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(CIVIL) NO. 215 of 2005 Common Cause (A Regd 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 215 OF 2005 Common Cause (A Regd. Society) ...Petitioner(s) Versus Union of India and Another …Respondent(s) J U D G M E N T Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.] I N D E X S. No. Heading Page No. A. Prologue 3 B. Contentions in the Writ Petition 10 C. Stand in the counter affidavit and the 14 applications for intervention D. Background of the Writ Petition 18 D.1 P. Rathinam’s case – The question of 19 unconstitutionality of Section 309 of the Indian Penal Code D.2 Gian Kaur’s case – The question of 22 unconstitutionality of Section 306 of 2 the Indian Penal Code D.3 The approach in Aruna Shanbaug qua 30 Passive Euthanasia vis-à-vis India D.4 The Reference 42 E. Our analysis of Gian Kaur 45 F. Our analysis of Aruna Shanbaug qua 51 legislation G. The Distinction between Active and Passive 52 Euthanasia H. Euthanasia : International Position 58 H.1 U.K. Decisions: 58 H.1.1 Airedale Case 58 H.1.2 Later Cases 79 H.2 The Legal position in the United 89 States H.3 Australian Jurisdiction 96 H.4 Legal position in Canada 99 H.5 Other Jurisdictions 104 H.6 International considerations and 107 decisions of the European Court of Human Rights (ECHR) I The 241st Report of The Law Commission of 114 India on Passive Euthanasia J. Right to refuse treatment 120 3 K. Passive Euthanasia in the context of Article 126 21 of the Constitution. K.1 Individual Dignity as a facet of Article 135 21 L Right of self-determination and individual 149 autonomy M. Social morality, medical ethicality and State 155 interest N. Submissions of the States 157 O. Submissions of the Intervenor (Society for 159 the Right to Die with Diginity) P. Advance Directive/Advance Care Directive/ 160 Advance Medical Directive (a) Who can execute the Advance Directive 170 and how (b) What should it contain? 171 (c) How should it be recorded and 172 preserved (d) When and by whom can it be given 174 effect to (e) What if permission is refused by the 179 Medical Board (f) Revocation or inapplicability of 181 Advance Directive 186 Q. Conclusions in seriatim A. Prologue: Life and death as concepts have invited many a thinker, philosopher, writer and physician to define or describe them. 4 Sometimes attempts have been made or efforts have been undertaken to gloriously paint the pictures of both in many a colour and shade. Swami Vivekananda expects one to understand that life is the lamp that is constantly burning out and further suggests that if one wants to have life, one has to die every moment for it. John Dryden, an illustrious English author, considers life a cheat and says that men favour the deceit. No one considers that the goal of life is the grave. Léon Montenaeken would like to describe life as short, a little hoping, a little dreaming and then good night. The famous poet Dylan Thomas would state ―do not go gentle into that good night.‖ One may like to compare life with constant restless moment spent in fear of extinction of a valued vapour; and another may sincerely believe that it is beyond any conceivable metaphor. A metaphysical poet like John Donne, in his inimitable manner, says:- ―One short sleep past, we wake eternally, And death shall be no more; death, thou shalt die‖. Some would say with profound wisdom that life is to be lived only for pleasure and others with equal wise pragmatism 5 would proclaim that life is meant for the realization of divinity within one because that is where one feels the ―self‖, the individuality and one‘s own real identity. Dharmaraj Yudhisthira may express that though man sees that death takes place every moment, yet he feels that the silence of death would not disturb him and nothing could be more surprising than the said thought. Yet others feel that one should never be concerned about the uncertain death and live life embracing hedonism till death comes. Charvaka, an ancient philosopher, frowns at the conception of re-birth and commends for living life to the fullest. Thus, death is complicated and life is a phenomenon which possibly intends to keep away from negatives that try to attack the virtue and vigour of life from any arena. In spite of all the statements, references and utterances, be it mystical, philosophical or psychological, the fact remains, at least on the basis of conceptual majority, that people love to live – whether at eighty or eighteen – and do not, in actuality, intend to treat life like an ―autumn leaf‖. As Alfred Tennyson says:- 6 ―No life that breathes with human breath has ever truly longed for death.‖ 2. The perception is not always the same at every stage. There comes a phase in life when the spring of life is frozen, the rain of circulation becomes dry, the movement of body becomes motionless, the rainbow of life becomes colourless and the word ‗life‘ which one calls a dance in space and time becomes still and blurred and the inevitable death comes near to hold it as an octopus gripping firmly with its tentacles so that the person ―shall rise up never‖. The ancient Greet philosopher, Epicurus, has said, although in a different context:- ―Why should I fear death? If I am, then death is not. If death is, then I am not. Why should I fear that which can only exist when I do not?‖ But there is a fallacy in the said proposition. It is because mere existence does not amount to presence. And sometimes there is a feebleness of feeling of presence in semi-reality state when the idea of conceptual identity is lost, quality of life is 7 sunk and the sanctity of life is destroyed and such destruction is denial of real living. Ernest Hemingway, in his book ‗The Old Man and the Sea‘, expounds the idea that man can be destroyed, but cannot be defeated. In a certain context, it can be said, life sans dignity is an unacceptable defeat and life that meets death with dignity is a value to be aspired for and a moment for celebration. 3. 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 ―word infinitely terrible‖ to be a rhetoric without any meaning. In contradistinction to the same, 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. In delineation of such an issue, there emerges the question in law – should he or she be given such treatment which has 8 come into existence with the passage of time and progress of medical technology so that he/she exists possibly not realizing what happens around him/her or should his/her individual dignity be sustained with concern by smoothening the process of dying. 4. 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/she, 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/her feel guilty. The collective puts him at the crossroads between socially carved out ‗meaningful guilt‘ and his constant sense of rationality and individual responsibility. 9 There has to be a legalistic approach which is essential to clear the maze and instill awareness that gradually melts the idea of ―meaningful guilt‖ and ushers in an act of ―affirmative human purpose‖ that puts humanness on a high pedestal. 5. There is yet another aspect. In an action of this nature, there can be abuse by the beneficiaries who desire that the patient‘s heart should stop so that his property is inherited in promptitude and in such a situation, the treating physicians are also scared of collusion that may invite the wrath of criminal law as well as social stigma. The medical, social and ethical apprehensions further cloud their mind to take a decision. The apprehension, the cultural stigma, the social reprehension, the allegation of conspiracy, the ethical dilemma and eventually the shadow between the individual desire and the collective expression distances the reality and it is here that the law has to have an entry to alleviate the agony of the individual and dispel the collective attributes and perceptions so that the imbroglio is clear. Therefore, the heart of the matter is whether the law permits for accelerating the process 10 of dying sans suffering when life is on the path of inevitable decay and if so, at what stage and to what extent.
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