturbance in

the functioning of the mind or brain.  In Netherlands, under Article

2  of  the  Termination  of  Life  on  Request  and  Assisted  Suicide

(Review Procedures) Act, patients aged 16 or above may make

advance directives.  In Germany, the authorisation of the court is

required for the termination of treatment in the case of minors.  In

Switzerland,  persons  with  mental  illnesses  are  considered

exceptions and cannot discontinue medical treatment if  it  is an

expression  or  symptom  of  their  mental  illness.   In  Hungary,

pregnant women may not refuse treatment if it is seen that they

are able to carry the pregnancy.

(b)  Section 25 of the Mental Capacity Act, an advance decision

to refuse life-sustaining treatment must be in writing.  It must be

signed by the patient or someone on his behalf and signed by a

witness.  It must also include a written statement by the patient

that the decision will apply to the specific treatment even if the

patient’s life is at risk.  Under Article 7: 450 of the Dutch Civil

Code, an advance directive should be in written form, dated and

Writ Petition (Civil) No. 215 of 2005 Page 106 of 112

signed  to  be  valid.   Section  110Q  of  the  Western  Australia

Guardianship  and  Administration  Act,  1990  requires  advance

directives to be signed in  the presence of  two witnesses,  who

must both be at least 18 years of age and one of whom must be a

person authorised to witness legal documents under the relevant

law.  Section 15 of the South Australia Advance Directives Act,

2013 sets out requirements for ‘suitable’ witnesses under the Act.

A person may not be a witness if she is appointed as a substitute

decision-maker  under  the  advance  directive,  has  a  direct  or

indirect interest in the estate of the person executing the advance

directive or is a health practitioner responsible for the health care

of  the  person  executing  the  advance  directive.   Similar

disqualifications for witnesses are prescribed in the Oregon Death

with Dignity Act, 2002 when a person makes a written request for

medication for the purpose of ending her life in a humane and

dignified manner.

(c) Under Section 24(3) of the UK Mental Capacity Act, 2005, a

person may alter or withdraw an advance decision at any time he

has the capacity to do so.  Under Section 25(2)(c), an advance

decision will not be applicable if a person has done anything else

clearly  inconsistent  with  the advance decision.   Under  Section

3.06 of the Oregon Death with Dignity Act, 2005, a person may

Writ Petition (Civil) No. 215 of 2005 Page 107 of 112

rescind her written request for medicating at any time regardless

of her mental state.  To allow for a change of mind, Section 3.08

also requires at least 15 days to lapse between the patient’s initial

oral request and the writing of a prescription, while a minimum of

48 hours must elapse between the patient’s written request and

the writing of a prescription.  Under Section 110S of the Western

Australia Guardianship and Administration Act, 1990, a treatment

decision  in  an  advance  directive  does  not  operate  if

circumstances exist or have arisen that the maker of that directive

could not reasonably have anticipated at the time of making the

directive and that would have caused a reasonable person in the

maker’s position to have changed her mind about the directive.

While determining whether such circumstances have arisen, the

age of the maker and the period that has elapsed between the

time at which the directive was made and the circumstances that

have arisen are factors that  must  be taken into account  while

determining the validity of the directive.

(d)  Section 26(4) of the UK Mental Capacity Act permits courts to

make a declaration as to whether the advance decision exists, is

valid,  and applicable to a treatment.   Under  Article 373 of  the

Swiss Civil Code, ‘any person closely related to the patient can

contact the adult protection authority in writing and claim that...

Writ Petition (Civil) No. 215 of 2005 Page 108 of 112

the patient decree is not based on the patient’s free will.’  Under

Section  110V,  110W,  110X,  110Y  and  110Z  of  the  Western

Australia Guardianship and Administration Act, 1990, any person

who has a ‘proper interest’ in the matter, in the view of the State

Administrative  Tribunal,  may  apply  to  it  for  a  declaration  with

respect  to  the  validity  of  an  advance  directive.   It  can  also

interpret the terms of the directive, give directions to give effect to

it or revoke a treatment decision in the directive.   

134) Mr.  Datar  has  suggested  that  this  Court  should  frame  the

guidelines to cover the following aspects:

(a) Who will be competent to execute an advance directive?

(b) In what form will an advance directive have to be issued in

order to be valid?

(c)  Who  is  to  ensure  that  an  advance  directive  is  properly

obeyed?

(d) What legal consequences follow from the non-obedience to an

advance directive?

(e)  In  what  circumstances  can  a  doctor  refuse  to  enforce  an

advance directive?

135) He has given the following suggestions on the aforesaid aspects:

(a) Only adult persons, above the age of eighteen years and of

Writ Petition (Civil) No. 215 of 2005 Page 109 of 112

sound mind at the time at which the advance directive is executed

should be deemed to be competent.  This should include persons

suffering from mental disabilities provided they are of sound mind

at the time of executing an advance directive.

(b)  Only  written  advance  directives  that  have  been  executed

properly with the notarised signature of the person executing the

advance directive, in the presence of two adult witnesses shall be

valid and enforceable in the eyes of the law.  The form should

require a reaffirmation that the person executing such directives

has made an informed decision. Only those advance directives

relating  to  the  withdrawal  or  withholding  of  life-sustaining

treatment should be granted legal validity.  The determination that

the  executor  of  the  advance directive  is  no  longer  capable  of

making the decision should be made in accordance with relevant

medical  professional  regulations  or  standard  treatment

guidelines,  as  also  the  determination  that  the  executor’s  life

would terminate in the absence of life-sustaining treatment.  The

constitution of a panel of experts may also be considered to make

this  determination.   The  use  of  expert  committees  or  ethics

committees in other jurisdictions is discussed at Para 28 of these

written submissions.   

(c)  Primary  responsibility  for  ensuring  compliance  with  the

Writ Petition (Civil) No. 215 of 2005 Page 110 of 112

advance directive should be on the medical institution where the

person is receiving such treatment.

(d) If a hospital refuses to recognise the validity of an advance

directive,  the  relatives  or  next  friend  may  approach  the

jurisdictional High Court seeking a writ or mandamus against the

concerned hospital to execute the directive.  The High Court may

examine  whether  the  directive  has  been  properly  executed,

whether it  is  still  valid (i.e.  whether or  not  circumstances have

fundamentally  changed  since  its  execution,  making  it  invalid)

and/or applicable to the particular circumstances or treatment.

(e) No hospital or doctor should be made liable in civil or criminal

proceedings  for  having  obeyed  a  validly  executed  advance

directive.   

(f)  Doctors citing conscientious objection to the enforcement of

advance directives on the grounds of religion should be permitted

not to enforce it, taking into account their fundamental right under

Article  25  of  the  Constitution.   However,  the  hospital  will  still

remain under this obligation.    

136) All these suggestions and various aspects of advance directives

have  been  elaborately  considered  and  detailed  directions  are

given by the Hon’ble the Chief Justice in his judgment, with which

Writ Petition (Civil) No. 215 of 2005 Page 111 of 112

I duly concur.  In summation, I say that this Court has, with utmost

sincerity,  summoned  all  its  instincts  for  legality,  fairness  and

reasonableness in giving a suitable answer to the vexed issue

that  confronts  the  people  on  daily  basis,  keeping  in  mind  the

competing interests and balancing those interests.   It  will  help

lead society towards an informed, intelligent and just solution to

the problem.

137) My last remarks are a pious hope that the Legislature would step

in  at  the  earliest  and  enact  a  comprehensive  law  on  ‘living

will/advance directive’ so that there is a proper statutory regime to

govern various aspects and nuances thereof which also take care

of the apprehensions that are expressed against euthanasia.

.....................................J. (A.K. SIKRI)

NEW DELHI; MARCH 09, 2018.

Writ Petition (Civil) No. 215 of 2005 Page 112 of 112

 PART A  

1    

IN THE SUPREME COURT OF INDIA  CIVIL ORIGINAL JURISDICTION  

WRIT PETITION (CIVIL) NO. 215 OF 2005    

COMMON CAUSE (A REGD. SOCIETY)                       .... PETITIONER  

           VERSUS  

UNION OF INDIA & ANR         ..... RESPONDENTS   

J  U  D  G  M  E  N  T  

Dr D Y CHANDRACHUD, J  

A Introduction: On Death and Dying   

1 Life and death are inseparable. Every moment of our lives, our bodies  

are involved in a process of continuous change. Millions of our cells perish as  

nature regenerates new ones. Our minds are rarely, if ever, constant. Our  

thoughts are fleeting. In a physiological sense, our being is in a state of flux,  

change being the norm. Life is not disconnected from death. To be, is to die.

 PART A  

2    

From a philosophical perspective, there is no antithesis between life and  

death. Both constitute essential elements in the inexorable cycle of existence.    

2 Living in the present, we are conscious of our own mortality. Biblical  

teaching reminds us that:  

“There is a time for everything, and a season for every activity  

under the heavens : a time to be born and a time to die, a  

time to plant, and a time to uproot, a time to kill and a time to  

heal, a time to wear down and a time to build, a time to weep  

and a time to laugh, a time to mourn and a time to dance.”  

(Ecclesiastes 3)  

3 The quest of each individual to find meaning in life reflects a human  

urge to find fulfilment in the pursuit of happiness. The pursuit of happiness is  

nurtured in creative pleasures and is grounded in things as fundamental as  

the freedom to think, express and believe, the right to self-determination, the  

liberty to follow a distinctive way of life, the ability to decide whether or not to  

conform and the expression of identity.  

    4 Human beings through the ages have been concerned with death as  

much as with dying. Death represents a culmination, the terminal point of life.  

Dying is part of a process: the process of living, which eventually leads to  

death. The fear of death is a universal feature of human existence. The fear is  

associated as much with the uncertainty of when death will occur as it is, with  

the suffering that may precede it. The fear lies in the uncertainty of when an

 PART A  

3    

event which is certain will occur. Our fears are enhanced by the experience of  

dying that we share with those who were a part of our lives but have gone  

before us. As human beings, we are concerned with the dignity of our  

existence. The process through which we die bears upon that dignity. A  

dignified existence requires that the days of our lives which lead up to death  

must be lived in dignity; that the stages through which life leads to death  

should be free of suffering; and that the integrity of our minds and bodies  

should survive so long as life subsists. The fear of an uncertain future  

confronts these aspirations of a dignified life. The fear is compounded by the  

fact that as we age, we lose control over our faculties and over our ability to  

take decisions on the course of our future. Our autonomy as persons is  

founded on the ability to decide: on what to wear and how to dress, on what to  

eat and on the food that we share, on when to speak and what we speak, on  

the right to believe or not to believe, on whom to love and whom to partner,  

and to freely decide on innumerable matters of consequence and detail to our  

daily lives. Ageing leaves individuals with a dilution of the ability to decide. The  

fear of that loss is ultimately, a fear of the loss of freedom. Freedom and  

liberty are the core of a meaningful life. Ageing brings dependency and a loss  

of control over our ability to shape what we wish to happen to us.    

5 The progression of life takes its toll on the human body and the mind.   

As we age, simple tasks become less simple and what seemed to be a matter  

of course may become less so. Human beings then turn ever more to the

 PART A  

4    

substance that matters. As events, relationships, associations and even  

memories fall by the way, we are left with a lonesome remnant of the person,  

which defines the core of our existence.  The quest of finding meaning in that  

core is often a matter of confronting our fears and tragedies.  

6 The fear of pain and suffering is perhaps even greater than the  

apprehension of death.  To be free of suffering is a liberation in itself.  Hence  

the liberty to decide how one should be treated when the end of life is near is  

part of an essential attribute of personhood.  Our expectations define how we  

should be treated in progressing towards the end, even when an individual is  

left with little or no comprehension near the end of life.  

7 Dilemmas relating to the end of life have been on the frontline of debate  

across the world in recent decades. The debate has presented “a complex  

maze of dilemmas for all - the doctor, the lawyer, the patient and the patient’s  

relatives”1 and straddles issues of religion, morality, bio-medical ethics and  

constitutional law. It has involved “issues ranging from the nature and  

meaning of human life itself, to the most fundamental principles on which our  

societies are and should be based”2.   

                                                           1 “The Dilemmas of Euthanasia”, Bio-Science (August 1973), Vol. 23, No. 8, at page 459  2  Margaret A. Somerville, “Legalising euthanasia: why now?”, The Australian Quarterly (Spring 1996), Vol. 68,      

No. 3, at page 1

 PART A  

5    

8 There is an “ongoing struggle between technology and the law”; as  

“medical technology has become more advanced, it has achieved the capability  

both to prolong human life beyond its natural endpoint and to better define  

when that endpoint will occur”.3  Medical science has contributed in a significant  

way to enhancing the expectancy of life. Diseases once considered fatal have  

now become treatable. Medical research has redefined our knowledge of  

ailments – common and uncommon; of their links with bodily functions and the  

complex relationship between mental processes and physical well-being.  

Science which affects the length of life also has an impact on the quality of the  

years in our lives. Prolonging life should, but does not necessarily result in, a  

reduction of suffering. Suffering has a bearing on the quality of life. The quality  

of life depends upon the life in our years. Adding to the length of life must bear  

a functional nexus with the quality of life. Human suffering must have  

significance not only in terms of how long we live but also in terms of how well  

we live.    

 9 Modern medicine has advanced human knowledge about the body and  

the mind. Equipped with the tools of knowledge, science has shown the ability  

to reduce human suffering. Science has also shown an ability to prolong life.  

Yet in its ability to extend life, medical science has an impact on the quality of  

life, as on the nature and extent of human suffering. Medical interventions  

come with costs, both emotional and financial. The ability of science to  

                                                           3 Christopher N. Manning, “Live And Let Die: Physician-Assisted Suicide And The Right To Die”, Harvard Journal  of Law and Technology (1996), Vol. 9, No. 2, at page 513

 PART A  

6    

prolong life must face an equally important concern over its ability to impact on  

the quality of life. While medical science has extended longevity, it has come  

with associated costs of medical care and the agony which accompanies an  

artificially sustained life.  Medical ethics must grapple with the need to bring  

about a balance between the ability of science to extend life with the need for  

science to recognise that all knowledge must enhance a meaningful  

existence.   

10 There is “no consensus as to the rights and wrongs of helping someone  

to die”4, as the legal status of euthanasia has been subjected to social, ethical  

and moral norms that have been handed down to us. Decisions regarding the  

end of life can be ethically more problematic when the individual is no longer  

mentally competent to make his or her own decisions.5 The existential and  

metaphysical issues involved in this debate, include the fear of the unknown,  

the uncertainty of when death will occur, the scarcity of health care, freedom  

or coercion in choosing to receive or not to receive medical treatment, the  

dignity and degradation of ageing and being able to care for oneself  

independently.6  

11 Does the law have a role in these complex questions of life and death?  

If it does, what are the boundaries which judges – as interpreters of law –  

                                                           4 Alan Norrie, “Legal Form and Moral Judgement: Euthanasia and Assisted Suicide” in R.A. Duff, et al (ed), The  Structures of the Criminal Law (Oxford University Press, 2011), at page 134  

5 Elizabeth Wicks, The Right to Life and Conflicting Interests (Oxford University Press, 2010), at page 199  6 Elizabeth M. Andal Sorrentino, “The Right To Die?”, Journal of Health and Human Resources Administration  (Spring,1986), Vol. 8, No. 4, page 361

 PART A  

7    

must observe while confronting these issues of living and dying? The law,  

particularly constitutional law, intervenes when matters governing freedom,  

liberty, dignity and individual autonomy are at stake. To deny a role for  

constitutional law would be to ignore our own jurisprudence and the primary  

role which it assigns to freedom and dignity. This case presents itself before  

the Court as a canvass bearing on the web of life: on the relationship between  

science, medicine and ethics and the constitutional values of individual dignity  

and autonomy. Among the issues which we confront are:  

(i) Does an individual have a constitutionally recognized right to refuse  

medical treatment or to reject a particular form of medical treatment;  

(ii) If an individual does possess such a right, does a right inhere in the  

individual to determine what course of action should be followed in the  

future if she or he were to lose control over the faculties which enable  

them to accept or refuse medical treatment;  

(iii) Does the existence of a right in the individual impose a corresponding  

duty on a medical professional who attends to the individual, to respect  

the right and what, if any, are the qualifications of that duty;  

(iv) Does the law permit a medical practitioner to withhold or refuse medical  

treatment towards the end of life to an individual who is no longer in  

control of his or her faculties in deference to a desire expressed while in  

a fit state of mind; and

 PART A  

8    

(v) Would a withholding or refusal of medical treatment be permissible so  

as to allow life to take its natural course, bereft of an artificial  

intervention, when there is no realistic hope of return to a normal life.   

12 This Court has to consider euthanasia and its impact “not only at an  

individual level”, but also at the “institutional, governmental and societal  

levels”.7 The impact has to be analyzed not only in the context of the present  

era, but has to be contemplated for the future as well. The judge is not a  

soothsayer. Nor does the law have predictive tools at its command which can  

approximate those available to a scientist. Constitutional principle must have  

an abiding value. It can have that value if it is firmly grounded in the distilled  

experience of the past, is flexible to accommodate the concerns of the present  

and allows room for the unforeseeable future. The possibility of the abuse of  

euthanasia and the effect that legalising euthanasia would have on intangible  

societal fabrics and institutions is of utmost concern.   

13 Contemporary writing on the subject reminds us about how serious  

these issues are and of how often they pose real dilemmas in medicine.  They  

are poignantly brought out by Dr Atul Gawande in his acclaimed book, “Being  

Mortal”:  

“If to be human is to be limited, then the role of caring  

professions and institutions - from surgeons to nursing homes  

- ought to be aiding people in their struggle with those limits.  

Sometimes we can offer a cure, sometimes only a salve,  

                                                           7 Ibid

 PART A  

9    

sometimes not even that. But whatever we can offer, our  

interventions, and the risks and sacrifices they entail, are  

justified only if they serve the large aims of a person's life.  

When we forget that, the suffering we inflict can be barbaric.  

When we remember it, the good we do can be breathtaking."8  

He reminds us of how much people value living with dignity over merely living  

longer:  

“A few conclusions become clear when we understand this:  

that our most cruel failure in how we treat the sick and the  

aged is the failure to recognize that they have priorities  

beyond merely being safe and living longer; that the chance  

to shape one’s story is essential to sustaining meaning in life;  

that we have the opportunity to refashion our institutions, our  

culture, and our conversations in ways that transform the  

possibilities for the last chapters of everyone’s lives.”9   

14 Dr Henry Marsh, a neurosurgeon in the UK has significantly titled his  

provocative memoir “Admissions” (2017). Speaking of euthanasia, he  

observes:  

“We have to choose between probabilities, not certainties,  

and that is difficult. How probable is it that we will gain how  

many extra years of life, and what might the quality of those  

years be, if we submit ourselves to the pain and  

unpleasantness of treatment? And what is the probability that  

the treatment will cause severe side effects that outweigh any  

possible benefits? When we are young it is usually easy to  

decide – but when we are old, and reaching the end of our  

likely lifespan? We can choose, at least in theory, but our  

inbuilt optimism and love of life, our fear of death and the  

difficulty we have in looking at it steadily, make this very  

difficult. We inevitably hope that we will be one of the lucky  

ones, one of the long-term survivors, at the good and not the  

bad tail-end of the statisticians’ normal distribution. And yet it  

has been estimated that in the developed world, 75 per cent  

of our lifetime medical costs are incurred in the last six

                                                           8 Atul Gawande, Being Mortal: Medicine and What Matters in the End (Hamish Hamilton, 2014), at page 260  9 Ibid, at page 243

 PART B  

10    

months of our lives. This is the price of hope, hope which, by  

the laws of probability, is so often unrealistic. And thus we  

often end up inflicting both great suffering on ourselves and  

unsustainable expense on society.” 10   

These are but a few of the examples of emerging literature on the subject.  

15 The central aspect of the case is the significance which the Constitution  

attaches to the ability of every individual in society to make personal choices  

on decisions which affect our lives. Randy Pausch, a Professor at Stanford  

had this to say in a book titled “The Last Lecture” (2008),11 a discourse  

delivered by him in the shadow of a terminal illness.                               

“We cannot change the cards we are dealt, just how we play  

the hand”.   

We may not be masters of our destiny. Nor can we control what life has in  

store. What we can determine is how we respond to our trials and tribulations.  

B The reference   

16 On 25 February 2014, three Judges of this Court opined that the issues  

raised in this case need to be considered by a Constitution Bench. The  

referring order notes that the case involves “social, legal, medical and  

constitutional” perspectives which should be considered by five judges. At the  

heart of the proceeding, is a declaration which Common Cause seeks that the  

right to die with dignity is a fundamental right which arises from the right to live  

                                                           10 Henry Marsh, Admissions: A Life in Brain Surgery, (Weidenfeld & Nicolson, 2017), at page 265-266  11 Randy Pausch and Jeffrey Zaslow, The Last Lecture, (Hodder & Stoughton, 2008), at page 17

 PART B  

11    

with dignity. Article 21 of the Constitution is a guarantee against the  

deprivation of life or personal liberty except according to the procedure  

established by law. As our law has evolved, the right against the violation of  

life and personal liberty has acquired much more than a formal content. It can  

have true meaning, if only it includes the right to live with dignity. It is on this  

premise that the court is urged to hold that death with dignity is an essential  

part of a life of dignity. A direction is sought to the Union Government to adopt  

suitable procedures to ensure that persons with “deteriorated health” or those  

who are terminally ill should be able to execute a document in the form of “a  

living will and attorney authorization” which can be presented to a hospital for  

appropriate action if the person who has made it, is hospitalized with a serious  

illness which may cause the end of life. The petitioner also seeks, in the  

alternative, that this Court should issue guidelines and appoint an expert  

committee consisting of doctors, social scientists and lawyers who will govern  

the making of ‘living wills’.   

   17 Individuals who suffer from chronic disease or approach the end of the  

span of natural life often lapse into terminal illness or a permanent vegetative  

state. When a medical emergency leads to hospitalization, individuals in that  

condition are sometimes deprived of their right to refuse unwanted medical  

treatment such as feeding through hydration tubes or being kept on a  

ventilator and other life support equipment. Life is prolonged artificially  

resulting in human suffering. The petition is founded on the right of each

 PART B  

12    

individual to make an informed choice. Documenting a wish in advance, not to  

be subjected to artificial means of prolonging life, should the individual not be  

in a position later to comprehend or decline treatment, is a manifestation of  

individual choice and autonomy. The process of ageing is marked by a sense  

of helplessness. Human faculties decline as we grow older. Social aspects of  

ageing, such as the loss of friendships and associations combine with the  

personal and intimate to enhance a sense of isolation. The boundaries and  

even the limits of constitutional law will be tested as the needs of the ageing  

and their concerns confront issues of ethics, morality and of dignity in death.   

 18 In support of its contention, the petitioner relies upon two decisions: a  

decision rendered in 1996 by a Constitution Bench in Gian Kaur v State of  

Punjab12 (“Gian Kaur”) and a decision of 2011 rendered by two judges in  

Aruna Ramachandra Shanbaug v Union of India13 (“Aruna Shanbaug”).  

The decision in Gian Kaur arose from a conviction for the abetment of  

suicide. In an earlier decision rendered by two judges in 1994 - P Rathinam v  

Union of India14 (“Rathinam”), penalising an attempt to commit suicide was  

held to violate Article 21 on the foundation that the right to life includes the  

right to die. The decision in Rathinam was held not to have laid down the  

correct principle, in Gian Kaur. Hence the decision in Aruna Shanbaug noted  

that Article 21 does not protect the right to die and an attempt to commit  

suicide is a crime. However, in Aruna Shanbaug, the court held that since  

                                                           12(1996) 2 SCC 648  13 (2011) 15 SCC 480  14 (1994) 3 SCC 394

 PART B  

13    

Gian Kaur rules that the right to life includes living with human dignity, “in the  

case of a dying person who is terminally ill or in a permanent vegetative state,  

he may be permitted to terminate by a premature extinction of his life”, and  

this would not be a crime. The Bench which decided Aruna Shanbaug was of  

the view that Gian Kaur had “quoted with approval” the view of the House of  

Lords in the UK in Airedale NHS Trust v Bland15 (“Airedale”).  

19 When these judgments were placed before a Bench of three judges in  

the present case, the court observed that there were “inherent  

inconsistencies” in the judgment in Aruna Shanbaug. The referring order  

accordingly opined that:  

“Aruna Shanbaug (supra) aptly interpreted the decision of the  

Constitution Bench in Gian Kaur (supra) and came to the  

conclusion that euthanasia can be allowed in India only  

through a valid legislation. However, it is factually wrong to  

observe that in Gian Kaur (supra), the Constitution Bench  

approved the decision of the House of Lords in Airedale v.  

Bland: (1993) 2 W.L.R. 316 (H.L.). Para 40 of Gian Kaur  

(supra), clearly states that "even though it is not necessary to  

deal with physician assisted suicide or euthanasia cases, a  

brief reference to this decision cited at the Bar may be  

made..." Thus, it was a mere reference in the verdict and it  

cannot be construed to mean that the Constitution Bench in  

Gian Kaur (supra) approved the opinion of the House of Lords  

rendered in Airedale (supra). To this extent, the observation  

in Para 101 is incorrect.”  

The referring order goes on to state that:  

 “In Paras 21 & 101, the Bench [in Aruna Shanbaug] was of  

the view that in Gian Kaur (supra), the Constitution Bench  

                                                           15(1993) 2 WLR 316 (H.L)

 PART B  

14    

held that euthanasia could be made lawful only by a  

legislation. Whereas in Para 104, the Bench contradicts its  

own interpretation of Gian Kaur (supra) in Para 101 and  

states that although this Court approved the view taken in  

Airedale (supra), it has not clarified who can decide whether  

life support should be discontinued in the case of an  

incompetent person e.g., a person in coma or PVS. When, at  

the outset, it is interpreted to hold that euthanasia could be  

made lawful only by legislation where is the question of  

deciding whether the life support should be discontinued in  

the case of an incompetent person e.g., a person in coma or  

PVS.”  

The reason why the case merits evaluation by the Constitution Bench is  

elaborated in the Order dated 25 February 2014. Simply put, the basis of the  

reference to the Constitution Bench is that:  

(i) Gian Kaur affirms the principle that the right to live with dignity includes  

the right to die with dignity;  

(ii) Gian Kaur has not ruled on the validity of euthanasia, active or passive;  

(iii) Aruna Shanbaug proceeds on the erroneous premise that Gian Kaur  

approved of the decision of the House of Lords in Airedale;  

(iv) While Aruna Shanbaug accepts that euthanasia can be made lawful  

only through legislation, yet the court accepted the permissibility of  

passive euthanasia and set down the procedure which must be followed;  

and  

(v) Aruna Shanbaug is internally inconsistent and proceeds on a  

misconstruction of the decision in Gian Kaur.  

20 This being the basis of the reference, it is necessary to consider the  

decisions in Gian Kaur and Aruna Shanbaug.

 PART C  

15    

C Gian Kaur  

21 Gian Kaur and Harbans Singh were spouses. They were convicted of  

abetting the suicide of Kulwant Kaur and were held guilty of an offence under  

Section 306 of the Penal Code. They were sentenced to six years’  

imprisonment. The conviction was upheld by the High Court. The conviction  

was assailed before this Court on the ground that Section 306 is  

unconstitutional. It was argued that the constitutionality of Section 306 rested  

on the two judge Bench decision in Rathinam, where Section 309 (penalising  

the attempt to commit suicide) was held to be unconstitutional. While  

Rathinam had rejected the challenge to the validity of Section 309 on the  

ground that it was arbitrary (and violated Article 14), the provision was held to  

be unconstitutional on the ground that it violated Article 21. The right to die  

was found to inhere in the right to life, as a result of which Section 309 was  

found to be invalid. The challenge in Gian Kaur was premised on the decision  

in Rathinam: abetment of suicide by another (it was urged) is merely assisting  

in the enforcement of the fundamental right under Article 21 and hence  

Section 306 (like Section 309) would violate Article 21.  

22 The Constitution Bench in Gian Kaur disapproved of the foundation of  

Rathinam, holding that it was flawed. The Constitution Bench held thus:  

“When a man commits suicide he has to undertake certain  

positive overt acts and the genesis of those acts cannot be  

traced to, or be included within the protection of the 'right to  

life' under Article 21. The significant aspect of 'sanctity of life'

 PART C  

16    

is also not to be overlooked. Article 21 is a provision  

guaranteeing protection of life and personal liberty and by no  

stretch of imagination can 'extinction of life' be read to be  

included in 'protection of life'. Whatever may be the  

philosophy of permitting a person to extinguish his life by  

committing suicide, we find it difficult to construe Article 21 to  

include within it the 'right to die' as a part of the fundamental  

right guaranteed therein. 'Right to life' is a natural right  

embodied in Article 21 but suicide is an unnatural termination  

or extinction of life, and therefore, incompatible and  

inconsistent with the concept of 'right to life'. With respect and  

in all humility, we find no similarity in the nature of the other  

rights, such as the right to 'freedom of speech' etc. to provide  

a comparable basis to hold that the 'right to life' also includes  

the 'right to die'. With respect, the comparison is inapposite,  

for the reason indicated in the context of Article 21. The  

decisions relating to other fundamental rights wherein the  

absence of compulsion to exercise a right was held to be  

included within the exercise of that right, are not available to  

support the view taken in P. Rathinam qua Article 21.”  

The Court further held that:  

“To give meaning and content to the word 'life' in Article 21, it  

has been construed as life with human dignity. Any aspect of  

life which makes it dignified may be read into it but not that  

which extinguishes it and is, therefore, inconsistent with the  

continued existence of life resulting in effacing the right itself.  

The 'right to die', if any, is inherently inconsistent with the  

'right to life' as is 'death' with 'life'.”  

Gian Kaur holds that life within the meaning of Article 21 means a life of  

dignity. Extinguishment of life is (in that view) inconsistent with its continued  

existence. Hence, as a matter of textual construction, the right to life has been  

held not to include the right to die. In coming to that conclusion, it appears that  

Gian Kaur emphasises two strands (which the present judgment will revisit at  

a later stage). The first strand is the sanctity of life, which Article 21  

recognises. Extinction of life, would in this view, in the manner which  

Rathinam allowed, violate the sanctity of life. The second strand that emerges

 PART C  

17    

from Gian Kaur is that the right to life is a natural right. Suicide as an  

unnatural extinction of life is incompatible with it. The court distinguishes the  

right to life under Article 21 from other rights which are guaranteed by Article  

19 such as the freedom of speech and expression. While free speech may  

involve the absence of a compulsion to exercise the right (the right not to  

speak) this could not be said about the right to life. The Constitution Bench  

noticed the debate on euthanasia in the context of individuals in a permanent  

vegetative state. A scholarly article on the decision notes that the Constitution  

Bench “seemed amenable to an exception being made for euthanasia in  

cases of patients in a condition of PVS16. This view of the decision in Gian  

Kaur does find support in the following observations of the Constitution  

Bench:  

“Protagonism of euthanasia on the view that existence in  

persistent vegetative state (PVS) is not a benefit to the patient  

of a terminal illness being unrelated to the principle of ‘Sanctity  

of life' or the 'right to live with dignity' is of no assistance to  

determine the scope of Article 21 for deciding whether the  

guarantee of 'right to life' therein includes the 'right to die'. The  

'right to life' including the right to live with human dignity would  

mean the existence of such a right up to the end of natural life.  

This also includes the right to a dignified life up to the point of  

death including a dignified procedure of death. In other words,  

this may include the right of a dying man to also die with  

dignity when his life is ebbing out. But the 'right to die' with  

dignity at the end of life is not to be confused or equated with  

the 'right to die' an unnatural death curtailing the natural span  

of life.” (Para 24)  

                                                           16Sushila Rao, “India and Euthanasia: The Poignant Case of Aruna Shanbaug”, Oxford Medical Law Review,    Volume 19, Issue 4 (1 December 2011), at  pages 646–656

 PART C  

18    

However, in the paragraph which followed, the Constitution Bench  

distinguished between cases where a premature end to life may be  

permissible, when death is imminent, from the right to commit suicide:  

“A question may arise, in the context of a dying man, who is,  

terminally ill or in a persistent vegetative state that he may be  

permitted to terminate it by a premature extinction of his life in  

those circumstances. This category of cases may fall within  

the ambit of the 'right to die' with dignity as a part of right to  

live with dignity, when death due to termination of natural life  

is certain and imminent and the process of natural death has  

commenced. These are not cases of extinguishing life but  

only of accelerating conclusion of the process of natural death  

which has already commenced. The debate even in such  

cases to permit physician assisted termination of life is  

inconclusive. It is sufficient to reiterate that the argument to  

support the view of permitting termination of life in such cases  

to reduce the period of suffering during the process of certain  

natural death is not available to interpret Article 21 to include  

therein the right to curtail the natural span of life.” (Para 25)  

On this foundation, the Constitution Bench held that Article 21 does not  

include the right to die. The right to live with human dignity, in this view, could  

not be construed to include the right to terminate natural life “at least before  

commencement of the natural process of certain death”.   

This Court’s holding in Gian Kaur that the right to life does not include the  

right to die in the context of suicide may require to be revisited in future in view   

of domestic and international developments17 pointing towards  

decriminalisation of suicide. In India, the Mental Healthcare Act 2017 has  

                                                           17 “Humanization and Decriminalization of Attempt to Suicide”, Law Commission of India (Report No. 210, 2008);  

Rajeev Ranjan, et al, “(De-) Criminalization of Attempted Suicide in India: A Review”, Industrial Psychiatry  Journal (2014), Vol. 23, issue 1, at page 4–9    

 PART C  

19    

created a “presumption of severe stress in cases of attempt to commit  

suicide”. Section 115(1) provides thus:  

“Notwithstanding anything contained in section 309 of the  

Indian Penal Code any person who attempts to commit  

suicide shall be presumed, unless proved otherwise, to have  

severe stress and shall not be tried and punished under the  

said Code.”  

Under Section 115(2), the Act also mandates the Government to provide care,  

treatment and rehabilitation to a person, having severe stress and who  

attempted to commit suicide, to reduce the risk of recurrence. Section 115  

begins with a non-obstante provision, specifically with reference to Section  

309 of the Penal Code. It mandates (unless the contrary is proved by the  

prosecution) that a person who attempts to commit suicide is suffering from  

severe stress. Such a person shall not be tried and punished under the Penal  

Code. Section 115 removes the element of culpability which attaches to an  

attempt to commit suicide under Section 309. It regards a person who  

attempts suicide as a victim of circumstances and not an offender, at least in  

the absence of proof to the contrary, the burden of which must lie on the  

prosecution. Section 115 marks a pronounced change in our law about how  

society must treat and attempt to commit suicide. It seeks to align Indian law  

with emerging knowledge on suicide, by treating a person who attempts  

suicide being need of care, treatment and rehabilitation rather than penal  

sanctions.  

 PART C  

20    

It may also be argued that the right to life and the right to die are not two  

separate rights, but two sides of the same coin. The right to life is the right to  

decide whether one will or will not continue living.18 If the right to life were only  

a right to decide to continue living and did not also include a right to decide not  

to continue living, then it would be a duty to live rather than a right to life. The  

emphasis on life as a right and not as a duty or obligation has also been  

expressed by several other legal scholars:  

“When, by electing euthanasia, the individual has expressly  

renounced his right to life, the state cannot reasonably assert  

an interest in protecting that right as a basis for overriding the  

individual's private decision to die. To hold otherwise makes  

little more sense than urging a prohibition against destroying  

or giving away one's private property simply because the  

Constitution protects property as well as life. Although the  

Constitution recognizes that human life is, to most persons, of  

inestimable value and protects against its taking without due  

process of law, nothing in that document compels a  

person to continue living who does not desire to do so.  

Such an interpretation effectively converts a right into an  

obligation, a result the constitutional framers manifestly  

did not intend.”19 (Emphasis supplied)  

For the present case, we will leave the matter there, since neither side has  

asked for reconsideration of Gian Kaur, it being perhaps not quite required for  

the purposes of the reference.    

23 At this stage, it is also necessary to note that the decision in Gian Kaur  

contained a passing reference to the judgment of the House of Lords in  

Airedale which dealt with the withdrawal of artificial measures for the

                                                           18 D Benatar, “Should there be a legal right to die?” Current Oncology (2010), Vol. 17, Issue 5, at pages 2-3  19 Richard Delgado, “Euthanasia Reconsidered-The Choice of Death as an Aspect of the Right of Privacy”,    

Arizona Law Review  (1975), Vol. 17, at page 474

 PART D  

21    

continuance of life by a physician. In that context, it was held that a persistent  

vegetative state was of no benefit to the patient and hence, the principle of  

sanctity of life is not absolute. The Constitution Bench reproduced the  

following extracts from the decision in Airedale:  

“...But it is not lawful for a doctor to administer a drug to his  

patient to bring about his death, even though that course is  

prompted by a humanitarian desire to end his suffering,  

however great that suffering may be : See Reg v. Cox,  

(unreported), 18 September (1992). So to act is to cross the  

Rubicon which runs between on the one hand the care of the  

living patient and on the other hand euthanasia - actively  

causing his death to avoid or to end his suffering. Euthanasia  

is not lawful at common law. It is of course well known  

that there are many responsible members of our society  

who believe that euthanasia should be made lawful; but  

that result could, I believe, only be achieved by  

legislation which expresses the democratic will

that so fundamental a change should be made in our  

law, and can, if enacted, ensure that such legalised  

killing can only be carried out subject to appropriate  

supervision and control.... (emphasis supplied by the  

Bench). Making emphasis as above, this Court held that it is  

in the realm of the legislature to enact a suitable law to  

provide adequate safeguards regarding euthanasia”.   

 The Constitution Bench noted that the desirability of bringing about such a  

change was considered (in Airedale) to be a function of the legislature by  

enacting a law with safeguards, to prevent abuse.  

D Aruna Shanbaug  

24 Aruna Shanbaug was a nurse in a public hospital when she was  

sexually assaulted in 1973. During the incident, she was strangled by the  

attacker with a chain. The assault resulted in depriving the supply of oxygen to

 PART D  

22    

her brain. Over a period of thirty seven years, she had not recovered from the  

trauma and damage to the brain. She was forsaken by family and was cared  

for over this period by the staff of the hospital. A petition under Article 32 was  

instituted before this Court. The petitioner had authored a book on her saga  

and instituted the proceedings claiming to be her “next friend”. The direction  

which was sought was to stop feeding the patient and allow her to die a  

natural death. Aruna Shanbaug was examined by a team of doctors  

constituted by this Court who observed that while she was in a permanent  

vegetative state, she was clearly not in coma.   

25 A two Judge Bench of this Court held that Gian Kaur did not lay down a  

final view on euthanasia:  

“21. We have carefully considered paras 24 and 25 in Gian  

Kaur case [(1996) 2 SCC 648 : 1996 SCC (Cri) 374] and we  

are of the opinion that all that has been said therein is that the  

view in Rathinam case [(1994) 3 SCC 394 : 1994 SCC (Cri)  

740] that the right to life includes the right to die is not correct.  

We cannot construe Gian Kaur case [(1996) 2 SCC 648 :  

1996 SCC (Cri) 374] to mean anything beyond that. In fact, it  

has been specifically mentioned in para 25 of the aforesaid  

decision that “the debate even in such cases to permit  

physician-assisted termination of life is inconclusive”. Thus it  

is obvious that no final view was expressed in the decision  

in Gian Kaur case [(1996) 2 SCC 648 : 1996 SCC (Cri) 374]  

beyond what we have mentioned above.”(Id at page 487)  

26 The decision in Aruna Shanbaug distinguishes between active and  

passive euthanasia. Active euthanasia is defined as the administration of a  

lethal substance or force to kill a person, such as for instance, a lethal  

injection given to a person suffering from agony in a terminal state of cancer.

 PART D  

23    

Passive euthanasia is defined to mean the withholding or withdrawing of  

medical treatment necessary for continuance of life. This may consist of  

withholding antibiotics without which the patient may die or the removing of  

the patient from artificial heart/lung support. According to the court, a  

comparative context of the position prevailing in other countries would indicate  

that:  

“39…The general legal position all over the world seems to  

be that while active euthanasia is illegal unless there is  

legislation permitting it, passive euthanasia is legal even  

without legislation provided certain conditions and  

safeguards are maintained.”                   (Id at page 491)  

Voluntary euthanasia envisages the consent of the patient being taken  

whereas non-voluntary euthanasia deals with a situation where the patient is  

in a condition where he or she is unable to give consent. The Court noted that  

a distinction is drawn between euthanasia and physician assisted death in the  

form of a physician or third party who administers it. Physician assisted  

suicide involves a situation where the patient carries out the procedure,  

though on the advice of the doctor. The court in Aruna Shanbaug  

distinguished between active and passive euthanasia:  

“43. The difference between “active” and “passive” euthanasia  

is that in active euthanasia, something is done to end the  

patient's life while in passive euthanasia, something is not  

done that would have preserved the patient's life. An important  

idea behind this distinction is that in “passive euthanasia” the  

doctors are not actively killing anyone; they are simply not  

saving him.”                                                     (Id at page 492)  

 PART D  

24    

The above extract indicates that the decision is premised on the performance  

of an act (in active euthanasia) and an omission (in passive euthanasia).  

Active euthanasia, in the view of the court, would be an offence under Section  

302 or at least under Section 304 while physician assisted suicide would be  

an offence under Section 306 of the Penal Code. The decision adverted to the  

judgment of the House of Lords in Airedale and then observed that:  

“104. It may be noted that in Gian Kaur case [(1996) 2 SCC 648  

: 1996 SCC (Cri) 374] although the Supreme Court has quoted  

with approval the view of the House of Lords in Airedale  

case [1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821  

(CA and HL)] , it has not clarified who can decide whether life  

support should be discontinued in the case of an incompetent  

person e.g. a person in coma or PVS.”         (Id at page 512)  

Explaining the concept of brain death, the court held that passive euthanasia  

depends upon two circumstances:  

“117…(a) When a person is only kept alive mechanically i.e.  

when not only consciousness is lost, but the person is only able  

to sustain involuntary functioning through advanced medical  

technology—such as the use of heart-lung machines, medical  

ventilators, etc.  

(b) When there is no plausible possibility of the person ever  

being able to come out of this stage. Medical “miracles” are not  

unknown, but if a person has been at a stage where his life is  

only sustained through medical technology, and there has been  

no significant alteration in the person's condition for a long  

period of time—at least a few years—then there can be a fair  

case made out for passive euthanasia.” (Id at page 517)  

Noting that there is no statutory provision regulating the procedure for  

withdrawing life support to a person in PVS or who is incompetent to take a  

decision, the court ruled that passive euthanasia should be permitted in

 PART D  

25    

certain situations. Until Parliament decides on the matter, the modalities to  

regulate passive euthanasia would (according to the court) be as follows:  

“124…(i) A decision has to be taken to discontinue life support  

either by the parents or the spouse or other close relatives, or  

in the absence of any of them, such a decision can be taken  

even by a person or a body of persons acting as a next friend. It  

can also be taken by the doctors attending the patient.  

However, the decision should be taken bona fide in the best  

interest of the patient…  

(ii) 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 Airedale case [1993 AC 789 : (1993) 2 WLR 316 : (1993) 1  

All ER 821 (CA and HL)].”                        (Id at page 518-519)  

27 The approval of the High Court was mandated to obviate the danger  

that “this may be misused by some unscrupulous persons who wish to inherit  

or otherwise grab the property of the patient”. Moreover, the court directed  

that when an application is filed before the High Court, a committee of three  

doctors (a neurologist, psychiatrist and physician) should be constituted, to  

submit its opinion to enable the High Court to take a considered decision in  

the case. On the facts of the case, the court held that the petitioner who had  

visited Aruna Shanbaug only on a few occasions and had written a book on  

her could not be recognised as her next friend. It was only the hospital staff  

which had cared for her for long years which would be recognised. The  

doctors and nursing staff had evinced an intent to allow her to live in their  

care.   

28 The decision in Aruna Shanbaug has proceeded on the hypothesis  

that the Constitution Bench in Gian Kaur had “quoted with approval” the

 PART D  

26    

decision of the House of Lords in Airedale. This hypothesis is incorrect. There  

was only a passing reference to the decision of the House of Lords. In fact,  

Gian Kaur prefaces its reference to Airedale with the following observation:  

“40…Even though it is not necessary to deal with physician-

assisted suicide or euthanasia cases, a brief reference to this  

decision cited at the Bar may be made.”      (Id at page 665)   

The decision in Gian Kaur referred to the distinction made in Airedale  

between cases in which a physician decides not to provide or to continue to  

provide treatment which would prolong life and cases in which a physician  

decides to actively bring an end to the life of the patient by administering a  

lethal drug. The court in Airedale observed that actively causing the death of  

the patient could be made lawful only by legislation. It was this aspect which  

was emphasised by the judgment in Gian Kaur. Hence, the position adopted  

in Aruna Shanbaug, that the Constitution Bench in Gian Kaur quoted  

Airedale with approval (as the basis of allowing passive euthanasia) is  

seriously problematic. In fact, the extract from Airedale which was cited in  

Gian Kaur indicates the emphasis placed on the need to bring in legislation to  

allow active euthanasia.   

29 In an incisive analysis20, Ratna Kapur argues that while focussing on  

euthanasia, discussions on Aruna Shanbaug have ignored other  

considerations regarding gender, sexual assault, what constitutes “caring”, the  

                                                           20 Ratna Kapur, “The Spectre of Aruna Shanbaug”, The Wire (18 May 2015), available at  

https://thewire.in/2005/the-spectre-of-aruna-shanbaug/

 PART D  

27    

right to bodily integrity and workplace protection. A central issue is, according  

to Kapur, the “politics of caring”, - who can care, has the capacity to care and  

who is less caring or less capable of caring. The Supreme Court did not  

accept Pinki Virani as the “next friend” but awarded guardianship to KEM  

hospital staff on the ground that they had “an emotional bonding and  

attachment” to Aruna Shanbaug and were her “real family.”   Kapur observes  

that an emotional bond is not a valid criterion for a “next friend” and the  

expression “real family” has dangerous implications for those who may not fall  

within the normative remit of that phrase though they have a relationship with  

the concerned person. She asks if the concept of “next friend” will cover only  

“biological familial ties” and “render all other non-familial, non-marital, non-

heterosexual relationships as ineligible?” She argues that decisions about life  

and death should “rest on the anvil of dignity, and dignity is not a family value,  

or linked to some essential gendered trait. It is a societal value and hence  

needs to be delinked from the traditional frameworks of family and gender  

stereotypes.” Kapur expresses concerns about how the focus on “care”  

seemed to obscure a deeper and more important consideration regarding  

women’s safety in the workplace. The attack on Aruna Shanbaug in KEM  

hospital was indicative of how the workplace was unsafe for women, and yet  

the staff of the same hospital were given her guardianship. This is especially  

concerning given the fact that the dean of the hospital at the time refused to  

allow a complaint of sodomy to go forward as he was more concerned about  

the reputation of the institution. Kapur laments the fact that Aruna’s case was

 PART D  

28    

not used to bring out the reform that it should have - stating that it should  

‘have been a leading case on women’s rights where “caring” extended beyond  

the physical support for the individual who was harmed, to taking active steps  

to improve the working conditions for women, including addressing pervasive  

and systemic sex discrimination and sexism.’ Lastly, Kapur compels us to  

think about the choices Aruna Shanbaug may have made - “Had Shanbaug  

not been reduced to a PVS, would she have chosen to remain in KEM for her  

treatment after the violent and brutal sexual assault that she experienced in  

her work place? Or would she have chosen to be treated elsewhere? Would  

she have sued the hospital for failing to provide her a safe working  

environment?” Thus, Kapur questions the very basis of making the hospital  

the guardians by questioning why the hospital did not “care” when it mattered  

the most - when the case of sexual assault and sodomy should have been  

pursued by the hospital on behalf of its employee. By denying Aruna  

Shanbaug the right to bodily integrity in life and the right to self-determination  

in death, and by viewing her life from all lenses but from her own, ranging from  

the “carers”, to the medical and legal profession and their views on  

euthanasia, she “became nothing more than a spectre in her own story.”  

30 Aruna Shanbaug also presents another problem- one of inconsistency.  

Gian Kaur is construed as laying down only that the right to life does not  

include the right to die and that the decision in Rathinam was incorrect. In that  

context, it has been noticed that the Constitution Bench observed that the

 PART D  

29    

debate overseas even in physician assisted termination of life is inconclusive.  

Aruna Shanbaug finds, on the one hand, that “no final view was expressed”  

in Gian Kaur beyond stating that the right to life does not include the right to  

die. Yet, on the other hand, having inferred the absence of a final view on  

euthanasia in Gian Kaur, that decision is subsequently construed as having