The Constitution Bench of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan delivered a historic verdict recently on a PIL filed by NGO Common Cause in 2005. The NGO was seeking passive euthanasia and legal recognition for “living will” in India.
Article 21 of the Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Further the court pronounced that The 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 right to live with dignity as component of “right to life and liberty.”
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 “infinitely terrible” to be a rhetoric without any meaning. 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.
Individuals will have a right to die with dignity. Passive euthanasia, will apply only to a terminally ill person or a person in persistent vegetative state with no hope of recovery. The court allows removal of life support system and to die with dignity. 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 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 feel guilty. The collective puts him at the crossroads between socially carved out “meaningful guilt” and his constant sense of rationality and individual responsibility. 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. 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. (This is as part of the judgement of the Supreme Court).
However, it may be noted that active euthanasia still continues to be illegal in India. Active euthanasia means administering a lethal injection to such patients who don’t have any chance of recovery. The court also permitted individuals to decide against artificial life support, should the need arise, by creating a “living will.” In the patient’s best interest, such life support systems are withdrawn based on the “living will” created by the patient. A living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill and is not able to give a consent.
The Supreme Court was of the prima facie view that there should be a guidelines for drafting a “living will” and also authenticating them. This “living will” and attorney authorisation 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. The court has also advised to include a committee of experts including doctors, social scientists and lawyers to study into the aspect of issuing guidelines as to the “living wills” and to issue such further appropriate directions and guidelines as may be necessary.
This is a welcome decision of the Supreme Court and will uphold the dignity to die in peace. Passive euthanasia is a welcome act over a period of time the Supreme Court should also consider active euthanasia for the welfare of the suffering patient and their relatives.
(The writer is is the global head of legal in a major Information Technology company)