Right to Die and Art 21 of Indian constitution

“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”(art 21 of Indian Constitution).

A five-judge bench, in Gian Kaur (1994) case had held that both assisted suicide and euthanasia were unlawful. It stated that the right to life(art 21) did not include the right to die, hence overruling the two-judge bench decision in P.Rathinam which struck down sec 309, IPC (attempt to suicide) as unconstitutional. In Gian Kaur, the Apex Court held that Art 21 speaks of life with dignity and only aspects of life which make it more dignified could read into this article thereby pointing out that the right to die was inconsistent with it.

However, later in Aruna Shanbaug (2011), it held that passive euthanasia could be a nod in case of exceptional circumstances and under strict monitoring of the apex court. After Aruna Shanbaug case, the 241st Report of the Law Commission of India on Passive Euthanasia has also recognised passive euthanasia, but no law has been enacted.

 In this case, Aruna Shanbaug was a nurse working at the King Edward Memorial Hospital, Mumbai, On 27 November 1973, she was sodomised by a sweeper. During the attack, she was strangled in a chain, and the deprivation of oxygen has left her in a vegetative state ever since. On behalf of Aruna, a social activist filed a PTI in the Supreme Court arguing that the “continued existence of Aruna is in violation of her right to live in dignity." She argued that with the patient unable to see or speak properly, keeping her alive violated her basic dignity. The Apex Court rejected the plea to discontinue Aruna's life support but issued a set of broad guidelines legalising passive euthanasia in India. The court's decision to reject the discontinuation of Aruna's life support was based on the fact that the hospital staff who treat and take care of her did not support euthanizing her. Aruna Shanbaug died in 2015 in King Edward Memorial Hospital.

To live with Dignity Also includes Right to Die with Dignity

In common cause (A regd. society) V Union of India ( AIR 2018 SC 1665),a five-judge a constitutional bench of Supreme Court unanimously ( albeit with four separate concurring judgements) held that the right to die with dignity is a component of the right to life under Art.21 of the constitution. In doing so, there is no requirement of legislation to legalise passive euthanasia:

"The right of the individual to die with dignity takes precedence over of the interest of the state in preserving the sanctity of life "

The Supreme Court judged the question of whether the right to life includes right to a dignified death based on both legal and moral tests. According to Justice D.Y. Chandrachud, “Dignity is the core value of life and personal liberty which infuses every stage of human existence. Dignity in the process of dying as well as dignity in death reflects a long tearing through the ages that the passage away from life should be bereft of suffering".

The court legalised “living wills” or as they choose to call it “advance directives”. A " living will" is a written document by way of which a patient can give his explicit instructions in advance about medical treatment to be administrated when he or she is terminally ill or no longer able to express informed consent including withdrawing life support if a medical board declares that all lifesaving medical options have been exhausted. The living will or advanced directive would specifically, instruct next of kin and medical professionals to not revive or allow for passive euthanasia in such situations. Doctors allowing passive euthanasia on the basis of advance directives no longer need to live in fear of legal against them.

The judgement overruled the finding of Aruna Shanbaug judgement viz. the mechanism of passive euthanasia can only be provided for through legislation. The basis for this finding is the individual's right to self-determination and autonomy, we in includes a right to live with dignity. ‘to live with dignity also includes a right to die with dignity', held the Apex court. The court has left the door open for appropriate legislation for passive euthanasia, with judgement to hold forth in the interim.

Accordingly, the Supreme Court provided a two-step vetting process by medical experts and a final vetting by a judicial magistrate before an advance directive could be given effect to. In such a case, the hospital treating the person would first set up a medical board (comprising the head of the department treating him plus three other medical experts) which has to rule in its favour. This opinion will be conveyed to the district collector who will have this decision vetted by another medical board consisting of the chief medical officer and three medical experts of 20 years standing. Should this board to clear it, the magistrate will ensure that it is carried out and the records kept with the high court for three years. In case the person hasn’t registered such an advance care directive, his family and friends could still set into motion the process to ensure that his treatment is not prolonged through artificial means.