COMMON CAUSE (A REGD. SOCIETY)versusUNION OF INDIA

                      [2014] 3 S.C.R. 289


          COMMON CAUSE (A REGO. SOCIETY)                          A
                               v.
                       UNION OF INDIA
           (Writ Petition (Civil) No. 215 of 2005)

                    FEBRUARY 25, 2014
                                                                  B
      [P. SATHASIVAM, CJI., RANJAN GOGOi AND
               SHIVA KIRTI SINGH, JJ.]

    CONSTITUTION OF IND/A, 1950:
                                                                  c
      Art. 21 rlw Art. 32 - Prayer to declare 'right to die with
dignity' a fundamental right and to make provision for "living
will and Attorney authorization" to exercise right to refuse cruel
and unwarranted medical treatment to artificially prolong the
natural life of terminally ill persons in the event of their going 0
into permanent vegetative state - Matter referred to
Constitution Bench.
     Gian Kaur vs. State of Punjab 1996 (3) _SCR 697 ={1996)
2 S_CC 648; Aruna Ramchand13 _Shanbaug vs. Union of India
2011 (4) SCR 1057 = (2011) 4 SCC 454 and Parmanand                E
Katara vs. Union of India 1989 (3) SCR 997 = (1989) 4 SCC
286 - referred to.
                      Case Law Reference:

    1996 (3) SCR 697           referred to           para 3       F

    2011 (4) SCR 1057          referred to           para 8
    1989 (3) SCR 997           referred to           para 6

    CIVIL ORIGINAL JURISDICTION : Under Article 32 of the         G
Constitution of India.

    Writ Petition (Civil) No. 215 of 2005.

                             289                                  H
    290      SUPREME COURT REPORTS                   . [2014] 3 S.C.R.


A        Sidharth Luthra, ASG, R.P. Bhatt, V.A. Mohta, Prashant
    Bhushan, Rohit Kumar Singh, Pranav Sachdeva, Sunita
    Sharma, Pranav Aggarwal, Sushma Suri, Supriya Juneja,
    Aniruddha P. Mayee, Nilakanth, Charudatta Mahindrakar,
    Praveen Khattar, B. Vijay Kumar for the appearing parties.
B
          The Order of the Court was delivered by

        P. SATHASIVAM, CJI. 1. This writ petition, under Article
  32 of the Constitution of India, has been filed by Common
   Cause-a Society registered under the Societies Registration
C Act, 1860 engaged in taking up various common problems of
  the people for securing redressal, praying for declaring 'right
  to die with dignity' as a fundamental right within the fold of 'right
  to live with dignity' guaranteed under Article 21 of the
  Constitution and to issue direction to the respondent, to adopt
D suitable procedures, in consultation with the State
  Governments wherever necessary, to ensure that the persons
  with deteriorated health or terminally ill s.t.iould be able to
  execute a document, viz., 'my living will & Attorney
  authorization' which can be presented to hospital for
E appropriate action in the event of the executant being admitted
  to the hospital with serious illness which may threaten
  termination of life of the executant or in the alternative, issue
  appropriate guidelines to this effect and to appoint an Expert
  Committee consisting of doctors, social scientists and lawyers
F to study into the aspect of issuing guidelines regarding
  execution of 'Living Wills'.

         2. On 19.06.2002 and 25.06.2002, the petitioner-Society
    had written letters to the Ministry of Law, Justice and Company
    Affairs and the Ministry of Health and Family Welfare with a
G   similar prayer as in this writ petition. Concurrently, the petitioner
    also wrote letters to the State Governments in this regard, as
    hospitals come within the jurisdiction of both the State
    Governments and the Union of India.

H         3. In the above said communication, the petitioner had
COMMON CAUSE (A REGO. SOCIETY) v. UNION, OF 291
        INDIA [P. SATHASIVAM, CJI.]
emphasized the need for a law to be passed which would A
authorize the execution of the 'Living Will & Attorney
Authorization'. Further, in the second letter, the petitioner- .
Society particularly relied on the decision of this Court in Gian
Kaur vs. State of Punjab (1996) 2 SCC 648 to support its
request. Since no reply has been received, the petitioner- B
Society has preferred this writ petition.

     4. Heard Mr. Prashant Bhushan, learned counsel for the
petitioner-Society, Mr. Sidharth Luthra, learned Additional
Solicitor General for the Union of India and Mr. V.A. Mohta,           C
learned Senior Counsel and Mr. Praveen Khattar, learned
counsel for the intervenors.

Contentions:

      5. According to the petitioner-Society, the citizens who are     0
suffering from chronic diseases and/or are at the end of their
natural life span and are likely to go into a state of terminal
illness or permanent vegetative state are deprived of their rights
to refuse cruel and unwanted medical treatment like feeding
through hydration tubes, being kept on ventilator and other life       E
supporting machines, in order to artificially prolong their natural
life span. Thus, the denial of this right leads to extension of pain
and agony both physical as well as mental which the petitioner-
Society seeks to end by making an informed choice byway of
clearly expressing their wishes in advance called "a Living Will"
in the event of their going into a state when it will not be
                                                                       F
possible for them to express their wishes.

     6. On the other hand, Mr. Sidharth Luthra, learned
Additional Solicitor General submitted on behalf of the Union
of India that as per the Hippocratic Oath, the primary duty of         G
every doctor is to save lives of patients. A reference was made
to Regulation 6.7 of the Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations 2002~ which
explicitly prohibits doctors from practicing Euthanasia.
Regulation 6.7 reads as follows:-                                      H
    292       SUPREME COURT REPORTS                  [2014] 3 S.C.R.


A         "Practicing euthanasia shall constitute unethical conduct.
          However, on specific occasion, the question of withdrawing
          supporting devices to sustain cardiopulmonary function
          even after brain death, shall be decided only by a team of
          doctors and not merely by the treating physician alone. A
B         team of doctors shall declare withdrawal of support
          system. Such team shall consist of the doctor in charge of
          the patient, Chief Medical Officer/Medical Officer in charge
          of the hospital and a doctor nominated by the in-charge
          of the hospital from the hospital staff or in accordance with
c         the provisions of the Transplantation of Human Organ Act,
          1994."

  In addition, the respondent relied on the findings of this Court
  in Parmanand Katara vs. Union of India (1989) 4 SCC 286
  to emphasise that primary duty of a doctor is to provide
D treatment and to save the life whenever an injured person is
  brought to the hospital or clinic and not otherwise.

        7. The petitioner-Society responded to the
  abovementioned contention by asserting that all these principles
E work on a belief that the basic desire of a person is to get
  treated and to live. It was further submitted that when there is
  express desire of not having any treatment, then the said
  person cannot be subjected to unwanted treatment against his/
  her wishes. It was also submitted that subjecting a person, who
F is terminally ill and in a permanently vegetative state with no
  hope of recovery, to a life support treatment against his/her
  express desire and keeping him under tremendous pain is in
  violation of his right to die with dignity.

        8. Besides, the petitioner-Society also highlighted that the
G doctors cannot, by some active means like giving lethal
  injections, put any person to death, as it would amount to "active
  euthanasia" which is illegal in India as observed in Aruna
  Ramchandra Shanbaug vs. Union of India (2011) 4 SCC 454.
  Therefore, the petitioner-Society pleads for reading the
H aforesaid regulation only to prohibit the active euthanasia and
. COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 293
          INDIA [P. SATHASIVAM, CJI.]
the said regulation should not be interpreted in a manner which          A
casts obligation on doctors to keep providing treatment to a
person who has already expressed a desire not to have any
life prolonging measure. Thus, it is the stand of the petitioner-
Society that any such practice will not be in consonance with
the law laid down by this Court in Gian Kaur (supra) as well as          B
Jn Aruna Shanbaug (supra).

Discussion:

     9. In the light of the contentions raised, it is requisite to
comprehend what was said in Gian Kaur (supra) and Aruna                  C
Shanbaug (supra) to arrive at a decision in the given case, as
the prayer sought for in this writ petition directly places reliance
on the reasoning of the aforesaid verdicts.

      10. In Gicm Kaur (supra), the subject matter of reference
before the Constitution Bench was as to the interpretation of            D
Article 21 relating to the constitutional validity of Sections 306
and 309 of the Indian Penal Code, 1860,wherein, it was held
that 'right to life' under Article 21 does not include 'right to die'.
While affirming the above view, the Constitution Bench also
observed that 'right to live with dignity' includes 'right to die with   E
dignity'. It is on the basis of this observation, the Petitioner-
Society seeks for a remedy under Article 32 of the Constitution
in the given petition.

     11. Therefore, although the discussion on euthanasia was            F
not relevant for deciding the question of Constitutional validity
of the said provisions, the Constitution Bench went on to
concisely deliberate on this issue as well in the ensuing
manner:-
                                                                         G
     "24. Protagonism of euthanasia on the view that existence
     in persistent vegetative state (PVS) is not a benefit to the
     patient of a terminal illness being unrelated to the principle
     of Sanctity of life' or the 'right to live with dignity' is of no
     assistance to determine the scope of Article 21 for
                                                                         H
    294       SUPREME COURT REPORTS                       [2014] 3 S.C.R.


A         deciding whether the guarantee of 'right to life' therein
          includes the 'right to die'. The 'right to life' including the right
          to live with human dignity would mean the existence of
          such a right up to the end of natural life. This also includes
          the right to a dignified life up to the point of death including
B         a dignified procedure of death. In other words, this may
          include the right of a dying man to also die with dignity
          when his life is ebbing out. ~ut the 'right to die' with dignity
          at the end of life is not to be confused or equated with the
          'right to die' an unnatural death curtailing the natural span
          of life.
c
          25. A question may arise, in the context of a dying man,
          who is, terminally ill or in a persistent vegetative state that
          he may be permitted to terminate it by a premature
          extinction of his life in those circumstances. This category
D         of cases may fall within the ambit of the 'right to die' with
          dignity as a part of right to live with dignity, when death due
          to termination of natural life is certain and imminent and
          the process of natural death has commenced. These are
          not cases of extinguishing life but only of accelerating
E         conclusion of the process of natural death which has
          already commenced. The debate even in such cases to
          permit physician assisted termination of life is inconclusive.
          It is sufficient to reiterate that the argument to support the
          view of permitting termination of life in such cases to
F         reduce the period of suffering during the process of certain
          natural death is not available to interpret Article 21 to
          include therein the right to curtail the natural span of life."
  In succinct, the Constitution Bench did not express any binding
  view on the subject of euthanasia rather reiterated that
G legislature would be the appropriate authority to bring the
  change.
       12. In Aruna Shanbaug (supra), this Court, after having
  referred to the aforesaid Para Nos. 24 and 25 of Gian Kaur
H (supra), stated as follows:-
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 295
        INDIA [P. SATHASIVAM, CJI.]
     "21. We have carefully considered paragraphs 24 and 25           A
     in Gian Kaur's case (supra) and we are of the opinion that
     all that has been said therein is that the view in Rathinam's
     case (supra) that the right to life includes the right to die
     is not correct. We cannot construe Gian Kaur's case
     (supra) to mean anything beyond that. In fact. it has been       B
     specifically mentioned in paragraph 25 of the
     aforesaid decision that "the debate even in such
     cases to permit physician assisted termination of life
     is inconclusive". Thus it is obvious that no final view
     was expressed in the decision in Gian Kaur's case                C
     beyond what we have mentioned above."

It was further held that:-

     101. The Constitution Bench of the Indian Supreme Court
     in Gian Kaur vs. State of Punjab 1996 (2) SCC 648 held           D
     that both euthanasia and assisted suicide are not lawful
     in India. That decision overruled the earlier two Judge
     Bench decision of the Supreme Court in P. Rathinam vs.
     Union of India 1994(3) SCC 394. The Court held that the
     right to life under Article 21 of the Constitution does not      E
     include the right to die (vide para 33). In Gian Kaur's
     case (supra) the Supreme Court approved of the
     decision of the House of Lords in Airedale's case
     (supra), and observed that euthanasia could be made
     lawful only by legislation.                                      F

     13. Insofar-as the above paragraphs are concerned, Aruna
Shanbaug (supra) aptly interpreted the decision of the
Constitution Bench in Gian Kaur (supra) and came to the
conclusion that euthanasia can be allowed in India only through
a valid legislation. However, it is factually wrong to observe that   G
in Gian Kaur (supra), the Constitution Bench approved the
decision of the House of Lords in Airedale vs. Bland (1993) 2
W.LR. 316 (H.L.). Para 40 of Gian Kaur (supra), clearly states
that "even though it is not necessary to deal with physician
assisted suicide or euthanasia cases, a brief reference to this       H
    296      SUPREME COURT REPORTS                  [2014] 3 S.C.R.


A decision cited at the Bar may be made ... " Thus, it was a mere
    reference in the verdict and it cannot be construed to mean that
    the Constitution Bench in Gian Kaur (supra) approved the
    opinion of the House of Lords rendered in Airedale (supra). To
    this extent, the observation in Para 101 is incorrect.
B
         14. Nevertheless, a vivid reading of Para 104 of Aruna
    Shanbaug (supra) demonstrates that the reasoning in Para
    104 is directly inconsistent with its own observation in Para 101.
    Para 104 reads as under:-
c         "104. It may be noted that in Gian Kaur's case (supra)
          although the Supreme Court has quoted with approval the
          view of the House of Lords in Airedale's case (supra), it
          has not clarified who can decide whether life support
          should be discontinued in the case of an incompetent
D         person e.g. a person in coma or PVS. This vexed question
          has been arising often in India because there are a large
          number of cases where persons go into coma (due to an
          accident or some other reason) or for some other reason
          are unable to give consent, and then the question arises
E         as to who should give consent for withdrawal of life
          support. This is an extremely important question in India
          because of the unfortunate low level of ethical standards
          to which our society has descended, its raw and
          widespread commercialization, and the rampant
F         corruption, and hence, the Court has to be very cautious
          that unscrupulous persons who wish to inherit the property
          of someone may not get him eliminated by some crooked
          method."
       15. In Paras 21 & 101, the Bench was of the view that in
G Gian Kaur (supra), the Constitution Bench held that euthanasia
  could be made lawful only by a legislation. Whereas in Para
  104, the Bench contradicts its own interpretation of Gian Kaur
  (supra) in Para 101 and states that although this court approved
  the view taken in Airedale (supra), it has not clarified who can
H
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 297
        INDIA [P. SATHASIVAM, CJI.]
decide whether life support should be discontinued in the case             A
of an incompetent person e.g., a person in coma or PVS.
When, at the outset, it is interpreted to hold that euthanasia
could be made lawful only by legislation where is the question
of deciding whether the life support should be discontinued in
the case of an incompetent person e.g., a person in coma or                B
PVS.

      16. In the light of the above discussion, it is clear that
although the Constitution Bench in Gian Kaur (supra) upheld
that the 'right to live with dignity' under Article 21 will be inclusive   C
of 'right to die with dignity', the decision does not arrive at a
conclusion for validity of euthanasia be it active or passive. So,
the only judgment that holds the field in regard to euthanasia in
India is Aruna Shanbaug (supra), which upholds the validity of
passive euthanasia and lays down an elaborate procedure for
executing the same on the wrong premise that the Constitution              D
Bench in Gian Kaur (supra) had upheld the same.

     17. In view of the inconsistent opinions rendered in Aruna
Shanbaug (supra) and also considering the important question
of law involved Which needs to be reflected in the light of social,        E
legal, medical and constitutional perspective, it becomes
extremely important to have a clear enunciation of law. Thus,
in our cogent opinion, the question of law involved requires
careful consideration by a Constitution Bench of this Court for
the benefit of humanity as a whole.                                        F
     18. We refrain from framing any specific questions for
consideration by the Constitution Bench as we invite the
Constitution Bench to go into all the aspects of the matter and
lay down exhaustive guidelines in this regard.
                                                                           G
    19. Accordingly, we refer this matter to a Constitution
Bench of this Court for an authoritative opinion.
R.P.                       Matter referred to Constitution Bench.
                                                                           H