The Supreme Court building in New Delhi. Photo: Reuters/B Mathur

The right to die with dignity has long been an emotive issue in India. On one side there were medical professionals and proponents and champions of individual autonomy and self-determination, while on the other,  there were medical professionals, the government and religious and spiritual leaders who advocated that right to life meant a person should not be allowed to decide whether to prolong medical treatment or end their life.

On Friday, five judges of India’s Supreme Court unanimously recognized the legality of passive euthanasia and ruled that the right to die with dignity was an inherent part of the right to life enshrined in Article 21 of India’s Constitution. They also upheld the legal validity of Advance Medical Directives (or “living wills”).

In a 538-page judgment comprising three concurring opinions, the court held, “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 (permanent vegetative state) with no hope of recovery,” and that “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.”  

The judgment would prevent the prosecution of people who wanted to opt for passive euthanasia under Section 309 of the Indian Penal Code (which criminalizes attempted suicides), and would also not place any criminal liability on doctors (who earlier had been charged for abetment to suicide, punishable under Section 306).

The court said that it was time to “alleviate the agony of an individual” and stand by his right to a dignified passing. A dignified death should follow a meaningful existence, the five judges agreed.

The judges ruled that when there is a conflict between an individual’s conscious decision to not prolong treatment and bring an end to life, and the State’s desire to regulate and control who should be allowed to die, the individual’s wish should prevail.

Passive euthanasia allowed

The court defined passive euthanasia as “that which entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die.” This means that if a patient has been kept alive by the use of life-saving medical equipment, such as a ventilator, or drugs or substances such as food administered through a pipe or medicines, then these would be stopped and the patient would be allowed to die a ‘natural course of death’.”

In doing so, the court affirmed its own decision of 2011 delivered by a two-judge bench in the case of Aruna Ramchandra Shanbaug, who had been in a permanent vegetative state and on life support for 42 years in a Bombay hospital. Her friend, author-activist Pinki Virani, had appealed to the apex court that Shanbaug be allowed to die. However, Shanbaug died a few days after the court allowed passive euthanasia and laid down guidelines on how it was to be administered.

The present judgment differed from the Shanbaug case in that the latter placed the final decision in the hands of the family members of the person in the permanent vegetative state, while in the former, the judges held that the concerned individual would be the sole arbiter.

In order to dispel any doubts about the possible abuse of the process, the Chief Justice Dipak Misra, writing for himself and Justice A.M. Khanwilkar, laid down a slew of guidelines to govern the execution of Advance Medical Directives, with the focus firmly being on the choice of the individual. These guidelines state how to test the validity of a living will, by whom it should be certified, when and how it should come into effect, etc. They also cover a situation where there is no living will and how to approach a plea for passive euthanasia. According to the guidelines, an advance medical directive can be revoked at any time, and the person can make a fresh one depending on the change of circumstances, and only the latest directive would be taken into consideration.

Dr Amar Jesani, a Bombay-based expert on medical ethics, lauded the court’s decision for championing the cause of individual autonomy, but also posed a question. What happens if a patient wants to continue being on life support, but his family refuses to pay for treatment? The doctors are caught in a dilemma in such situations, especially when the individual is elderly and a woman. In such cases, there has to be state-sponsored financial support so that lives are not snuffed out, he said.

Senior advocate Sanjay Hegde, who appeared for one of the petitioners in the case, said that the judgment has done a great service to those who would have been otherwise heaped with immense indignity and suffering even if they were not willing to live anymore. The specific guidelines would also silence naysayers and opponents of passive euthanasia, he said.

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