PART A IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 215 OF 2005 COMMON CAUSE (A REGD. SOCIETY) .... PETITIONER VERSUS UNION OF INDIA & ANR ..... RESPONDENTS J U D G M E N T Dr D Y CHANDRACHUD, J A Introduction: On Death and Dying 1 Life and death are inseparable. Every moment of our lives, our bodies are involved in a process of continuous change. Millions of our cells perish as nature regenerates new ones. Our minds are rarely, if ever, constant. Our thoughts are fleeting. In a physiological sense, our being is in a state of flux, change being the norm. Life is not disconnected from death. To be, is to die. 1 PART A From a philosophical perspective, there is no antithesis between life and death. Both constitute essential elements in the inexorable cycle of existence. 2 Living in the present, we are conscious of our own mortality. Biblical teaching reminds us that: “There is a time for everything, and a season for every activity under the heavens : a time to be born and a time to die, a time to plant, and a time to uproot, a time to kill and a time to heal, a time to wear down and a time to build, a time to weep and a time to laugh, a time to mourn and a time to dance.” (Ecclesiastes 3) 3 The quest of each individual to find meaning in life reflects a human urge to find fulfilment in the pursuit of happiness. The pursuit of happiness is nurtured in creative pleasures and is grounded in things as fundamental as the freedom to think, express and believe, the right to self-determination, the liberty to follow a distinctive way of life, the ability to decide whether or not to conform and the expression of identity. 4 Human beings through the ages have been concerned with death as much as with dying. Death represents a culmination, the terminal point of life. Dying is part of a process: the process of living, which eventually leads to death. The fear of death is a universal feature of human existence. The fear is associated as much with the uncertainty of when death will occur as it is, with the suffering that may precede it. The fear lies in the uncertainty of when an 2 PART A event which is certain will occur. Our fears are enhanced by the experience of dying that we share with those who were a part of our lives but have gone before us. As human beings, we are concerned with the dignity of our existence. The process through which we die bears upon that dignity. A dignified existence requires that the days of our lives which lead up to death must be lived in dignity; that the stages through which life leads to death should be free of suffering; and that the integrity of our minds and bodies should survive so long as life subsists. The fear of an uncertain future confronts these aspirations of a dignified life. The fear is compounded by the fact that as we age, we lose control over our faculties and over our ability to take decisions on the course of our future. Our autonomy as persons is founded on the ability to decide: on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives. Ageing leaves individuals with a dilution of the ability to decide. The fear of that loss is ultimately, a fear of the loss of freedom. Freedom and liberty are the core of a meaningful life. Ageing brings dependency and a loss of control over our ability to shape what we wish to happen to us. 5 The progression of life takes its toll on the human body and the mind. As we age, simple tasks become less simple and what seemed to be a matter of course may become less so. Human beings then turn ever more to the 3 PART A substance that matters. As events, relationships, associations and even memories fall by the way, we are left with a lonesome remnant of the person, which defines the core of our existence. The quest of finding meaning in that core is often a matter of confronting our fears and tragedies. 6 The fear of pain and suffering is perhaps even greater than the apprehension of death. To be free of suffering is a liberation in itself. Hence the liberty to decide how one should be treated when the end of life is near is part of an essential attribute of personhood. Our expectations define how we should be treated in progressing towards the end, even when an individual is left with little or no comprehension near the end of life. 7 Dilemmas relating to the end of life have been on the frontline of debate across the world in recent decades. The debate has presented “a complex maze of dilemmas for all - the doctor, the lawyer, the patient and the patient’s relatives”1 and straddles issues of religion, morality, bio-medical ethics and constitutional law. It has involved “issues ranging from the nature and meaning of human life itself, to the most fundamental principles on which our societies are and should be based”2. 1 “The Dilemmas of Euthanasia”, Bio-Science (August 1973), Vol. 23, No. 8, at page 459 2 Margaret A. Somerville, “Legalising euthanasia: why now?”, The Australian Quarterly (Spring 1996), Vol. 68, No. 3, at page 1 4 PART A 8 There is an “ongoing struggle between technology and the law”; as “medical technology has become more advanced, it has achieved the capability both to prolong human life beyond its natural endpoint and to better define when that endpoint will occur”.3 Medical science has contributed in a significant way to enhancing the expectancy of life. Diseases once considered fatal have now become treatable. Medical research has redefined our knowledge of ailments – common and uncommon; of their links with bodily functions and the complex relationship between mental processes and physical well-being. Science which affects the length of life also has an impact on the quality of the years in our lives. Prolonging life should, but does not necessarily result in, a reduction of suffering. Suffering has a bearing on the quality of life. The quality of life depends upon the life in our years. Adding to the length of life must bear a functional nexus with the quality of life. Human suffering must have significance not only in terms of how long we live but also in terms of how well we live. 9 Modern medicine has advanced human knowledge about the body and the mind. Equipped with the tools of knowledge, science has shown the ability to reduce human suffering. Science has also shown an ability to prolong life. Yet in its ability to extend life, medical science has an impact on the quality of life, as on the nature and extent of human suffering. Medical interventions come with costs, both emotional and financial. The ability of science to 3 Christopher N. Manning, “Live And Let Die: Physician-Assisted Suicide And The Right To Die”, Harvard Journal of Law and Technology (1996), Vol. 9, No. 2, at page 513 5 PART A prolong life must face an equally important concern over its ability to impact on the quality of life. While medical science has extended longevity, it has come with associated costs of medical care and the agony which accompanies an artificially sustained life. Medical ethics must grapple with the need to bring about a balance between the ability of science to extend life with the need for science to recognise that all knowledge must enhance a meaningful existence. 10 There is “no consensus as to the rights and wrongs of helping someone to die”4, as the legal status of euthanasia has been subjected to social, ethical and moral norms that have been handed down to us. Decisions regarding the end of life can be ethically more problematic when the individual is no longer mentally competent to make his or her own decisions.5 The existential and metaphysical issues involved in this debate, include the fear of the unknown, the uncertainty of when death will occur, the scarcity of health care, freedom or coercion in choosing to receive or not to receive medical treatment, the dignity and degradation of ageing and being able to care for oneself independently.6 11 Does the law have a role in these complex questions of life and death? If it does, what are the boundaries which judges – as interpreters of law – 4 Alan Norrie, “Legal Form and Moral Judgement: Euthanasia and Assisted Suicide” in R.A. Duff, et al (ed), The Structures of the Criminal Law (Oxford University Press, 2011), at page 134 5 Elizabeth Wicks, The Right to Life and Conflicting Interests (Oxford University Press, 2010), at page 199 6 Elizabeth M. Andal Sorrentino, “The Right To Die?”, Journal of Health and Human Resources Administration (Spring,1986), Vol. 8, No. 4, page 361 6 PART A must observe while confronting these issues of living and dying? The law, particularly constitutional law, intervenes when matters governing freedom, liberty, dignity and individual autonomy are at stake. To deny a role for constitutional law would be to ignore our own jurisprudence and the primary role which it assigns to freedom and dignity.