The Supreme Court has made changes to the rules for passive euthanasia with the primary objective to make the process less difficult and less time-consuming. During its hearing, a Constitution bench of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar pulled up the central government for not making a law on “living wills”.
The move, hailed by medical professionals as necessary, followed a judgment in 2018, also given by a Constitution bench of the top court. It recognised the right to die with dignity, noting that a person can draft a living will, detailing how he/she doesn’t wish to be put on life support in the event he/she slips into an incurable coma.
The topic of euthanasia is perhaps best remembered through the lens of Sanjay Leela Bhansali’s Guzaarish (2010). Starring Hrithik Roshan and Aishwarya Rai Bachchan, the film presents an emotional case for an individual’s right to choose death. The film also brought to attention the phrase “living will”.
Earlier, passive euthanasia was a three-tier process and cumbersome for all involved. Once the treating physician had confirmed that nothing more could be done to save the patient, a primary board was constituted by the hospital which gave its review. Then, a review board was put together by the collector, followed by an approval or rejection from the district magistrate after verifying the facts. Since the 2018 judgment, there has not been a single case of euthanasia, even though there are provisions for it.
Key changes have been introduced on five fronts. According to the 2018 judgment, only a judicial magistrate could attest or countersign a living will, which remained with the district court. In the apex court’s recent judgment, this power has been given to a notary or a gazetted officer and the document will now be in the national health records accessible by hospitals.
Requirements of what constitutes the primary board has been changed from at least four experts—from general medicine, cardiology, neurology, nephrology, psychiatry or oncology with an overall 20 years of experience—to three experts, including the treating physician and two doctors with specialties and five years of experience. The 2018 judgment had made no mention of any stipulated time within which a decision had to be taken. Now, a secondary board must immediately be constituted by the hospital and the primary/secondary board must arrive at a decision within 48 hours on withdrawal of further treatment. Also, both boards will now be constituted by the hospital itself, removing the role of the collector.
In a major judgment in March 2018 [Common Cause (A Regd. Society) v. Union Of India Writ Petition (Civil) No. 215 of 2005], the Supreme Court had proclaimed that the right to die with dignity is a fundamental right and allowed passive euthanasia across India. This was not always the case because the concept of passive euthanasia was not legal in India before March 2018. Exception 5 of Section 300 of the Indian Penal Code, 1860, would apply to physicians who induced or participated in euthanasia, because they had the required intention of causing death of the concerned patient, and the term “intention” was all that mattered. The Supreme Court in its judgment stated that the directions and guidelines issued along with its directive would stay in effect until an effective statute or legislation on this subject is introduced. While the judges on the bench had four different points of view, the then chief justice of India ruled that the “living will” should be allowed since a person cannot be allowed to suffer in a vegetative condition if he/she does not want to live.
The Supreme Court had recognised passive euthanasia in the Aruna Shanbaug case in 2011. Through the case, the apex court allowed for the withdrawal of life-sustaining care from patients who were unable to make an informed decision for themselves. The decision originated from a 2005 public interest litigation filed by a non-profit organisation Common Cause. It asked the Court to recognise a “living will” and argued that when a medical expert says a person with terminal sickness has reached a point of no return, he/she should be allowed the right to refuse life support to escape excruciating pain for an extended period.
The apex court in this landmark case had previously reserved its verdict on October 11, 2017. According to the bench, the right to die in peace could not be separated from the right to live under Article 21 of the Constitution.
In Gian Kaur vs State of Punjab [1969], several arguments were raised in favour of legalising euthanasia in India before the Supreme Court. One of the key arguments was that the right to life encompasses the right to die as well. The Supreme Court, however, rejected this argument and stated that the right to life under Article 21 of the Constitution does not encompass the right to die, and thus, cannot be expanded to signify the same thing. As a result, the Supreme Court does not rule that euthanasia is unconstitutional.
In India, religious views strongly oppose premature death, and hence, the right to life may outweigh the right to die with dignity, which has been given legal recognition in the 2018 case.
Despite the Supreme Court’s acknowledgement of the right to die with dignity as a fundamental right, religious communities in India, which are strongly opposed to euthanasia, may pose substantial challenges. Killing a terminally-ill individual, whether by active euthanasia or passive euthanasia, is considered an act of disobedience against God by both Sunnis and Shias. From a similar point of view, the concept of euthanasia is opposed by Christians in India. Euthanasia is against the Catholic Church’s beliefs since it supports the sanctity of life.
According to medical professionals, passive euthanasia is already a common practice in a majority of hospitals across the country as many poor, terminally-ill patients and their families prefer to end the treatment due to the enormous cost of keeping them alive. On the other hand, for those who can afford it, maintaining life with advanced medical technologies and palliative care has become more routine.
—By Abhilash Singh and India Legal Bureau