On 9th March 2018, a 5 Judge Bench comprising Chief Justice Dipak Misra and Justices A K Sikri, A. M. Khanvilkar, D Y Chandrachud and Ashok Bhushan held that the right to die with dignity is a fundamental right. An individual's right to execute advance medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a State.
Justice Chandrachud framed the following issues:
Does the Constitution provide a right to refuse medical treatment? If it does, can the individual decide the course of action? Does the doctor have a duty to respect this right? Does the law permit withholding or refusing medical treatment to an individual who is not capable of expressing his/her desire? Finally, can withholding or refusing medical treatment be permitted?
He writes that the Court has to consider euthanasia and its impact “not only at an individual level”, but also at the “institutional, governmental and societal levels”.
Analysis of Gian Kaur
Justice Chandrachud writes that Gian Kaur disapproved the reasoning in Rathinam. It held that life under Article 21 means a life of dignity, and extinguishment of life (by or attempting or abetting the commission of suicide) is inconsistent with its continued existence. The right to life does not to include the right to die. However, it did not conclusively decide on the issue of allowing euthanasia.
Justice Chandrachud went on to write that Gian Kaur’s decision that the right to life does not include the right to die in the context of suicide might need to be revisited in the future, as domestic and international developments point towards the decriminalisation of suicide. The Mental Healthcare Act 2017 presumes that a person who attempts to commit suicide is under severe stress and must not be tried and punished under the IPC. He writes that it can be argued that the right to life and the right to die are two sides of the same coin.
Analysis of Aruna Shanbaug
Aruna Shanbaug allowed passive euthanasia in certain situations, with the approval of the High Court to avoid abuse. Active euthanasia is the administration of a lethal substance or force to kill a person (i.e., an act), while passive euthanasia is withholding or withdrawing of medical treatment necessary for the continuance of life (an omission). However, the understanding in Aruna Shanbaug that Gian Kaur has approved the decision in Airedale is incorrect. The correct position is that the extract from Airedale cited in Gian Kaur is on the need to bring in legislation to allow active euthanasia
Justice Chandrachud also criticizes Aruna Shanbaug on the aspect of who can make the decision. The Court denied Aruna Shanbaug the right to bodily integrity and self-determination in death by taking opinions of carers, medical and legal professionals. Aruna Shanbaug is also inconsistent in its understanding of Gian Kaur’s decision on Euthanasia. On one hand, Aruna Shanbaug says that “no final view was expressed” in Gian Kaur. On the other hand, the absence of a final view on euthanasia in Gian Kaur was then construed as allowing it. Justice Chandrachud writes that both lines of reasoning cannot survive simultaneously. Justice Chandrachud is also disturbed by how the Court equated Ms Shanbaug’s case with the trials of Nazi war criminals.
Difference between Active and Passive Euthanasia
Justice Chandrachud delves into the difference between active and passive euthanasia, and writes:
• Involuntary euthanasia is the termination of life against the will of the person killed. It is illegal and amounts to murder.
• Non-voluntary euthanasia is the termination of life without the consent or opposition of the person killed
• Voluntary euthanasia is the termination of life at the request of the person killed.
• Active euthanasia is a positive contribution to the acceleration of death
• Passive euthanasia is not taking any steps to sustain life.
Justice Chandrachud makes several comments on interplay of bioethics and law. For instance, passive euthanasia is an issue if the withholding or withdrawal of medical intervention may lead to pain, and ultimately a lingering and cruel death. This will defeat the purpose of euthanasia - the avoidance of suffering. For instance, if Ms Shanbaug’s medical treatment would have been withdrawn, she would have suffocated to death. Is this the best possible death in consonance with dignity? Passive euthanasia is not a simple answer to end one’s suffering. Justice Chandrachud also warns against placing emphasis on doctors and their opinions in carrying out the act of euthanasia. This ignores the patient’s autonomy and suffering.
Sanctity of Life vs. Quality of Life
The Constitution protects the right to life as a supreme right. It is inalienable even in times of Emergency. It recognizes the value of life as its indestructible component. The sanctity principle prohibits deliberate destruction of life, but this does not mean that life should always be prolonged for as long as possible. The right to die can be justified by the principle of “quality of life”. Human dignity is intrinsic to preserving the sanctity of life, under the Constitution, and dignity gets compromised by pain, suffering and progressive loss of bodily functions.
Justice Chandrachud writes that dignity in death is protected by Article 21 and is enforceable against the State.
Legal Implications for Doctors
After weighing the various potential intolerable conditions that a patient would have to undergo if there was no probable cure and painful and non-effective treatments that a patient could have to endure, Justice Chandrachud concluded that the decision by a doctor to withhold or withdraw medical intervention for a terminally ill patient is not with the intent to cause death. Thus, the act does not constitute culpable homicide or murder.
There are two forms of advance directives - A Living Will which indicates a person’s views and wishes regarding medical treatment, and a Durable Power of Attorney for Health Care which authorises another person to make medical decisions for the patient when he/she cannot.
Justice Chandrachud writes that advance directives are allowed because of patient autonomy and consent. Every individual has a constitutionally recognised right to refuse medical treatment. Such a right is essential to liberty. The patient’s decision to refuse medical treatment must be respected by the law and cannot be scrutinised..
A distinction is made between a terminal condition (an incurable or irreversible condition which will result in death even with treatment), a persistently unconscious condition (irreversible condition where there is no thought process and awareness), and an end-stage condition (caused by injury, disease or illness resulting in complete physical dependency). Advance directives may be given in any of these three.
Everyone is entitled to a dignified existence. Dignity in the process of dying is a part of the right to life under Article 21. Thus, an individual of free and competent mental state is entitled to decide whether or not to accept medical treatment. An individual who is competent and able to take such decisions cannot be compelled to disclose the reasons for refusing medical treatment. An individual who is in a sound and competent state of mind can specify the nature of medical intervention to be adopted or not adopted, through an advance directive in writing.