Holding

The right to life with dignity under Article 21 includes the right to die with dignity, and passive euthanasia (withholding or withdrawing life-sustaining treatment) is constitutionally permissible for terminally ill or PVS patients, subject to safeguards, and advance directives are legally recognized as a facet of individual autonomy.

Summary

The petitioner, Common Cause, a registered society, filed a writ petition under Article 32 seeking a declaration that the right to die with dignity is a fundamental right under Article 21 of the Constitution, and for directions to recognize 'living wills' or advance directives. The case was referred to a Constitution Bench due to perceived inconsistencies in earlier judgments (Gian Kaur and Aruna Shanbaug) regarding the legal status of passive euthanasia. The Court held that the right to life with dignity under Article 21 includes the right to die with dignity, and that passive euthanasia (withholding or withdrawing life-sustaining treatment) is constitutionally permissible for terminally ill patients or those in a persistent vegetative state, subject to strict safeguards. The Court clarified that Gian Kaur did not require legislation for passive euthanasia, and that Aruna Shanbaug's interpretation to that effect was incorrect. The Court also recognized the legal validity of advance directives (living wills) as an exercise of individual autonomy and dignity, and laid down detailed guidelines for their execution and implementation, including the constitution of medical boards and judicial oversight. The writ petition was disposed of with directions that these guidelines shall remain in force until Parliament enacts suitable legislation.

Issues considered

Whether the right to die with dignity is a fundamental right under Article 21 of the Constitution?
Whether passive euthanasia (withholding/withdrawing life-sustaining treatment) is constitutionally permissible?
Whether advance directives (living wills) are legally valid and enforceable?
What safeguards are required to prevent misuse of passive euthanasia and advance directives?
Whether the Constitution Bench in Gian Kaur approved the decision in Airedale and required legislation for passive euthanasia?
Whether the decision in Aruna Shanbaug correctly interpreted Gian Kaur?

Legislation cited

Constitution of Indias. 14, s. 142, s. 21, s. 226
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002s. 6.7
Indian Penal Code, 1860s. 107, s. 299, s. 300, s. 304, s. 304A, s. 305, s. 306, s. 309, s. 32, s. 43, s. 81, s. 92
Mental Capacity Act, 2005 (UK)s. 24, s. 25, s. 26
Mental Healthcare Act, 2017s. 10, s. 11, s. 115, s. 13, s. 14, s. 5, s. 6, s. 7, s. 8, s. 9
Suicide Act, 1961 (UK)s. 2
Transplantation of Human Organs and Tissues Act, 1994s. 24, s. 3, s. 9

Subjects

EuthanasiaPassive EuthanasiaRight to Die with DignityRight to LifeArticle 21Advance DirectivesLiving WillPersistent Vegetative StateTerminal IllnessConstitutional LawMedical EthicsPatient AutonomySelf-DeterminationHuman DignityPrivacyWithdrawal of Life SupportIndian Penal CodeMental Healthcare Act 2017Transplantation of Human Organs Act

Judgment

COMMON CAUSE (A REGD.
[2018] 6SOCIETY)
S.C.R. 1 v. UNION OF INDIA 1

COMMON CAUSE (A REGD. SOCIETY) A
v.
UNION OF INDIA & ANOTHER
(Writ Petition (Civil) No. 215 of 2005)
MARCH 09, 2018 B
[DIPAK MISRA, CJI, A. K. SIKRI,
DR. D. Y. CHANDRACHUD, ASHOK BHUSHAN AND
A. M. KHANWILKAR, JJ.]
Constitution of India – Art.21 – Passive Euthanasia – Right
to die with dignity – Held: The right to life with dignity includes the C
smoothening of the process of dying when the person is in a
vegetative state or is living exclusively by the administration of
artificial aid that prolongs the life by arresting the dignified and
inevitable process of dying – Here, the issue of choice also comes
in – Such a right should come within the ambit of Art.21 of the D
Constitution – As part of right to die with dignity in case of dying
man who is terminally ill or in a persistent vegetative state only
passive euthanasia would come within the ambit of Art.21 and not
the one which would fall within the description of active euthanasia
in which positive steps are taken either by the treating physician or
some other person. (Per Dipak Misra, CJI [for himself and E
Khanwilkar, J.])
Constitution of India – Art.21 – Right to refuse treatment – A
patient (terminally ill or in a persistent vegetative state) exercising
the right to refuse treatment may ardently wish to live but, at the
same time, he may wish to be free from any medical surgery, drugs F
or treatment of any kind so as to avoid protracted physical suffering
– Any such person who has come of age and is of sound mind has
a right to refuse medical treatment – This right stands on a different
pedestal as compared to suicide, physician assisted suicide or even
euthanasia – When a terminally ill patient refuses to take medical
G
treatment, it can neither be termed as euthanasia nor as suicide – A
patient refusing medical treatment merely allows the disease to take
its natural course and if, in this process, death occurs, the cause
for it would primarily be the underlying disease and not any self
initiated act – All adults with capacity to consent have the right of
H
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2 SUPREME COURT REPORTS [2018] 6 S.C.R.

A self- determination and autonomy – The ‘Emergency Principle’ or
the ‘Principle of Necessity’ has to be given effect to only when it is
not practicable to obtain the patient’s consent for treatment and
his/her life is in danger – But where a patient has already made a
valid Advance Directive which is free from reasonable doubt and
specifying that he/she does not wish to be treated, then such directive
B
has to be given effect to.(Per Dipak Misra, CJI [for himself and
Khanwilkar, J.])
Constitution of India – Art.21 – Right to refuse treatment –
Continuing treatment against the wishes of a patient is not only a
violation of the principle of informed consent, but also of bodily
C privacy and bodily integrity that have been recognised as a facet
of privacy – Just as people value having control over decisions
during their lives such as where to live, which occupation to pursue,
whom to marry, and whether to have children, so people value
having control over whether to continue living when the quality of
D life deteriorates. (Per Dr. D.Y. Chandrachud, J.)
Constitution of India – Art.21 – Dignity of life must encompass
dignity in the stages of living which lead up to the end of life –
Dignity in the process of dying is as much a part of the right to life
under Art.21 – To deprive an individual of dignity towards the end
E of life is to deprive the individual of a meaningful existence – Hence,
the Constitution protects the legitimate expectation of every person
to lead a life of dignity until death occurs.
(Per Dr. D.Y. Chandrachud, J.)
Constitution of India – Art.21 – Right to refuse treatment –
F An adult human being of conscious mind is fully entitled to refuse
medical treatment or to decide not to take medical treatment and
may decide to embrace the death in natural way.
(Per Ashok Bhushan, J.)
Constitution of India – Art.21 – Decision for withdrawal of
G life saving treatment in case of a person who is incompetent to take
an informed decision – Held: Right of patient who is incompetent to
express his view cannot be outside of fold of Art.21 of the
Constitution – When an adult person having mental capacity to
take a decision can exercise his right not to take treatment or
withdraw from treatment, the above right cannot be negated for a
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 3

person who is not able to take an informed decision due to terminal A
illness or being a Persistent Vegetative State (PVS) – When the right
of an adult person who expresses his view regarding medical
treatment can be regarded as right flowing from Art.21 of the
Constitution, the right of patient who is incompetent to express his
view cannot be outside the fold of Art.21 of the Constitution – In
B
cases of incompetent patients who are unable to take an informed
decision, it is in the best interests of the patient that the decision be
taken by competent medical experts and that such decision be
implemented after providing a cooling period at least of one month
to enable aggrieved person to approach the Court of Law – The
best interest of the patient as determined by medical experts shall C
meet the ends of justice – The medical team by taking decision shall
also take into consideration the opinion of the blood relations of
the patient and other relevant facts and circumstances.
(Per Ashok Bhushan, J.)
Constitution of India – Art.21 – Right to life – As the process D
of dying is an inevitable consequence of life, the right to life
necessarily implies the right to have nature take its course and to
die a natural death – It also encompasses a right, unless the
individual so wishes, not to have life artificially maintained by the
provision of nourishment by abnormal artificial means which have
no curative effect and which are intended merely to prolong life. E
(Per A.K. Sikri, J.)
Constitution of India – Art.21 – Concept of human dignity –
Ideology of different religions – Hinduism doesn’t recognize human
beings as mere material beings – Its understanding of human identity
is more ethical-spiritual than material – That is why a sense of F
immortality and divinity is attributed to all human beings in Hindu
classical literature – Even in Islam, tradition of human rights became
evident in the medieval ages – Being inspired by the tenets of the
Holy Koran, it preaches the universal brotherhood, equality, justice
and compassion – Islam believes that man has special status before G
God – Because man is a creation of God, he should not be harmed
– The Bhakti and Sufi traditions too in their own unique ways
popularized the idea of universal brotherhood – It revived and
regenerated the cherished Indian values of truth, righteousness,
justice and morality. (Per A.K. Sikri, J.)
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4 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Constitution of India – Art.21 – Right to live with dignity –
Dignity implies, apart from a right to life enjoyment of right to be
free of physical interference – At common law, any physical
interference with a person is, prima facie, tortious – When it comes
to medical treatment, even there the general common law principle
is that any medical treatment constitutes a trespass to the person
B
which must be justified, by reference either to the patient’s consent
or to the necessity of saving life in circumstances where the patient
is unable to decide whether or not to consent. (Per A.K. Sikri, J.)
Constitution of India – Art.21 – Right to receive or deny
medical treatment and euthanasia – Rights with regard to medical
C treatment fall essentially into two categories: first, rights to receive
or be free of treatment as needed or desired, and not to be subjected
involuntarily to experimentation which, irrespective of any benefit
which the subjects may derive, are intended to advance scientific
knowledge and benefit people other than the subject in the long
D term; secondly, rights connected incidentally with the provision of
medical services, such as rights to be told the truth by one’s doctor
– Having regard to this right of the patients in common law, coupled
with the dignity and privacy rights, it can be said that passive
euthanasia, under those circumstances where patient is in PVS and
he is terminally ill, where the condition is irreversible or where he is
E brain dead, can be permitted. (Per A.K. Sikri, J.)
Constitution of India – Art.21 – Right to health – Held: It is a
part of Art.21 of the Constitution – At the same time, it is also a
harsh reality that everybody is not able to enjoy that right because
of poverty etc. – The State is not in a position to translate into reality
F this right to health for all citizens – Thus, when citizens are not
guaranteed the right to health, the questions that arise are can they
be denied right to die in dignity - because of rampant poverty
where majority of the persons are not able to afford health services,
should they be forced to spend on medical treatment beyond their
G means and in the process compelling them to sell their house property,
household things and other assets which may be means of livelihood
– Secondly, when there are limited medical facilities available, should
a major part thereof be consumed on those patients who have no
chances of recovery – Judicial notice. (Per A.K. Sikri, J.)

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 5

Constitution of India – Arts.14, 21 – Human dignity – How A
philosopher-jurist Dworkin perceived interpretative process adopted
by a Judge – Discussed – Interpretation of statutue.
(Per A.K. Sikri, J.)
Constitution of India – Art.21 – Gian Kaur case, analysis of –
Reference to Airedale’s case – In Gian Kaur, validity of s.306 was B
challenged – The Constitution Bench in Gian Kaur clearly held that
when a man commits suicide, he has to undertake certain positive
overt acts and the genesis of those acts cannot be tested to or be
included within the protection of the expression “right to life” under
Art.21 of the Constitution – It was also observed that a dignified
procedure of death may include the right of a dying man to also die C
with dignity when the life is ebbing out – This is how the
pronouncement in Gian Kaur has to be understood – It was also not
the ratio of the authority in Gian Kaur that euthanasia has to be
introduced only by a legislation – What was stated in paragraph 41
of Gian Kaur is what has been understood to have been held in D
Airedale’s case – The Court has neither expressed any independent
opinion nor has it approved the said part or the ratio as stated in
Airedale – There was only a reference to Airedale’s case and the
view expressed therein as regards legislation – Therefore, the
perception in Aruna Shanbaug that the Constitution Bench has
approved the decision in Airedale was not correct – Thus, Gian E
Kaur has neither given any definite opinion with regard to
euthanasia nor has it stated that the same can be conceived of only
by a legislation – Euthanasia.(Per Dipak Misra, CJI [for himself
and Khanwilkar, J.])
Constitution of India – Art.21 – Aruna Shanbaug case, analysis F
of – The two-Judge Bench in Aruna Shanbaug noted that Gian Kaur
has approved the decision of the House of Lords in Airedale and
observed that euthanasia could be made lawful only by legislation
– This perception is not correct as Gian Kaur does not lay down that
passive euthanasia could be made lawful only by legislation. (Per
G
Dipak Misra, CJI [for himself and Khanwilkar, J.])
Euthanasia – Passive euthanasia – Social Morality, medical
ethicality and State Interest – Withdrawal of treatment in an
irreversible situation is different from not treating or attending to a
patient – Once passive euthanasia is recognized in law regard being
had to the right to die with dignity when life is ebbing out and when H
6 SUPREME COURT REPORTS [2018] 6 S.C.R.

A the prolongation is done sans purpose, neither the social morality
nor the doctors’ dilemma or fear will have any place – It is because
the sustenance of dignity and self-respect of an individual is inhered
in the right of an individual pertaining to life and liberty and there
is necessity for this protection – And once the said right comes within
the shelter of Art.21 of the Constitution, the social perception and
B
the apprehension of the physician or treating doctor regarding facing
litigation should be treated as secondary because the primacy of
the right of an individual in this regard has to be kept on a high
pedestal – Constitution of India – Art.21. (Per Dipak Misra, CJI
[for himself and Khanwilkar, J.])
C Euthanasia – Intention to cause death – Distinction between
active euthanasia and passive euthanasia – A distinction arises
between active and passive euthanasia from the provisions of the
Penal Code – Active euthanasia involves an intention on the part
of the doctor to cause the death of the patient – Such cases fall
D under the first clause of s.300 – Mens rea requires a guilty mind;
essentially an intent to cause harm or injury – Passive euthanasia
does not embody an intent to cause death – A doctor may withhold
life support to ensure that the life of a patient who is in the terminal
stage of an incurable illness or in a permanent vegetative state, is
not prolonged artificially – The decision to do so is not founded
E upon an intent to cause death but to allow the life of the patient to
cease at the end of its natural term – A decision not to prolong life
by artificial means does not carry an intention to cause death – In
a case involving passive euthanasia, the affliction of the patient is
not brought about either by an act or omission of the doctor – The
F creation of the condition of the patient is outside the volition of the
doctor and has come about without a covert or overt act by the
doctor – The decision to withhold medical intervention is to prevent
pain, suffering and indignity to a human being who is in the end
stage of a terminal illness or of a vegetative state with no reasonable
prospect of cure – Thus, both in a case of a withdrawal of life
G supporting intervention and withholding it, the law protects a bona
fide assessment of a medical professional – There being no intent to
cause death, the act does not constitute either culpable homicide or
murder – Moreover, the doctor does not inflict a bodily injury –
Death emanates from the pre-existing medical condition of the patient
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 7

which enables life to chart a natural course to its inexorable end – A
The law protects a decision which has been made in good faith by a
medical professional not to prolong the indignity of a life placed on
artificial support in a situation where medical knowledge indicates
a point of no return – Neither the act nor the omission is done with
the knowledge that it is likely to cause death – Penal Code, 1860 –
B
ss.299, 300. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia – Active and passive Euthanasia – Distinction
between – Legality of passive euthanasia – Held: There is an inherent
difference between active euthanasia and passive euthanasia as
the former entails a positive affirmative act, while the latter relates
to withdrawal of life support measures or withholding of medical C
treatment meant for artificially prolonging life – In active euthanasia,
a specific overt act is done to end the patient’s life whereas in passive
euthanasia, something is not done which is necessary for preserving
a patient’s life – It is due to this difference that most of the countries
across the world have legalised passive euthanasia either by D
legislation or by judicial interpretation with certain conditions and
safeguards – Post Aruna Shanbaug, the 241st report of the Law
Commission of India on Passive Euthanasia has also recognized
passive euthanasia, however, no law as such has been enacted.
(Per Dipak Misra, CJI [for himself and Khanwilkar, J.])
E
Euthanasia –Protection under s.92 IPC – Withdrawing life
support to a person in a permanently vegetative state or in a terminal
stage of illness is not ‘prohibited by law’ – Such an act would also
not fall outside the purview of s.92 for the reason that there is no
intentional causing of death or attempt to cause death – In a situation
where passive euthanasia is non-voluntary, there is an additional F
protection which is also available in circumstances which give rise
to the application of s.92 – Where an act is done for the benefit of
another in good faith, the law protects the individual – Penal Code,
1860 – s.92. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia – Active euthanasia in India, Legality of – The G
intentional taking away of the life of another is made culpable by
the Penal Code – Active euthanasia falls within the express
prohibitions of the law and is unlawful. (Per Dr. D.Y. Chandrachud,
J.)
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8 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Euthanasia – Passive euthanasia – The decision by a treating
doctor to withhold or withdraw medical intervention in the case of
a patient in the terminal stage of illness or in a persistently vegetative
state or the like where artificial intervention will merely prolong the
suffering and agony of the patient is protected by the law – Where
the doctor has acted in such a case in the best interest of the patient
B
and in bona fide discharge of the duty of care, the law will protect
the reasonable exercise of a professional decision.
(Per Dr. D.Y. Chandrachud, J.)
Euthanasia – Passive euthanasia – Legal principles governing
criminal law on passive euthanasia – Report by Justice M
C Jagannadha Rao as Chairperson of 196 th Report of Law
Commission of India, elucidated. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia – In Gian Kaur case, the Constitution Bench held,
while affirming the constitutional validity of s.306 of the Penal Code
(abetment of suicide), that the right to life does not include the right
D to die – Gian Kaur case does not conclusively rule on the validity of
passive euthanasia – The two Judge Bench decision in Aruna
Shanbaug proceeds on an incorrect perception of Gian Kaur –
Moreover, Aruna Shanbaug has proceeded on the basis of the act-
omission distinction which suffers from incongruities of a
E jurisprudential nature – Aruna Shanbaug has also not dwelt on the
intersection between criminal law and passive euthanasia, beyond
adverting to ss.306 and 309 of the Penal Code – Aruna Shanbaug
has subordinated the interest of the patient to the interest of others
including the treating doctors and supporting caregivers – The
underlying basis of the decision in Aruna Shanbaug is flawed –
F Hence, it is necessary for this Court in the present reference to
revisit the issues raised and to independently arrive at a conclusion
based on the constitutional position – Penal Code, 1860 –
ss.306,309. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia – Restraints on judicial power – Active/Passive
G euthanasia - whether in the form of withholding or withdrawing
treatment - has the effect of removing, or as the case may be, not
providing supportive treatment – Its effect is to allow the individual
to continue to exist until the end of the natural span of life – On the
other hand, active euthanasia involves hastening of death: the life
H span of the individual is curtailed by a specific act designed to
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 9

bring an end to life – Active euthanasia would in the light of penal A
law as it stands constitute an offence – It is only Parliament which
can in its legislative wisdom decide whether active euthanasia should
be permitted – Passive euthanasia on the other hand would not
implicate a criminal offence since the decision to withhold/withdraw
artificial life support after taking into account the best interest of
B
the patient would not constitute an illegal omission prohibited by
law. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia – Voluntary passive euthanasia, where death
results from selective non-treatment because consent is withheld, is
legally permissible while voluntary active euthanasia is prohibited.
(Per Dr. D.Y. Chandrachud, J.) C

Euthanasia – Impact of, at the institutional, governmental and
societal level – Discussed. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia – Distinction between legality of active and
passive euthanasia – Discussed. (Per Dr. D.Y. Chandrachud, J.) D
Euthanasia – Passive euthanasia – Direction to set up
committees to exercise a supervisory role and function – Besides
lending assurance to the decision of the treating doctors, the setting
up of committees and the processing of a proposed decision through
the committees would protect the ultimate decision that is taken from E
an imputation of a lack of bona fides – Committees.
(Per Dr. D.Y. Chandrachud, J.)
Euthanasia – Law on Euthanasia in other countries –
Discussed. (Per Ashok Bhushan, J.)
Euthanasia – Passive euthanasia – Legality of – The decision F
not to take life saving medical treatment by a patient, who is
competent to express his opinion cannot be termed as euthanasia,
but a decision to withdraw life saving treatment by a patient who is
competent to take decision as well as with regard to a patient who is
not competent to take decision can be termed as passive euthanasia
G
– On the strength of the precedents in this country and weight of
precedents of other countries, such action of withdrawing life saving
device is legal – Thus, such acts, which are commonly expressed as
passive euthanasia is lawful and legally permissible in this country
– The act of withdrawal from live-saving devices is an independent
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10 SUPREME COURT REPORTS [2018] 6 S.C.R.

A right which can lawfully be exercised by informed decision. (Per
Ashok Bhushan, J.)
Euthanasia – Active Euthanasia – Legality of – No one is
permitted to cause death of another person including a physician
by administering any lethal drug even if the objective is to relieve
B the patient from pain and suffering. (Per Ashok Bhushan, J.)
Euthanasia – Gian Kaur case – The Constitution Bench in
Gian Kaur case held that the “right to life: including right to live
with human dignity” would mean the existence of such right up to
the end of natural life, which also includes the right to a dignified
C life upto the point of death including a dignified procedure of death
– Gian Kaur case did not express any binding view on the subject of
euthanasia – The Constitution Bench, however, noted a distinction
between cases in which physician decides not to provide or continue
to provide for treatment and care, which could or might prolong his
life and those in which he decides to administer a lethal drug even
D though with object of relieving the patient from pain and suffering
– The latter was held not to be covered under any right flowing
from Art.21 – Constitution of India – Art.21. (Per Ashok Bhushan,
J.)
Euthanasia – Passive euthanasia and death with dignity are
E inextricably linked – The opportunity to die unencumbered by the
intrusion of medical technology and before experiencing loss of
independence and control, appears to many to extend the promise
of a dignified death – When medical technology intervenes to
prolong dying like this it does not do so unobtrusively – Nowadays
F patients insist on more than just a right to health care in general –
They seek a right to choose specific types of treatment, able to retain
control throughout the entire span of their lives and to exercise
autonomy in all medical decisions concerning their welfare and
treatment.(Per A.K. Sikri, J.)

G Euthanasia – Morality of medical science – Hippocratic Oath,
coupled with ethical norms of medical profession, stand in the way
of euthanasia – It brings about a situation of dilemma insofar as
medical practitioner is concerned – On the one hand his duty is to
save the life of a person till he is alive, even when the patient is
terminally ill and there are no chances of revival – On the other
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 11

hand, the concept of dignity and right to bodily integrity, which A
recognises legal right of autonomy and choice to the patient (or
even to his relations in certain circumstances, particularly when
the patient is unconscious or incapacitated to take a decision) may
lead to exercising his right of euthanasia – Medical science. (Per
A.K. Sikri, J.)
B
Advance Directives – Safeguards to be followed as to who
can execute the advance directive and how; what should it contain;
how should it be recorded and preserved; when and by whom can it
be given effect to; what if permission is refused by the medical board;
revocation or inapplicability of advance directive – Principles
relating to the procedure for execution of Advance Directive and C
the guidelines to give effect to passive euthanasia in both
circumstances, namely, where there are advance directives and where
there are none laid down in exercise of the power under Art.142 of
the Constitution and the law stated in Vishaka case – The directive
and guidelines to remain in force till the Parliament brings a D
legislation in the field – Constitution of India – Art.142 – Legislation,
need for. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])
Advance Directives – Principles in vogue across the globe
governing Advance Health Directives – Various jurisdictions,
discussed. (Per Dipak Misra, CJI [for himself and Khanwilkar, E
J.])
Advance Directives – A failure to legally recognize advance
medical directives may amount to non-facilitation of the right to
smoothen the dying process and the right to live with dignity – A
study of the position in other jurisdictions shows that Advance F
Directives have gained lawful recognition in several jurisdictions
by way of legislation and in certain countries through judicial
pronouncements – Though the sanctity of life has to be kept on the
high pedestal yet in cases of terminally ill persons or PVS patients
where there is no hope for revival, priority shall be given to the
Advance Directive and the right of self-determination – In the G
absence of Advance Directive, the procedure provided for the said
category shall be applicable. (Per Dipak Misra, CJI [for himself
and Khanwilkar, J.])

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12 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Advance Directives – If permission to withdraw medical
treatment is refused by the Medical Board, it would be open to the
executor of the Advance Directive or his family members or even
the treating doctor or the hospital staff to approach the High Court
by way of writ petition under Art.226 of the Constitution.(Per Dipak
Misra, CJI [for himself and Khanwilkar, J.])
B
Advance Directives – Meaning of – Held: Advance directives
are documents a person completes while still in possession of
decisional capacity about how treatment decisions should be made
in the event she or he loses decision making capacity in future –
Mental Healthcare Act 2017. (Per Dr. D.Y. Chandrachud, J.)
C
Advance Directives – Recognition of advance directives as
part of a regime of constitutional jurisprudence is an essential
attribute of the right to life and personal liberty under Art.21 –
That right comprehends dignity as its essential foundation – Quality
of life is integral to dignity – As an essential aspect of dignity and
D the preservation of autonomy of choice and decision-making, each
individual must have the right on whether or not to accept medical
intervention – Such a choice expressed at a point in time when the
individual is in a sound and competent state of mind should have
sanctity in the future if the individual were to cease to have the
mental capability to take decisions and make choices – Yet, a
E
balance between the application of the substituted judgment
standard and the best interest standard is necessary as a matter of
public interest – This can be achieved by allowing a supervisory
role to an expert body with whom shall rest oversight in regard to
whether a patient in the terminal stage of an illness or in a permanent
F vegetative state should be withheld or withdrawn from artificial life
support – The directions in regard to the regime of advance directives
have been issued in exercise of the power conferred by Art.142 and
shall continue to hold the field until a suitable legislation is enacted
by Parliament to govern the area – Constitution of India – Art.142.
(Per Dr. D.Y. Chandrachud, J.)
G
Advance Directives – Forms of advance directive – A Living
Will which indicates a person’s views and wishes regarding medical
treatment and a Durable Power of Attorney for Health Care or
Health care Proxy which authorises a surrogate decision maker to
make medical care decisions for the patient in the event she or he is
H incapacitated – Although there can be an overlap between these
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 13

two forms of advance directives, the focus of a durable power is on A
who makes the decision while the focus of a living will is on what
the decision should be – A “living will” has also been referred as
“a declaration determining the termination of life,” “testament
permitting death,” “declaration for bodily autonomy,” “declaration
for ending treatment,” “body trust,” or other similar reference. (Per
B
Dr. D.Y. Chandrachud, J.)
Advance Directives – When a patient is brought for medical
treatment in a state of mind in which he or she is deprived of the
mental capacity to make informed choices, the medical professional
needs to determine the line of treatment – One line of enquiry, which
seeks to protect patient autonomy is how the individual would have C
made a decision if he or she had decision-making capacity – This is
called the substituted judgment standard – An advance medical
directive is construed as a facilitative mechanism in the application
of the substituted judgment standard, if it provides to the physician
a communication by the patient (when she or he was in a fit state of D
mind) of the desire for or restraint on being provided medical
treatment in future – Conceptually, there is a second standard, which
is the caregiver standard – This is founded on the principle of
beneficence – The second standard seeks to apply an objective
notion of a line of treatment which a reasonable individual would
desire in the circumstances – The difference between these two E
standards is that the first seeks to reconstruct the subjective point
of view of the patient – The second allows for “a more generic view
of interests”, without having to rely on the “idiosyncratic values
and preference of the patient in question”.
(Per Dr. D.Y. Chandrachud, J.) F
Advance Directives – Meaning and purpose – An advance
medical directive is an individual’s advance exercise of his autonomy
on the subject of extent of medical intervention that he wishes to
allow upon his own body at a future date, when he may not be in a
position to specify his wishes – The purpose and object of advance G
medical directive is to express the choice of a person regarding
medical treatment in an event when he looses capacity to take a
decision – Use and operation of advance medical directive is to
confine only to a case when person becomes incapacitated to take
an informed decision regarding his medical treatment – So long as
H
14 SUPREME COURT REPORTS [2018] 6 S.C.R.

A an individual can take an informed decision regarding his medical
treatment, there is no occasion to look into advance medical
directives. (Per Ashok Bhushan, J.)
Advance Directives – Revocation of – A person has unfettered
right to change or cancel his advance medical directives looking to
B the need of time and advancement in medical science – Hence, a
person cannot be tied up or bound by his instructions given at an
earlier point of time. (Per Ashok Bhushan, J.)
Advance Directives – Possibility of misuse – Autonomy of an
individual gives him right to choose his destiny and, therefore, he
C may decide before hand, in the form of advance directive, at what
stage of his physical condition he would not like to have medical
treatment, and on the other hand, there are dangers of misuse thereof
as well – At the same time, possibility of misuse cannot be held to be
a valid ground for rejecting advance directive, as opined by the
Law Commission of India as well in its 196th and 241st Report –
D Instead, attempt can be made to provide safeguards for exercise of
such advance directive – Mental Healthcare Act, 2017 – s.5 –
Transplantation of Human Organs and Tissues Act, 1994 – s.3. (Per
A.K. Sikri, J.)
Doctrines/Principles – Sanctity principle – “life should not
E always be maintained at any and all cost” – Euthanasia.
(Per Dr. D.Y. Chandrachud, J.)
Interpretation of Statutes – Liberal construction – The
language employed in the constitutional provision should be liberally
construed, for such provision can never remain static – It is because
F fixity would mar the core which is not the intent. (Per Dipak Misra,
CJI [for himself and Khanwilkar, J.])
Jurisprudence – Liberty impels an individual to change and
life welcomes the change and the movement – Life does not intend
to live sans liberty as it would be, in all possibility, a meaningless
G survival – There is no doubt that no fundamental right is absolute,
but any restraint imposed on liberty has to be reasonable – Individual
liberty aids in developing one’s growth of mind and assert
individuality – She/he may not be in a position to rule others but
individually, she/he has the authority over the body and mind. (Per
Dipak Misra, CJI [for himself and Khanwilkar, J.])
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 15

Jurisprudence – Dignity – If a man is allowed to or, for that A
matter, forced to undergo pain, suffering and state of indignity
because of unwarranted medical support, the meaning of dignity is
lost and the search for meaning of life is in vain. (Per Dipak Misra,
CJI [for himself and Khanwilkar, J.])
Living Will – Specific guidelines laid down to test the validity B
of a living will, by whom it should be certified, when and how it
should come into effect, etc. – The guidelines also cover a situation
where there is no living will and how to approach a plea for passive
euthanasia – Guidelines. (Per Dipak Misra, CJI [for himself and
Khanwilkar, J.])
C
Living Will – Whether a ‘living will’ or ‘advance directive’
should be legally recognised and can be enforced – Held: It is
undisputed that Doctors’ primary duty is to provide treatment and
save life but not in the case when a person has already expressed
his desire of not being subjected to any kind of treatment – It is a
common law right of people, of any civilized country, to refuse D
unwanted medical treatment and no person can force him/her to
take any medical treatment which the person does not desire to
continue with – Advance directives are instruments through which
persons express their wishes at a prior point in time, when they are
capable of making an informed decision, regarding their medical E
treatment in the future, when they are not in a position to make an
informed decision, by reason of being unconscious or in a PVS or
in a coma – A medical power of attorney is an instrument through
which persons nominate representatives to make decisions regarding
their medical treatment at a point in time when the persons executing
the instrument are unable to make informed decisions themselves – F
Clause 11 of the draft Treatment of Terminally-III Patients
(Protection of Patients and Medical Practitioners) Bill, 2016 states
that advance directives or medical power of attorney shall be void
and of no effect and shall not be binding on any medical practitioner
– This blanket ban, including the failure even to give some weight G
to advance directives while making a decision about the withholding
or withdrawal of life-sustaining treatment is disproportionate – It
does not constitute a fair, just or reasonable procedure, which is a
requirement for the imposition of a restriction on the right to life (in
this case, expressed as the right to die with dignity) under Art.21.(Per
A.K. Sikri, J.) H
16 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Mental Healthcare Act 2017 – Advance directives for persons
with mental illness – Held: The Act recognises an advance directive
– The Act provides that while making an advance directive, the maker
should be major and indicate the manner in which he or she wishes
or does not wish to be cared for and treated for a mental illness;
and the person he or she appoints as a nominated representative –
B
An advance directive is to be invoked only when the person who
made it ceases to have the capacity to make mental healthcare
treatment decisions – It remains effective until the maker regains
the capacity to do so. (Per Dr. D.Y. Chandrachud, J.)
Medical profession – Medical ethics – History of ethical
C principles – Discussed. (Per Ashok Bhushan, J.)
Words and Phrases – Advance medical, living will, advance
medical power of attorney – Meaning of – Advance medical directive
is, “a legal document explaining one’s wishes about medical
treatment if one becomes incompetent or unable to communicate” –
D A living will, on the other hand, is a document prescribing a person’s
wishes regarding the medical treatment the person would want if he
was unable to share his wishes with the health care provider –
Another type of advance medical directive is medical power of
attorney – It is a document which allows an individual (principal)
E to appoint a trusted person (agent) to take health care decisions
when the principal is not able to take such decisions.
(Per Dipak Misra, CJI [for himself and Khanwilkar, J.])
Words and Phrases – Killing and letting die – Difference
between, discussed. (Per Dipak Misra, CJI [for himself and
F Khanwilkar, J.])
Words and Phrases – Involuntary euthanasia, non-voluntary
euthanasia, voluntary euthanasia, active euthanasia and passive
euthanasia – Meaning of – Discussed. (Per Dr. D.Y. Chandrachud,
J.)
G Disposing of the Writ petition, the Court
HELD:
Per Dipak Misra, CJI [for himself and Khanwilkar, J.]
1.1 The Constitution Bench in Gian Kaur’s case has
H referred to the decision in Airedale that has been recapitulated
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 17

in Aruna Shanbaug case which was a case relating to withdrawal A
of artificial measures of continuance of life by the physician. The
Constitution Bench noted that Airedale held that in the context
of existence in the persistent vegetative state of no benefit to
the patient, the principle of sanctity of life, which is the concern
of the State, was not an absolute one. The bench further noticed
B
that in Airedale, it had been stated that in such cases also, the
existing crucial distinction between cases in which a physician
decides not to provide or to continue to provide, for his patient,
treatment or care which could or might prolong his life, and those
in which he decides, for example, by administering a lethal drug
actively to bring his patient’s life to an end, was indicated. C
Thereafter, while again referring to Airedale case, the bench
observed that it was a case relating to withdrawal of artificial
measures for continuance of life by the physician. [Para 40][96-
C-F]
1.2 A careful reading of Gian Kaur shows narration, D
reference and notice of the view taken in Airedale case. The Court
was concerned with the constitutional validity of Section 309 IPC
that deals with attempt to commit suicide and Section 306 IPC
that provides for abetment to commit suicide. The Constitution
Bench, while distinguishing the case of a dying man who is
terminally ill or in a persistent vegetative state and his termination E
or premature extinction of life, observed that the said category
of cases may fall within the ambit of right to die with dignity as a
part of right to life with dignity when death due to termination of
natural life is inevitable and imminent and the process of natural
death has commenced. The Constitution Bench further opined F
that the said cases do not amount to extinguishing the life but
only amount to accelerating the process of natural death which
has already commenced and, thereafter, the Bench stated that
the debate with regard to physician assisted suicide remains
inconclusive. The Bench has reiterated that the cases pertaining
to premature extinction of life during the process of certain natural G
death of patients who are terminally ill or in persistent vegetative
state were of assistance to interpret Article 21 of the Constitution
to include therein the right to curtail the natural span of life. Gian
Kaur has not decried euthanasia as a concept. On the contrary, it
gives an indication that in such situations, it is the acceleration of H
18 SUPREME COURT REPORTS [2018] 6 S.C.R.

A the process of dying which may constitute a part of right to life
with dignity so that the period of suffering is reduced. There is a
distinction between a positive or overt act to put an end to life by
the person living his life and termination of life so that an individual
does not remain in a vegetative state or, for that matter, when
the death is certain because of terminal illness and he remains
B
alive with the artificially assisted medical system. In Gian Kaur,
while dealing with the attempt to commit suicide, the Court clearly
held that when a man commits suicide, he has to undertake certain
positive overt acts and the genesis of those acts cannot be tested
to or be included within the protection of the expression “right
C to life” under Article 21 of the Constitution. It was also observed
that a dignified procedure of death may include the right of a
dying man to also die with dignity when the life is ebbing out.
This is how the pronouncement in Gian Kaur has to be
understood. It is also not the ratio of the authority in Gian Kaur
that euthanasia has to be introduced only by a legislation. The
D
Court has neither expressed any independent opinion nor has it
approved the said part or the ratio as stated in Airedale. There
has been only a reference to Airedale’s case and the view
expressed therein as regards legislation. Therefore, the
perception in Aruna Shanbaug that the Constitution Bench has
E approved the decision in Airedale is not correct.[Para 42][97-D-
H; 98-A-E]
Gian Kaur v. State of Punjab (1996) 2 SCC 648 : [1996]
3 SCR 697 – analysed.
1.3 The two-Judge Bench in Aruna Shanbaug. noted that
F Gian Kaur has approved the decision of the House of Lords in
Airedale and observed that euthanasia could be made lawful only
by legislation. This perception is not correct. [Para 43][98-G-H]
Aruna Ramachandra Shanbaug v. Union of India and
others (2011) 4 SCC 454 : [2011] 4 SCR 1057 – Partly
G incorrect.
Kharak Singh v. State of U.P. and others [1964] 1 SCR
332 : AIR 1963 SC 1295; Gobind v. State of Madhya
Pradesh and another (1975) 2 SCC 148 : [1975] 3 SCR
946; People’s Union for Civil Liberties v. Union of India
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 19

and another (1997) 1 SCC 301 : [1996] 10 Suppl. SCR A
321; P. Rathinam v. Union of India and another (1994)
3 SCC 394 – referred to.
Airedale N.H.S. Trust v. Bland (1993) 2 WLR 316 :
(1993) 1 All ER 821, HL – referred to
2.1 Right to refuse treatment: Any adult person of sound B
mind has a right to refuse medical treatment. This right stands
on a different pedestal as compared to suicide, physician assisted
suicide or even euthanasia. When a terminally ill patient refuses
to take medical treatment, it can neither be termed as euthanasia
nor as suicide. Albeit, both suicide and refusal to take treatment C
in case of terminal ailment shall result in the same consequences,
that is, death, yet refusal to take treatment by itself cannot amount
to suicide. In case of suicide, there has to be a self initiated
positive action with a specific intention to cause one’s own death.
On the other hand, a patient’s right to refuse treatment lacks his
specific intention to die, rather it protects the patient from D
unwanted medical treatment. A patient refusing medical treatment
merely allows the disease to take its natural course and if, in this
process, death occurs, the cause for it would primarily be the
underlying disease and not any self initiated act. [Para 131][134-
F-H; 135-A] E
Cruzan v. Director, Missouri Department of Health 111
L Ed 2d 224 : 497 US 261 (1990) : 110 S.Ct. 2841
(1990); Rodriguez v. British Columbia (Attorney
General) 85 C.C.C. (3d) 15 : (1993) 3 S.C.R. 519;
Re J (A Minor) (Wardship: Medical Treatment) [1991] F
2 WLR 140: [1990] 3 All ER 930 : [1991] Fam 33;
Washington v. Glucksberg 138 L Ed 2d 772 : 521 US
702 (1997); Vacco v. Quill 138 L Ed 2d 834 : 521 US
793 (1997); In the matter of Claire C. Conroy 98 N.J.
321 (1985) : (1985) 486 A.2d 1209 (N.J.); F v. West
Berkshire Health Authority [1989] 2 All ER 545 : [1990] G
2 AC 1; Bolam v. Friern Hospital Management
Committee [1957] 1 W.L.R. 582 : [1957] 2 All ER 118;
Re Quinlan 355 A. 2d 647 : (1976) 70 NJ 10;
Superintendent of Belchertown State School v.
Saikewicz (1977) 373 Mass 728: 370 N.E. 2d 417 H
20 SUPREME COURT REPORTS [2018] 6 S.C.R.

A (1977); In re F (Mental Patient : Sterilisation) [1990] 2
AC 1 : [1989] 2 WLR 1025 : [1989] 2 All ER 545; In
re B (A Minor) (Wardship : Medical Treatment)[1981] 1
WLR 1424 : [1990] 3 All ER 927; In re J (A Minor)
(Wardship : Medical Treatment) [1991] Fam 33 : [1990]
3 All ER 930 : [1991] 2 WLR 140; R (on the application
B
of Pretty) v. Director of Public Prosecutions [2002] 1
All ER 1 : [2001] UKHL 61; In re B (Consent to
Treatment – Capacity) [2002] 1 FLR 1090 : [2002] 2
All ER 449; R (on the application of Nicklinson and
another) v. Ministry of Justice [2014] UKSC 38; Hunter
C and New England Area Health Service v. A [2009]
NSWSC 761; Brightwater Care Group (Inc.) v. Rossiter
[2009] WASC 229 : 40 WAR 84; Australian Capital
Territory v. JT [2009] ACTSC 105; Auckland Area
Health Board v. Attorney-General [1993] NZLR 235;
Messiha v. South East Health [2004] NSWSC 1061;
D
Carter v. Canada (Attorney General) (2015) SCC 5;
Schloendorff v. Society of New York Hospital (1914)
105 NE 92 : (1914) 211 NY 125; F v. R (1983) 33
SASR 189 at 193; Rogers v. Whitaker [1992] HCA 58
: (1992) 175 CLR 479 at 487; Malette v. Shulman 67
E DLR (4 th) 321 (1990) : 72 OR (2d) 417; Secretary,
Department of Health and Community Services (NT) v.
JWB and SMB (1992) 66 AJLR 300 : (1992) 175 CLR
218; Re MB (Medical Treatment) [1997] EWCA Civ
3093 : [1997] 2 FLR 426; Pretty v. United Kingdom
(application no. 2346/02) [2002] ECHR 423 (29 April,
F
2002); Hass v. Switzerland (application no. 31322/07)
[2011] ECHR 2422 : (2011) 53 EHRR 33; Lambert
and others v. France (application no. 46043/14) [2015]
ECHR 185 – referred to.
3.2 There is a presumption of capacity whereby an adult is
G presumed to have the capacity to consent to or to refuse medical
treatment unless and until that presumption is rebutted. The
consent may be vitiated if the individual concerned may not have
been competent in law to give or refuse that consent; or even if
the individual was competent in law, the decision has been obtained
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 21

by undue influence or some other vitiating means; or the apparent A
consent or refusal does not extend to the particular situation; or
the terms of the consent or refusal are ambiguous or uncertain;
or if the consent or refusal is based on incorrect information or
incorrect assumption. In circumstances where it is practicable
for a medical practitioner to obtain consent to treatment, then,
B
for the consent to be valid, it must be based on full information,
including as to its risks and benefits. Where it is not practicable
for a medical practitioner to obtain consent for treatment and
where the patient’s life is in danger if appropriate treatment is
not given, then the treatment may be administered without
consent. This is justified by what is sometimes called the C
“emergency principle” or “principle of necessity”. Usually, the
medical practitioner treats the patient in accordance with his
clinical judgment of what is in the patient’s best interests. [Paras
134, 135][135-E-G; 136-A-B]
4.1 Passive Euthanasia in the context of Art.21 of the D
Constitution: The word ‘liberty’ is the sense and realization of
choice of the attributes associated with the said choice; and the
term ‘life’ is the aspiration to possess the same in a dignified
manner. The two are intrinsically interlinked. Liberty impels an
individual to change and life welcomes the change and the
movement. Life does not intend to live sans liberty as it would E
be, in all possibility, a meaningless survival. No fundamental right
is absolute, but any restraint imposed on liberty has to be
reasonable. Individual liberty aids in developing one’s growth of
mind and assert individuality. She/he may not be in a position to
rule others but individually, she/he has the authority over the F
body and mind. The liberty of personal sovereignty over body
and mind strengthens the faculties in a person. [Para 138][136-
G-H; 137-A-B]
Board of Trustees of the Port of Bombay v. Dilipkumar
Raghavendranath Nadkarni and others (1983) 1 SCC G
124 : [1983] 1 SCR 828; Maneka Gandhi v. Union of
India and another (1978) 1 SCC 248 : [1978] 2 SCR
621; State of Andhra Pradesh v. Challa Ramkrishna
Reddy and others AIR 2000 SC 2083 : (2000) 5 SCC
712 : [2000] 3 SCR 644 – relied on.
H
22 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Adkins v. Children’s Hospital 261 US 525, 568(1923) –
referred to.
4.2 The interpretation of the Constitution, especially
fundamental rights, has to be dynamic and it is only such
interpretative dynamism that breathes life into the written words.
B As far as Article 21 is concerned, it is imperative to mention that
dynamism can, of course, infuse life into life and liberty as used
in the said Article. The language employed in the constitutional
provision should be liberally construed, for such provision can
never remain static. [Paras 145, 149][139-C-D; 141-F]
Central Inland Water Transport Corporation Limited
C
and another v. Brojo Nath Ganguly and another (1986)
3 SCC 156 : [1986] 2 SCR 278; M. Nagaraj and others
v. Union of India and others (2006) 8 SCC 212 : [2006]
7 Suppl. SCR 336; V.C. Rangadurai v. D. Gopalan and
others (1979) 1 SCC 308 : [1979] 1 SCR 1054 – relied
D on.
5.1 Individual Dignity as a facet of Article 21: Dignity of an
individual has been internationally recognized as an important
facet of human rights in the year 1948 itself with the enactment
of the Universal Declaration of Human Rights. Human dignity
E not only finds place in the Preamble of this important document
but also in Article 1 of the same. Law gladly takes cognizance of
the fact that dignity is the most sacred possession of a man. And
the said possession neither loses its sanctity in the process of
dying nor evaporates when death occurs. As part of the right to
die with dignity in case of a dying man who is terminally ill or in a
F persistent vegetative state, only passive euthanasia would come
within the ambit of Article 21 and not the one which would fall
within the description of active euthanasia in which positive steps
are taken either by the treating physician or some other person.
[Paras 150, 155, 159][141-G-H; 142-A; 144-G; 147-D-E]
G K.S. Puttaswamy and another v. Union of India and
others (2017) 10 SCC 1 : [2017] 10 SCR 569 –
followed.
Mehmood Nayyar Azam v. State of Chhattisgarh and
others (2012) 8 SCC 1 : [2012] 8 SCR 651; Vikas Yadav
H v. State of Uttar Pradesh and others (2016) 9 SCC 541
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 23

: [2016] 8 SCR 872; Francis Coralie Mullin v. The A
Administrator, Union Territory of Delhi (1981) 1 SCC
608 : [1981] 2 SCR 516; National Legal Services
Authority v. Union of India and others (2014) 5 SCC
438; Shabnam v. Union of India and another (2015) 6
SCC 702 : [2015] 8 SCR 289 – relied on.
B
Christine Goodwin v. the United Kingdom [2002]
ECHR 588; S v. Makwanyane 1995 (3) SA 391 –
referred to.
5.2 The law must take cognizance of the changing society
and march in consonance with the developing concepts. The C
immediate needs are required to be addressed through the
process of interpretation by the Court unless the same totally
falls outside the constitutional framework or the constitutional
interpretation fails to recognize such dynamism. The right to life
with dignity has to include the smoothening of the process of
dying when the person is in a vegetative state or is living D
exclusively by the administration of artificial aid that prolongs
the life by arresting the dignified and inevitable process of dying.
Here, the issue of choice also comes in. Thus analysed, such a
right should come within the ambit of Article 21 of the
Constitution. [Para 160][147-F-H; 148-G-H] E
6. Right of self-determination and individual autonomy: As
far as the United Kingdom is concerned, it is generally clear that
whenever there is a conflict between a capable adult’s exercise
of the right of self-determination and the State’s interest in
preserving human life by treating it as sanctimonious, the right F
of the individual must prevail. In the United States, the aspect of
self-determination and individual autonomy is concretised in law
as all fifty States along with the District of Columbia, the capital,
which is commonly referred as Washington D.C., have passed
legislations upholding different forms of Advance Directives. The
Canadian Criminal Code asserts and protects the sanctity of life G
in a number of ways which directly confront the autonomy of the
terminally ill in their medical decision making. However, the
Supreme Court of Canada in Reibl v. Hughes approved an oft-
quoted statement of Cardozo J. in Scholoendorf that “every human
being of adult years and sound mind has a right to determine
H
24 SUPREME COURT REPORTS [2018] 6 S.C.R.

A what shall be done with his own body” and Chief Justice Laskin
in Reibl has further added that battery would lie where surgery or
treatment was performed without consent or where apart from
emergency situations, surgery or medical treatment was given
beyond that to which there was consent. Thus, the Supreme Court
of Canada suggested that competent adults have the right to make
B
their own medical decisions even if such decisions are unwise.
Enquiring into common law and statutory rights of terminally ill
persons in other jurisdictions would indicate that all adults with
the capacity to consent have the common law right to refuse
medical treatment and the right of self determination. However,
C doctors would be bound by the choice of self-determination made
by the patient who is terminally ill and undergoing a prolonged
medical treatment or is surviving on life support, subject to being
satisfied that the illness of the patient is incurable and there is no
hope of his being cured. Any other consideration cannot pass off
as being in the best interests of the patient. [Paras 164, 165, 166,
D
168, 169][150-A-B, F-G; 151-C-E]
Reeves v. Commissioner of Police of the Metropolis
[2000] 1 AC 360, 379; Re Jobes (1987) 108 N.J. 394;
Reibl v. Hughes [1980] 2 SCR 880 – referred to.
E 7.1 Social Morality, medical ethicality and State Interest:
The society at large may feel that a patient should be treated till
he breathes his last breath and the treating physicians may feel
that they are bound by their Hippocratic oath which requires them
to provide treatment and save life and not to put an end to life by
not treating the patient. The members of the family may remain
F in a constant state of hesitation being apprehensive of many a
social factor which include immediate claim of inheritance, social
stigma and, sometimes, the individual guilt. The Hippocratic oath
taken by a doctor may make him feel that there has been a failure
on his part and sometimes also make him feel scared of various
G laws. There can be allegations against him for negligence or
criminal culpability. In this regard, two aspects are to be borne
in mind. First, withdrawal of treatment in an irreversible situation
is different from not treating or attending to a patient and second,
once passive euthanasia is recognized in law regard being had to
the right to die with dignity when life is ebbing out and when the
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 25

prolongation is done sans purpose, neither the social morality A
nor the doctors’ dilemma or fear will have any place. It is because
the sustenance of dignity and self-respect of an individual is
inhered in the right of an individual pertaining to life and liberty
and there is necessity for this protection. And once the said right
comes within the shelter of Article 21 of the Constitution, the
B
social perception and the apprehension of the physician or treating
doctor regarding facing litigation should be treated as secondary
because the primacy of the right of an individual in this regard
has to be kept on a high pedestal.[Paras 170, 171][151-F-H; 152-
A-C]
7.2 Passive euthanasia fundamentally connotes absence of C
any overt act either by the patient or by the doctors. It also does
not involve any kind of overt act on the part of the family members.
It is avoidance of unnecessary intrusion in the physical frame of a
person, for the inaction is meant for smooth exit from life. It is
paramount for an individual to protect his dignity as an inseparable D
part of the right to life which engulfs the dignified process of
dying sans pain, sans suffering and, most importantly, sans
indignity. There are philosophers, thinkers and also scientists
who feel that life is not confined to the physical frame and biological
characteristics. But there is no denial of the fact that life in its
connotative expanse intends to search for its meaning and find E
the solution of the riddle of existence for which some lean on
atheism and some vouchsafe for faith and yet some stand by the
ideas of an agnostic. However, the legal fulcrum has to be how
Article 21 of the Constitution is understood. If a man is allowed
to or, for that matter, forced to undergo pain, suffering and state F
of indignity because of unwarranted medical support, the meaning
of dignity is lost and the search for meaning of life is in vain.
[Paras 172, 173][152-C-F]
8. Advance Directive/Advance Care Directive/Advance
Medical Directive: In order to overcome the difficulty faced in G
case of patients who are unable to express their wishes at the
time of taking the decision, the concept of Advance Medical
Directives emerged in various countries. Advance Directives
for health care go by various names in different countries though
the objective by and large is the same, that is, to specify an
H
26 SUPREME COURT REPORTS [2018] 6 S.C.R.

A individual’s health care decisions and to identify persons who
will take those decisions for the said individual in the event he is
unable to communicate his wishes to the doctor. The agent
appointed to deal with such issues can interpret the principal’s
decisions based on their mutual knowledge and understanding.
[Paras 177, 178, 180][154-B, D-E, G]
B
9. Advance medical directive ideal in our country
9.1 Advance Medical Directive cannot operate in
abstraction. There are certain safeguards for operating it. It can
be executed only by an adult who is of a sound and healthy state
C of mind and in a position to communicate, relate and comprehend
the purpose and consequences of executing the document. It
must be voluntarily executed and without any coercion or
inducement or compulsion and after having full knowledge or
information. It should have characteristics of an informed consent
given without any undue influence or constraint. It shall be in
D writing clearly stating as to when medical treatment may be
withdrawn or no specific medical treatment shall be given which
will only have the effect of delaying the process of death that may
otherwise cause him/her pain, anguish and suffering and further
put him/her in a state of indignity. It should clearly indicate the
E decision relating to the circumstances in which withholding or
withdrawal of medical treatment can be resorted to. It should be
in specific terms and the instructions must be absolutely clear
and unambiguous. It should mention that the executor may
revoke the instructions/authority at any time. It should disclose
that the executor has understood the consequences of executing
F such a document. It should specify the name of a guardian or
close relative who, in the event of the executor becoming
incapable of taking decision at the relevant time, will be authorized
to give consent to refuse or withdraw medical treatment in a
manner consistent with the Advance Directive. In the event that
G there is more than one valid Advance Directive, none of which
have been revoked, the most recently signed Advance Directive
will be considered as the last expression of the patient’s wishes
and will be given effect to. [Para 191][158-D-H; 159-A-E]
9.2 The document should be signed by the executor in the
H presence of two attesting witnesses, preferably independent, and
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 27

countersigned by the jurisdictional Judicial Magistrate of First A
Class (JMFC) so designated by the concerned District Judge.
The witnesses and the jurisdictional JMFC shall record their
satisfaction that the document has been executed voluntarily and
with full understanding of all the relevant information and
consequences. The JMFC shall forward one copy of the document
B
to the Registry of the jurisdictional District Court for being
preserved. Additionally, the Registry of the District Judge shall
retain the document in digital format. The JMFC shall cause to
inform the immediate family members of the executor, if not
present at the time of execution, and make them aware about the
execution of the document. A copy shall be handed over to the C
competent officer of the local Government or the Municipal
Corporation or Municipality or Panchayat, as the case may be.
The JMFC shall cause to handover copy of the Advance Directive
to the family physician, if any. In the event the executor becomes
terminally ill and is undergoing prolonged medical treatment with
D
no hope of recovery and cure of the ailment, the treating physician,
when made aware about the Advance Directive, shall ascertain
the genuineness and authenticity thereof from the jurisdictional
JMFC before acting upon the same. The instructions in the
document must be given due weight by the doctors. However, it
should be given effect to only after being fully satisfied that the E
executor is terminally ill and is undergoing prolonged treatment
or is surviving on life support and that the illness of the executor
is incurable or there is no hope of him/her being cured. If the
physician treating the patient (executor of the document) is
satisfied that the instructions given in the document need to be
F
acted upon, he shall inform the executor or his guardian/close
relative, as the case may be, about the nature of illness, the
availability of medical care and consequences of alternative forms
of treatment and the consequences of remaining untreated. He
must also ensure that he believes on reasonable grounds that
the person in question understands the information provided, G
has cogitated over the options and has come to a firm view that
the option of withdrawal or refusal of medical treatment is the
best choice. The physician/hospital where the executor has been
admitted for medical treatment shall then constitute a Medical
Board consisting of the Head of the treating Department and at
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28 SUPREME COURT REPORTS [2018] 6 S.C.R.

A least three experts from the fields of general medicine, cardiology,
neurology, nephrology, psychiatry or oncology who, in turn, shall
visit the patient in the presence of his guardian/close relative
and form an opinion whether to certify or not to certify carrying
out the instructions of withdrawal or refusal of further medical
treatment. This decision shall be regarded as a preliminary
B
opinion. In the event the Hospital Medical Board certifies that
the instructions contained in the Advance Directive ought to be
carried out, the physician/hospital shall forthwith inform the
jurisdictional Collector about the proposal who shall then
immediately constitute a Medical Board comprising the Chief
C District Medical Officer of the concerned district as the Chairman
and three expert doctors. They shall jointly visit the hospital where
the patient is admitted and if they concur with the initial decision
of the Medical Board of the hospital, they may endorse the
certificate to carry out the instructions given in the Advance
Directive. The Board constituted by the Collector must
D
beforehand ascertain the wishes of the executor if he is in a
position to communicate and is capable of understanding the
consequences of withdrawal of medical treatment. In the event
the executor is incapable of taking decision or develops impaired
decision making capacity, then the consent of the guardian
E nominated by the executor in the Advance Directive should be
obtained regarding refusal or withdrawal of medical treatment to
the executor to the extent of and consistent with the clear
instructions given in the Advance Directive. The Chairman of
the Medical Board nominated by the Collector, that is, the Chief
District Medical Officer, shall convey the decision of the Board
F
to the jurisdictional JMFC before giving effect to the decision to
withdraw the medical treatment administered to the executor.
The JMFC shall visit the patient at the earliest and, after
examining all aspects, authorise the implementation of the
decision of the Board. It will be open to the executor to revoke
G the document at any stage before it is acted upon and
implemented. [Para 191][159-E-G; 160-A-H; 161-A-G; 162-C-
D]
9.3 If permission to withdraw medical treatment is refused
by the Medical Board, it would be open to the executor of the
H Advance Directive or his family members or even the treating
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 29

doctor or the hospital staff to approach the High Court by way of A
writ petition under Article 226 of the Constitution. The High Court
will be free to constitute an independent Committee consisting
of three doctors. [Para 191][162-E-F]
9.4 Revocation or inapplicability of Advance Directive: An
individual may withdraw or alter the Advance Directive at any B
time when he/she has the capacity to do so and by following the
same procedure as provided for recording of Advance Directive.
Withdrawal or revocation of an Advance Directive must be in
writing. An Advance Directive shall not be applicable to the
treatment in question if there are reasonable grounds for
believing that circumstances exist which the person making the C
directive did not anticipate at the time of the Advance Directive
and which would have affected his decision had he anticipated
them. If the Advance Directive is not clear and ambiguous, the
concerned Medical Boards shall not give effect to the same and,
in that event, the guidelines meant for patients without Advance D
Directive shall be made applicable. Where the Hospital Medical
Board takes a decision not to follow an Advance Directive while
treating a person, then it shall make an application to the Medical
Board constituted by the Collector for consideration and
appropriate direction. [Para 191][163-B-F]
E
10. There will be cases where there is no Advance Directive.
The said class of persons cannot be alienated. In cases where
there is no Advance Directive, the procedure and safeguards are
to be same as applied to cases where Advance Directives are in
existence and in addition there to, the following procedure shall
be followed:- (i) In cases where the patient is terminally ill and F
undergoing prolonged treatment in respect of ailment which is
incurable or where there is no hope of being cured, the physician
may inform the hospital which, in turn, shall constitute a Hospital
Medical Board. In the event the Hospital Medical Board certifies
the option of withdrawal or refusal of further medical treatment, G
the hospital shall immediately inform the jurisdictional Collector.
The jurisdictional Collector shall then constitute a Medical Board
who shall visit the hospital for physical examination of the patient
and, after studying the medical papers, may concur with the opinion
of the Hospital Medical Board. In that event, intimation shall be
H
30 SUPREME COURT REPORTS [2018] 6 S.C.R.

A given by the Chairman of the Collector nominated Medical Board
to the JMFC and the family members of the patient. The JMFC
shall visit the patient at the earliest and verify the medical reports,
examine the condition of the patient, discuss with the family
members of the patient and, if satisfied in all respects, may
endorse the decision of the Collector nominated Medical Board
B
to withdraw or refuse further medical treatment to the terminally
ill patient. There may be cases where the Board may not take a
decision to the effect of withdrawing medical treatment of the
patient on the Collector nominated Medical Board may not concur
with the opinion of the hospital Medical Board. In such a situation,
C the nominee of the patient or the family member or the treating
doctor or the hospital staff can seek permission from the High
Court to withdraw life support by way of writ petition under Article
226 of the Constitution. The directions with regard to the
Advance Directives and these safeguards shall remain in force
till the Parliament makes legislation on this subject. [Paras 193,
D
194][163-G-H; 164-A-E; 165-A, E]
Vishaka and Others v. State of Rajasthan and Others
(1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404 – relied
on.
E State of Himachal Pradesh and another v. Umed Ram
Sharma and others (1986) 2 SCC 68 : AIR 1986 SC
847 : [1986] 1 SCR 251; Maruti Shripati Dubal v. State
of Maharashtra 1987 Cri LJ 473 : (1986) 88 Bom LR
589; R.C. Cooper v. Union of India (1970) 2 SCC 298
: AIR 1970 SC 1318 : [1971] 1 SCR 512; Vikram Deo
F Singh Tomar v. State of Bihar (1988) Supp. SCC 734 :
AIR 1988 SC 1782 : [1988] Suppl. SCR 755; Charan
Lal Sahu v. Union of India (1990) 1 SCC 613 : [1989]
2 Suppl. SCR 597; State of Kerala and another v. N.M.
Thomas and others (1976) 2 SCC 310 : [1976] 1 SCR
G 906 – referred to.
Per Dr. D.Y. Chandrachud, J. - 1. Patient’s consent –
Consent gives an individual the ability to choose whether or not
to accept the treatment that is offered. But consent does not
confer on a patient the right to demand that a particular form of
H treatment be administered, even in the quest for death with
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 31

dignity. Voluntary passive euthanasia, where death results from A
selective non-treatment because consent is withheld, is therefore
legally permissible while voluntary active euthanasia is prohibited.
Moreover, passive euthanasia is conceived with a purpose of not
prolonging the life of the patient by artificial medical intervention.
Both in the case of a withdrawal of artificial support as well as in
B
non-intervention, passive euthanasia allows for life to ebb away
and to end in the natural course. In contrast, active euthanasia
results in the consequence of shortening life by a positive act of
medical intervention. It is perhaps this distinction which
necessitates legislative authorisation for active euthanasia, as
differentiated from the passive. [Para 45][196-E-G] C
Sushila Rao, “India and Euthanasia: The Poignant
Case of Aruna Shanbaug”, Oxford Medical Law
Review, Volume 19, Issue 4 (1 December 2011), at
pages 646–656; “Humanization and Decriminalization
of Attempt to Suicide”, Law Commission of India D
(Report No. 210, 2008); Rajeev Ranjan, et al, “(De-)
Criminalization of Attempted Suicide in India: A
Review”, Industrial Psychiatry Journal (2014), Vol. 23,
issue 1, at page 4–9; D Benatar, “Should there be a
legal right to die?” Current Oncology (2010), Vol. 17,
Issue 5, at pages 2-3; Richard Delgado, “Euthanasia E
Reconsidered-The Choice of Death as an Aspect of the
Right of Privacy”, Arizona Law Review (1975), Vol.
17, at page 474; Ratna Kapur, “The Spectre of Aruna
Shanbaug”, The Wire (18 May 2015), available at
ht tps :// t hew ire .in/2005/ the -spect re- of- arun a- F
shanbaug/; Hazel Biggs, “Euthanasia, Death with
Dignity and the Law”, Hart Publishing (2001), at page
12; James Rachels, “Active and Passive Euthanasia”,
New England Journal of Medicine (January 9, 1975),
at page 78-80; James Rachels, End of Life: Euthanasia
and Morality (Oxford University Press, 1986); Bruce G
R. Reichenbach, “Euthanasia and the Active-Passive
Distinction”, Bioethics (January 1987), Volume 1, at
pages 51–73; Len Doyal and Lesley Doyal, “Why
Active Euthanasia and Physician Assisted Suicide
H
32 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Should Be Legalised/ If Death Is in a Patient’s Best
Interest Then Death Constitutes a Moral Good”, British
Medical Journal (2001), at pages 1079–1080; Rohini
Shukla, “Passive Euthanasia in India: a critique”,
Indian Journal of Medical Ethics (Jan-Mar 2016), at
pages 35-38; Aparna Chandra and Mrinal Satish,
B
“Misadventures of the Supreme Court in Aruna
Shanbaug v Union of India”, Law and other Things
(Mar 13, 2011), available at http://
lawandotherthings.com/2011/03/misadventures-of-
supreme-court- in-aruna/; Roop Gurusahani and Raj
C Kumar Mani, “India: Not a country to die in”, Indian
Journal of Medical Ethics (Jan- Mar 2016), at pages
30-35; Anne J. Davis, “Dilemmas in Practice: To Make
Live or Let Die”, The American Journal of Nursing
(March 1981), Vol. 81, No. 3, at page 582; Heike
Baranzke, “Sanctity-of-Life”—A Bioethical Principle
D
for a Right to Life?”, Ethic Theory Moral Practice
(2012), Vol. 15, Issue 3, page 295 – referred to.
2. Though the sanctity principle prohibits “the deliberate
destruction of human life, it does not demand that life should
always be prolonged for as long as possible”. While providing for
E an intrinsic sacred value to life “irrespective of the person’s
capacity to enjoy life and notwithstanding that a person may feel
their life to be a great burden”, the principle holds that “life should
not always be maintained at any and all cost”. Ethical proponents
of the sanctity of life tend to agree that when “medical treatment,
F such as ventilator and probably also antibiotics, can do nothing
to restore those in permanent vegetative state to a state of health
and well-functioning, it is futile and need not be provided”. [Para
60][203-C-E]
3. Life and natural death: The defenders of the sanctity
G principle place sacred value to human life from “conception to
natural death”. The word “natural” implies that “the only
acceptable death is one that occurs from natural causes”. Life is
only “sacred insofar as it ends by natural means”. Medical
advancements, however, have brought uncertainty about the
definition of death? “what constitutes death, in particular a
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 33

“natural” death”. Medical advances have “complicated the A
question of when life ends”. There exists no natural death where
artificial technology is concerned. Technology by artificial means
can prolong life. In doing so, technology has re-shaped both human
experience as well as our values about life in a natural state and
its end by natural causes. Modern medicine has found ways to
B
prolong life and to delay death. But, it does not imply that modern
medicine “necessarily prolongs our living a full and robust life
because in some cases it serves only to prolong mere biological
existence during the act of dying”. This may, in certain situations
result in a mere “prolongation of a heart-beat that activates the
husk of a mindless, degenerating body that sustains an unknowing C
and pitiable life-one without vitality, health or any opportunity for
normal existence-an inevitable stage in the process of dying”.
[Paras 66, 67, 68][209-B-C, D, F-G; 210-A]
4.1 The sanctity of human life lies in its intrinsic value. It
inheres in nature and is recognised by natural law. But human D
lives also have instrumental functions. Our lives enable us to
fulfil our needs and aspirations. The intrinsic worth of life is not
conditional on what it seeks to or is capable to achieve. Life is
valuable because it is. The Indian Constitution protects the right
to life as the supreme right, which is inalienable and inviolable
even in times of Emergency. It clearly recognises that every E
human being has the inherent right to life, which is protected by
law, and that “No person shall be deprived of his life… except
according to procedure established by law”. It, thus, envisages
only very limited circumstances where a person can be deprived
of life. [Para 73][212-D-F] F
Pt. Parmanand Katara v. Union of India AIR 1989 SC
2039 – relied on.
Great Ormond Street Hospital v. Constance Yates,
Christopher Gard, Charlie Gard (by his guardian),
[2017] EWHC 1909 (Fam) – referred to. G
John Keown, The Law and Ethics of Medicine: Essays
on the Inviolability of Human Life (Oxford University
Press, 2012), at page 3; John Locke, Two Treatises of
Government (ed. P. Laslett) (Cambridge University
H
34 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Press, 1988); Ronald Dworkin, Life’s Dominion: An
Argument about Abortion and Euthanasia (Harper
Collins, 1993), at pages 73-74; John Finnis, Human
Rights and Common Good (Oxford University Press,
2011), at page 221; Alexandra Mullock, End-Of-Life
Law And Assisted Dying In The 21st Century: Time For
B
Cautious Revolution? (PhD Thesis, University of
Manchester, 2011), at page 24; Luis Kutner,
“Euthanasia: Due Process for Death with Dignity; The
Living Will”, Indiana Law Journal (Winter 1979), Vol.
54, Issue, 2, at page 225; Sushila Rao, “The Moral
C Basis for a Right to Die”, Economic & Political Weekly
(April 30, 2011), at page 14; Alexandra Mullock, End-
Of-Life Law And Assisted Dying In The 21st Century:
Time For Cautious Revolution? (PhD Thesis,
University of Manchester, 2011), at page 25; John
Keown, “The Legal Revolution: From “Sanctity of Life”
D
to “Quality of Life” and “Autonomy”, Journal of
Contemporary Health Law & Policy (1995) Vo. 14,
Issue 2, at page 281; Margaret A. Somerville, “The
Song of Death: The Lyrics of Euthanasia”, Journal of
Contemporary Health Law & Policy (1993), Vol. 9,
E Issue 1, at page 67; Jessica Stern, Euthanasia and
the Terminally Ill (2013), retrieved from Florida State
University Libraries; Roger S. Magnusson, “The
Sanctity of Life and the Right to Die: Social and
Jurisprudential Aspects of the Euthanasia Debate in
Australia and the United States”, Pacific Rim Law &
F
Policy Journal, Vol. 6, No. I, at page 40; Peter Singer,
“Sanctity of Life or Quality of Life”, Pediatrics (1983),
Vo. 72, Issue 1, at pages 128-129; Sanctity of life vs.
quality of life”, Los Angeles Times (June 7, 2015),
available a http://www.latimes.com/opinion/
G readersreact /la-le-0607-sunday-assisted-suicide-
20150607-story.html; Jessica Stern, Euthanasia and
the Terminally Ill (2013), available at https://
fsu.digital.flvc.org/islandora/object/fsu:209909/
datastream/PDF; John Breck, “Euthanasia and the
Quality of Life Debate”, Christian Bioethics (1995),
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 35

Vol. 1, No.3, at pages 322-337; Michael A Weingarten, A
“On the sanctity of life”, British Journal of General
Practice (April 2007), Vol. 57(537), at page 333; Alecia
Pasdera, The Rhetoric of the Physician-Assisted Suicide
Movement: Choosing Death Over Life (2014), available
at https://ou.monmouthcollege.edu/_resources/pdf/
B
academics/mjur/ 2014/Rhetoric-of-the-Physician-
Assisted-Suicide-Movement-Choosing-Death-Over-
Life.pdf, at page 68; Arval A. Morris, “Voluntary
Euthanasia”, Washington Law Review (1970), Vol. 45,
at page 240; Lady Justice Arden, Law of medicine and
the individual: current issues, What does patient C
autonomy mean for the courts?, (Justice KT Desai
Memorial Lecture 2017) – referred to.
4.2 Human dignity has been “considered the unique
universal value that inspires the major common bioethical
principles, and it is therefore considered the noyau dur of both D
international bio law and international human rights law”. The
first idea considers dignity as the foundation of human rights?
“that dignity relates to the intrinsic value of persons (such that it
is wrong to treat persons as mere things rather than as
autonomous ends or agents)”. According to this premise, every
person, from conception to natural death, possesses inherent E
dignity. The other interpretation of dignity is by the supporters
of euthanasia. For them, right to lead a healthy life also includes
leaving the world in a peaceful and dignified manner. Living with
dignity, in this view, means the right to live a meaningful life having
certain quality. This interpretation endorses the “quality of life” F
proposition. [Paras 74, 75][213-A-C, E]
Stefania Negri, “Universal Human Rights and End-of-
Life Care” in S. Negri et al. (eds.), Advance Care
Decision Making in Germany and Italy: A Comparative,
European and International Law Perspective, Springer G
(2013), at page 18; Ronald Dworkin, Life’s Dominion
(London: HarperCollins, 1993) as quoted in Deryck
Beyleveld and Roger Brownsword, “Human Dignity,
Human Rights, and Human Genetics”, Modern Law
Review (1998), Vol. 61, at pages 665-666; Deryck
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36 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Beyleveld and Roger Brownsword, “Human Dignity,
Human Rights, and Human Genetics”, Modern Law
Review (1998), Vol. 61, at page 666; Stefania Negri,
“Ending Life and Death” in A. den Exter (eds.),
European Health Law, MAKLU Press (2017), at page
241; Sebastian Muders, Autonomy and the Value of
B
Life as Elements of Human Dignity (Oxford University
Press, 2017); LW Sumner, “Dignity through Thick and
Thin”, in Sebastian Muders, Human Dignity and
Assisted Death (Oxford University Press, 2017);
Aneeta A Minocha, Arima Mishra and Vivek R
C Minocha, “Euthanasia: A Social Science Perspective”,
Economic & Political Weekly (December 3, 2011), at
pages 25-28 – referred to.
5.1 Under our Constitution, the inherent value which
sanctifies life is the dignity of existence. Recognising human
D dignity is intrinsic to preserving the sanctity of life. Life is truly
sanctified when it is lived with dignity. There exists a close
relationship between dignity and the quality of life. For, it is only
when life can be lived with a true sense of quality that the dignity
of human existence is fully realized. Hence, there should be no
antagonism between the sanctity of human life on the one hand
E and the dignity and quality of life on the other hand. Quality of life
ensures dignity of living and dignity is but a process in realizing
the sanctity of life. [Para 80][216-F; 217-A]
5.2 Human dignity is an essential element of a meaningful
existence. A life of dignity comprehends all stages of living
F including the final stage which leads to the end of life. Liberty
and autonomy are essential attributes of a life of substance. It is
liberty which enables an individual to decide upon those matters
which are central to the pursuit of a meaningful existence. The
expectation that the individual should not be deprived of his or
G her dignity in the final stage of life gives expression to the central
expectation of a fading life: control over pain and suffering and
the ability to determine the treatment which the individual should
receive. When society assures to each individual a protection
against being subjected to degrading treatment in the process of
dying, it seeks to assure basic human dignity. [Para 81][217-B-D]
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 37

5.3 Dignity in the process of dying as well as dignity in A
death reflects a long yearning through the ages that the passage
away from life should be bereft of suffering. These individual
yearnings are enhanced by the experiences of sharing, observing
and feeling with others: the loss of a parent, spouse, friend or an
acquaintance to the cycle of life. Dignity in death has a sense of
B
realism that permeates the right to life. It has a basic connect
with the autonomy of the individual and the right to self-
determination. Loss of control over the body and the mind are
portents of the deprivation of liberty. As the end of life
approaches, a loss of control over human faculties denudes life
of its meaning. Terminal illness hastens the loss of faculties. C
Control over essential decisions about how an individual should
be treated at the end of life is hence an essential attribute of the
right to life. Corresponding to the right is a legitimate expectation
that the State must protect it and provide a just legal order in
which the right is not denied. In matters as fundamental as death
D
and the process of dying, each individual is entitled to a reasonable
expectation of the protection of his or her autonomy by a legal
order founded on the rule of law. A constitutional expectation of
providing dignity in death is protected by Article 21 and is
enforceable against the State. [Para 82][218-B-E]
6.1 The nine-judge Bench decision of this Court in Justice E
K.S. Puttuswamy case held privacy to be the constitutional core
of human dignity. The right to privacy was held to be an intrinsic
part of the right to life and liberty under Article 21 and protected
under Part III of the Constitution. [Para 83][218-F]
Justice KS Puttaswamy (Retd.) v. Union of India (2017) F
10 SCC 1 – followed.
Maneka Gandhi v. Union of India (1978) 1 SCC 248 :
[1978] 2 SCR 621; Coralie Mullin v. Administrator,
Union Territory of Delhi (1981) 1 SCC 608 : [1981] 2
SCR 516 – relied on.
G
6.2 The protective mantle of privacy covers certain
decisions that fundamentally affect the human life cycle. It protects
the most personal and intimate decisions of individuals that affect
their life and development. Thus, choices and decisions on matters
such as procreation, contraception and marriage have been held
H
38 SUPREME COURT REPORTS [2018] 6 S.C.R.

A to be protected. While death is an inevitable end in the trajectory
of the cycle of human life, individuals are often faced with choices
and decisions relating to death. Decisions relating to death, like
those relating to birth, sex, and marriage, are protected by the
Constitution by virtue of the right of privacy. The right to privacy
resides in the right to liberty and in the respect of autonomy. The
B
right to privacy protects autonomy in making decisions related
to the intimate domain of death as well as bodily integrity.
Continuing treatment against the wishes of a patient is not only a
violation of the principle of informed consent, but also of bodily
privacy and bodily integrity that have been recognised as a facet
C of privacy by this Court. Just as people value having control
over decisions during their lives such as where to live, which
occupation to pursue, whom to marry, and whether to have
children, so people value having control over whether to continue
living when the quality of life deteriorates. [Paras 84, 85][220-B-D]
D Richard Delgado, “Euthanasia Reconsidered-The
Choice of Death as an Aspect of the Right of Privacy”,
Arizona Law Review (1975), Vol. 17, at page 474; TL
Beauchamp, “The Right to Privacy and the Right to
Die”, Social Philosophy and Policy (2000), Vol. 17, at
page 276; 70 N.J. 10; 355 A.2d 647 (1976); Peter J.
E Riga, “Privacy and the Right to Die,” The Catholic
Lawyer (2017) Vol. 26: No. 2 , Article 2 – referred to.
7. Privacy recognises that the body and mind are inviolable.
An essential attribute of this inviolability is the ability of the
individual to refuse medical treatment. [Para 90][223-B]
F 8. Socio-Economic Concerns – One of the limitations of
contemporary debates on euthanasia is that they do not take into
consideration “certain socio-economic concerns that must
necessarily be factored into any discourse”. This has been
criticised as making the debate around ending life “incomplete”
as well as “elitist”. The inadequacies of the range and reach of
G
Indian healthcare may lead to a situation where euthanasia/active
euthanasia may become “an instrument of cost containment”.
[Paras 91, 92][223-C; 224-E]
S Nagral, “Euthanasia: Cost Factor is a Worry”, The
Times of India (June 19, 2011), available at http://
H www.timesofindia.com/home/sunday/Euthanasia-cost-
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 39

factor-is-a-worry/articleshow/7690155.cms – referred A
to.
9. Restraints on judicial power: It is only Parliament which
can in its legislative wisdom decide whether active euthanasia
should be permitted. Passive euthanasia on the other hand would
not implicate a criminal offence since the decision to withhold or B
withdraw artificial life support after taking into account the best
interest of the patient would not constitute an illegal omission
prohibited by law. [Para 93][225-C]
Noel Douglas Conway v. The Secretary of State for
Justice (2017) EWHC 2447 (Admin) – referred to.
C
S Balakrishnan and RK Mani, “The constitutional and
legal provisions in Indian law for limiting life support”,
Indian Journal of Critical Care Medicine (2005), Vol.
9, Issue 2, at page 108 – referred to.
10.1 Penal provisions: The legality of and constitutional
D
protection which is afforded to passive euthanasia cannot be read
in isolation from the provisions of the Penal Code. Physicians
are apprehensive about their civil or criminal liability when called
upon to decide whether to limit life-supporting treatment. A
decision on the constitutional question cannot be rendered without
analyzing the statutory context and the impact of penal provisions. E
The decision in Aruna Shanbaug did not dwell on the provisions
of the Penal Code (apart from Sections 306 and 309) which have
a vital bearing on the issue of euthanasia. Undoubtedly,
constitutional positions are not controlled by statutory provisions,
because the Constitution rises above and controls legislative
mandates. But, in the present reference where no statutory F
provision is called into question, it is necessary for the court to
analyse the relationship between what the statute penalizes and
what the Constitution protects. The task of interpretation is to
allow for their co-existence while interpreting the statute to give
effect to constitutional principle. This is particularly so in an area G
such as the present where criminal law may bear a significant
relationship to the fundamental constitutional principles of liberty,
dignity and autonomy. [Para 95][226-H; 227-A-C]
10.2 Our law of crimes deals with acts and omissions. Section
32 of the Penal Code places acts and omissions on the same plane. H
40 SUPREME COURT REPORTS [2018] 6 S.C.R.

A An illegal omission (unless a contrary intent appears in the Code)
is proscribed when the act is unlawful. The language of the statute
which refers to acts applies, unless a contrary intent appears in
the text, to omissions. The next aspect is about when an act or
omission is illegal. Section 43 explains the concept of illegality.
Here again, being legally bound to do something is the mirror
B
image of what is illegal to omit doing. Section 43 comprehends
within the meaning of illegality, that (i) which is an offence; or (ii)
which is prohibited by law; or (iii) which furnishes a ground for a
civil action. Section 81 protects acts which are done without a
criminal intent to cause harm, in good faith, to prevent or avoid
C other harm to person or property. The law protects the action
though it was done with the knowledge that it was likely to cause
harm if a three-fold requirement is fulfilled.[Para 95][227-D, F;
228-A, C]
10.3 Section 92 protects an individual from a consequence
D which arises from the doing of an act for the benefit of another in
good faith, though a harm is caused to the other. What was done
is protected because it was done in good faith. Good faith is
distinguished from an evil design. When a person does something
to protect another from a harm or injury, the law protects what
was done in good faith, treating the harm that may result as a
E consequence unintended by the doer of the act. This protection
is afforded by the law even in the absence of consent when the
circumstances are such that it is impossible for the person for
whose benefit the act was done to consent to it. This may arise
where the imminence of the apprehended danger makes it
F impossible to obtain consent. Another eventuality is where the
individual is incapable of consenting (by being incapacitated in
mind) and there is no person in the position of a guardian or
person in lawful charge from whom consent can be obtained in
time to perform the act for the benefit of that person. However,
the first proviso to Section 92 makes it clear that the exception
G does not extend to the intentional causing of death or attempt to
cause death to the individual, howsoever it may be for the benefit
of the other. Abetment embodies a three-fold requirement: first
an intentional aiding, second the aiding of an act or illegal omission
and third, that this must be toward the doing of that thing. It
H presupposes a course of conduct or action which facilitates another
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 41

to end life. Hence abetment of suicide is an offence expressly A
punishable under Sections 305 and 306 of the IPC. [Paras 95,
96][229-A-E, F; 230-A-B]
10.5 Active euthanasia involves an intention on the part of
the doctor to cause the death of the patient. Such cases fall under
the first clause of Section 300. There also exists a distinction B
between active and passive euthanasia. This is brought out in
the application of the doctrine of ‘double effect’. Active euthanasia
involves an intention to cause the death of the patient. Passive
euthanasia does not embody an intent to cause death. A doctor
may withhold life support to ensure that the life of a patient who
is in the terminal stage of an incurable illness or in a permanent C
vegetative state, is not prolonged artificially. The decision to do
so is not founded upon an intent to cause death but to allow the
life of the patient to continue till and cease at the end of its natural
term. Placing such a person on life support would have been an
intervention in the natural process of death. The crucial element D
in Section 299 is provided by the expression “causes death”. In
a case involving passive euthanasia, the affliction of the patient
is not brought about either by an act or omission of the doctor.
Hence, a decision by the doctor based on what is in the best
interest of the patient precludes an intent to cause death. Similarly,
withdrawal of artificial life support is not motivated by an intent E
to cause death. What a withdrawal of life support does is not to
artificially prolong life. The end of life is brought about by the
inherent condition of the patient. [Paras 97, 98][230-G; 231-D,
G; 232-A-C, E]
“Doctrine of Double Effect”, Stanford Encyclopedia F
of Philosophy (July 28, 2004), available at https://
plato.stanford.edu/entries/double-effect/ - referred to.
10.6 Section 43 of the Penal Code defines the expression
illegal to mean “…everything which is an offence or which is
prohibited by law, or which furnishes ground in a civil action”. G
Withdrawing life support to a person in a permanently vegetative
state or in a terminal stage of illness is not ‘prohibited by law’.
Such an act would also not fall outside the purview of Section 92
for the reason that there is no intentional causing of death or
attempt to cause death. Where a decision to withdraw artificial H
42 SUPREME COURT REPORTS [2018] 6 S.C.R.

A life support is made in the caregiver of the patient, it fulfils the
duty of care required from a doctor towards the patient. Where a
doctor has acted in fulfilment of a duty of care owed to the patient,
the medical judgment underlying the decision protects it from a
charge of illegality. Such a decision is not founded on an intention
to cause death or on the knowledge that it is likely to cause death.
B
An act done in pursuance of the duty of care owed by the doctor
to a patient is not prohibited by law. The intent in passive
euthanasia is not to cause death. A decision not to prolong life
beyond its natural span by withholding or withdrawing artificial
life support or medical intervention cannot be equated with an
C intent to cause death. [Paras 99, 100][233-B-D, G]
11. In 2006, the Law Commission of India submitted its
196th Report titled “Medical Treatment to Terminally Ill Patients
(Protection of Patients and Medical Practitioners)”. The report
by Justice M Jagannadha Rao as Chairperson contains a succinct
D elucidation of legal principles governing criminal law on the
subject. Some of them are explained as follows: An informed
decision of a patient to refuse medical treatment is accepted at
common law and is binding on a treating doctor. While a doctor
has a duty of care, a doctor who obeys the instructions of a
competent patient to withhold or withdraw medical treatment does
E not commit a breach of professional duty and the omission to
treat will not be an offence; The decision of a patient to allow
nature to take its course over the human body and, in
consequence, not to be subjected to medical intervention, does
not amount to a deliberate termination of physical existence.
F Allowing nature to take its course and a decision to not receive
medical treatment does not constitute an attempt to commit
suicide within the meaning of Section 309 of the Penal Code;
Once a competent patient has decided not to accept medical
intervention, and to allow nature to take its course, the action of
the treating doctor in abiding by those wishes is not an offence,
G nor would it amount to an abetment under Section 306. Under
Section 107, an omission has to be illegal to constitute an
abetment. A doctor bound by the instructions of a patient to
withhold or withdraw medical treatment is not guilty of an illegal
act or an abetment. The doctor is bound by the decision of the
H patient to refuse medical intervention; A doctor who withholds
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 43

or withdraws medical treatment in the best interest of a patient, A
such as when a patient is in a permanent vegetative state or in a
terminal state of an incurable illness, is not guilty under Section
299 because there is no intention to cause death or bodily injury
which is likely to cause death. The act of withholding or
withdrawing a life support system in the case of a competent patient
B
who has refused medical treatment and, in the case of an
incompetent person where the action is in the best interest of
the patient would be protected by good faith protections available
under Sections 76, 79, 81 or, as the case may be, by Section 88,
even if it is construed that the doctor had knowledge of the
likelihood of death; and The decision of the doctor, who is under C
a duty at common law to obey the refusal of a competent patient
to take medical treatment, would not constitute a culpable act of
negligence under Section 304A. When the doctor has taken such
a decision to withhold or withdraw treatment in the best interest
of the patient, the decision would not constitute an act of gross
D
negligence punishable under Section 304A. Introducing a
structural safeguard, in the form of a Medical Board of experts
can be contemplated to further such an objective. The
Transplantation of Human Organs and Tissues Act 1994 provides
for the constitution of Authorisation Committees under Section
9(4). Authorisation Committees are contemplated at the state E
and district levels and a hospital board. Once the process of
decision making has been arrived at by fulfilling a mandated
safeguard (the prior approval of a committee), the decision to
withdraw life support should not constitute an illegal act or
omission. The setting up of a broad-based board is precisely with
F
a view to lend assurance that the duty of care owed by the doctor
to the patient has been fulfilled. Once due safeguards have been
fulfilled, the doctor is protected against the attribution of a culpable
intent or knowledge. It will hence fall outside the definition of
culpable homicide (Section 299), murder (Section 300) or causing
death by a rash or negligent act (Section 304A). [Paras 101, G
102][234-A-H; 235-A-E]
12.1 Advance Directives: A patient, in a sound state of
mind, possesses the ability to make decisions and choices and
can legitimately refuse medical intervention. However, a patient
may not always have the opportunity to grant or withhold consent H
44 SUPREME COURT REPORTS [2018] 6 S.C.R.

A to medical treatment. An unforeseen event may deprive the
individual of the ability to indicate a desire to either receive or
not to have medical treatment. An occasion necessitating
treatment in sudden cases where a person suffers an accident, a
stroke or coronary episode may provide no time for reflection.
In anticipation of such situations, “where an individual patient
B
has no desire to be kept in a state of complete and indefinite
vegetated animation with no possibility of recovering his mental
and physical faculties, that individual, while still in control of all
his/her faculties and his ability to express himself/herself”, could
still retain the right to refuse medical treatment by way of
C “advance directives”. [Paras 103, 104][235-F; 236-F-G; 237-A-
B]
Schloendorff v. Society of NY Hospital 105 N.E. 92, 93
(N.Y. 1914) – referred to.
12.2 There are two forms of advance directives: (i) A Living
D Will which indicates a person’s views and wishes regarding
medical treatment. (ii) A Durable Power of Attorney for Health
Care or Health care Proxy which authorises a surrogate decision
maker to make medical care decisions for the patient in the event
she or he is incapacitated. Although there can be an overlap
E between these two forms of advance directives, the focus of a
durable power is on who makes the decision while the focus of a
living will is on what the decision should be.[Para 105][237-B-D]
12.3 The principles of patient autonomy and consent are
the foundation of advance medical directives. A competent and
F consenting adult is entitled to refuse medical treatment. By the
same postulate, a decision by a competent adult will be valid in
respect of medical treatment in future. Advance directives are
thus documents a person completes while still in possession of
decisional capacity about how treatment decisions should be made
in the event she or he loses decision making capacity in future.
G They cover three conditions: (i) a terminal condition; (ii) a
persistently unconscious condition; and (iii) an end-stage
condition. A terminal condition is an incurable or irreversible
condition which even with the administration of life-sustaining
treatment will result in death in the foreseeable future. A
H persistently unconscious condition is an irreversible condition,
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 45

in which thought and awareness of self and environment are A
absent. An end-stage condition is a condition caused by injury,
disease or illness which results in severe and permanent
deterioration indicated by incompetency and complete physical
dependency for which treatment of the irreversible condition
would be medically ineffective. [Paras 107-109][239-A, D-F]
B
Luis Kutner, “Due Process of Euthanasia: The Living
Will, a proposal”, Indian Law Journal (1969), Vol. 44,
Issue 4, at page 539; “Advance Directives and
Substitute Decision-Making”, Stanford Encyclopaedia
of Philosophy (24 March 2009), available at https://
plato.standford.edu/entries/advance-directives/; C
James C Turner, “Living Wills – Need for legal
recognition”, West Virginia Law Review (1976), Vol.
78, Issue 3, at page 370 – referred to.
12.4 The reasons which may lead a person in a sound state
of mind to refuse medical treatment are inscrutable. Those D
decisions are not subject to scrutiny and have to be respected by
the law as an essential attribute of the right of the individual to
have control over the body. The state cannot compel an unwilling
individual to receive medical treatment. While an individual
cannot compel a medical professional to provide a particular E
treatment (this being in the realm of professional medical
judgment), it is equally true that the individual cannot be compelled
to undergo medical intervention. The principle of sanctity of life
thus recognises the fundamental liberty of every person to control
his or her body and as its incident, to decline medical treatment.
The ability to take such a decision is an essential element of the F
privacy of the being. Privacy also ensures that a decision as
personal as whether or not to accept medical treatment lies
exclusively with the individual as an autonomous being. The
reasons which impel an individual to do so are part of the privacy
of the individual. The mental processes which lead to decision G
making are equally part of the constitutionally protected right to
privacy. Advance directives are founded on the principle that an
individual whose state of mind is not clouded by an affliction which
prevents him or her from taking decisions is entitled to decide
whether to accept or not accept medical intervention. If a decision
can be made for the present, when the individual is in a sound H
46 SUPREME COURT REPORTS [2018] 6 S.C.R.

A state of mind, such a person should be allowed to decide the
course of action which should be followed in the future if he or
she were to be in a situation which affects the ability to take
decisions. If a decision on whether or not to receive medical
treatment is valid for the present such a decision must be equally
valid when it is intended to operate in the future. [Paras 110,
B
111][239-H; 240-A-E]
12.5 When a patient is brought for medical treatment in a
state of mind in which he or she is deprived of the mental capacity
to make informed choices, the medical professional needs to
determine the line of treatment. One line of enquiry, which seeks
C to protect patient autonomy is how the individual would have made
a decision if he or she had decision-making capacity. This is called
the substituted judgment standard. An advance medical directive
is construed as a facilitative mechanism in the application of the
substituted judgment standard, if it provides to the physician a
D communication by the patient (when she or he was in a fit state of
mind) of the desire for or restraint on being provided medical
treatment in future. Conceptually, there is a second standard,
which is the caregiver standard founded on the principle of
beneficence. The second standard seeks to apply an objective
notion of a line of treatment which a reasonable individual would
E desire in the circumstances. The difference between these two
standards is that the first seeks to reconstruct the subjective
point of view of the patient. The second allows for “a more generic
view of interests”, without having to rely on the “idiosyncratic
values and preference of the patient in question”. [Paras 112,
F 113][240-G-H; 241-A-B; 242-B]
13.1 The sanctity of an advance directive is founded upon
the expression of the will of an individual who is in a sound state
of mind when the directive is executed. Underlying the
consensual character of the declaration is the notion of the consent
G being informed. Undoubtedly, the reasons which have weighed
with an individual in executing the advance directive cannot be
scrutinized (in the absence of situations such as fraud or coercion
which implicate the very basis of the consent). However, an
individual who expresses the desire not to be subjected to a
particular line of treatment in the future, should she or he be
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 47

ailing in the future, does so on an assessment of treatment options A
available when the directive is executed. For instance, a decision
not to accept chemotherapy in the event that the individual is
detected with cancer in the future, is based on today’s perception
of the trauma that may be suffered by the patient through that
treatment. Advances in medical knowledge between the date of
B
the execution of the document and an uncertain future date when
the individual may possibly confront treatment for the disease
may have led to a re-evaluation by the person of the basis on
which a desire was expressed several years earlier. Another
fundamental issue is whether the individual can by means of an
advance directive compel the withholding of basic care such as C
hydration and nourishment in the future. Protecting the individual
from pain and suffering as well as the indignity of debility may
similarly raise important issues. Advance directives may hence
conceivably raise ethical issues of the extent to which the
perception of the individual who executes it must prevail in
D
priority to the best interest of the patient.[Para 117][244-D-H;
245-A]
13.2 Advance directives provide moral authority for the
family of the patient that the decision which has been taken to
withdraw or withhold artificial life support is in accord with the
stated desire of the patient expressed earlier. But the ethical E
concerns may warrant a nuanced application of the principle. The
decision on whether to withhold or withdraw medical treatment
should be left to a competent body comprising of, but not
restricted to medical professionals. Assigning a supervisory role
to such a body is also necessary in order to protect against the F
possibility of abuse and the dangers surrounding the misuse of
an advance directive. An advance directive should not be utilized
as a subterfuge to fulfil unlawful or unethical purposes such as
facilitating a succession to property. [Para 119][245-E-H; 246-A]
13.3 The recognition of advance directives as part of a G
regime of constitutional jurisprudence is an essential attribute of
the right to life and personal liberty under Article 21. That right
comprehends dignity as its essential foundation. Quality of life is
integral to dignity. As an essential aspect of dignity and the
preservation of autonomy of choice and decision-making, each
H
48 SUPREME COURT REPORTS [2018] 6 S.C.R.

A individual must have the right on whether or not to accept medical
intervention. Such a choice expressed at a point in time when
the individual is in a sound and competent state of mind should
have sanctity in the future if the individual were to cease to have
the mental capability to take decisions and make choices. Yet, a
balance between the application of the substituted judgment
B
standard and the best interest standard is necessary as a matter
of public interest. This can be achieved by allowing a supervisory
role to an expert body with whom shall rest oversight in regard
to whether a patient in the terminal stage of an illness or in a
permanent vegetative state should be withheld or withdrawn from
C artificial life support. [Para 120][246-A-D]
Re AK (Adult Patient) (Medical Treatment: Consent)
[2001] 1 FLR 129; HE v. A Hospital NHS Trust [2003]
2 FLR 408; Re T (Adult: Refusal of Treatment) [1942]
4 All ER 649; Re C (Adult: Refusal of Medical
D Treatment)[1994] 1 All ER 819; St George’s Healthcare
NHS Trust v S [1998] 3 WLR 936; Re B (Adult: Refusal
of Medical Treatment) [2002] 2 All ER 449 – referred
to.
Alexander Ruck Keene, “Advance Decisions : getting
E it right?”, available at http://www.39essex.com/
docs /articles/advance_decisions_paper_ark_december_2012.pd;
Elizabeth Wicks, The State and the Body : Legal
Regulation of Bodily Autonomy, Hart Publishing (2016);
A S Kessel and J Meran, “Advance directives in the
UK: legal, ethical, and practical considerations for
F doctors”, British Journal of General Practice (1998),
at page 1263; Are advance directives legally binding
or simply the starting point for discussion on patients’
best interests?”, BMJ (28 November 2009), Volume
339, page 1231 – referred to.
G 14.1 The Mental Healthcare Act 2017, which was assented
to by the President of India on 7 April 2017, enacts specific
provisions for recognising and enforcing advance directives for
persons with mental illness. The Act recognises an advance
directive. An advance directive has to be in writing. The person
H subscribing to it must be a major. While making an advance
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 49

directive, the maker indicates the manner in which he or she A
wishes or does not wish to be cared for and treated for a mental
illness; and the person he or she appoints as a nominated
representative. An advance directive is to be invoked only when
the person who made it ceases to have the capacity to make
mental healthcare treatment decisions. It remains effective until
B
the maker regains the capacity to do so. [Para 130][252-G; 253-
C-D]
Aintree University Hospitals NHS Foundation Trust v.
James and Others [2013] UK SC 6 – referred to.
14.2 Advance directives are capable of being revoked, C
amended or modified by the maker at any time. The Act specifies
that an advance directive will not apply to emergency treatment
administered to the maker. Otherwise, a duty has been cast upon
every medical officer in charge of a mental health establishment
and a psychiatrist in charge of treatment to propose or give
treatment to a person with a mental illness, in accordance with a D
valid advance directive, subject to Section 11. Section 11
elucidates a procedure which is to be followed where a mental
health professional, relative or care-giver does not desire to follow
the advance directive. In such a case, an application has to be
made to the Board to review, alter, cancel or modify the advance E
directive. In deciding whether to allow such an application the
Board must consider whether the advance directive is truly
voluntary and made without force, undue influence or coercion;
The advance directive should apply in circumstances which are
materially different; The maker had made a sufficiently well
informed decision; The maker possessed the capacity to make F
decisions relating to mental health care or treatment at the time
when it was made; and The directive is contrary to law or to
constitutional provisions. A duty has been cast to provide access
to the advance directive to a medical practitioner or mental health
professional, as the case may be. In the case of a minor, an advance G
directive can be made by a legal guardian. The Act has specifically
granted protection to medical practitioners and to mental health
professionals against being held liable for unforeseen
consequences upon following an advance directive. [Paras 133,
134][253-F-G; 254-A-E]
H
50 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Vishaka v. State of Rajasthan (1997) 6 SCC 241 :
[1997] 3 Suppl. SCR 404 – relied on.
Gian Kaur v. State of Punjab (1996) 2 SCC 648 : [1996]
3 SCR 697; P Rathinam v. Union of India (1994) 3
SCC 394 – referred to.
B Aruna Ramachandra Shanbaug v. Union of India (2011)
15 SCC 480 – Not correct law.
Airedale NHS Trust v. Bland (1993) 2 WLR 316 (H.L)
– referred to.

C “The Dilemmas of Euthanasia”, Bio-Science (August
1973), Vol. 23, No. 8, at page 459; Margaret A.
Somerville, “Legalising euthanasia: why now?”, The
Australian Quarterly (Spring 1996), Vol. 68, No. 3, at
page 1; Christopher N. Manning, “Live And Let Die:
Physician-Assisted Suicide And The Right To Die”,
D Harvard Journal of Law and Technology (1996), Vol.
9, No. 2, at page 513; 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;
E Elizabeth Wicks, The Right to Life and Conflicting
Interests (Oxford University Press, 2010), at page 199;
Elizabeth M. Andal Sorrentino, “The Right To Die?”,
Journal of Health and Human Resources
Administration (Spring,1986), Vol. 8, No. 4, page 361;
Atul Gawande, Being Mortal: Medicine and What
F Matters in the End (Hamish Hamilton, 2014), at page
260; Henry Marsh, Admissions: A Life in Brain Surgery,
(Weidenfeld & Nicolson, 2017), at page 265-266;
Randy Pausch and Jeffrey Zaslow, The Last Lecture,
(Hodder & Stoughton, 2008), at page 17 – referred to.
G PER ASHOK BHUSHAN, J: 1.1 In Western World
“Hippocrates” is regarded as “father of western medicine”.
Hippocratic period dates from 460 BC. “Corpus Hippocraticum”
comprises of not only general medical prescription, description
of diseases, diagnosis, dietary recommendations but also opinion
of professional ethics of a physician. Thus, those who practiced
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 51

medicine from ancient time were ordained to follow some ethical A
principles. For those who follow medical profession ‘Hippocratic
Oath’ was always treated to be Oath to which every medical
professional was held to be bound. The noticeable portion of the
Hippocratic Oath is that medical practitioner swears that he will
not give a lethal drug to anyone nor he will advise such a plan.
B
[Paras 7, 8][266-B-C; 267-B]
1.2 Although on one hand medical professional has to take
Hippocratic Oath that he shall treat his patient according to his
ability and judgment and never do harm to anyone and he will
not give any lethal drug to anyone even he is asked for, on the
other hand Greek philosopher Plato held that those who has sickly C
constitution and intemperate habits should not be helped by
medicine. Thus, the cleavage in views regarding ethics of a
medical professional as well as not supporting medical treatment
for those who are thoroughly diseased is found from ancient time
in Greek thoughts itself. The dilemma of medical professional D
still continues to this day and medical professionals are hesitant
in adopting a course which may not support the life of a patient or
lead to patient’s death. [Paras 11-12][267-G-H; 268-A-B]
2.1 The only statutory provision in our country which refers
to euthanasia is statutory regulations framed under Indian Medical E
Council Act, 1956, namely The Indian Medical Council
(Professional Conduct, Etiquette & Ethics) Regulations, 2002.
The Law Commission of India had stated and submitted a detailed
report on the subject in 196th report on “Medical Treatment to
Terminally Ill Patients (Protection of Patients and Medical
Practitioners)”. Law Commission examined various provisions F
of Indian Penal Code and other statutory provisions, judgments
of this court and different courts of other countries and had made
certain recommendations. [Paras 26-27][272-B, F]
2.2 The 196 th Report was again revised by the Law
Commission of India in 241 st Report dated August, 2012. The G
2006 draft bill was redrafted by Law Commission. The above bill
however could not fructify in a law. The Ministry of health and
family welfare had published another draft bill namely The Medical
Treatment of Terminally Ill Patients (Protection of Patients &
Medical Practitioners) Bill, 2016, as a private member bill which H
52 SUPREME COURT REPORTS [2018] 6 S.C.R.

A was introduced in Rajya Sabha on 5th August 2016, which is still
pending. Thus, the only statutory provision on euthanasia is
regulation 6.7 of the 2002 Regulations. The regulations prohibit
practicing euthanasia and declare that practicing euthanasia
constitute unethical conduct on behalf of the medical practitioner.
The regulation however carves an exception that on specific
B
occasion, the question of withdrawing supporting devices to
sustain cardio-pulmonary function even after brain death, shall
be decided only by a team of doctors and not merely by the treating
physician alone. The regulation further provides that team of
doctors shall declare withdrawal of support system. The
C withdrawal of medical treatment of terminally ill Persons is
complex ethical, moral and social issue with which many countries
have wrestled with their attempt to introduce a legal framework
for end of life decision making. In absence of a comprehensive
legal framework on the subject the issue has to be dealt with
great caution. [Paras 29-31][274-C-G]
D
Gian Kaur v. State of Punjab (1996) 2 SCC 648 : [1996]
3 SCR 697; P. Rathinam v. Union of India & Anr. (1994)
3 SCC 394; Aruna Ramachandra Shanbaug v. Union
of India & Ors. (2011) 4 SCC 454 : [2011] 4 SCR 1057
– explained.
E
3.1 Law on subject in other countries: The laws of different
countries expresses thoughts of people based on different culture,
philosophy and social conditions. Assisted suicide was always
treated as an offence in most of the countries. Physician assisted
suicide is also not accepted in most of the countries except in
F few where it gain ground in last century. In several countries
including different States of U.S.A., European Countries and
United Kingdom, various legislations have come into existence
codifying different provisions pertaining to physician assisted
suicide. The right to not commence or withdraw medical
G treatment in case of terminally ill or PSV patients, advance
medical directives have also been made part of different
legislations in different countries. Switzerland, Netherlands,
Belgium, Luxembourg, and American States of Oregan,
Washington, Montana and Columbia has permitted physician
assisted suicide with statutory regulations.
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 53

[Paras 39, 40][279-G-H; 280-A, C] A
3.2 Euthanasia is criminal offence in the United Kingdom.
According to Section 2(1) of the Suicide Act, 1961, a person
assisting an individual, who wish to die commits an offence. The
provision states that it is an offence to aid, abet, counsel or procure
the suicide of another or an attempt by another to commit suicide, B
however, it is not a crime if it is by their own hands. There has
been large parliamentary opposition to the current United
Kingdom Law concerning assisted suicide but there has been no
fundamental change in the law so far. [Para 41][280-D-E]
Airedale NHS Trust v. Bland (1993) 1 All ER 821; Ms. C
B v. An NHS Hospital Trust 2002 EWHC 429; Regina
(Pretty) v. Director of Public Prosecutions (Secretary
of State for the Home Department intervening) (2002)
1 AC 800 – referred to.
3.3 The State of New York in 1828 enacted a statute declaring D
assisted suicide as a crime. New York example was followed by
different other States. [Para 48][287-F]
Schloendroff v. Society of New York Hospital 211 N.Y.
125; Nancy Beth Cruzan Vs. Director, Missouri
Department of Health 497 U.W. 261; Washington, Et E
Alv v. Harold Glucksberg Et Al, 521 US 702 equivalent
to 138 L.Ed 2d 772; Dennis C. Vacco, Attorney General
of New York Et Al. v. Timothy E. Quill Et Al, 521 US 793
– referred to .
3.4 Section 241(b) of the Canada Criminal Code provides F
that everyone who aids or abets a person in committing suicide
commits an indictable offence. In Switzerland the assisted suicide
is allowed only for altruistic reasons. A person is guilty and
deserved to be sentenced for imprisonment on assisted suicide
when he incites someone to commit suicide for selfish reasons.
The Netherlands has the most experience with physician-hastened G
death. Both euthanasia and assisted suicide remain crimes there
but doctors who end their patients’ lives will not be prosecuted if
legal guidelines are followed. The pre-dominant thought as on
date prevailing in other part of the World is that assisted suicide
is a crime. No one is permitted to assist another person to commit
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54 SUPREME COURT REPORTS [2018] 6 S.C.R.

A suicide by injecting a lethal drug or by other means. In India,
Section 306 of the Indian Penal Code specifically makes it an
offence. The Constitution Bench of this Court in Gian Kaur has
already upheld the constitutional validity of Section 306, thus,
the law of the land as existing today is that no one is permitted to
cause death of another person including a physician by
B
administering any lethal drug even if the objective is to relive
the patient from pain and suffering. [Paras 58-61]292-E; 293-A-
C, E-F]
3.5 The Constitution Bench in Gian Kaur noted a difference
between cases in which physician decides not to provide or to
C continue to provide for medical treatment or care and those cases
where he decides to administer a lethal drug activity to bring his
patient’s life to an end. The judgment of House of Lords in
Airedale’s case was referred to and noted in the above context.
The Airedale’s case was cited on behalf of the appellant in support
D of the contention that in said case the withdrawal of life saving
treatment was held not to be unlawful. The Constitution Bench
in Gian Kaur did not express any binding view on the subject of
euthanasia. [Paras 68, 69][298-C-E]
Airedale N.H.A. Trust v. Bland 1993 (2) W.L.R. 316
E (H.L.) – referred to.
New Webster’s Dictionary (Deluxe Encyclopedic
Edition) – referred to.
4. In recent times, three principles had gained acceptance
throughout the world they are: 1. Sanctity of life 2. Right of self-
F determination 3. Dignity of the individual human being. The
sanctity of life is one thought which is philosophically, religiously
and mythologically accepted by the large number of population of
the world practicing different faiths and religions. Sanctity of life
entails it’s inviolability by an outsider. Sanctity of life is the
G concern of State. Right of self-determination also encompasses
in it bodily integrity. Without consent of an adult person, who is
in fit state of mind, even a surgeon is not authorised to violate
the body. Sanctity of the human life is the most fundamental of
the human social values. The acceptance of human rights and
development of its meaning in recent times has fully recognised
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 55

the dignity of the individual human being. These three principles A
enable an adult human being of conscious mind to take decision
regarding extent and manner of taking medical treatment. An
adult human being of conscious mind is fully entitled to refuse
medical treatment or to decide not to take medical treatment
and may decide to embrace the death in natural way. Euthanasia
B
as the meaning of the word suggest is an act which leads to a
good death. Some positive act is necessary to characterise the
action as Euthanasia. Euthanasia is also commonly called
“assisted suicide” due to these reasons. [Paras 73-75][300-B-F]
K.S. Puttaswamy and Another v. Union of India and
Others (2017) 10 SCC 1 – followed. C

5.1 WITHDRAWAL OF LIFE SAVING DEVICES:
Withdrawal of medical assistance or withdrawal of medical devices
which artificially prolong the life cannot be regarded as an act to
achieve a good death. Artificial devices to prolong the life are
implanted, when a person is likely to die due to different causes D
in his body. Life saving treatment and devices are put by
physicians to prolong the life of a person. The Law Commission
of India in its 196th Report on “Medical Treatment to Terminally
Ill Patients (Protection of Patients and Medical Practitioners)”
was of the opinion that withdrawing life supporting measures of E
patient terminally ill is a concept, different from Euthanasia. The
opinion of Cardozo, J., rendered more than hundred years ago
that every human being of adult years and sound mind has a right
to determine what shall be done with his own body, is now
universally accepted principle. The judgment of the U.S. Supreme
Court and House of Lords also reiterate the above principle. F
[Paras 76-77][300-G-H; 301-B-C]
5.2 The decision not to take life saving medical treatment
by a patient, who is competent to express his opinion cannot be
termed as euthanasia, but a decision to withdraw life saving
treatment by a patient who is competent to take decision as well G
as with regard to a patient who is not competent to take decision
can be termed as passive euthanasia. Such acts, which are
commonly expressed as passive euthanasia is lawful and legally
permissible in this country. This Court is not a legislative body
nor is entitled or competent to act as a moral or ethical arbiter. H
56 SUPREME COURT REPORTS [2018] 6 S.C.R.

A The task of this Court is not to weigh or evaluate or reflect
different believes and views or give effect to its own but to
ascertain and build the law of land as it is now understood by all.
Message which need to be sent to vulnerable and disadvantaged
people should not, however, obliviously to encourage them to
seek death but should assure them of care and support in life.
B
The act of withdrawal from live-saving devices is an independent
right which can lawfully be exercised by informed decision. [Paras
80, 81 and 82][302-B-E]
6. Decision for withdrawal of life-saving treatment in case
of a person who is incompetent to take an informed decision
C
In case of a person who is suffering from a disease and is
taking medical treatment, there are three stake holders; the
person himself, his family members and doctor treating the patient.
In cases of incompetent patients who are unable to take an
informed decision, it is in the best interests of the patient that
D the decision be taken by competent medical experts and that
such decision be implemented after providing a cooling period at
least of one month to enable aggrieved person to approach the
Court of Law. The best interest of the patient as determined by
medical experts shall meet the ends of justice. The medical team
E by taking decision shall also take into consideration the opinion
of the blood relations of the patient and other relevant facts and
circumstances. [Paras 84, 85][303-B; 304-E-F]
7. Advance medical directive
7.1 The advance medical directive has been recognised first
F by Statute in United States of America when in the year 1976,
State of California passed “Natural Death Act”. It is claimed that
48 states out of 50 in the United States of America have enacted
their own laws regarding Patient’s Rights and advance medical
directives. Advance medical directive is a mechanism through
G which individual autonomy can be safeguarded in order to provide
dignity in dying. [Para 87][305-D-E]
7.2 Advance medical directives are not exclusively
associated with end of life decisions. However, it is vital to ensure
that form of an advance medical directive reflects the needs of
its author and is sufficiently authoritative and practical to enable
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 57

its provisions to be upheld. In most of the western countries A
advance medical directives have taken a legalistic form
incorporating a formal declaration to be signed by competent
witnesses. The laws also make provisions for updating
confirmation of its applicability and revocation. Protecting the
individual autonomy is obviously the primary purpose of an
B
advance medical directive. The right to decide one’s own fate
pre-supposes a capacity to do so. The answer as to when a
particular advance medical directive becomes operative usually
depends upon an assent of when its author is no longer competent
to participate in medical decision making. So long as an individual
can take an informed decision regarding his medical treatment, C
there is no occasion to look into advance medical directives. A
person has unfettered right to change or cancel his advance
medical directives looking to the need of time and advancement
in medical science. Hence, a person cannot be tied up or bound
by his instructions given at an earlier point of time. [Para 87][305-
D
F-H; 306-A, D]
7.3 The concept of advance medical directive originated
largely as a response to development in medicines. Many people
living depending on machines cause great financial distress to
the family with the cost of long term medical treatment. Advance
medical directive was developed as a means to restrict the kinds E
of medical intervention in event when one become incapacitated.
The foundation for seeking direction regarding advance medical
directive is extension of the right to refuse medical treatment
and the right to die with dignity. When a competent patient has
right to take a decision regarding medical treatment, with regard F
to medical procedure entailing right to die with dignity, the said
right cannot be denied to those patients, who have become
incompetent to take an informed decision at the relevant time.
The concept of advance medical directive has gained ground to
give effect to the rights of those patients, who at a particular
time are not able to take an informed decision. Another concept G
which has been accepted in several countries is recognition of
instrument through which a person nominates a representative
to make decision regarding their medical treatment at a point of
time when the person executing the instrument is unable to make
H
58 SUPREME COURT REPORTS [2018] 6 S.C.R.

A an informed decision. This is called attorney authorisation leading
to medical treatment. In this country, there is no legislation
governing such advance medical directives. It is, however,
relevant to note a recent legislation passed by the Parliament
namely “The Mental Healthcare Act, 2017”, where as per Section
5 every person, who is not a minor has a right to make an advance
B
directive in writing regarding treatment to his mental illness in
the way a person wishes to be treated. Section 6 of the Act provides
that an advance directive shall be made in the manner as has
been prescribed by the regulations made by the Central Authority.
In the draft Medical Healthcare Regulation published by Ministry
C of Health and Family Welfare, a form is prescribed in which
advance directive may be made. Other aspects of medical
directive have also been dealt with by draft regulation. Thus, in
our country, recognition of advance directives regarding medical
treatment has started to be recognised and are in place relating
to specified field and purpose. Another legislation which also
D
recognise some kind of advance directive relating to a person’s
body is Section 3 of the Transplantation of Human Organs and
Tissues Act, 1994. The rules have been framed under Section
24 of the Transplantation of Human Organs and Tissues Act, 1994
namely Transplantation of Human Organs and Tissues Rules,
E 2014 where form of authorisation for organ or tissue pledging is
Form 7, which provides an authorisation by donor in presence of
two witnesses which is also required to be registered by Organ
Donor Registry. The statutory recognition of the authorisation
in two statutes is clear indication of acceptance of the concept of
advance medical directive in this country. [Paras 88-91][306-E-
F
H; 307-A-B, H; 308-A-B]
7.4 The concept of advance medical directive has gained
ground throughout the world. Different countries have framed
necessary legislation in this regard. The republic of Singapore
has passed an enactment namely Advance Medical Directive Act
G (Act 16 of 1996). Section 3(1) of the Act empowers a person who
is not mentally disordered and attained the age of 21 years to
make an advance directive in the prescribed form. Other
provisions of Statute deals with duty of witness, registration of
directives, objections, revocation of directive, panel of specialists,
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 59

certification of terminal illness, duty of medical practitioner and A
other related provisions. The Belgian Act on Euthanasia, 2002,
Swiss Civil Code 1907 and Mental Capacity Act, 2005 (England)
and Pennsylvania Act 169 of 2006 contemplate for an advance
directive. In our country, there is yet no legislation pertaining to
advance medical directive. However, Ministry of Health and
B
Family Welfare by its order dated 06.05.2016 uploaded the Law
Commission’s 241st report and solicited opinions, comments on
the same. [Para 95][311-B-D, F]
Per A.K. SIKRI, J. 1.1 Section 306 IPC makes abetment
to suicide as a punishable offence. Likewise, Section 309 IPC
makes attempt to commit suicide as a punishable offence. C
Intention to commit suicide is an essential ingredient in order to
constitute an offence under this provision. Thus, this provision
specifically prohibits a person from terminating his life and
negates right to die. Constitutional validity of this provision, on
the touchstone of Article 21, was the subject matter of Gian Kaur’s D
case. The Court held Sections 306 and 309 IPC to be
constitutionally valid. While so holding, the Court observed that
when a man commits suicide, he has to undertake certain positive
overt acts and the genesis of those acts cannot be traced to, or
be included within the protection of the ‘right to life’ under Article
21. The significant aspect of ‘sanctity of life’ is also not to be E
overlooked. Article 21 is a provision guaranteeing protection of
life and personal liberty and by no stretch of imagination can
‘extinction of life’ be read to be included in ‘protection of life’.
Whatever may be the philosophy of permitting a person to
extinguish his life by committing suicide, the Court found it F
difficult to construe Article 21 to include within it the ‘right to
die’ as a part of the fundamental right guaranteed therein. ‘Right
to life’ is a natural right embodied in Article 21 but suicide is an
unnatural termination or extinction of life and, therefore,
incompatible and inconsistent with the concept of ‘right to life’.
[Paras 38][331-G; 332-A-C] G

Gian Kaur v. State of Punjab (1996) 2 SCC 648 : [1996]
3 SCR 697 – referred to.
1.2 There has been a significant advancement in medical
science. Medical scientists have been, relentlessly and
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60 SUPREME COURT REPORTS [2018] 6 S.C.R.

A continuously, experimenting and researching to find out better
tools for not only curing the disease with which human beings
suffer from time to time, noble attempt is to ensure that human
life is prolonged and in the process of enhancing the expectancy
of life, ailments and sufferings therefrom are reduced to the
minimal. There is, thus, a fervent attempt to impress the quality
B
of life. It is this very advancement in the medical science which
creates dilemma at that juncture when, in common perception,
life of a person has virtually become unlivable but the medical
doctors, bound by their Hippocratic Oath, want to still spare efforts
in the hope that there may still be a chance, even if it is very
C remote, to bring even such a person back to life. The issue,
therefore, gets compounded having counter forces of medical
science, morality and ethical values, the very concept of life from
philosophical angle. In this entire process, the vexed question
is to be ultimately decided taking into consideration the normative
law, and in particular, the constitutional values. [Para 40][333-F-
D
H; 334-A-C]
2. Whether passive euthanasia, voluntary or even, in certain
circumstances, involuntary, is legally permissible?
As the process of dying is an inevitable consequence of
life, the right to life necessarily implies the right to have nature
E take its course and to die a natural death. It also encompasses a
right, unless the individual so wishes, not to have life artificially
maintained by the provision of nourishment by abnormal artificial
means which have no curative effect and which are intended
merely to prolong life. Insofar as concept of human dignity is
F concerned, it dates back to thousands of years. Historically,
human dignity, as a concept, found its origin in different religions
which is held to be an important component of their theological
approach. Later, it was also influenced by the views of
philosophers who developed human dignity in their
contemplations. Hinduism doesn’t recognize human beings as
G mere material beings. Its understanding of human identity is more
ethical-spiritual than material. That is why a sense of immortality
and divinity is attributed to all human beings in Hindu classical
literature. Even in Islam, tradition of human rights became
evident in the medieval ages. Being inspired by the tenets of the
H Holy Koran, it preaches the universal brotherhood, equality,
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 61

justice and compassion. Islam believes that man has special status A
before God. Because man is a creation of God, he should not be
harmed. Harm to a human being is harm to a God. God, as an act
of love, created man and he wishes to grant him recognition,
dignity and authority. Thus, in Islam, human dignity stems from
the belief that man is a creation of God – the creation that God
B
loves more than any other. The Bhakti and Sufi traditions too in
their own unique ways popularized the idea of universal
brotherhood. It revived and regenerated the cherished Indian
values of truth, righteousness, justice and morality. [Paras 64,
72, 73, 76 and 77][345-C-D; 348-H; 349-A, E; 350-C-E]
Lochner v. New York 198 US 45, 76 (1905) – referred C
to.
3.1 Constitutional perspective of dignity: The most
important lesson which was learnt as a result of Second World
War was the realization by the Governments of various countries
about the human dignity which needed to be cherished and D
protected. It is for this reason that in the U.N. Charter, 1945,
adopted immediately after the Second World War, dignity of the
individuals was mentioned as of core value. The almost
contemporaneous Universal Declaration of Human Rights (1948)
echoed same sentiments. Article 3 of the Geneva Conventions
explicitly prohibits “outrages upon personal dignity”. There are E
provisions to this effect in International Covenant on Civil and
Political Rights (Article 7) and the European Convention of
Human Rights (Article 3) though implicit. The ICCPR begins
its preamble with the acknowledgment that the rights contained
in the covenant “derive from the inherent dignity of the human F
person”. And some philosophers say the same thing. Even if
this is not a connection between dignity and law as such, it
certainly purports to identify a wholesale connection between
dignity and the branch of law devoted to human rights. One of
the key facets of twenty-first century democracies is the primary
importance they give to the protection of human rights. From G
this perspective, dignity is the expression of a basic value
accepted in a broad sense by all people, and thus constitutes the
first cornerstone in the edifice of human rights. Therefore, there
is a certain fundamental value to the notion of human dignity,
which some would consider a pivotal right deeply rooted in any H
62 SUPREME COURT REPORTS [2018] 6 S.C.R.

A notion of justice, fairness, and a society based on basic rights.
[Paras 85, 86][352-F-H; 353-A-C]
3.2 Within two years of the adoption of the said Universal
Declaration of Human Rights that all human beings are born free
and equal in dignity and rights, India attained independence and
B immediately thereafter Members of the Constituent Assembly
took up the task of framing the Constitution of this Country. The
Constitution Makers did so by incorporating a Chapter on
Fundamental Rights in Part III of the Constitution. However,
there is no mention of “dignity” specifically in this Chapter on
Fundamental Rights. So was the position in the American
C Constitution. In America, human dignity as a part of human rights
was brought in as a Judge-made doctrine. Same course of action
followed as the Indian Supreme Court read human dignity into
Articles 14 and 21 of the Constitution. [Para 88][353-F-H; 354-
A]
D 4.1 Dworkin, being a philosopher – jurist, was aware of the
idea of a Constitution and of a constitutional right to human
dignity. In his book, Taking Rights Seriously, he noted that
everyone who takes rights seriously must give an answer to the
question why human rights vis-a-vis the State exist. According
to him, in order to give such an answer one must accept, as a
E minimum, the idea of human dignity. In his Book, “Is Democracy
Possible Here?” Dworkin develops two principles about the
concept of human dignity. First principle regards the intrinsic
value of every person, viz., every person has a special objective
value which value is not only important to that person alone but
F success or failure of the lives of every person is important to all
of us. The second principle, according to Dworkin, is that of
personal responsibility. According to this principle, every person
has the responsibility for success in his own life and, therefore,
he must use his discretion regarding the way of life that will be
successful from his point of view. [Paras 90, 91][354-C, E-F]
G
4.2 When speaking of rights, it is impossible to envisage it
without dignity. In his pioneering and all inclusive “Justice for
Hedgehogs”, he proffered an approach where respect for human
dignity, entails two requirements; first, self-respect, i.e., taking
the objective importance of one’s own life seriously; this
H represents the free will of the person, his capacity to think for
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 63

himself and to control his own life and second, authenticity, i.e., A
accepting a “special, personal responsibility for identifying what
counts as success” in one’s own life and for creating that life
“through a coherent narrative” that one has chosen. According
to Dworkin, these principles form the fundamental criteria
supervising what we should do in order to live well. They further
B
explicate the rights that individuals have against their political
community, and they provide a rationale for the moral duties we
owe to others. This notion of dignity, which Dworkin gives utmost
importance to, is indispensable to any civilised society. It is what
is constitutionally recognised in our country and for good reason.
Living well is a moral responsibility of individuals; it is a C
continuing process that is not a static condition of character but a
mode that an individual constantly endeavours to imbibe. A life
lived without dignity, is not a life lived at all for living well implies
a conception of human dignity which Dworkin interprets includes
ideals of self-respect and authenticity. [Para 92][354-G; 355-A-D]
D
4.3 In his Article, Life’s Dominion, Ronald Dworkin, while
building the hypothesis on dignity concept, exhorts that people
must decide about their own death, or someone else’s in three
main kind of situations, namely, (i) conscious and competent: it
is a situation where a person is suffering from some serious
illness because of which he is incapacitated but he is still conscious E
and also competent to decide about his fate, he should be given a
choice to decide as to whether he wants to continue to get the
treatment; (ii) unconscious: where the patient is unconscious and
dying, doctors are often forced to decide whether to continue life
support for him or not under certain circumstances relatives have F
to take a decision. However, at times, unconscious patients are
not about to die. At the same time, they are either in coma or in
PVS. In either case, they are conscious. In such a situation, where
recovery is impossible, it should be left to the relatives to decide
as to whether they want the patient to remain on life support
(ventilator, etc.); and (iii) conscious but incompetent.[Para G
97][358-D-G]
K.S. Puttaswamy and Another v. Union of India and
Others (2017) 10 SCC 1 : [2010] 10 SCR 569 – relied
on.
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64 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 5.1 Right to health is a part of Article 21 of the Constitution.
At the same time, it is also a harsh reality that everybody is not
able to enjoy that right because of poverty etc. The State is not in
a position to translate into reality this right to health for all citizens.
Thus, when citizens are not guaranteed the right to health, can
they be denied right to die in dignity? [Para 99][359-B]
B
National Legal Services Authority v. Union of India and
Ors. (2014) 5 SCC 438 – relied on.
5.2 Dworkin specifically discussed the issues pertaining to
abortion and euthanasia with emphasis that both supporters and
C critics accept the idea of sanctity of life. Decisions regarding death
– whether by abortion or by euthanasia – affect our human dignity.
In Dworkin’s opinion, proper recognition of human dignity leads
to the recognition of the freedom of the individual. Dignity is,
thus, the core value of life and dying in dignity stands recognised
in Gian Kaur. It becomes a part of right of self determination.
D The important message behind Dworkin’s concept of human
dignity can be summarised in the following manner: (1) He
describes belief in individual human dignity as the most important
feature of Western political culture giving people the moral right
“to confront the most fundamental questions about the meaning
E and value of their own lives”. (2) In an age when people value
their independence and strive to live independent and fulfilled
lives it is important “that life ends appropriately, that death keeps
faith with the way we want to have lived”. (3) Death is “not only
the start of nothing but the end of everything” and, therefore, it
should be accomplished in a manner compatible with the ideals
F sought during life. [Paras 102-104][359-G; 360-B-E]
5.3 The elements of dignity (in the context of death with
dignity) are: (i) Encompasses self-determination; implies a quality
of life consistent with the ability to exercise self-determined
choices; (ii) Maintains/ability to make autonomous choices; high
G regard for individual autonomy that is pivotal to the perceived
quality of a person’s life; (iii) Self-control (retain a similar kind of
control over dying as one has exercised during life – a way of
achieving death with dignity); (iv) Law of consent: The ability to
choose - orchestrate the timing of their own death; (v) Dignity
H may be compromised if the dying process is prolonged and
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 65

involves becoming incapacitated and dependent; (vi) Respect A
for human dignity means respecting the intrinsic value of human
life; (vii) Avoidance of dependency; (viii) Indefinite continuation
of futile physical life is regarded as undignified; (ix) Dignity
commands emphatic respect; Reason and emotion are both
significant in treatment decisions, especially at the end of life
B
where compassion is a natural response to appeals made on the
basis of stifled self-determination; Compassion represents a
collision of “imaginative insight” and empathy; and Compassion
is here distinguished from pity, which is regarded as
“inappropriate to the dignity of the autonomous person, especially
its overtones of paternalism”, because compassion is believed C
to provoke an active, and by implication positive, response. (x)
Dignity engenders a sense of serenity and powerfulness, fortified
by “qualities of composure, calmness, restraint, reserve, and
emotions or passions subdued and securely controlled without
being negated or dissolved”; and (x) Observer’s Dignity aspect:
D
a person possessed of dignity at the end of life, might induce in
an observer a sense of tranquility and admiration which inspires
images of power and self- assertion through restraint and poised
composure; and dignity clearly does play a valuable role in
contextualizing people’s perceptions of death and dying, especially
as it appears to embody a spirit of self-determination that E
advocates of voluntary euthanasia crave. [Para 105][360-E-G;
361-A-G; 362-A-B]
6.1 Passive euthanasia and death with dignity are
inextricably linked, which can be summed up with the following
pointers: The opportunity to die unencumbered by the intrusion F
of medical technology and before experiencing loss of
independence and control, appears to many to extend the promise
of a dignified death. When medical technology intervenes to
prolong dying like this it does not do so unobtrusively; (ii) Today
many patients insist on more than just a right to health care in
general. They seek a right to choose specific types of treatment, G
able to retain control throughout the entire span of their lives
and to exercise autonomy in all medical decisions concerning
their welfare and treatment; (iii) A dreadful, painful death on a
rational but incapacitated terminally ill patient are an affront to
human dignity. [Para 106][362-B-E] H
66 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 6.2 Certain moral dilemma as to what is the exact stage
when such a decision to withdraw medical support, would still
remain. At times, a physician would be filled with profound ethical
uncertainties when a person is suffering unbearable pain and
agony, the question would be as to whether such suffering has
reached the stage where it is incurable and, therefore, decision
B
should be taken to allow such person to pass away in peace and
dignity of hastening the process of death or the situation may be
reversible, though chances thereof are far remote. [Para
107][362-F-G]
Dr. R. R. Kishore MD, LLB – End of Life Issues and
C the Moral Certainty: A Discovery through Hinduism –
referred to.
7.1 Hippocratic Oath, coupled with ethical norms of medical
profession, stand in the way of euthanasia. It brings about a
situation of dilemma insofar as medical practitioner is concerned.
D On the one hand his duty is to save the life of a person till he is
alive, even when the patient is terminally ill and there are no
chances of revival. On the other hand, the concept of dignity and
right to bodily integrity, which recognises legal right of autonomy
and choice to the patient (or even to his relations in certain
E circumstances, particularly when the patient is unconscious or
incapacitated to take a decision) may lead to exercising his right
of euthanasia. Dignity implies, apart from a right to life enjoyment
of right to be free of physical interference. At common law, any
physical interference with a person is, prima facie, tortious. If it
interferes with freedom of movement, it may constitute a false
F imprisonment. If it involves physical touching, it may constitute
a battery. If it puts a person in fear of violence, it may amount to
an assault. For any of these wrongs, the victim may be able to
obtain damages. When it comes to medical treatment, even there
the general common law principle is that any medical treatment
G constitutes a trespass to the person which must be justified, by
reference either to the patient’s consent or to the necessity of
saving life in circumstances where the patient is unable to decide
whether or not to consent. [Paras 110, 111, 112][365-B-F]
7.2 Rights with regard to medical treatment fall essentially
H into two categories: first, rights to receive or be free of treatment
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 67

as needed or desired, and not to be subjected involuntarily to A
experimentation which, irrespective of any benefit which the
subjects may derive, are intended to advance scientific knowledge
and benefit people other than the subject in the long term;
secondly, rights connected incidentally with the provision of
medical services, such as rights to be told the truth by one’s
B
doctor. Having regard to this right of the patients in common
law, coupled with the dignity and privacy rights, it can be said
that passive euthanasia, under those circumstances where patient
is in PVS and he is terminally ill, where the condition is irreversible
or where he is braindead, can be permitted.[Paras 113, 114][365-
F-G; 366-A-B] C
Aruna Ramachandra Shanbaug v. Union of India &
Ors. (2011) 4 SCC 454 : [2011] 4 SCR 1057 – referred
to.
8.1 When considering the matter of euthanasia in the context
of economic principles, it becomes another reason to support D
the aforesaid conclusion. This aspect can be dealt with in two
ways. First, because of rampant poverty where majority of the
persons are not able to afford health services, should they be
forced to spend on medical treatment beyond their means and in
the process compelling them to sell their house property, E
household things and other assets which may be means of
livelihood. Secondly, when there are limited medical facilities
available, should a major part thereof be consumed on those
patients who have no chances of recovery? [Paras 116-117][366-
C-D]
F
9. Whether a ‘living will’ or ‘advance directive’ should be
legally recognised and can be enforced? If so, under what
circumstances and what precautions are required while permitting
it?
9.1 It is undisputed that Doctors’ primary duty is to provide G
treatment and save life but not in the case when a person has
already expressed his desire of not being subjected to any kind
of treatment. It is a common law right of people, of any civilized
country, to refuse unwanted medical treatment and no person
can force him/her to take any medical treatment which the person
H
68 SUPREME COURT REPORTS [2018] 6 S.C.R.

A does not desire to continue with. [Para 124][369-E-F]
Refusal of Medical Treatment (1992) 4 All ER 649;
(Adult: Refusal of Medical Treatment) (2002) 2 All ER
449; Crazan v. Director, Missouri Department of Health
497 U.S. 261 (1990); Malette v. Shulam 67 DLR (4th)
B 321 – referred to.
9.2 Nature of Living Will or Advance Directive: Advance
directives are instruments through which persons express their
wishes at a prior point in time, when they are capable of making
an informed decision, regarding their medical treatment in the
C future, when they are not in a position to make an informed
decision, by reason of being unconscious or in a coma. A medical
power of attorney is an instrument through which persons
nominate representatives to make decisions regarding their
medical treatment at a point in time when the persons executing
the instrument are unable to make informed decisions themselves.
D Clause 11 of the draft Treatment of Terminally-III Patients
(Protection of Patients and Medical Practitioners) Bill, 2016 states
that advance directives or medical power of attorney shall be
void and of no effect and shall not be binding on any medical
practitioner. This blanket ban, including the failure even to give
E some weight to advance directives while making a decision about
the withholding or withdrawal of life-sustaining treatment is
disproportionate. It does not constitute a fair, just or reasonable
procedure, which is a requirement for the imposition of a
restriction on the right to life (in this case, expressed as the right
to die with dignity) under Article 21. [Para 130][379-E-H]
F
9.3 On the one hand autonomy of an individual gives him
right to choose his destiny and, therefore, he may decide before
hand, in the form of advance directive, at what stage of his physical
condition he would not like to have medical treatment, and on
the other hand, there are dangers of misuse thereof as well. At
G the same time, possibility of misuse cannot be held to be a valid
ground for rejecting advance directive, as opined by the Law
Commission of India as well in its 196th and 241st Report.
Instead, attempt can be made to provide safeguards for exercise
of such advance directive. For example, Section 5 of the Mental
H Healthcare Act, 2017 recognises the validity of advance directives
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 69

for the treatment of mental illness under the Mental Healthcare A
Act, 2017. The draft Mental Healthcare Regulations have
recently been made available for public comment by the Ministry
of Health and Family Welfare. These prescribe the form in which
advance directives may be made. Part II, Chapter 1 of the
Regulations allow a Nominated Representative to be named in
B
the Advance Directive. An advance directive is to be in writing
and signed by two witnesses attesting to the fact that the Directive
was executed in their presence. A Directive to be registered
with the Mental Health Review Board. It may be changed as
many times as desired by the person executing it and the treating
mental health professional must be informed of such change. C
Similarly, Section 3 of the Transplantation of Human Organs and
Tissues Act, 1994 allows persons to authorise the removal of
human organs and tissues from their body before death. The form
in which this authorisation is to be made is prescribed in Form 7
of the Transplantation of Human Organs and Tissues Rules, 2014.
D
This is also to be in writing and in the presence of two witnesses.
A copy of the pledge is to be retained at the institution where the
pledge is made and the person making the pledge has the option
to withdraw the pledge at any time. Where such authorisation
had been made, the person lawfully in charge of the donor’s body
after his death is required to grant the concerned medical E
practitioner all reasonable facilities for the removal of human
organs or tissues, unless such person has reason to believe that
the donor had substantially revoked his authority. [Paras 131-
132][380-A-B; 381-D-H; 382-A-B]
Vishaka and Others v. State of Rajasthan and Others F
(1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404; Kharak
Singh v. State of U.P. & Ors. [1964] 1 SCR 332; C.E.S.E.
Limited and Others v. Subhash Chandra Bose and
Others (1992) 1 SCC 441 : [1991] 2 Suppl. SCR 267;
Rustom Cavasjee Cooper v. Union of India (1970) 1
SCC 248 : [1970] 3 SCR 530; P. Rathinam v. Union of G
India & Anr. (1994) 3 SCC 394; National Legal Services
Authority v. Union of India and Ors. (2014) 5 SCC
438; Shivashakti Sugars Ltd. v. Shree Renuka Sugar
Limited and Other (2017) 7 SCC 729 – referred to.
H
70 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Airedale NHS Trust v. Bland (1993) 2 WLR 316 (HL);
Lochner v. New York 198 US 45, 76 (1905); Refusal of
Medical Treatment (1992) 4 All ER 649; (Adult: Refusal
of Medical Treatment) (2002) 2 All ER 449; Crazan v.
Director, Missouri Department of Health 497 U.S. 261
(1990); Malette v. Shulam 67 DLR (4th) 321 – referred
B
to.
Case Law Reference
Per Dipak Misra, CJI [for himself and Khanwilkar, J.]
[1964] 1 SCR 332 referred to Para 7
C [1975] 3 SCR 946 referred to Para 7
[1996] 10 Suppl. SCR 321 referred to Para 7
[2011] 4 SCR 1057 partly incorrect Para 10
(1994) 3 SCC 394 referred to Para 14
[1986] 1 SCR 251 referred to Para 15
D (1986) 88 Bom LR 589 referred to Para 15
[1971] 1 SCR 512 referred to Para 15
[1996] 3 SCR 697 analysed Para 18
[1988] Suppl. SCR 755 referred to Para 26
E [1989] 2 Suppl. SCR 597 referred to Para 34
[1976] 1 SCR 906 referred to Para 34
[1983] 1 SCR 828 relied on Para 141
[1978] 2 SCR 621 relied on Para 142
[2000] 3 SCR 644 relied on Para 143
F [1986] 2 SCR 278 relied on Para 145
[2006] 7 Suppl. SCR 336 relied on Para 147
[1979] 1 SCR 1054 relied on Para 148
(2017) 10 SCC 1 followed Para 152
G [2012] 8 SCR 651 relied on Para 154
[2016] 8 SCR 872 relied on Para 155
[1981] 2 SCR 516 relied on Para 156
(2014) 5 SCC 438 relied on Para 157
[2015] 8 SCR 289 relied on Para 158
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 71

[1997] 3 Suppl. SCR 404 relied on Para 196 A

Per Dr. D.Y. Chandrachud, J.
[1996] 3 SCR 697 referred to Para 18
(2011) 15 SCC 480 not correct law Para 18
B
(1994) 3 SCC 394 referred to Para 18
AIR 1989 SC 2039 relied on Para 73
[1978] 2 SCR 621 relied on Para 82
(2017) 10 SCC 1 followed Para 82
[1981] 2 SCR 516 relied on Para 82 C
[1997] 3 Suppl. SCR 404 relied on Para 137

Per Ashok Bhushan, J.
[1996] 3 SCR 697 explained Para 32
D
(1994) 3 SCC 394 explained Para 32
[2011] 4 SCR 1057 explained Para 35
(2017) 10 SCC 1 followed Para 78

Per A. K. Sikri, J. E
[1996] 3 SCR 697 referred to Para 4
[2011] 4 SCR 1057 referred to Para 4
[1997] 3 Suppl. SCR 404 referred to Para 24
[1964] 1 SCR 332 referred to Para 35
F
(2017) 10 SCC 1 relied on Para 35
[1991] 2 Suppl. SCR 267 referred to Para 35
[1970] 3 SCR 530 referred to Para 37
(1994) 3 SCC 394 referred to Para 94
G
(2014) 5 SCC 438 relied on Para 100
(2017) 7 SCC 729 referred to Para 120
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
215 of 2005.
Under Article 32 of the Constitution of India. H
72 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Prashant Bhushan, Rohit Kr. Singh, Amiy Shukla, Shakti Vardhan,
Sudhaker T., Cheryl, Advs. for the Petitioner.
P.S. Narasimha, ASG, A. Mariarputham, Advocate General, Arvind
Datar, Sanjay R. Hegde, Sr. Advs., S.S. Shamshery, Ms. Madhvi Divan,
Ms. Nidhi Khanna, Ayush Puri, B.V. Balaram Das, G.S. Makkher,
B Ms. Sushma Suri, Ms. Dhvani Mehta, Ms. Nivedita Saksena, Rauf Rahim,
Nitin Mishra, Nausher Kohli, Arun Sharma, Pranjal, Jay Kishor Singh,
Devansh A. Mohta, A.P. Mayee, Nilakanta Nayak, A. Selvin Raja, Chirag
Jain, Shuvodeep Roy, Sayooj Mohandas. M., Sapam Biswajit Meitei,
Naresh Kumar Gaur, Ashok Kumar Singh, Raja Chatterjee, Chanchal
Kr. Ganguli, Ms. Runa bhuyan, Merusagar Samantaray, S. Santosh
C Rebole, Ms. Lhingneivah, Ms. Veddusshi, Avishak Chaturvedi, Praveen
Khattar, Sudhir Naagar, K. N. Madhusoodhanan, T. G. N. Nair, C. K. Sasi,
Bhupesh Narula, K.V. Jagdishvaran, Mrs. G. Indira, Ms. Bhuvneshwari
Pathak, Ms. Shilpi Satyapriya Satyam, Rahul Kaushik, V. G. Pragasam,
S. Prabu Ramasubramanian, Manu Sundaram, S. Udaya Kumar Sagar,
D Mrityunjai Singh, Gopal Singh, Manish Kumar, Rituraj Biswas,
K.V. Vijaya Kumar, Ms. Maitreyee Mishra, Ms. Uttara Babbar,
Ms. Akanksha Choudhary, Anil Kumar Jha, R. K. Ojha, Ms. Aruna
Mathur, Avneesh Arputham, Ms. Anuradha Arputham, Ms. Simran Jeet
(For M/s. Arputham Aruna & Co.), Ruchi Kohli, Balaji Srinivasan, Guntur
Prabhakar, Nirnimesh Dube, B. Balaji, Abhisth Kumar, Sunil Kumar Jain,
E Dr. R.R. Kishore, Advs. for the appearing parties.
The Judgments of the Court were delivered by
DIPAK MISRA, CJI [for himself and A.M. Khanwilkar,
J.]
I N D E X*
F
S. No. Heading Page No.

A. Prologue 3
G
B. Contentions in the Writ Petition 10

* Ed. note: The pages mentioned in the index above giving the scheme of the judgment
denotes the page number of the original judgment.
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 73
[DIPAK MISRA, CJI]

C. Stand in the cou nter affidavit and the 14 A
applications for intervention

D. Background of the Writ Petition 18

D.1 P. Rathinam’s case – The question 19
of unconstitutionality of Section B
309 of the Indian Penal Code
D.2 Gian Kaur’s case – The question of 22
unconstitutionality of Section 306
of the Indian Penal Code
D.3 The approach in Aruna Shanbaug 30
qua Passive Euthanasia vis-à-vis C
In dia
D.4 The Reference 42
E. Our analysis of Gian Kaur 45

F. Our analysis of Aruna Shanbaug qua 51
D
legislation
G. The Distinction between Active and Passive 52
Euthanasia
H. Euthanasia : International Position 58

H.1 U.K. Decisions: 58 E
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 F
o. H.4 Legal position in Canada 99
H.5 Other Jurisdictions 104
H.6 International considerations and 107
decisions of the European Court G
of Human Rights (ECHR)

I The 241st Rep ort of The Law Commission of 114
India on Passive Euthanasia
J. Right to refuse treatment 120
H
74 SUPREME COURT REPORTS [2018] 6 S.C.R.

A K. Passive Euthanasia in the context of Article 126
21 of the Constitution.
K.1 Individual Dignity as a facet of 135
Article 21
L Right of self-determination and individual 149
B autonomy
M. Social morality, medical ethicality and State 155
interest
N. Submissions of the States 157

C O. Submissions of the Intervenor (Society for 159
the Right to Die with Dignity)
P. Advance Directive/Advance Care Directive/ 160
Advance Medical Directive
(a) Who can execute the Advance 170
D Directive and how
(b) What should it contain? 171

(c) How should it be recorded and 172
preserved
E (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
F Advance Directive
186
Q. Conclusions in seriatim

A. Prologue:
G
Life and death as concepts have invited many a thinker, philosopher,
writer and physician to define or describe them. 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
H further suggests that if one wants to have life, one has to die every
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 75
[DIPAK MISRA, CJI]

26 moment for it. John Dryden, an illustrious English author, considers life A
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
35
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.”
49 One may like to compare life with constant restless moment spent in
B
fear of extinction of a valued vapour; and another may sincerely believe
55 that it is beyond any conceivable metaphor. A metaphysical poet like
John Donne, in his inimitable manner, says:-
57 “One short sleep past, we wake eternally, And death shall be no
more; death, thou shalt die”.
59 C
Some would say with profound wisdom that life is to be lived
only for pleasure and others with equal wise pragmatism would proclaim
60 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.
70 Dharmaraj Yudhisthira may express that though man sees that death
takes place every moment, yet he feels that the silence of death would D
71 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
72 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 E
74
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
79 the statements, references and utterances, be it mystical, philosophical
or psychological, the fact remains, at least on the basis of conceptual
81 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 F
86 Tennyson says:-
“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 G
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
H
76 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 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.
B 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
C
feebleness of feeling of presence in semi-reality state when the idea of
conceptual identity is lost, quality of life is 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,
D 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
E 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
F
question in law – should he or she be given such treatment which has
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.
G 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
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 77
[DIPAK MISRA, CJI]

the process of treatment but is compelled to do so under social pressure A
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’
B
and his constant sense of rationality and individual responsibility. 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 C
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 D
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 E
the law permits for accelerating the process of dying sans suffering
when life is on the path of inevitable decay and if so, at what stage and
to what extent. The said issue warrants delineation from various
perspectives.
B. Contentions in the Writ Petition: F

6. The instant Writ Petition preferred under Article 32 of the
Constitution of India by the petitioner, a registered society, seeks to declare
“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; to
issue directions to the respondents to adopt suitable procedure in G
consultation with the State Governments, where necessary; to ensure
that persons of deteriorated health or terminally ill patients should be
able to execute a document titled “My Living Will and Attorney
Authorisation” which can be presented to the hospital for appropriate
action in the event of the executant being admitted to the hospital with H
78 SUPREME COURT REPORTS [2018] 6 S.C.R.

A serious illness which may threaten termination of the life of the executant;
to appoint a committee of experts including doctors, social scientists and
lawyers to study into the aspect of issuing guidelines as to the “Living
Wills”; and to issue such further appropriate directions and guidelines as
may be necessary.
B 7. It is asserted that every individual is entitled to take his/her
decision about the continuance or discontinuance of life when the process
of death has already commenced and he/she has reached an irreversible
permanent progressive state where death is not far away. It is contended
that each individual has an inherent right to die with dignity which is an
inextricable facet of Article 21 of the Constitution. That apart, it is set
C forth that right to die sans pain and suffering is fundamental to one’s
bodily autonomy and such integrity does not remotely accept any effort
that puts the individual on life support without any ray of hope and on the
contrary, the whole regime of treatment continues in spite of all being
aware that it is a Sisyphean endeavour, an effort to light a bulb without
D the filament or to expect a situation to be in an apple pie order when it is
actually in a state of chaos.
8. It is put forth that the concept of sustenance of individual
autonomy inheres in the right of privacy and also comes within the
fundamental conception of liberty. To sustain the stand of privacy, reliance
E has been placed on the decisions in Kharak Singh v. State of U.P. and
others 1, Gobind v. State of Madhya Pradesh and another 2 and
People’s Union for Civil Liberties v. Union of India and another3.
Inspiration has also been drawn from the decision of the United States
in Cruzan v. Director, Missouri Department of Health4. It is averred
that due to the advancement of modern medical technology pertaining to
F medical science and respiration, a situation has been created where the
dying process of the patient is unnecessarily prolonged causing distress
and agony to the patient as well as to the near and dear ones and,
consequently, the patient is in a persistent vegetative state thereby allowing
free intrusion. It is also contended that the petitioner-society is not claiming
G that the right to die is a part of the right to life but asserting the claim that
the right to die with dignity is an inseparable and inextricable facet of the
right to live with dignity. The execution of a living will or issuance of
1
(1964) 1 SCR 332 : AIR 1963 SC 1295
2
(1975) 2 SCC 148
3
(1997) 1 SCC 301
4
H 111 L Ed 2d 224 : 497 US 261 (1990) : 110 S.Ct. 2841 (1990)
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 79
[DIPAK MISRA, CJI]

advance directive has become a necessity in today’s time keeping in A
view the prolongation of treatment in spite of irreversible prognosis and
owing to penal laws in the field that creates a dilemma in the minds of
doctors to take aid of the modern techniques in a case or not. A
comparison has been made between the fundamental rights of an
individual and the State interest focusing on sanctity as well as quality of
B
life. References have been made to the laws in various countries, namely,
United Kingdom, United States of America, Australia, Denmark,
Singapore, Canada, etc. The autonomy of the patient has been laid stress
upon to highlight the right to die with dignity without pain and suffering
which may otherwise be prolonged because of artificial continuance of
life through methods that are really not of any assistance for cure or C
improvement of living conditions.
C. Stand in the counter affidavit and the applications for
intervention:
9. A counter affidavit has been filed by the Union of India
contending, inter alia, that serious thought has been given to regulate D
the provisions of euthanasia. A private member’s Bill and the 241st
report of the Law Commission of India have been referred to. It has
been set forth that the Law Commission had submitted a report on The
Medical Treatment of Terminally-ill Patients (Protection of Patients and
Medical Practitioners) Bill, 2006 but the Ministry of Health and Family E
Welfare was not in favour of the enactment due to the following reasons:-
“a) Hippocratic oath is against intentional/voluntary killings of
patient.
b) Progression of medical science to relieve pain, suffering,
rehabilitation and treatment of so-called diseases will suffer a set F
back.
c) An individual may wish to die at certain point of time, his/her
wish may not be persistent and only a fleeting desire out of transient
depression.
G
d) Suffering is a state of mind and a perception, which varies
from individual to individual and depends on various environmental
and social factors.
e) Continuous advancement in medical science has made possible
good pain management in patients of cancer and other terminal
H
80 SUPREME COURT REPORTS [2018] 6 S.C.R.

A illness. Similarly, rehabilitation helps many spinal injury patients in
leading near normal life and euthanasia may not be required.
f) Wish of euthanasia by a mentally ill patient/in depression may
be treatable by good psychiatric care.
g) It will be difficult to quantify suffering, which may always be
B subject to changing social pressures and norms.
h) Can doctors claim to have knowledge and experience to say
that the disease is incurable and patient is permanently invalid?
i) Defining of bed-ridden and requiring regular assistance is again
C not always medically possible.
j) There might be psychological pressure and trauma to the medical
officers who would be required to conduct euthanasia.”
10. The counter affidavit further states that after the judgment
was delivered by this Court in Aruna Ramachandra Shanbaug v. Union
D of India and others5, the Ministry of Law and Justice opined that the
directions given by this Court have to be followed in such cases and the
said directions should be treated as law. The Law Commission in its
241st Report titled “Passive Euthanasia – A Relook” again proposed for
making a legislation on “Passive Euthanasia” and also prepared a draft
Bill titled The Medical Treatment of Terminally Ill Patients (Protection
E
of Patients and Medical Practitioners) Bill. The said Bill was referred to
the technical wing of the Ministry of Health and Family Welfare
(Directorate General of Health Services-Dte. GHS) for examination in
June 2014. It is the case of the Union of India that two meetings were
held under the chairmanship of Special Director General of Health Service
F which was attended by various experts. A further meeting was held
under the chairmanship of Secretary, Ministry of Health and Family
Welfare, on 22.05.2015 to examine the Bill. Thereafter, various meetings
have been held by experts and the expert committee had proposed
formulation of legislation on passive euthanasia.
G 11. Counter affidavits have been filed by various States. We
need not refer to the same in detail. Suffice it to mention that in certain
affidavits, emphasis has been laid on Articles 37, 39 and 47 which require
the States to take appropriate steps as envisaged in the said Articles for
apposite governance. That apart, it has been pronouncedly stated that
5
(2011) 4 SCC 454
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 81
[DIPAK MISRA, CJI]

the right to life does not include the right to die and, in any case, the right A
to live with dignity guaranteed under Article 21 of the Constitution means
availability of food, shelter and health and does not include the right to
die with dignity. It is asseverated that saving the life is the primary duty
of the State and, therefore, there is necessity for health care. It is also
contended that the introduction of the right to die with dignity as a facet
B
of the right under Article 21 will create a right that the said constitutional
provision does not envisage and further it may have the potential effect
to destroy the said basic right.
12. An application for intervention has been filed by the “Society
for the Right to Die with Dignity” whose prayer for intervention has
been allowed. The affidavit filed by the said society supports the concept C
of euthanasia because it is a relief from irrecoverable suffering of which
pain is a factor. It has cited many an example from various texts to
support passive euthanasia and suggested certain criteria to be followed.
It has also supported the idea of introduction of living will and durable
power of attorney documents and has filed a sample of living will or D
advance health directive or advance declaration provided by Luis Kutner.
Emphasis has been laid on peaceful exit from life and the freedom of
choice not to live and particularly so under distressing conditions and ill-
health which lead to an irrecoverable state. The management of terminally
ill patients has been put at the centre stage. It has been highlighted that
determination of the seemly criteria will keep the element of misuse by E
the family members or the treating physician or, for that matter, any
interested person at bay and also remove the confusion.
We have heard Mr. Prashant Bhushan, learned counsel for the
petitioner. Mr. P.S. Narasimha, learned Additional Solicitor General for
Union of India, Mr. Arvind P. Datar learned senior counsel and Mr. F
Devansh A. Mohta, learned counsel who have supported the cause put
forth in the writ petition.
D. Background of the Writ Petition:
13. Before we engage ourselves with the right claimed, it is G
requisite to state that the present litigation has a history and while narrating
the same, the assertions made in the Writ Petition and the contentions
which have been raised during the course of hearing, to which we shall
refer in due course, are to be kept in mind.
D.1 P. Rathinam’s case – The question of unconstitutionality of
H
82 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Section 309 of the Indian Penal Code:
14. Presently, it is necessary to travel backwards in time, though
not very far. Two individuals, namely, P. Rathinam and Nagbhushan
Patnaik, filed two Writ Petitions under Article 32 of the Constitution
which were decided by a two-Judge Bench in P. Rathinam v. Union of
B India & another6. The writ petitions assailed the constitutional validity
of Section 309 of the Indian Penal Code (IPC) contending that the same
is violative of Articles 14 and 21 of the Constitution. The Court posed 16
questions. The relevant ones read thus:-
“(1) Has Article 21 any positive content or is it merely negative in
C its reach?
(2) Has a person residing in India a right to die?
x x x x
(12) Is suicide against public policy?
D (13) Does commission of suicide damage the monopolistic power
of the State to take life?
(14) Is apprehension of ‘constitutional cannibalism’ justified?
(15) Recommendation of the Law Commission of India and follow-
up steps taken, if any.
E
(16) Global view. What is the legal position in other leading
countries of the world regarding the matter at hand?”
15. Answering question No. (1), the Court, after referring to various
authorities under Article 21, took note of the authority in State of
F Himachal Pradesh and another v. Umed Ram Sharma and others7
wherein it has been observed that the right to life embraces not only
physical existence but also the quality of life as understood in its richness
and fullness within the ambit of the Constitution. In the said case, the
Court had held that for residents of hilly areas, access to road was access
to life itself and so, necessity of road communication in a reasonable
G condition was treated as a constitutional imperative. P. Rathinam
perceived the elevated positive content in the said ruling. Answering
question No. (2), the Court referred to the decision of the Bombay High
Court in Maruti Shripati Dubal v. State of Maharashtra8 that placed
6
(1994) 3 SCC 394
H 7
(1986) 2 SCC 68 : AIR 1986 SC 847
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 83
[DIPAK MISRA, CJI]

reliance on R.C. Cooper v. Union of India9 wherein it had been held A
that what is true of one fundamental right is also true of another
fundamental right and on the said premise, the Bombay High Court had
opined that it cannot be seriously disputed that fundamental rights have
their positive as well as negative aspects. Citing an example, it had
stated that freedom of speech and expression includes freedom not to
B
speak and similarly, the freedom of association and movement includes
freedom not to join any association or move anywhere and, accordingly,
it stated that logically it must follow that the right to live would include
the right not to live, i.e., right to die or to terminate one’s life.
16. After so stating, this Court approved the view taken by the
Bombay High Court in Maruti Shripati Dubal and meeting the criticism C
of that judgment from certain quarters, the two-Judge Bench opined
that the criticism was only partially correct because the negative aspect
may not be inferable on the analogy of the rights conferred by different
clauses of Article 19 and one may refuse to live if his life, according to
the person concerned, is not worth living. One may rightly think that D
having achieved all worldly pleasures or happiness, he has something to
achieve beyond this life. This desire for communion with God may rightly
lead even a healthy mind to think that he would forego his right to live
and would rather choose not to live. In any case, a person cannot be
forced to enjoy the right to life to his detriment, disadvantage or disliking.
Eventually, it concluded that the right to live of which Article 21 speaks E
of can be said to bring in its trail the right not to live a forced life.
17. Answering all the questions, the Court declared Section 309
IPC ultra vires and held that it deserved to be effaced from the statute
book to humanize our penal laws.
F
D.2 Gian Kaur’s case – The question of unconstitutionality of
Section 306 of the Indian Penal Code:
18. The dictum laid down by the two-Judge Bench in P. Rathinam
did not remain a precedent for long. In Gian Kaur v. State of Punjab10,
the Constitution Bench considered the correctness of the decision G
rendered in P. Rathinam. In the said case, the appellants were convicted
by the trial Court under Section 306 IPC and the conviction was assailed
on the ground that Section 306 IPC is unconstitutional and to sustain the
8
1987 Cri LJ 473 : (1986) 88 Bom LR 589
9
(1970) 2 SCC 298 : AIR 1970 SC 1318
10
(1996) 2 SCC 648 H
84 SUPREME COURT REPORTS [2018] 6 S.C.R.

A said argument, reliance was placed on the authority in P. Rathinam
wherein Section 309 IPC was held to be unconstitutional being violative
of Article 21 of the Constitution. It was urged that once Section 309 IPC
had been held to be unconstitutional, any person abetting the commission
of suicide by another is merely assisting in the enforcement of the
fundamental right under Article 21 and, therefore, Section 306 IPC
B
penalizing abetment of suicide is equally violative of Article 21. The
two-Judge Bench before which these arguments were advanced in appeal
referred the matter to a Constitution Bench for deciding the same. In
the course of arguments, one of the amicus curiae, Mr. F.S. Nariman,
learned senior counsel, had submitted that the debate on euthanasia is
C not relevant for deciding the question of constitutional validity of Section
309 and Article 21 cannot be construed to include within it the so-called
“right to die” since Article 21 guarantees protection of life and liberty
and not its extinction. The Constitution Bench, after noting the
submissions, stated:-
D “17. … We, therefore, proceed now to consider the question of
constitutional validity with reference to Articles 14 and 21 of the
Constitution. Any further reference to the global debate on the
desirability of retaining a penal provision to punish attempted suicide
is unnecessary for the purpose of this decision. Undue emphasis
on that aspect and particularly the reference to euthanasia cases
E tends to befog the real issue of the constitutionality of the provision
and the crux of the matter which is determinative of the issue.”
19. Thereafter, the Constitution Bench in Gian Kaur (supra)
scrutinized the reasons given in P. Rathinam and opined that the Court
in the said case took the view that if a person has a right to live, he also
F has a right not to live. The Court in Gian Kaur (supra) observed that the
Court in P. Rathinam (supra), while taking such a view, relied on the
decisions which relate to other fundamental rights dealing with different
situations and those decisions merely hold that the right to do an act also
includes the right not to do an act in that manner. The larger Bench
G further observed that in all those decisions, it was the negative aspect of
the right that was involved for which no positive or overt act was to be
done. The Constitution Bench categorically stated that this difference
has to be borne in mind while making the comparison for the application
of this principle.

H 20. Delving into the facet of committing suicide, the larger Bench
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 85
[DIPAK MISRA, CJI]

observed that when a man commits suicide, he has to undertake certain A
positive overt acts and the genesis of those acts cannot be traced to or
be included within the protection of the ‘right to life’ under Article 21. It
also held that the significant aspect of ‘sanctity of life’ should not be
overlooked. The Court further opined that by no stretch of imagination,
extinction of life can be read to be included in protection of life because
B
Article 21, in its ambit and sweep, cannot include within it the right to die
as a part of fundamental right guaranteed therein. The Constitution
Bench ruled:-
“‘Right to life’ is a natural right embodied in Article 21 but suicide
is an unnatural termination or extinction of life and, therefore,
incompatible and inconsistent with the concept of “right to life”. C
With respect and in all humility, we find no similarity in the nature
of the other rights, such as the right to “freedom of speech” etc.
to provide a comparable basis to hold that the “right to life” also
includes the “right to die”. With respect, the comparison is
inapposite, for the reason indicated in the context of Article 21. D
The decisions relating to other fundamental rights wherein the
absence of compulsion to exercise a right was held to be included
within the exercise of that right, are not available to support the
view taken in P. Rathinam qua Article 21.”
21. Adverting to the concept of euthanasia, the Court observed E
that protagonism of euthanasia on the view that existence in persistent
vegetative state (PVS) is not a benefit to the patient of 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
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 F
dignity would mean the existence of such a right up to the end of natural
life. The Constitution Bench further explained that the said conception
also includes the right to a dignified life up to the point of death including
a dignified procedure of death or, in other words, it may include the right
of a dying man to also die with dignity when his life is ebbing out. It has G
been clarified that 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. Thereafter, the Court proceeded to state:-
“25. A question may arise, in the context of a dying man who is
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86 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 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 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
B
are not cases of extinguishing life but only of accelerating
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
C life in such cases to 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.”
[Emphasis supplied]
22. In view of the aforesaid analysis and taking into consideration
D various other aspects, the Constitution Bench declared Section 309 IPC
as constitutional.
23. The Court held that the “right to live with human dignity”
cannot be construed to include within its ambit the right to terminate
natural life, at least before the commencement of the process of certain
E natural death. It then examined the question of validity of Section 306
IPC. It accepted the submission that Section 306 is constitutional. While
adverting to the decision in Airedale N.H.S. Trust v. Bland11, the Court
at the outset made it clear that it was not called upon to deal with the
issue of physician-assisted suicide or euthanasia cases. The decision in
F Airedale’s case (supra), was relating to the withdrawal of artificial
measures for continuance of life by a physician. In the context of
existence in the persistent vegetative state of no benefit to the patient,
the principle of sanctity of life, which is the concern of the State, was
stated to be not an absolute one. To bring home the distinction between
active and passive euthanasia, an illustration was noted in the context of
G administering lethal drug actively to bring the patient’s life to an end.
The significant dictum in that decision has been extracted in Gian Kaur
(supra) wherein it is observed that it is not lawful for a doctor to administer
a drug to his patient to bring about his death even though that course is
promoted by a humanitarian desire to end his suffering and however
11
(1993) 2 WLR 316: (1993) 1 All ER 821, HL
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 87
[DIPAK MISRA, CJI]

great that suffering may be. Further, to act so is to cross the rubicon A
which runs between the care of the living patient on one hand and
euthanasia - actively causing his death to avoid or to end his suffering on
the other hand. It has been noticed in Airedale that euthanasia is not
lawful at common law. In the light of the demand of responsible members
of the society who believe that euthanasia should be made lawful, it has
B
been observed in that decision that the same can be achieved by legislation.
The Constitution Bench has merely noted this aspect in paragraph 41
with reference to the dictum in Airedale case.
24. Proceeding to deal with physician assisted suicide, the
Constitution Bench observed:-
C
“42. The decision of the United States Court of Appeals for the
Ninth Circuit in Compassion in Dying v. State of Washington12,
which reversed the decision of United States District Court, W.D.
Washington reported in 850 Federal Supplement 1454, has also
relevance. The constitutional validity of the State statute that
banned physician-assisted suicide by mentally competent, D
terminally ill adults was in question. The District Court held
unconstitutional the provision punishing for promoting a suicide
attempt. On appeal, that judgment was reversed and the
constitutional validity of the provision was upheld.”
And again:- E

“43. This caution even in cases of physician-assisted suicide is
sufficient to indicate that assisted suicides outside that category
have no rational basis to claim exclusion of the fundamental
principles of sanctity of life. The reasons assigned for attacking a
provision which penalises attempted suicide are not available to F
the abettor of suicide or attempted suicide. Abetment of suicide
or attempted suicide is a distinct offence which is found enacted
even in the law of the countries where attempted suicide is not
made punishable. Section 306 IPC enacts a distinct offence which
can survive independent of Section 309 in the IPC. The learned G
Attorney General as well as both the learned amicus curiae rightly
supported the constitutional validity of Section 306 IPC.”
Eventually, the Court in Gian Kaur (supra), apart from overruling

12
49 F 3d 586
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88 SUPREME COURT REPORTS [2018] 6 S.C.R.

A P. Rathinam (supra), upheld the constitutional validity of Section 306
IPC.
D.3 The approach in Aruna Shanbaug qua Passive Euthanasia
vis-à-vis India:
25. Although the controversy relating to attempt to suicide or
B abetment of suicide was put to rest, yet the issue of euthanasia remained
alive. It arose for consideration almost after a span of eleven years in
Aruna Shanbaug (supra). A writ petition was filed by the next friend
of the petitioner pleading, inter alia, that the petitioner was suffering
immensely because of an incident that took place thirty six years back
on 27.11.1973 and was in a Persistent Vegetative State (PVS) and in no
C
state of awareness and her brain was virtually dead. The prayer of the
next friend was that the respondent be directed to stop feeding the
petitioner and to allow her to die peacefully. The Court noticed that
there was some variance in the allegation made in the writ petition and
the counter affidavit filed by the Professor and Head of the hospital
D where the petitioner was availing treatment. The Court appointed a team
of three very distinguished doctors to examine the petitioner thoroughly
and to submit a report about her physical and mental condition. The
team submitted a joint report. The Court asked the team of doctors to
submit a supplementary report by which the meaning of the technical
terms in the first report could be explained. Various other aspects were
E
also made clear. It is also worth noting that the KEM Hospital where
the petitioner was admitted was appointed as the next friend by the
Court because of its services rendered to the petitioner and the emotional
bonding and attachment with the petitioner.
26. In Aruna Shanbaug (supra), after referring to the authority
F in Vikram Deo Singh Tomar v. State of Bihar13, this Court reproduced
paragraphs 24 and 25 from Gian Kaur’s case and opined that the said
paragraphs simply mean that the view taken in Rathinam’s case to the
effect that the ‘right to life’ includes the ‘right to die’ is not correct and
para 25 specifically mentions that the debate even in such cases to permit
G physician-assisted termination of life is inconclusive. The Court further
observed that it was held in Gian Kaur that there is no ‘right to die’
under Article 21 of the Constitution and the right to life includes the right
to live with human dignity but in the case of a dying person who is
terminally ill or in permanent vegetative state, he may be allowed a
13
1988 Supp. SCC 734 : AIR 1988 SC 1782
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 89
[DIPAK MISRA, CJI]

premature extinction of his life and it would not amount to a crime. A
Thereafter, the Court took note of the submissions of the learned amicus
curiae to the effect that the decision to withdraw life support is taken in
the best interests of the patient by a body of medical persons. The
Court observed that it is not the function of the Court to evaluate the
situation and form an opinion on its own. The Court further noted that in
B
England, the parens patriae jurisdiction over adult mentally incompetent
persons was abolished by statute and the Court has no power now to
give its consent and in such a situation, the Court only gives a declaration
that the proposed omission by doctors is not unlawful.
27. After so stating, the Court addressed the legal issues, namely,
active and passive euthanasia. It noted the legislations prevalent in C
Netherlands, Switzerland, Belgium, U.K., Spain, Austria, Italy, Germany,
France and United States of America. It also noted that active euthanasia
is illegal in all States in USA, but physician-assisted death is legal in the
States of Oregon, Washington and Montana. The Court also referred to
the legal position in Canada. Dealing with passive euthanasia, the two- D
Judge Bench opined that passive euthanasia is usually defined as
withdrawing medical treatment with a deliberate intention of causing the
patient’s death. An example was cited by stating that if a patient requires
kidney dialysis to survive, not giving dialysis although the machine is
available is passive euthanasia and similarly, withdrawing the machine
where a patient is in coma or on heart-lung machine support will ordinarily E
result in passive euthanasia. The Court also put non-administration of
life saving medicines like antibiotics in certain situations on the same
platform of passive euthanasia. Denying food to a person in coma or
PVS has also been treated to come within the ambit of passive euthanasia.
The Court copiously referred to the decision in Airedale. In Airedale F
case, as has been noted in Aruna Shanbaug, Lord Goff observed that
discontinuance of artificial feeding in such cases is not equivalent to
cutting a mountaineer’s rope or severing the air pipe of a deep sea diver.
The real question has to be not whether the doctor should take a course
in which he will actively kill his patient but whether he should continue to
provide his patient with medical treatment or care which, if continued, G
will prolong his life.
28. Lord Browne–Wilkinson was of the view that removing the
nasogastric tube in the case of Anthony Bland cannot be regarded as a
positive act causing death. The tube by itself, without the food being
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90 SUPREME COURT REPORTS [2018] 6 S.C.R.

A supplied through it, does nothing. Its non-removal by itself does not
cause death since by itself, it does not sustain life. The learned Judge
observed that removal of the tube would not constitute the actus reus of
murder since such an act by itself would not cause death.
29. Lord Mustill observed:-
B “Threaded through the technical arguments addressed to the House
were the strands of a much wider position, that it is in the best
interests of the community at large that Anthony Bland’s life
should now end. The doctors have done all they can. Nothing
will be gained by going on and much will be lost. The distress
C of the family will get steadily worse. The strain on the devotion
of a medical staff charged with the care of a patient whose
condition will never improve, who may live for years and who
does not even recognise that he is being cared for, will continue to
mount. The large resources of skill, labour and money now being
devoted to Anthony Bland might in the opinion of many be more
D fruitfully employed in improving the condition of other patients,
who if treated may have useful, healthy and enjoyable lives for
years to come.”
30. The two-Judge Bench further observed that the decision in
Airedale by the House of Lords has been followed in a number of cases
E in U.K. and the law is now fairly well settled that in the case of
incompetent patients, if the doctors act on the basis of notified medical
opinion and withdraw the artificial life support system in the patient’s
best interest, the said act cannot be regarded as a crime. The learned
Judges posed the question as to who is to decide what is that patient’s
F best interest where he is in a PVS and, in that regard, opined that it is
ultimately for the Court to decide, as parens patriae, as to what is in the
best interest of the patient, though the wishes of close relatives and next
friend and the opinion of medical practitioners should be given due weight
in coming to its decision. For the said purpose, reference was made to
the opinion of Balcombe J. in Re J (A Minor) (Wardship: Medical
G Treatment)14 whereby it has been stated that the Court as representative
of the Sovereign and as parens patriae will adopt the same standard
which a reasonable and responsible parent would do.
31. The two-Judge Bench referred to the decisions of the Supreme
14
[1991] 2 WLR 140: [1990] 3 All ER 930: [1991] Fam 33
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 91
[DIPAK MISRA, CJI]

Court of United States in Washington v. Glucksberg15 and Vacco v. A
Quill 16 which addressed the issue whether there was a federal
constitutional road to assisted suicide. Analysing the said decisions and
others, the Court observed that the informed consent doctrine has become
firmly entrenched in American Tort Law and, as a logical corollary, lays
foundation for the doctrine that the patient who generally possesses the
B
right to consent has the right to refuse treatment.
32. In the ultimate analysis, the Court opined that the Airedale
case is more apposite to be followed. Thereafter, the Court adverted to
the law in India and ruled that in Gian Kaur case, this Court had approved
the decision of the House of Lords in Airedale and observed that
euthanasia could be made lawful only by legislation. After so stating, C
the learned Judges opined:-
“104. It may be noted that in Gian Kaur case although the
Supreme Court has quoted with approval the view of the House
of Lords in Airedale case, it has not clarified who can decide
whether life support should be discontinued in the case of an D
incompetent 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 as to who should give consent E
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 commercialisation, and the rampant 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 F
eliminated by some crooked method.”
33. After so stating, the two-Judge Bench dwelled upon the concept
of brain dead and various other aspects which included withdrawal of
life support of a patient in PVS and, in that context, ruled thus:-
G
“125. In our opinion, if we leave it solely to the patient’s relatives
or to the doctors or next friend to decide whether to withdraw the
life support of an incompetent person there is always a risk in our
country that this may be misused by some unscrupulous persons
15
138 L Ed 2d 772 : 521 US 702 (1997)
16
138 L Ed 2d 834 : 521 US 793 (1997) H
92 SUPREME COURT REPORTS [2018] 6 S.C.R.

A who wish to inherit or otherwise grab the property of the patient.
Considering the low ethical levels prevailing in our society today
and the rampant commercialisation and corruption, we cannot rule
out the possibility that unscrupulous persons with the help of some
unscrupulous doctors may fabricate material to show that it is a
terminal case with no chance of recovery. There are doctors and
B
doctors. While many doctors are upright, there are others who
can do anything for money (see George Bernard Shaw’s play
The Doctor’s Dilemma). The commercialisation of our society
has crossed all limits. Hence we have to guard against the potential
of misuse (see Robin Cook’s novel Coma). In our opinion, while
C giving great weight to the wishes of the parents, spouse, or other
close relatives or next friend of the incompetent patient and also
giving due weight to the opinion of the attending doctors, we cannot
leave it entirely to their discretion whether to discontinue the life
support or not. We agree with the decision of Lord Keith in
Airedale case5 that the approval of the High Court should be
D
taken in this connection. This is in the interest of the protection of
the patient, protection of the doctors, relatives and next friend,
and for reassurance of the patient’s family as well as the public.
This is also in consonance with the doctrine of parens patriae
which is a well-known principle of law.”
E 34. After so laying down, the Court referred to the authorities in
Charan Lal Sahu v. Union of India17 and State of Kerala and another
v. N.M. Thomas and others18 and further opined that the High Court
can grant approval for withdrawing life support of an incompetent person
under Article 226 of the Constitution because Article 226 gives abundant
F power to the High Court to pass suitable orders on the application filed
by the near relatives or next friend or the doctors/hospital staff praying
for permission to withdraw the life support of an incompetent person.
Dealing with the procedure to be adopted by the High Court when such
application is filed, the Court ruled that when such an application is filed,
the Chief Justice of the High Court should forthwith constitute a Bench
G of at least two Judges who should decide to grant approval or not and
before doing so, the Bench should seek the opinion of a Committee of
three reputed doctors to be nominated by the Bench after consulting
such medical authorities/medical practitioners as it may deem fit.
17
(1990) 1 SCC 613
18
H (1976) 2 SCC 310
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 93
[DIPAK MISRA, CJI]

Amongst the three doctors, as directed, one should be a Neurologist, A
one should be a Psychiatrist and the third a Physician. The Court further
directed:-
“134. … The committee of three doctors nominated by the Bench
should carefully examine the patient and also consult the record
of the patient as well as take the views of the hospital staff and B
submit its report to the High Court Bench. Simultaneously with
appointing the committee of doctors, the High Court Bench shall
also issue notice to the State and close relatives e.g. parents,
spouse, brothers/ sisters, etc. of the patient, and in their absence
his/her next friend, and supply a copy of the report of the doctor’s
committee to them as soon as it is available. After hearing them, C
the High Court Bench should give its verdict.
135. The above procedure should be followed all over India until
Parliament makes legislation on this subject.
136. The High Court should give its decision speedily at the earliest, D
since delay in the matter may result in causing great mental agony
to the relatives and persons close to the patient. The High Court
should give its decision assigning specific reasons in accordance
with the principle of “best interest of the patient” laid down by the
House of Lords in Airedale case. The views of the near relatives
and committee of doctors should be given due weight by the High E
Court before pronouncing a final verdict which shall not be
summary in nature.”
35. We must note here that the two-Judge Bench declined to
grant the permission after perusing the medical reports. For the sake of
completeness, we think it apt to reproduce the reasoning:- F
“122. From the above examination by the team of doctors, it cannot
be said that Aruna Shanbaug is dead. Whatever the condition of
her cortex, her brainstem is certainly alive. She does not need a
heart-lung machine. She breathes on her own without the help of
a respirator. She digests food, and her body performs other G
involuntary functions without any help. From the CD (which we
had screened in the courtroom on 2-3-2011 in the presence of the
counsel and others) it appears that she can certainly not be called
dead. She was making some sounds, blinking, eating food put in
her mouth, and even licking with her tongue morsels on her mouth.
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A However, there appears little possibility of her coming out of PVS
in which she is in. In all probability, she will continue to be in the
state in which she is in till her death.”
D.4 The Reference:
36. The aforesaid matter was decided when the present Writ
B Petition was pending for consideration. The present petition was,
thereafter, listed before a three-Judge Bench which noted the submissions
advanced on behalf of the petitioner and also that of the learned Additional
Solicitor General on behalf of the Union of India. Reliance was placed
on the decision in Aruna Shanbaug. The three-Judge Bench reproduced
C paragraphs 24 and 25 from Gian Kaur and noted that the Constitution
Bench did not express any binding view on the subject of euthanasia,
rather it reiterated that the legislature would be the appropriate authority
to bring the change.
37. After so holding, it referred to the understanding of Gian Kaur
D in Aruna Shanbaug by the two-Judge Bench and reproduced paragraphs
21 and 101 from the said judgment:-
“21. We have carefully considered paras 24 and 25 in Gian Kaur
case and we are of the opinion that all that has been said therein
is that the view in Rathinam case that the right to life includes the
E right to die is not correct. We cannot construe Gian Kaur case to
mean anything beyond that. In fact, it has been specifically
mentioned in para 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 case
F beyond what we have mentioned above.
x x x x

“101. The Constitution Bench of the Supreme Court in Gian Kaur
v. State of Punjab held that both euthanasia and assisted suicide
G
are not lawful in India. That decision overruled the earlier two-
Judge Bench decision of the Supreme Court in P. Rathinam v.
Union of India. The Court held that the right to life under Article
21 of the Constitution does not include the right to die (vide SCC
para 33). In Gian Kaur case the Supreme Court approved of
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the decision of the House of Lords in Airedale case and A
observed that euthanasia could be made lawful only by
legislation.”
(Emphasis supplied)
38. Commenting on the said analysis, the three-Judge Bench went
on to say:- B

“13. Insofar as the above paragraphs are concerned, Aruna
Shanbaug aptly interpreted the decision of the Constitution Bench
in Gian Kaur 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 in Gian Kaur, the Constitution C
Bench approved the decision of the House of Lords in Airedale
N.H.S. Trust v. Bland. Para 40 of Gian Kaur, clearly states
that :
“40. … Even though it is not necessary to deal with
physician-assisted suicide or euthanasia cases, a brief D
reference to this decision cited at the Bar may be made.”
(Emphasis supplied)
Thus, it was a mere reference in the verdict and it cannot be
construed to mean that the Constitution Bench in Gian Kaur
E
approved the opinion of the House of Lords rendered in Airedale.
To this extent, the observation in para 101 of Aruna Shanbaug is
incorrect.”
39. From the aforesaid, it is clear that the three-Judge Bench
expressed the view that the opinion of the House of Lords in Airedale
F
has not been approved in Gian Kaur (supra) and to that extent, the
observation in Aruna Shanbaug (supra) is incorrect. After so stating,
the three-Judge Bench opined that Aruna Shanbaug (supra) upholds
the authority of passive euthanasia and lays down an elaborate procedure
for executing the same on the wrong premise that the Constitution Bench
in Gian Kaur (supra) had upheld the same. Thereafter, considering the G
important question of law involved which needs to be reflected in the
light of social, legal, medical and constitutional perspectives, in order to
have a clear enunciation of law, it referred the matter for consideration
by the Constitution Bench of this Court for the benefit of humanity as a
whole. The three-Judge bench further observed that it was refraining
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A from framing any specific questions for consideration by the Constitution
Bench as it would like the Constitution Bench to go into all the aspects
of the matter and lay down exhaustive guidelines. That is how the matter
has been placed before us.
E. Our analysis of Gian Kaur:
B 40. It is the first and foremost duty to understand what has been
stated by the Constitution Bench in Gian Kaur’s case. It has referred
to the decision in Airedale (supra) that has been recapitulated in Aruna
Shanbaug case which was a case relating to withdrawal of artificial
measures of continuance of life by the physician. It is relevant to mention
C here that the Constitution Bench in Gian Kaur categorically noted that
it was not necessary to deal with physician–assisted suicide or euthanasia
cases though a brief reference to the decisions cited by the Bar was
required to be made. The Constitution Bench noted that Airedale held
that in the context of existence in the persistent vegetative state of no
benefit to the patient, the principle of sanctity of life, which is the concern
D of the State, was not an absolute one. The larger bench further noticed
that in Airedale, it had been stated that in such cases also, the existing
crucial distinction between cases in which a physician decides not to
provide or to continue to provide, for his patient, treatment or care which
could or might prolong his life, and those in which he decides, for example,
E by administering a lethal drug actively to bring his patient’s life to an end,
was indicated. Thereafter, while again referring to Airedale case, the
larger bench observed that it was a case relating to withdrawal of artificial
measures for continuance of life by the physician. After so stating, the
Court reproduced the following passage from the opinion of Lord Goff
of Chieveley:-
F
“... But it is not lawful for a doctor to administer a drug to his
patient to bring about his death, even though that course is prompted
by a humanitarian desire to end his suffering, however great that
suffering may be : See Reg v. Cox, (unreported), 18 September
(1992). So to act is to cross the Rubicon which runs between on
G the one hand the care of the living patient and on the other hand
euthanasia - actively causing his death to avoid or to end his
suffering. Euthanasia is not lawful at common law. It is of
course well known that there are many responsible members
of our society who believe that euthanasia should be made
H lawful; but that result could, I believe, only be achieved by
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 97
[DIPAK MISRA, CJI]

legislation which expresses the democratic will that so A
fundamental a change should be made in our law, and can, if
enacted, ensure that such legalised killing can only be carried
out subject to appropriate supervision and control....”
(Emphasis supplied in Gian Kaur)
41. After reproducing the said passage, the Court opined thus:- B

“41. The desirability of bringing about a change was considered
to be the function of the legislature by enacting a suitable law
providing therein adequate safeguards to prevent any possible
abuse.”
C
42. At this stage, it is necessary to clear the maze whether the
Constitution Bench in Gian Kaur had accepted what has been held in
Airedale. On a careful and anxious reading of Gian Kaur, it is noticeable
that there has been narration, reference and notice of the view taken in
Airedale case. It is also worth noting that the Court was concerned
with the constitutional validity of Section 309 IPC that deals with attempt D
to commit suicide and Section 306 IPC that provides for abetment to
commit suicide. As noted earlier, the Constitution Bench, while
distinguishing the case of a dying man who is terminally ill or in a persistent
vegetative state and his termination or premature extinction of life,
observed that the said category of cases may fall within the ambit of E
right to die with dignity as a part of right to life with dignity when death
due to termination of natural life is inevitable and imminent and the process
of natural death has commenced. The Constitution Bench further opined
that the said cases do not amount to extinguishing the life but only amount
to accelerating the process of natural death which has already
commenced and, thereafter, the Constitution Bench stated that the debate F
with regard to physician assisted suicide remains inconclusive. The larger
Bench has reiterated that the cases pertaining to premature extinction
of life during the process of certain natural death of patients who are
terminally ill or in persistent vegetative state were of assistance to
interpret Article 21 of the Constitution to include therein the right to G
curtail the natural span of life. On a seemly understanding of the judgment
in Gian Kaur, we do not find that it has decried euthanasia as a concept.
On the contrary, it gives an indication that in such situations, it is the
acceleration of the process of dying which may constitute a part of right
to life with dignity so that the period of suffering is reduced. We are
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A absolutely conscious that a judgment is not to be construed as a statute
but our effort is to understand what has been really expressed in Gian
Kaur. Be it clarified, it is understood and appreciated that there is a
distinction between a positive or overt act to put an end to life by the
person living his life and termination of life so that an individual does not
remain in a vegetative state or, for that matter, when the death is certain
B
because of terminal illness and he remains alive with the artificially
assisted medical system. In Gian Kaur, while dealing with the attempt
to commit suicide, the Court clearly held that when a man commits suicide,
he has to undertake certain positive overt acts and the genesis of those
acts cannot be tested to or be included within the protection of the
C expression “right to life” under Article 21 of the Constitution. It was
also observed that a dignified procedure of death may include the right
of a dying man to also die with dignity when the life is ebbing out. This
is how the pronouncement in Gian Kaur has to be understood. It is also
not the ratio of the authority in Gian Kaur that euthanasia has to be
introduced only by a legislation. What has been stated in paragraph 41
D
of Gian Kaur is what has been understood to have been held in Airedale’s
case. The Court has neither expressed any independent opinion nor has
it approved the said part or the ratio as stated in Airedale. There has
been only a reference to Airedale’s case and the view expressed therein
as regards legislation. Therefore, the perception in Aruna Shanbaug
E that the Constitution Bench has approved the decision in Airedale is not
correct. It is also quite clear that Gian Kaur does not lay down that
passive euthanasia can only be thought of or given effect to by legislation.
Appositely understood, it opens an expansive sphere of Article 21 of the
Constitution. Therefore, it can be held without any hesitation that Gian
Kaur has neither given any definite opinion with regard to euthanasia
F
nor has it stated that the same can be conceived of only by a legislation.
F. Our analysis of Aruna Shanbaug qua legislation:
43. Having said this, we shall focus in detail what has been stated
in Aruna Shanbaug. In paragraph 101 which has been reproduced
G hereinbefore, the two-Judge Bench noted that Gian Kaur has approved
the decision of the House of Lords in Airedale and observed that
euthanasia could be made lawful only by legislation. This perception,
according to us, is not correct. As already stated, Gian Kaur does not
lay down that passive euthanasia could be made lawful only by legislation.
In paragraph 41 of the said judgment, the Constitution Bench was only
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[DIPAK MISRA, CJI]

adverting to what has been stated by Lord Goff of Chieveley in Airedale’s A
case. However, this expression of view of Aruna Shanbaug which has
not been accepted by the referral Bench makes no difference to our
present analysis. We unequivocally express the opinion that Gian Kaur
is not a binding precedent for the purpose of laying down the principle
that passive euthanasia can be made lawful “only by legislation.”
B
G. The Distinction between Active and Passive Euthanasia:
44. As a first step, it is imperative to understand the concept of
euthanasia before we enter into the arena of analysis of the expanded
right of Article 21 in Gian Kaur and the understanding of the same.
Euthanasia is basically an intentional premature termination of another C
person’s life either by direct intervention (active euthanasia) or by
withholding life-prolonging measures and resources (passive euthanasia)
either at the express or implied request of that person (voluntary
euthanasia) or in the absence of such approval/consent (non-voluntary
euthanasia). Aruna Shanbaug has discussed about two categories of
euthanasia - active and passive. While dealing with active euthanasia, D
also known as “positive euthanasia” or “aggressive euthanasia”, it has
been stated that the said type of euthanasia entails a positive act or
affirmative action or act of commission entailing the use of lethal
substances or forces to cause the intentional death of a person by direct
intervention, e.g., a lethal injection given to a person with terminal cancer E
who is in terrible agony. Passive euthanasia, on the other hand, also
called “negative euthanasia” or “non-aggressive euthanasia”, entails
withdrawing of life support measures or withholding of medical treatment
for continuance of life, e.g., withholding of antibiotics in case of a patient
where death is likely to occur as a result of not giving the said antibiotics
or removal of the heart lung machine from a patient in coma. The two- F
Judge Bench has also observed that the legal position across the world
seems to be that while active euthanasia is illegal unless there is a
legislation permitting it, passive euthanasia is legal even without legislation,
provided certain conditions and safeguards are maintained. The Court
has drawn further distinction between voluntary euthanasia and non- G
voluntary euthanasia in the sense that voluntary euthanasia is where the
consent is taken from the patient and non-voluntary euthanasia is where
the consent is unavailable, for instances when the patient is in coma or is
otherwise unable to give consent. Describing further about active
euthanasia, the Division Bench has observed that the said type of
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A euthanasia involves taking specific steps to cause the patient’s death
such as injecting the patient with some lethal substance, i.e., sodium
pentothal which causes, in a person, a state of deep sleep in a few
seconds and the person instantly dies in that state. That apart, the Court
has drawn a distinction between euthanasia and physician assisted dying
and noted that the difference lies in the fact as to who administers the
B
lethal medication. It has been observed that in euthanasia, a physician
or third party administers it while in physician assisted suicide, it is the
patient who does it though on the advice of the doctor. Elaborating
further, the two-Judge Bench has opined that the predominant difference
between “active” and “passive” euthanasia is that in the former, a specific
C act is done to end the patient’s life while the latter covers a situation
where something is not done which is necessary in preserving the patient’s
life. The main idea behind the distinction, as observed by the Bench, is
that in passive euthanasia, the doctors are not actively killing the patient,
they are merely not saving him and only accelerating the conclusion of
the process of natural death which has already commenced.
D
45. The two-Judge Bench, thereafter, elaborated on passive
euthanasia and gave more examples of cases within the ambit of passive
euthanasia. The learned Judges further categorized passive euthanasia
into voluntary passive euthanasia and non-voluntary passive euthanasia.
The learned Judges described voluntary passive euthanasia as a situation
E where a person who is capable of deciding for himself decides that he
would prefer to die because of various reasons whereas non-voluntary
passive euthanasia has been described to mean that a person is not in a
position to decide for himself, e.g., if he is in coma or PVS.
46. While scrutinizing the distinction between active and passive
F euthanasia, the paramount aspect is “foreseeing the hastening of death”.
The said view has been propagated in several decisions all over the
world. The Supreme Court of Canada, in the case of Rodriguez v. British
Columbia (Attorney General)19, drew the distinction between these
two forms of euthanasia on the basis of intention. Echoing a similar
G view, the Supreme Court of the United States affirmed the said distinction
on the basis of “intention” in the case of Vacco (supra) wherein Chief
Justice Rehnquist observed that the said distinction coheres with the
fundamental legal principles of causation and intention. In case when
the death of a patient occurs due to removal of life-supporting measures,
19
85 C.C.C. (3d) 15 : (1993) 3 S.C.R. 519
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 101
[DIPAK MISRA, CJI]

the patient dies due to an underlying fatal disease without any intervening A
act on the part of the doctor or medical practitioner, whereas in the
cases coming within the purview of active euthanasia, for example, when
the patient ingests lethal medication, he is killed by that medication.
47. This distinction on the basis of “intention” further finds support
in the explanation provided in the case In the matter of Claire C. B
Conroy20 wherein the Court made an observation that people who refuse
life-sustaining medical treatment may not harbour a specific intent to
die, rather they may fervently wish to live but do so free of unwanted
medical technology, surgery or drugs and without protracted suffering.
48. Another distinction on the basis of “action and non-action” C
was advanced in the Airedale case. Drawing a crucial distinction between
the two forms of euthanasia, Lord Goff observed that passive euthanasia
includes cases in which a doctor decides not to provide, or to continue to
provide, for his patient, treatment or care which could prolong his life
and active euthanasia involves actively ending a patient’s life, for example,
by administering a lethal drug. As per the observations made by Lord D
Goff, the former can be considered lawful either because the doctor
intends to give effect to his patient’s wishes by withholding the treatment
or care, or even in certain circumstances in which the patient is
incapacitated from giving his consent. However, active euthanasia, even
voluntary, is impermissible despite being prompted by the humanitarian E
desire to end the suffering of the patient.
49. It is perhaps due to the distinction evolved between these two
forms of euthanasia, which has gained moral and legal sanctity all over,
that most of the countries today have legalized passive euthanasia either
by way of legislations or through judicial interpretation but there remains F
uncertainty whether active euthanasia should be granted legal status.
H. Euthanasia : International Position:
H.1 U.K. Decisions:
H.1.1 Airedale Case:
G
50. In the obtaining situation, we shall now advert to the opinions
stated in Airedale case. In the said case, one Anthony Bland, a supporter
of Liverpool Football Club, who had gone to Hillsborough Ground,
20
98 N.J. 321 (1985) : (1985) 486 A.2d 1209 (N.J.)
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102 SUPREME COURT REPORTS [2018] 6 S.C.R.

A suffered severe injuries as a result of which supply to his brain was
interrupted. Eventually, he suffered an irreversible damage to the brain
as a consequence of which he got into a condition of persistent vegetative
state (PVS). He became incapable of voluntary movement and could
feel no pain. He was not in a position to feel or communicate. To keep
him alive, artificial means were taken recourse to. In such a state of
B
affairs, the treating doctors and the parents of Bland felt that no fruitful
purpose would be served by continuing the medical aid. As there were
doubts with regard to stoppage of medical care which may incur a criminal
liability, a declaration from the British High Court was sought to resolve
the doubts. The Family Division of the High Court granted the declaration
C which was affirmed by the Court of Appeal. The matter travelled to the
House of Lords.
51. Lord Keith of Kinkel opined that regard should be had to the
whole artificial regime which kept Anthony Bland alive and it was incorrect
to direct attention exclusively to the fact that nourishment was being
D provided. In his view, the administration of nourishment by the means
adopted involved the application of a medical technique.
52. Lord Keith observed that in general, it would not be lawful for
a medical practitioner who assumed responsibility for the care of an
unconscious patient simply to give up treatment in circumstances where
E continuance of it would confer some benefit on the patient. On the other
hand, a medical practitioner is under no duty to continue to treat such a
patient where a large body of informed and responsible medical opinion
is to the effect that no benefit at all would be conferred by continuance
of treatment. Existence in a vegetative state with no prospect of recovery
is, by that opinion, regarded as not being a benefit, and that, if not
F unarguably correct, at least forms a proper basis for the decision to
discontinue treatment and care. He was of the further opinion that
since existence in PVS is not a benefit to the patient, the principle of
sanctity of life is no longer an absolute one. It does not compel a medical
practitioner to treat a patient, who will die if not treated, contrary to the
G express wishes of the patient. It does not compel the temporary keeping
alive of patients who are terminally ill where to do so would merely
prolong their suffering. On the other hand, it forbids the taking of active
measures to cut short the life of a terminally ill patient.
53. Lord Keith further stated that it does no violence to the principle
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of sanctity of life to hold that it is lawful to cease to give medical treatment A
and care to a PVS patient who has been in that state for over three
years considering that to do so involves invasive manipulation of the
patient’s body to which he has not consented and which confers no
benefit upon him. He also observed that the decision whether or not the
continued treatment and care of a PVS patient confers any benefit on
B
him is essentially one for the practitioners in charge.
54. Lord Goff of Chieveley also held that the principle of sanctity
of life is not an absolute one and there is no absolute rule that the patient’s
life must be prolonged by such treatment or care, if available, regardless
of the circumstances.
C
55. Lord Goff observed that though he agreed that the doctor’s
conduct in discontinuing life support can properly be categorised as an
omission, yet discontinuation of life support is, for the present purposes,
no different from not initiating life support in the first place as in such a
case, the doctor is simply allowing his patient to die in the sense that he
is desisting from taking a step which might, in certain circumstances, D
prevent his patient from dying as a result of his pre-existing condition;
and as a matter of general principle, an omission such as this will not be
unlawful unless it constitutes a breach of duty to the patient.
56. The learned Law Lord further observed that the doctor’s
conduct is to be differentiated from that of, for example, an interloper E
who maliciously switches off a life support machine in the sense that
although the interloper performs the same act as the doctor who
discontinues life support, yet the doctor, in discontinuing life support, is
simply allowing his patient to die of his pre-existing condition, whereas
the interloper is actively intervening to stop the doctor from prolonging F
the patient’s life, and such conduct cannot possibly be categorised as an
omission. This distinction as per Lord Goff appears to be useful in the
context as it can be invoked to explain how discontinuance of life support
can be differentiated from ending a patient’s life by a lethal injection.
Lord Goff stated that the reason for this difference is that the law
considers discontinuance of life support to be consistent with the doctor’s G
duty to care for his patient, but it does not, for reasons of policy, consider
that it forms any part of his duty to give his patient a lethal injection to
put the patient out of his agony.
57. Emphasising on the patient’s best interest principle, Lord Goff
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104 SUPREME COURT REPORTS [2018] 6 S.C.R.

A referred to F v. West Berkshire Health Authority21 wherein the House
of Lords stated the legal principles governing the treatment of a patient
who, for the reason that he was of unsound mind or that he had been
rendered unconscious by accident or by illness, was incapable of stating
whether or not he consented to the treatment or care. In such
circumstances, a doctor may lawfully treat such a patient if he acts in
B
his best interests, and indeed, if the patient is already in his care, he is
under a duty so to treat him.
58. Drawing an analogy, Lord Goff opined that a decision by a
doctor whether or not to initiate or to continue to provide treatment or
care which could or might have the effect of prolonging such a patient’s
C life should also be governed by the same fundamental principle of the
patient’s best interest. The learned Law Lord further stated that the
doctor who is caring for such a patient cannot be put under an absolute
obligation to prolong his life by any means available to the doctor, regardless
of the quality of the patient’s life. Common humanity requires otherwise
D as do medical ethics and good medical practice accepted in the United
Kingdom and overseas. Lord Goff said that the doctor’s decision to take
or not to take any step must be made in the best interests of the patient
(subject to his patient’s ability to give or withhold his consent).
59. Lord Goff further stated that in such cases, the question is not
E whether it is in the best interests of the patient that he should die, rather
the correct question for consideration is whether it is in the best interests
of the patient that his life should be prolonged by the continuance of
such form of medical treatment or care. In Lord Goff’s view, the correct
formulation of the question is of particular importance in such cases as
the patient is totally unconscious and there is no hope whatsoever of any
F amelioration of his condition. Lord Goff opined that if the question is
asked whether it is in the best interests of the patient to continue the
treatment which has the effect of artificially prolonging his life, that
question can sensibly be answered to the effect that the patient’s best
interests no longer require such a treatment to be continued.
G 60. Lord Goff opined that medical treatment is neither appropriate
nor requisite simply to prolong a patient’s life when such treatment has
no therapeutic purpose of any kind and such treatment is futile because
the patient is unconscious and there is no prospect of any improvement
in his condition. Thereafter, the learned Law Lord observed that regard
21
[1989] 2 All ER 545 : [1990] 2 AC 1
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should also be had to the invasive character of the treatment and to the A
indignity to which a patient is subjected by prolonging his life by artificial
means which, in turn, causes considerable distress to his family. In such
cases, Lord Goff said that it is the futility of the treatment which justifies
its termination and in such circumstances, a doctor is not required to
initiate or to continue life- prolonging treatment or care keeping in mind
B
the best interests of the patient.
61. Lord Goff, referring to West Berkshire Health Authority
(supra), said that it was stated therein that where a doctor provides
treatment to a person who is incapacitated from saying whether or not
he consents to it, the doctor must, when deciding on the form of treatment,
act in accordance with a responsible and competent body of relevant C
professional opinion on the principles set down in Bolam v. Friern
Hospital Management Committee22. Lord Goff opined that this principle
must equally be applicable to decisions to initiate or to discontinue life
support as it is to other forms of treatment. He also referred to a
Discussion Paper on Treatment of Patients in Persistent Vegetative State D
issued in September, 1992 by the Medical Ethics Committee of the British
Medical Association pertaining to four safeguards in particular which, in
the Committee’s opinion, should be observed before discontinuing life
support for such patients, which were: (1) every effort should be made
at rehabilitation for at least six months after the injury; (2) the diagnosis
of irreversible PVS should not be considered confirmed until at least 12 E
months after the injury with the effect that any decision to withhold life-
prolonging treatment will be delayed for that period; (3) the diagnosis
should be agreed by two other independent doctors; and (4) generally,
the wishes of the patient’s immediate family will be given great weight.
62. According to him, the views expressed by the Committee on F
the subject of consultation with the relatives of PVS patients are
consistent with the opinion expressed by the House of Lords in West
Berkshire Health Authority (supra) that it is good practice for the
doctor to consult relatives. Lord Goff observed that the Committee was
firmly of the opinion that the relatives’ views would not be determinative G
of the treatment inasmuch as if that would have been the case, the
relatives would be able to dictate to the doctors what is in the best interests
of the patient which cannot be right. Even so, a decision to withhold life-
prolonging treatment such as artificial feeding must require close
22
[1957] 1 W.L.R. 582 : [1957] 2 All ER 118
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106 SUPREME COURT REPORTS [2018] 6 S.C.R.

A co-operation with those close to the patient and it is recognised that, in
practice, their views and the opinions of doctors will coincide in many
cases.
63. Thereafter, Lord Goff referred to American cases, namely,
Re Quinlan23 and Superintendent of Belchertown State School v.
B Saikewicz24 wherein the American Courts adopted what is called the
substituted judgment test which involves a detailed inquiry into the patient’s
views and preferences. As per the substituted judgment test, when the
patient is incapacitated from expressing any view on the question whether
life-prolonging treatment should be withheld, an attempt is made to
determine what decision the patient himself would have made had he
C been able to do so. In later American cases concerning PVS patients, it
has been held that in the absence of clear and convincing evidence of
the patient’s wishes, the surrogate decision-maker has to implement as
far as possible the decision which the incompetent patient would have
made if he was competent.
D 64. However, Lord Goff acknowledged that any such test
(substituted judgment test) does not form part of English law in relation
to incompetent adults on whose behalf nobody has power to give consent
to medical treatment. In contrast, England followed a straightforward
test based on the best interests of the patient coined by the House of
E Lords in West Berkshire Health Authority (supra). He opined that the
same test (patient’s best interest) should be applied in the case of PVS
patients where the question is whether life-prolonging treatment should
be withheld. The learned Law Lord further observed that consistent
with the best interests test, anything relevant to the application of the
test may also be taken into account and if the personality of the patient
F is relevant to the application of the test (as it may be in cases where the
various relevant factors have to be weighed), it may be taken into account
as was done in Re J. (A Minor) (Wardship: Medical Treatment)
(supra). But where the question is whether life support should be withheld
from a PVS patient, it is difficult to see how the personality of the patient
G can be relevant, though it may be of comfort to his relatives if they
believe, as in the present case, and indeed may well be so in many other
cases, that the patient would not have wished his life to be artificially
prolonged if he was totally unconscious and there was no hope of
23
355 A. 2d 647 : (1976) 70 NJ 10
24
(1977) 373 Mass 728 : 370 N.E. 2d 417 (1977)
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improvement in his condition. A
65. As regards the extent to which doctors should, as a matter of
practice, seek the guidance of the court by way of an application for
declaratory relief before withholding life-prolonging treatment from a
PVS patient, Lord Goff took note of the judgment of Sir Stephen Brown
P, the President of the Family Division, wherein he held that the opinion B
of the court should be sought in all cases of similar nature. Lord Goff
also noted that Sir Thomas Bingham M.R. in the Court of Appeal
expressed his agreement with Sir Stephen Brown P. in the following
words:-
“This was in my respectful view a wise ruling, directed to the C
protection of patients, the protection of doctors, the reassurance
of patients’ families and the reassurance of the public. The practice
proposed seems to me desirable. It may very well be that with the
passage of time a body of experience and practice will build up
which will obviate the need for application in every case, but for
the time being I am satisfied that the practice which the President D
described should be followed.”
66. It is worthy to mention that Lord Goff was of the view that
there was a considerable cost involved in obtaining guidance from the
court in cases of such nature. He took note of the suggestions forwarded
by Mr. Francis, the counsel for the respondents, to the effect that E
reference to the court was required in certain specific cases, i.e., (1)
where there was known to be a medical disagreement as to the diagnosis
or prognosis, and (2) problems had arisen with the patient’s relatives-
disagreement by the next of kin with the medical recommendation; actual
or apparent conflict of interest between the next of kin and the patient; F
dispute between members of the patient’s family; or absence of any
next of kin to give consent. Lord Goff said that the President of the
Family Division should be able to relax the present requirement so as to
limit applications for declarations only to those cases in which there is a
special need for the procedure to be invoked.
G
67. Lord Mustill observed that an argument had been advanced
that it was in the best interest of the community at large that Anthony
Bland’s life should end. The doctors had done all they could have done.
It was a lose-lose situation as nothing would be gained by continuing
Bland’s treatment and much would be lost. The distress of Bland’s
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108 SUPREME COURT REPORTS [2018] 6 S.C.R.

A family members would steadily get worse and so would be the strain of
the medical staff charged with the care of Bland despite the fact that
Bland’s condition would never improve and he would never recognize
that he was being cared for. Further, the learned Law Lord observed
that large resources in terms of skill, labour and money had been applied
for maintaining Bland in his present condition which, in the opinion of
B
many, could be fruitfully employed in improving the conditions of other
patients who, if treated, may have useful, healthy and enjoyable lives for
years to come.
68. Lord Lowry, agreeing with the reasoning of Lord Goff of
Chieveley with whom the other learned Law Lords were also in general
C agreement, dismissed the appeal. In coming to this conclusion, Lord
Lowry opined that the court, in reaching a decision according to law,
ought to give weight to informed medical opinion both on the point whether
to continue the artificial feeding regime of a patient in PVS and also on
the question of what is in the best interests of a patient. Lord Lowry
D rejected the idea that informed medical opinion in these respects was
merely a disguise which, if accepted, would legalise euthanasia. Lord
Lowry also rejected the Official Solicitor’s argument that the doctors
were under a “duty to feed” their patients in PVS as in the instant case,
the doctors overwhelmingly held the opposite view which had been upheld
by the courts below. The doctors considered that it was in the patient’s
E best interests that they should stop feeding him. Lord Lowry observed
that the learned Law Lords had gone further by saying that the doctors
are not entitled to feed a patient in PVS without his consent which cannot
be obtained.
69. Lord Lowry further opined that there is no proposed guilty act
F in stopping the artificial feeding regime inasmuch as if it is not in the
interests of an insentient patient to continue the life- supporting care and
treatment, the doctor would be acting unlawfully if he continued the
care and treatment and would perform no guilty act by discontinuing it.
There is a gap between the old law on the one hand and new medicine
G and new ethics on the other. It is important, particularly in the area of
criminal law which governs conduct, that the society’s notions of what
the law is and what is right should coincide. One role of the legislator, as
per Lord Lowry, is to detect any disparity between these notions and to
take appropriate action to close the gap.

H 70. Lord Browne-Wilkinson observed that the ability to sustain
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 109
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life artificially is a relatively recent phenomenon. Existing law may not A
provide an acceptable answer to the new legal questions which it raises.
71. In the opinion of the learned Law Lord, there exists no doubt
that it is for the Parliament and not the courts to decide the broader
issues raised by cases of such nature. He observed that recent
developments in medical science have fundamentally changed the B
meaning of death. In medicine, the cessation of breathing or of heartbeat
is no longer death because by the use of a ventilator, lungs which in the
unaided course of nature stop breathing can be made to breathe artificially
thereby sustaining the heartbeat. Thus, people like Anthony Bland, who
would have previously died through inability to swallow food, can be
kept alive by artificial feeding. This has led the medical profession, in C
Lord Browne-Wilkinson’s view, to redefine death in terms of brain stem
death, i.e., the death of that part of the brain without which the body
cannot function at all without assistance. He further said that if the
judges seek to develop new law to regulate the new circumstances, the
law so laid down will reflect the judges’ views on the underlying ethical D
questions, questions on which there is a legitimate division of opinion.
He proceeded to state that where a case raises wholly new moral and
social issues, it is neither for the judges to develop new principles of law
nor would it be legitimate for the Judges to arrive at a conclusion as to
what is for the benefit of one individual whose life is in issue.
E
72. For the said reasons, the learned Law Lord observed that it is
imperative that the moral, social and legal issues raised by the case at
hand should be considered by the Parliament and only if the Parliament
fails to act, the judge-made law will, by necessity, provide a legal answer
to each new question as and when it arises.
F
73. The function of the court, in Lord Browne-Wilkinson’s view,
in such circumstances is to determine a particular case in accordance
with the existing law and not to develop new law laying down a new
regimen. He held that it is for the Parliament to address the wider
problems which such a case raises and lay down principles of law
generally applicable to the withdrawal of life support systems. He G
explained why the removal of the nasogastric tube in the present case
could not be regarded as a positive act causing death since the tube
itself, without the food being supplied through it, does nothing. The
removal of the tube by itself does not cause death since it does not
sustain life by itself. Therefore, the removal of the tube would not H
110 SUPREME COURT REPORTS [2018] 6 S.C.R.

A constitute the actus reus of murder since such positive act would not be
the cause of death.
74. Thus, Lord Browne-Wilkinson observed that in case of an
adult who is mentally competent, the artificial feeding regime would be
unlawful unless the patient consented to it as a mentally competent patient
B can, at any time, put an end to life support systems by refusing his consent
to their continuation. He also observed that the House of Lords in West
Berkshire Health Authority (supra) developed the principle based on
the concept of necessity under which a doctor can lawfully treat a patient
who cannot consent to such treatment if it is in the best interests of the
patient to receive such treatment. The learned Law Lord opined that the
C correct answer to the case at hand depends on the extent of the right to
lawfully continue to invade the bodily integrity of Anthony Bland without
his consent. To determine the extent of the said right, Lord Browne-
Wilkinson observed that it can be deduced from West Berkshire Health
Authority (supra) wherein both Lord Brandon of Oakbrook and Lord
D Goff made it clear that the right to administer invasive medical care is
wholly dependent upon such care being in the best interests of the patient
and moreover, a doctor’s decision whether to continue invasive care is
in the best interests of the patient has to be assessed with reference to
the test laid down in Bolam (supra).
E 75. Lord Browne-Wilkinson held that if there comes a stage where
a responsible doctor comes to the reasonable conclusion (which accords
with the views of a responsible body of medical opinion) that further
continuance of an intrusive life support system is not in the best interests
of the patient, the doctor can no longer lawfully continue that life support
system as to do so would constitute the crime of battery and the tort of
F trespass.
76. In Lord Browne-Wilkinson’s view, the correct legal question
in such cases is not whether the court thinks it is in the best interests of
the patient in PVS to continue to receive intrusive medical care but
whether the doctor responsible has arrived at a reasonable and bona
G fide belief that it is not in the best interests of the patient to continue to
receive artificial medical regime.
77. Accordingly, Lord Browne-Wilkinson observed that on an
application to the court for a declaration that the discontinuance of medical
care will be lawful, the sole concern of the courts is to be satisfied that
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the doctor’s decision to discontinue is in accordance with a respectable A
body of medical opinion and that it is reasonable. Adverting to various
passages, Lord Browne-Wilkinson dismissed the appeal.
78. It is pertinent to mention here that in adopting the “best
interests” principle in Airedale, the House of Lords followed its earlier
decision in In re F (Mental Patient : Sterilisation]25 and in adopting B
the omission/commission distinction, it followed the approach of the Court
of Appeal in In re B (A Minor) (Wardship : Medical Treatment)26
and In re J (A Minor) (Wardship : Medical Treatment)27 which raised
the question of medical treatment for severely disabled children. In the
context of cases where the patients are unable to communicate their
wishes, it is pertinent to mention the observations made by Lord Goff in C
the Airedale case. As observed by Lord Goff, the correct question in
cases of this kind would be “whether it is in his best interests that treatment
which has the effect of artificially prolonging his life should be continued”.
Thus, it was settled in the case of Airedale that it was lawful for the
doctors to discontinue treatment if the patient refuses such treatment. D
And in case the patient is not in a situation permitting him to communicate
his wishes, then it becomes the responsibility of the doctor to act in the
“best interest” of the patient.
H.1.2 Later cases:
79. With reference to the ongoing debate pertaining to assisted E
dying, Lord Steyn in the case of R (on the application of Pretty) v.
Director of Public Prosecutions28 explained that on one hand is the
view which finds support in the Roman Catholic Church, Islam and other
religions that human life is sacred and the corollary is that euthanasia
and assisted suicide are always wrong, while on the other hand, as F
observed by Lord Steyn, is the belief defended by millions that the personal
autonomy of individuals is predominant and it is the moral right of
individuals to have a say over the time and manner of their death. Taking
note of the imminent risk in legalizing assisted dying, Lord Steyn took
note of the utilitarian argument that the terminally ill patients and those
suffering great pain from incurable illnesses are often vulnerable and G
not all families, whose interests are at stake, are wholly unselfish and
loving and there exists the probability of abuse in the sense that such
25
[1990] 2 AC 1 : [1989] 2 WLR 1025 : [1989] 2 All ER 545
26
[1981] 1 WLR 1424 : [1990] 3 All ER 927
27
[1991] Fam 33 : [1990] 3 All ER 930 : [1991] 2 WLR 140
28
[2002] 1 All ER 1 : [2001] UKHL 61 H
112 SUPREME COURT REPORTS [2018] 6 S.C.R.

A people may be persuaded that they want to die or that they ought to
want to die. Further, Lord Steyn observed that there is also the view
that if the genuine wish of a terminally ill patient to die is expressed by
the patient, then they should not be forced against their will to endure a
life that they no longer wish to endure. Without expressing any view on
the unending arguments on either side, Lord Steyn noted that these wide-
B
ranging arguments are ancient questions on which millions have taken
diametrically opposite views and still continue to do. In the case of In
re B (Consent to Treatment – Capacity)29, the primacy of patient
autonomy, that is, the competent patient’s right to decide for herself
whether to submit to medical treatment over other imperatives, such as
C her best interests objectively considered, was recognized thereby
confirming the right of the competent patient to refuse medical treatment
even if the result is death and thus, a competent, ventilator-dependent
patient sought and won the right to have her ventilator turned off.
80. Taking a slightly divergent view from Airedale, Lord
D Neuberger in R (on the application of Nicklinson and another) v.
Ministry of Justice30 observed that the difference between administering
fatal drug to a person and setting up a machine so that the person can
administer the drug to himself is not merely a legal distinction but also a
moral one and, indeed, authorizing a third party to switch off a person’s
life support machine, as in Airedale, is a more drastic interference and
E a more extreme moral step than authorizing a third party to set up a
lethal drug delivery system to enable a person, only if he wishes, to
activate the system to administer a lethal drug. Elaborating further on
this theory, the Law Lord explained that in those cases which are classified
as “omission”, for instance, switching off a life support machine as in
F Airedale and Re B (Treatment), the act which immediately causes
death is that of a third party which may be wrong whereas if the final
act is that of a person who himself carries it out pursuant to a voluntary,
clear, settled and informed decision, that may be the permissible side of
the line as in the latter case, the person concerned had not been “killed”
by anyone but had autonomously exercised his right to end his life. The
G Law Lord, however, immediately clarified that it is not intended to cast
any doubt on the correctness of the decisions in Airedale and Re B
(Treatment).
81. Suffice it to say, he concurred with the view in Airedale case
29
[2002] 1 FLR 1090 : [2002] 2 All ER 449
30
H [2014] UKSC 38
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 113
[DIPAK MISRA, CJI]

which he referred to as Bland case. Lord Mance agreed with Lord A
Neuberger and Lord Sumption. In his opinion, he referred to Airedale
case and thereafter pointed out that a blanket prohibition was unnecessary
and stated in his observations that persons in tragic position represent a
distinct and relatively small group, and that by devising a mechanism
enabling careful prior review (possibly involving the Court as well as
B
medical opinion), the vulnerable can be distinguished from those capable
of forming a free and informed decision to commit suicide. Lord Mance
acknowledged that the law and courts are deeply engaged in the issues
of life and death and made a reference to the observations of Lord
Neuberger.
82. We may note with profit that the prayer of Mr. Nicklinson and C
Mr. Lamb were rejected by the Court of Appeal.
83. Lord Mance referred to the expression by Rehnquist CJ in
Washington (supra) in a slightly different context that there is “an earnest
and profound debate about the morality, legality, and practicality of ….
assisted suicide” and “our holding permits this debate to continue as it D
should in a democratic society”.
84. Lord Wilson concurred with the judgment rendered by Lord
Neuberger, referred to Airedale case and said:-
“As Hoffmann LJ suggested in his classic judgment in the Court E
of Appeal in Airedale NHS Trust v Bland [1993] AC 789 at 826,
a law will forfeit necessary support if it pays no attention to the
ethical dimension of its decisions. In para 209 below Lord Sumption
quotes Hoffmann LJ’s articulation of that principle but it is worth
remembering that Hoffmann LJ then proceeded to identify two
other ethical principles, namely those of individual autonomy and F
of respect for human dignity, which can run the other way.”
And further:-
“In the Pretty case, at para 65, the ECHR was later to describe
those principles as of the very essence of the ECHR. It was in
G
the light (among other things) of the force of those two principles
that in the Bland case the House of Lords ruled that it was lawful
in certain circumstances for a doctor not to continue to provide
life-sustaining treatment to a person in a persistent vegetative
state…”
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114 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 200. I agree with the observation of Lord Neuberger at para 94
that, in sanctioning a course leading to the death of a person about
which he was unable to have a voice, the decision in the Bland
case was arguably more extreme than any step which might be
taken towards enabling a person of full capacity to exercise what
must, at any rate now, in the light of the effect given to article 8 of
B
the ECHR in the Haas case at para 51, cited at para 29 above, be
regarded as a positive legal right to commit suicide. Lord Sumption
suggests in para 212-213 below that it remains morally wrong and
contrary to public policy for a person to commit suicide. Blackstone,
in his Commentaries on the Laws of England, Book 4, Chapter
C 14, wrote that suicide was also a spiritual offence “in evading the
prerogative of the Almighty, and rushing into his immediate
presence uncalled for”. If expressed in modern religious terms,
that view would still command substantial support and a moral
argument against committing suicide could convincingly be cast
in entirely non-religious terms. Whether, however, it can be
D
elevated into an overall conclusion about moral wrong and public
policy is much more difficult.”
85. Lord Sumption commenced the judgment stating that English
judges tend to avoid addressing the moral foundations of law. It is not
their function to lay down principles of morality and the attempt leads to
E large generalisations which are commonly thought to be unhelpful. He
further observed that in some cases, however, it is unavoidable and this
is one of them. He referred to the opinion of Hoffmann LJ in Airedale
case and the concept of sanctity of life and, eventually, reproduced a
passage from Hoffmann LJ and opined:-
F “215. Why should this be so? There are at least three reasons
why the moral position of the suicide (whom I will call “the patient”
from this point on, although the term may not always be apt) is
different from that of a third party who helps him to kill himself.
In the first place, the moral quality of their decisions is different.
G A desire to die can only result from an overpowering negative
impulse arising from perceived incapacity, failure or pain. This is
an extreme state which is unlikely to be shared by the third party
who assists. Even if the assister is moved by pure compassion, he
inevitably has a greater degree of detachment. This must in

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particular be true of professionals such as doctors, from whom a A
high degree of professional objectivity is expected, even in
situations of great emotional difficulty. Secondly, whatever right a
person may have to put an end to his own life depends on the
principle of autonomy, which leaves the disposal of his life to him.
The right of a third party to assist cannot depend on that principle.
B
It is essentially based on the mitigating effect of his compassionate
motive. Yet not everyone seeking to end his life is equally deserving
of compassion. The choice made by a person to kill himself is
morally the same whether he does it because he is old or terminally
ill, or because he is young and healthy but fed up with life. In both
cases his desire to commit suicide may be equally justified by his C
autonomy. But the choice made by a third party who intervenes
to help him is very different. The element of compassion is much
stronger in the former category than in the latter. Third, the
involvement of a third party raises the problem of the effect on
other vulnerable people, which the unaided suicide does not. If it
D
is lawful for a third party to encourage or assist the suicide of a
person who has chosen death with a clear head, free of external
pressures, the potential arises for him to encourage or assist others
who are in a less good position to decide. Again, this is a more
significant factor in the case of professionals, such as doctors or
carers, who encounter these dilemmas regularly, than it is in the E
case of, say, family members confronting them for what will
probably be the only time in their lives.”
86. Dealing with the appeal by Nicklinson, Lord Sumption referred
to the view of the Canadian Supreme Court in Rodriguez (supra) and
opined:- F
“….the issue is an inherently legislative issue for Parliament, as
the representative body in our constitution, to decide. The question
what procedures might be available for mitigating the indirect
consequences of legalising assisted suicide, what risks such
procedures would entail, and whether those risks are acceptable, G
are not matters which under our constitution a court should
decide.”
87. Dealing with Martin’s appeal, Lord Sumption dismissed the
same. While doing so, he said:-
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116 SUPREME COURT REPORTS [2018] 6 S.C.R.

A “256. This state of English law and criminal practice does not of
course resolve all of the problems arising from the pain and indignity
of the death which was endured by Tony Nicklinson and is now
faced by Mr Lamb and Martin. But it is worth reiterating these
well-established propositions, because it is clear that many medical
professionals are frightened by the law and take an unduly narrow
B
view of what can lawfully be done to relieve the suffering of the
terminally ill under the law as it presently stands. Much needless
suffering may be occurring as a result. It is right to add that there
is a tendency for those who would like to see the existing law
changed, to overstate its difficulties. This was particularly evident
C in the submissions of Dignity and Choice in Dying. It would be
unfortunate if this were to narrow yet further the options open to
those approaching death, by leading them to believe that the current
law and practice is less humane and flexible than it really is.”
88. Lord Hughes agreed with the reasoning of Lord Sumption
D and dismissed the private appeals and allowed the Appeals preferred by
the Director of Public Prosecutions. Lord Clarke concurred with the
reasoning given by Lord Sumption, Lord Reed and Lord Hughes. Lord
Reed agreed with the view with regard to the dismissal of the appeals
but observed some aspects with regard to the issue of compatibility.
E 89. Lord Lady Hale entirely agreed with the judgment of Lord
Neuberger. Lord Kerr in his opinion stated:-
“358. I agree with Lord Neuberger that if the store put on the
sanctity of life cannot justify a ban on suicide by the able-bodied,
it is difficult to see how it can justify prohibiting a physically
F incapable person from seeking assistance to bring about the end
of their life. As one of the witnesses for one of the interveners,
the British Humanist Association, Professor Blackburn, said, there
is ‘no defensible moral principle’ in denying the appellants the
means of achieving what, under article 8 and by all the requirements
G of compassion and humanity, they should be entitled to do. To
insist that these unfortunate individuals should continue to endure
the misery that is their lot is not to champion the sanctity of life; it
is to coerce them to endure unspeakable suffering.”

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[DIPAK MISRA, CJI]

And again:- A
“360. If one may describe the actual administration of the fatal
dose as active assistance and the setting up of a system which
can be activated by the assisted person as passive assistance,
what is the moral objection to a person actively assisting someone’s
death, if passive assistance is acceptable? Why should active B
assistance give rise to moral corruption on the part of the assister
(or, for that matter, society as a whole), but passive assistance
not? In both cases the assister’s aid to the person who wishes to
die is based on the same conscientious and moral foundation. That
it is that they are doing what the person they assist cannot do;
providing them with the means to bring about their wished-for C
death. I cannot detect the moral distinction between the individual
who brings a fatal dose to their beloved’s lips from the person
who sets up a system that allows their beloved to activate the
release of the fatal dose by the blink of an eye.”
Eventually, Lady Hale dismissed the appeal and allowed the D
appeals of the Director of Public Prosecutions.
H.2 The legal position in the United States:
90. In the United States of America, active euthanasia is illegal
but physician-assisted death is legal in the States of Oregon, Washington
and Montana. A distinction has been drawn between euthanasia and E
physician-assisted suicide. In both Oregon and Washington, only self-
assisted dying is permitted. Doctor-administered assisted dying and any
form of assistance to help a person commit suicide outside the provisions
of the legislation remains a criminal offence.
91. As far as the United States of America is concerned, we think F
it appropriate to refer to Cruzan (supra). The said case involved a 30
year old Missouri woman who was lingering in a permanent vegetative
state as a result of a car accident. Missouri requires ‘clear and convincing
evidence’ of patients’ preferences and the Missouri Supreme Court,
reversing the decision of the state trial court, rejected the parents’ request
to impose a duty on their daughter’s physician to end life-support. The G
United States Supreme Court upheld that States can require ‘clear and
convincing evidence’ of a patient’s desire in order to oblige physicians to
respect this desire. Since Nancy Cruzan had not clearly expressed her
desire to terminate life support in such a situation, physicians were not
obliged to follow the parents’ request. H
118 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 92. Chief Justice Rehnquist, in his opinion, stated:-
“Every human being of adult years and sound mind has a right to
determine what shall be done with his own body, and a surgeon
who performs an operation without his patient’s consent commits
an assault, for which he is liable in damages.”
B He further proceeded to state:-
“The logical corollary of the doctrine of informed consent is that
the patient generally possesses the right not to consent, that is, to
refuse treatment. Until about 15 years ago and the seminal decision
in In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied sub
C nom. Garger v. New Jersey, 429 U.S. 922 (1976), the number of
right-to-refuse-treatment decisions were relatively few. Most of
the earlier cases involved patients who refused medical treatment
forbidden by their religious beliefs, thus implicating First
Amendment rights as well as common law rights of self-
D determination. More recently, however, with the advance of
medical technology capable of sustaining life well past the point
where natural forces would have brought certain death in earlier
times, cases involving the right to refuse life-sustaining treatment
have burgeoned.”

E 93. Meeting the submissions on behalf of the petitioner, the learned
Chief Justice opined:-
“The difficulty with petitioners’ claim is that, in a sense, it begs
the question: an incompetent person is not able to make an informed
and voluntary choice to exercise a hypothetical right to refuse
F treatment or any other right. Such a “right” must be exercised for
her, if at all, by some sort of surrogate. Here, Missouri has in
effect recognized that, under certain circumstances, a surrogate
may act for the patient in electing to have hydration and nutrition
withdrawn in such a way as to cause death, but it has established
a procedural safeguard to assure that the action of the surrogate
G conforms as best it may to the wishes expressed by the patient
while competent. Missouri requires that evidence of the
incompetent’s wishes as to the withdrawal of treatment be proved
by clear and convincing evidence. The question, then, is whether
the United States Constitution forbids the establishment of this
procedural requirement by the State. We hold that it does not.”
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94. The learned Chief Justice came to hold that there was no A
clear and convincing evidence to prove that the patient’s desire was not
to have hydration and nutrition. In the ultimate analysis, it was stated:-
“No doubt is engendered by anything in this record but that Nancy
Cruzan’s mother and father are loving and caring parents. If the
State were required by the United States Constitution to repose a B
right of “substituted judgment” with anyone, the Cruzans would
surely qualify. But we do not think the Due Process Clause requires
the State to repose judgment on these matters with anyone but
the patient herself. Close family members may have a strong
feeling — a feeling not at all ignoble or unworthy, but not entirely
disinterested, either — that they do not wish to witness the C
continuation of the life of a loved one which they regard as
hopeless, meaningless, and even degrading. But there is no
automatic assurance that the view of close family members will
necessarily be the same as the patient’s would have been had she
been confronted with the prospect of her situation while competent. D
All of the reasons previously discussed for allowing Missouri to
require clear and convincing evidence of the patient’s wishes lead
us to conclude that the State may choose to defer only to those
wishes, rather than confide the decision to close family members.”
The aforesaid decision has emphasized on “bodily integrity” and E
“informed consent”.
95. The question that was presented before the Court was whether
New York’s prohibition on assisted suicide violates the Equal Protection
Clause of the Fourteenth Amendment. The Court held that it did not and
in the course of the discussion, Chief Justice Rehnquist held:- F
“The Court of Appeals, however, concluded that some terminally
ill people—those who are on life-support systems— are treated
differently from those who are not, in that the former may “hasten
death” by ending treatment, but the latter may not “hasten death”
through physician-assisted suicide. 80 F. 3d, at 729. This conclusion G
depends on the submission that ending or refusing lifesaving
medical treatment “is nothing more nor less than assisted suicide.”
Ibid. Unlike the Court of Appeals, we think the distinction between
assisting suicide and withdrawing life-sustaining treatment, a
distinction widely recognized and endorsed in the medical
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120 SUPREME COURT REPORTS [2018] 6 S.C.R.

A profession 6 and in our legal traditions, is both important and logical;
it is certainly rational.”
Dealing with the conclusion in Cruzan (supra), it was held:-
“This Court has also recognized, at least implicitly, the distinction
between letting a patient die and making that patient die. In Cruzan
B v. Director, Mo. Dept. of Health, 497 U. S. 261, 278 (1990), we
concluded that “[t]he principle that a competent person has a
constitutionally protected liberty interest in refusing unwanted
medical treatment may be inferred from our prior decisions,” and
we assumed the existence of such a right for purposes of that
C case, id., at 279. But our assumption of a right to refuse treatment
was grounded not, as the Court of Appeals supposed, on the
proposition that patients have a general and abstract “right to hasten
death,” 80 F. 3d, at 727–728, but on well-established, traditional
rights to bodily integrity and freedom from unwanted touching,
Cruzan, 497 U. S., at 278–279; id., at 287– 288 (O’Connor, J.,
D concurring). In fact, we observed that “the majority of States in
this country have laws imposing criminal penalties on one who
assists another to commit suicide.” Id., at 280. Cruzan therefore
provides no support for the notion that refusing life-sustaining
medical treatment is “nothing more nor less than suicide.”
E From the aforesaid passages, it is crystal clear that the U.S.
Supreme Court has recognized that there is a distinction, in the context
of the prevalent law, between letting a patient die and making that patient
die. Right to refuse treatment is not grounded on the proposition that the
patients have general and abstract right to hasten death. The learned
F Chief Justice has also endorsed the view of the American Medical
Association emphasizing the fundamental difference between refusing
life-sustaining treatment and demanding a life-ending treatment.
96. In Vacco (supra), while ruling that a New York ban on physician
assisted suicide was constitutional, the Supreme Court of the United
G States applied the standard of intent to the matter finding that a doctor
who withdraws life support at the request of his patient intends only to
respect his patient’s wishes. This, the Court said, is in sharp contrast to
a doctor who honours a patient’s request to end life which necessarily
requires more than an intent to respect the patient’s wishes, i.e., it requires
the intent to kill the patient. A major difference, the Court determined, in
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the two scenarios is that the former may cause the patient to die from A
underlying causes while the latter will cause the patient to die. The Court
noted that the law plainly recognized the difference between “killing”
and “letting die”. It also recognised that the State of New York had, as
a matter of policy, a compelling interest in forbidding assisted suicide,
while allowing a patient to refuse life support was simply an act of
B
protecting a common law right which was the right to retain bodily integrity
and preserve individual antonomy since the prevention of “unwanted
touching” was, in the opinion of the Court, a very legitimate right to
protect.
H.3 Australian Jurisdiction:
C
97. Moving to Australian jurisdiction, in Hunter and New England
Area Health Service v. A31, the Supreme Court of New South Wales
considered the validity of a common law advance directive (there being
no legislative provisions for such directives in NSW) given by Mr. A
refusing kidney dialysis. One year after making the directive, Mr. A
was admitted to a hospital emergency department in a critical state with D
decreased level of consciousness. His condition deteriorated to the point
that he was being kept alive by mechanical ventilation and kidney dialysis.
The hospital sought a judicial declaration to determine the validity of his
advance directive. The Court, speaking through McDougall J., confirmed
the directive and held that the hospital must respect the advance directive. E
Applying the common law principle, the Court observed:-
“A person may make an ‘advance care directive’: a statement
that the person does not wish to receive medical treatment, or
medical treatment of specified kinds. If an advance care directive
is made by a capable adult, and it is clear and unambiguous, and F
extends to the situation at hand, it must be respected. It would be
a battery to administer medical treatment to the person of a kind
prohibited by the advance care directive.”
98. In Brightwater Care Group (Inc.) v. Rossiter32, the Court
was concerned with an anticipatory refusal of treatment by Mr. Rossiter, G
a man with quadriplegia who was unable to undertake any basic human
function including taking nutrition or hydration orally. Mr. Rossiter was
not terminally ill, dying or in a vegetative state and had full mental capacity.
He had ‘clearly and unequivocally’ indicated that he did not wish to
31
[2009] NSWSC 761
32
[2009] WASC 229 : 40 WAR 84 H
122 SUPREME COURT REPORTS [2018] 6 S.C.R.

A continue to receive medical treatment which, if discontinued, would
inevitably lead to his death. Martin, CJ, considering the facts and the
common law principle, held :-
“At common law, the answers to the questions posed by this case
are clear and straightforward. They are to the effect that Mr
B Rossiter has the right to determine whether or not he will continue
to receive the services and treatment provided by Brightwater
and, at common law, Brightwater would be acting unlawfully by
continuing to provide treatment [namely the administration of
nutrition and hydration via a tube inserted into his stomach] contrary
to Mr Rossiter’s wishes.”
C
99. In Australian Capital Territory v. JT33, an application to
stop medical treatment, other than palliative care, was rejected. The
man receiving treatment suffered from paranoid schizophrenia and was,
therefore, held not mentally capable of making a decision regarding his
treatment. Chief Justice Higgins found that it would be unlawful for the
D service providers to stop providing treatment. The Chief Justice
distinguished this situation from Rossiter as the patient lacked ‘both
understanding of the proposed conduct and the capacity to give informed
consent to it’. It is clear that mental capacity is the determining factor in
cases relating to self-determination. Since the right of self-determination
E requires the ability to make an informed choice about the future, the
requirement of mental capacity would be an obvious prerequisite. Chief
Justice Higgins undertook a detailed analysis and rightly distinguished
Auckland Area Health Board v. Attorney-General 34 in which a court
similarly bound to apply the human right to life and the prohibition on
cruel and degrading treatment found that futile treatment could be
F withdrawn from a patient in a persistent vegetative state. He agreed
with Howie J. in Messiha v. South East Health35 that futility of treatment
could only be determined by consideration of the best interests of the
patient and not by reference to the convenience of medical cares or
their institutions.
G 100. The above decision basically considered the circumstances
in which technically futile treatment may be withdrawn from patients at
their direct or indirect request or in their best interests.
33
[2009] ACTSC 105
34
[1993] NZLR 235
35
[2004] NSWSC 1061
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H.4 Legal Position in Canada: A
101. In Canada, physician-assisted suicide is illegal as per Section
241(b) of the Criminal Code of Canada. The Supreme Court of Canada
in Rodriguez (supra) has drawn a distinction between “intentional actor”
and “merely foreseeing”. Delivering the judgment on behalf of the
majority, Justice Sopinka rejected the argument that assisted suicide was B
similar to the withdrawal of life-preserving treatment at the patient’s
request. He also rejected the argument that the distinction between
assisted suicide and accepted medical treatment was even more
attenuated in the case of palliative treatment which was known to hasten
death. He observed:-
C
“The distinction drawn here is one based upon intention - in the
case of palliative care the intention is to ease pain, which has the
effect of hastening death, while in the case of assisted suicide,
the intention is undeniably to cause death.”
He added:- D
“In my view, distinctions based on intent are important, and in fact
form the basis of our criminal law. While factually the distinction
may, at times, be difficult to draw, legally it is clear.”
102. The Supreme Court of Canada in Carter v. Canada
(Attorney General)36 held that the prohibition on physician-assisted death E
in Canada (in Sections 14 and 241(b) of the Canadian Criminal Code)
unjustifiably infringed the right to life, liberty and security of the person
in Article 7 of the Charter of Rights and Freedoms in the Canadian
Constitution.
103. The Supreme Court declared the infringing provisions of the F
Criminal Code void insofar as they prohibit physician-assisted death for
a competent adult person who (1) clearly consents to the termination of
life; and (2) has a grievous and irremediable medical condition (including
an illness, disease or disability) that causes enduring suffering that is
intolerable to the individual in the circumstances of his or her condition.
G
‘Irremediable’, it should be added, does not require the patient to
undertake treatments that are not acceptable to the individual.
104. After the Supreme Court’s decision, the Canadian
Government appointed a Special Joint Committee on Physician-Assisted
36
2015 SCC 5
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124 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Dying to ‘make recommendations on the framework of a federal response
on physician assisted dying in consonance with the Constitution, the
Charter of Rights and Freedoms, and the priorities of Canadians’. The
Special Joint Committee released its report in February 2016
recommending a legislative framework which would regulate ‘medical
assistance in dying’ by imposing both substantive and procedural
B
safeguards, namely:-
Substantive Safeguards:
• A grievous and irremediable medical condition (including an
illness, disease or disability) is required;
C
• Enduring suffering that is intolerable to the individual in the
circumstances of his or her condition is required;
• Informed consent is required;
D • Capacity to make the decision is required at the time of either
the advance or contemporaneous request; and
• Eligible individuals must be insured persons eligible for publicly
funded health care services in Canada.
Procedural Safeguards:
E
• Two independent doctors must conclude that a person is eligible;
• A request must be in writing and witnessed by two independent
witnesses;

F • A waiting period is required based, in part, on the rapidity of
progression and nature of the patient’s medical condition as
determined by the patient’s attending physician;
• Annual report analyzing medical assistance in dying cases are
to be tabled in Parliament;
G
and
• Support and services, including culturally and spiritually
appropriate end-of-life care services for indigenous patients,
should be improved to ensure that requests are based on free
H choice, particularly for vulnerable people.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 125
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105. It should be noted that physician assisted dying has already A
been legalized in the province of Quebec. Quebec passed an Act
respecting end-of-life care (the Quebec Act) in June 2014 with most of
the Act coming into force on 10 December, 2015. The Quebec Act
provides a ‘framework for end-of-life care’ which includes ‘continuous
palliative sedation’ and ‘medical aid in dying’ defined as ‘administration
B
by a physician of medications or substances to an end-of-life patient, at
the patient’s request, in order to relieve their suffering by hastening death.
In order to be able to access medical aid in dying under the Quebec Act,
a patient must:-
(1) be an insured person within the meaning of the Health
Insurance Act (Chapter A-29); C

(2) be of full age and capable of giving consent to care;
(3) be at the end of life;
(4) suffer from a serious and incurable illness;
D
(5) be in an advanced state of irreversible decline in capability;
and
(6) experience constant and unbearable physical or psychological
suffering
(7) which cannot be relieved in a manner the patient deems E
tolerable.
106. The request for medical aid in dying must be signed by two
physicians. The Quebec Act also established a Commission on end-of-
life care to provide oversight and advice to the Minister of Health and
Social Services on the implementation of the legislation regarding end- F
of-life care.
H.5 Other Jurisdictions:
107. Presently, we think it appropriate to deal with certain
legislations in other countries and the decisions in other jurisdictions. In
Aruna Shanbaug, the Court has in detail referred to the legislations in G
Netherlands, i.e., the Termination of Life on Request and Assisted Suicide
(Review Procedures) Act, 2002 that regulates euthanasia. The provisions
of the said Act lay down that euthanasia and physician-assisted suicide
are not punishable if the attending physician acts in accordance with the
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126 SUPREME COURT REPORTS [2018] 6 S.C.R.

A criteria of due care. As the two-Judge Bench has summarized, this
criteria concern the patient’s request, the patient’s suffering (unbearable
and hopeless), the information provided to the patient, the presence of
reasonable alternatives, consultation of another physician and the applied
method of ending life. To demonstrate their compliance, the Act requires
physicians to report euthanasia to a Review Committee. It has been
B
observed that the said Act legalizes euthanasia and physician-assisted
suicide in very specific cases under three specific conditions and
euthanasia remains a criminal offence in cases not meeting the laid down
specific conditions with the exception of several situations that are not
subject to restrictions of law at all because they are considered normal
C medical practice. The three conditions are : stopping or not starting a
medically useless (futile) treatment, stopping or not starting a treatment
at the patient’s request and speeding up death as a side effect of treatment
necessary for alleviating serious suffering.
108. Reference has been made to the Swiss Criminal Code where
D active euthanasia has been regarded as illegal. Belgium has legalized
the practice of euthanasia with the enactment of the Belgium Act on
Euthanasia of May 28th, 2002 and the patients can wish to end their life
if they are under constant and unbearable physical or psychological pain
resulting from an accident or an incurable illness. The Act allows adults
who are in a ‘futile medical condition of constant and unbearable physical
E or mental suffering that cannot be alleviated’ to request voluntary
euthanasia. Doctors who practise euthanasia commit no offence if the
prescribed conditions and procedure is followed and the patient has the
legal capacity and the request is made voluntarily and repeatedly with
no external pressure.
F 109. Luxembourg too has legalized euthanasia with the passing of
the Law of 16th March, 2009 on Euthanasia and Assisted Suicide (Lux.).
The law permits euthanasia and assisted suicide in relation to those with
incurable conditions with the requirements including repeated requests
and the consent of two doctors and an expert panel.
G 110. The position in Germany is that active assisted suicide is
illegal. However, this is not the case for passive assisted suicide. Thus,
in Germany, if doctors stop life-prolonging measures, for instance, on
the written wishes of a patient, it is not considered as a criminal offence.
That apart, it is legal for doctors in Germany to administer painkillers to
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a dying patient to ease pain. The said painkillers, in turn, cause low A
breathing that may lead to respiratory arrest and, ultimately, death.
H.6 International considerations and decisions of the
European Court of Human Rights (ECHR):
111. Certain relevant obligations when discussing voluntary
euthanasia are contained in the International Covenant on Civil and B
Political Rights (ICCPR). The following rights in the ICCPR have
been considered by the practice of voluntary euthanasia:
• right to life (Article 6)
• freedom from cruel, inhuman or degrading treatment (Article 7) C

• right to respect for private life (Article 17)
• freedom of thought, conscience and religion (Article 18).
112. Right to life under Article 6(1) of the ICCPR provides: Every
D
human being has the inherent right to life. This right shall be protected
by law. No one shall be arbitrarily deprived of his life. The second
sentence of Article 6(1) imposes a positive obligation on the States to
provide legal protection of the right to life. However, the subsequent
reference to life not being ‘arbitrarily deprived’ operates to limit the
scope of the right (and therefore the States’ duty to ensure the right). E
Comments from the UN Human Rights Committee suggest that laws
allowing for voluntary euthanasia are not necessarily incompatible with
the States’ obligation to protect the right to life.
113. The UN Human Rights Committee has emphasised that laws
allowing for euthanasia must provide effective procedural safeguards F
against abuse if they are to be compatible with the State’s obligation to
protect the right to life. In 2002, the UN Committee considered the
euthanasia law introduced in the Netherlands. The Committee stated
that:-
“where a State party seeks to relax legal protection with respect G
to an act deliberately intended to put an end to human life, the
Committee believes that the Covenant obliges it to apply the most
rigorous scrutiny to determine whether the State party’s obligations
to ensure the right to life are being complied with (articles 2 and 6
of the Covenant).”
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128 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 114. The European Court of Human Rights (ECHR) has adopted
a similar position to the UN Human Rights Committee when considering
euthanasia laws and the right to life in Article 2 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention). According to the ECHR, the right to
life in Article 2 cannot be interpreted as conferring a right to die or a
B
right to self determination in terms of choosing death rather than life.
However, the ECHR has held that a State’s obligation to protect life
under that Article does not preclude it from legalising voluntary euthanasia,
provided adequate safeguards are put in place and adhered to. In Pretty
v. United Kingdom (application no. 2346/02)37, the ECHR ruled that
C the decision of the applicant to avoid what she considered would be an
undignified and distressing end to her life was part of the private sphere
covered by the scope of Article 8 of the Convention. The Court affirmed
that the right of an individual to decide how and when to end her life,
provided that the said individual was in a position to make up her own
mind in that respect and to take the appropriate action, was one aspect
D
of the right to respect for private life under Article 8 of the Convention.
The Court, thus, recognised, with conditions, a sort of right to self-
determination as to one’s own death, but the existence of this right is
subject to two conditions, one linked to the free will of the person
concerned and the other relating to the capacity to take appropriate
E action. However, respect for the right to life compels the national
authorities to prevent a person from putting an end to life if such a decision
is not taken freely and with full knowledge.
115. In Hass v. Switzerland (application no. 31322/07)38, the
ECHR explained that:-
F “creates for the authorities a duty to protect vulnerable persons,
even against actions by which they endanger their own lives…
this latter Article obliges the national authorities to prevent an
individual from taking his or her own life if the decision has not
been taken freely and with full understanding of what is involved”.
G Accordingly, the ECHR concluded that:-
“the right to life guaranteed by Article 2 of the Convention obliges
States to establish a procedure capable of ensuring that a decision
37
[2002] ECHR 423 (29 April, 2002)
38
[2011] ECHR 2422: (2011) 53 EHRR 33
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 129
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to end one’s life does indeed correspond to the free will of the A
individual concerned.”
116. In a recent decision regarding end of life issues, Lambert
and others v. France (application no. 46043/14) 39, the ECHR
considered whether the decision to withdraw artificial nutrition and
hydration of Vincent Lambert violated the right to life in Article 2. Vincent B
Lambert was involved in a serious road accident which left him tetraplegic
and with permanent brain damage. He was assessed in expert medical
reports as being in a chronic vegetative state that required artificial
nutrition and hydration to be administered via a gastric tube.
117. Mr. Lambert’s parents applied to the ECHR alleging that the C
decision to withdraw his artificial nutrition and hydration breached, inter
alia, the State’s obligations under Article 2 of the European Convention.
The ECHR highlighted that Article 2 imposes on the States both a negative
obligation (to refrain from the ‘intentional’ taking of life) and a positive
obligation (to ‘take appropriate steps to safeguard the lives of those
within its jurisdiction’). The Court held that the decision of a doctor to D
discontinue life-sustaining treatment (or ‘therapeutic abstention’) did not
involve the State’s negative obligation under Article 2 and, therefore, the
only question for the Court under Article 2 was whether it was consistent
with the State’s positive obligation.
118. The ECHR emphasized that ‘the Convention has to be read E
as a whole’, and, therefore:-
“in a case such as the present one reference should be made, in
examining a possible violation of Article 2, to Article 8 of the
Convention and to the right to respect for private life and the
notion of personal autonomy which it encompasses.” F
119. The Court noted that there was a consensus among European
member States ‘as to the paramount importance of the patient’s wishes
in the decision-making process, however those wishes are expressed’.
It identified that in dealing with end of life situations, States have some
discretion in terms of striking a balance between the protection of the G
patients’ right to life and the protection of the right to respect their private
life and their personal autonomy. The Court considered that the provisions
of the Law of 22 April 2005 ‘on patients’ rights and the end of life’
promulgated in France making changes in the French Code of Public
39
[2015] ECHR 185
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130 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Health, as interpreted by the Conseil d’Etat, constituted a legal
framework which was sufficiently clear to regulate with precision the
decisions taken by doctors in situations such as in Mr. Lambert’s case.
The Court found the legislative framework laid down by domestic law,
as interpreted by the Conseil d’État, and the decision-making process
which had been conducted in meticulous fashion, to be compatible with
B
the requirements of the State’s positive obligation under Article 2. With
respect to negative obligations, the ECHR observed that the “therapeutic
abstention” (that is, withdrawal and withholding of medical treatment)
lacks the intention to end the patient’s life and rather, a doctor
discontinuing medical treatment from his or her patient merely intends to
C “allow death to resume its natural course and to relieve suffering”.
Therefore, as long as therapeutic abstention as authorised by the French
Public Health Code is not about taking life intentionally, the ECHR opined
that France had not violated its negative obligation to “refrain from the
intentional taking of life”.
D 120. When considering the State’s positive obligations to protect
human life, the ECHR noted that the regulatory framework developed
in the Public Health Code and the decision of the Conseil d’ Etat
established several “important safeguards” with respect to therapeutic
abstention and the regulation is, therefore, “apt to ensure the protection
of patients’ lives.”
E
121. All this compelled the ECHR to conclude that there was no
violation of the State’s positive obligation to protect human life which,
together with the absence of violation of negative obligations, resulted in
the conclusion that “there would be no violation of Article 2 of the
Convention in the event of implementation of the Conseil d’ Etat
F judgment.” Thus, the ECHR in the Lambert (supra) case struck the
balance between the sanctity of life on the one hand and the notions of
quality of life and individual autonomy on the other.
I. The 241st Report of The Law Commission of India on
Passive Euthanasia:
G
122. After the judgment of Aruna Shanbaug was delivered, the
Law Commission of India submitted its 241st report which dealt with
‘Passive Euthanasia – A Relook’. The report in its introduction has
dealt with the origin of the concept of euthanasia. It states that the word
“Euthanasia” is derived from the Greek words “eu” and “thanotos” which
H literally mean “good death” and is otherwise described as “mercy killing”.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 131
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The word euthanasia, as pointed out in the Report, was used by Francis A
Bacon in the 17th Century to refer to an easy, painless and happy death
as it is the duty and responsibility of the physician to alleviate the physical
suffering of the body of the patient. A reference has also been made in
the Report to the meaning given to the term by the House of Lords. The
Select Committee on “Medical Ethics” in England defined Euthanasia
B
as “a deliberate intervention undertaken with the express intention of
ending a life to relieve intractable suffering”. Impressing upon the voluntary
nature of euthanasia, the report has rightly highlighted the clarification
as provided by the European Association of Palliative Care (EAPC)
Ethics Task Force in a discussion on Euthanasia in 2003 to the effect
that “medicalised killing of a person without the person’s consent, whether C
non-voluntary (where the person is unable to consent) or involuntary
(against the person’s will) is not euthanasia: it is a murder.”
123. The Commission in its report referred to the observations
made by the then Chairman of the Law Commission in his letter dated
28th August, 2006 addressed to the Hon’ble Minister which was extracted. D
It is pertinent to reproduce the same:-
“A hundred years ago, when medicine and medical technology
had not invented the artificial methods of keeping a terminally ill
patient alive by medical treatment, including by means of ventilators
and artificial feeding, such patients were meeting their death on E
account of natural causes. Today, it is accepted, a terminally ill
person has a common law right to refuse modern medical
procedures and allow nature to take its own course, as was done
in good old times. It is well-settled law in all countries that a
terminally ill patient who is conscious and is competent, can take
an ‘informed decision’ to die a natural death and direct that he or F
she be not given medical treatment which may merely prolong
life. There are currently a large number of such patients who
have reached a stage in their illness when according to well-
informed body of medical opinion, there are no chances of recovery.
But modern medicine and technology may yet enable such patients G
to prolong life to no purpose and during such prolongation, patients
could go through extreme pain and suffering. Several such patients
prefer palliative care for reducing pain and suffering and do not
want medical treatment which will merely prolong life or postpone
death.”
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132 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 124. The report rightly points out that a rational and humanitarian
outlook should have primacy in such a complex matter. Recognizing
that passive euthanasia, both in the case of competent and incompetent
patients, is being allowed in most of the countries subject to the doctor
acting in the best interests of the patient, the report summarized the
broad principles of medical ethics which shall be observed by the doctor
B
in taking the decision. The said principles as obtained in the report are
the patient’s autonomy (or the right to self- determination) and beneficence
which means following a course of action that is best for the patient
uninfluenced by personal convictions, motives or other considerations.
The Report also refers to the observations made by Lord Keith in
C Airedale case providing for a course to safeguard the patient’s best
interest. As per the said course, which has also been approved by this
Court, the hospital/medical practitioner should apply to the Family Division
of the High Court for endorsing or reversing the decision taken by the
medical practitioners in charge to discontinue the treatment of a PVS
patient. With respect to the ongoing debates on “legalizing euthanasia”,
D
the Report reiterates the observations made in Airedale that euthanasia
(other than passive euthanasia) can be legalized by means of legislation
only.
125. The Report, in upholding the principle of the patient’s autonomy,
went on to state:-
E
“…the patient (competent) has a right to refuse medical treatment
resulting in temporary prolongation of life. The patient’s life is at
the brink of extinction. There is no slightest hope of recovery.
The patient undergoing terrible suffering and worst mental agony
does not want his life to be prolonged by artificial means. She/he
F would not like to spend for his treatment which is practically
worthless. She/he cares for his bodily integrity rather than bodily
suffering. She/he would not like to live 28 like a ‘cabbage’ in an
intensive care unit for some days or months till the inevitable death
occurs. He would like to have the right of privacy protected which
G implies protection from interference and bodily invasion. As
observed in Gian Kaur’s case, the natural process of his death
has already commenced and he would like to die with peace and
dignity. No law can inhibit him from opting such course. This is
not a situation comparable to suicide, keeping aside the view point

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[DIPAK MISRA, CJI]

in favour of decriminalizing the attempt to suicide. The doctor or A
relatives cannot compel him to have invasive medical treatment
by artificial means or treatment.”
126. The Report supports the view of several authorities especially
Lord Browne-Wilkinson (in Airedale case) and Justice Cardozo that in
case of any forced medical intervention on the body of a patient, the B
surgeon/doctor is guilty of ‘assault’ or ‘battery’. The Report also laid
emphasis on the opinion of Lord Goff placing the right of self-determination
on a high pedestal. The said relevant observations of Lord Goff, as also
cited in the Report, are as follows:-
“I wish to add that, in cases of this kind, there is no question of the C
patient having committed suicide, nor therefore of the doctor having
aided or abetted him in doing so. It is simply that the patient has,
as he is entitled to do, declined to consent to treatment which
might or would have the effect of prolonging his life, and the doctor
has, in accordance with his duty, complied with his patient’s
wishes.” D

127. We have referred to the report of the Law Commission post
Aruna Shanbaug only to highlight that there has been affirmative thought
in this regard. We have also been apprised by Mr. Narasimha, learned
Additional Solicitor General appearing for the Union of India, that there
is going to be a law with regard to passive euthanasia. E

J. Right to refuse treatment:
128. Deliberating on the issue of right to refuse treatment, Justice
Cardozo in Schloendorff v. Society of New York Hospital40 observed:-
“Every human being of adult years and sound mind has a right to F
determine what shall be done with his own body; and a surgeon
who performs the operation without his patient’s consent commits
an assault for which he is liable in damages.”
129. In a somewhat different context, King C.J. in F v. R41
identified “the paramount consideration that a person is entitled to make G
his own decisions about his life”. The said statement was cited with
approval by Mason CJ, Brennan, Dawson, Toohey and McHugh, JJ. in
Rogers v. Whitaker42. Cardozo’s statement has been cited and applied
40
(1914) 105 NE 92 : (1914) 211 NY 125
41
(1983) 33 SASR 189 at 193
42
[1992] HCA 58 : (1992) 175 CLR 479 at 487 H
134 SUPREME COURT REPORTS [2018] 6 S.C.R.

A in many cases. Thus, in Malette v. Shulman43, Robins J.A., speaking
with the concurrence of Catzman and Canthy JJA, said:-
“A competent adult is generally entitled to reject a specific
treatment or all treatment, or to select an alternative form of
treatment even if the decision may entail risks as serious as death
B and may appear mistaken in the eyes of the medical profession or
of the community …. it is the patient who has the final say on
whether to undergo the treatment.”
130. The recognition of the freedom of competent adults to make
choices about their medical care necessarily encompasses recognition
C of the right to make choices since individual free choice and self-
determination are themselves fundamental constituents of life. Robins
J.A. further clarified in Malette at page 334:-
“To deny individuals freedom of choice with respect to their health
care can only lessen and not enhance the value of life.”
D 131. In the 21st century, with the advancement of technology in
medical care, it has become possible, with the help of support machines,
to prolong the death of patients for months and even years in some
cases. At this juncture, the right to refuse medical treatment comes into
the picture. A patient (terminally ill or in a persistent vegetative state)
E exercising the right to refuse treatment may ardently wish to live but, at
the same time, he may wish to be free from any medical surgery, drugs
or treatment of any kind so as to avoid protracted physical suffering.
Any such person who has come of age and is of sound mind has a right
to refuse medical treatment. This right stands on a different pedestal as
compared to suicide, physician assisted suicide or even euthanasia. When
F a terminally ill patient refuses to take medical treatment, it can neither
be termed as euthanasia nor as suicide. Albeit, both suicide and refusal
to take treatment in case of terminal ailment shall result in the same
consequences, that is, death, yet refusal to take treatment by itself cannot
amount to suicide. In case of suicide, there has to be a self initiated
G positive action with a specific intention to cause one’s own death. On
the other hand, a patient’s right to refuse treatment lacks his specific
intention to die, rather it protects the patient from unwanted medical
treatment. A patient refusing medical treatment merely allows the disease
to take its natural course and if, in this process, death occurs, the cause
43
67 DLR (4th) 321 (1990) : 72 OR (2d) 417
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 135
[DIPAK MISRA, CJI]

for it would primarily be the underlying disease and not any self initiated A
act.
132. In Rodriguez (supra), Justice Sopinka, speaking for the
Supreme Court of Canada, held:-
“Canadian Court has recognized a common law right of patients
to refuse to consent to medical treatment or to demand that the B
treatment, once commenced, be withdrawn or discontinued. This
right has been specially recognized to exist even if the withdrawal
from or refusal of treatment may result in death.”
133. In Secretary, Department of Health and Community
Services (NT) v. JWB and SMB44, the High Court of Australia C
acknowledged the fundamental right of personal inviolability. Justice
McHugh observed that the voluntary decision of an adult person of sound
mind as to what should be done to his or her body must be respected. It
was further observed that under the doctrine of trespass, the common
law respects and protects the autonomy of adult persons and also accepts D
the right to self-determination in respect of his or her body which can be
altered only with the consent of the person concerned.
134. There is a presumption of capacity whereby an adult is
presumed to have the capacity to consent to or to refuse medical treatment
unless and until that presumption is rebutted. Butler-Sloss LJ, in Re MB E
(Medical Treatment)45, stated that in deciding whether a person has
the capacity to make a particular decision, the ultimate question is whether
that person suffers from some impairment or disturbance of mental
functioning so as to render him or her incapable of making the decision.
The consent may be vitiated if the individual concerned may not have
been competent in law to give or refuse that consent; or even if the F
individual was competent in law, the decision has been obtained by undue
influence or some other vitiating means; or the apparent consent or refusal
does not extend to the particular situation; or the terms of the consent or
refusal are ambiguous or uncertain; or if the consent or refusal is based
on incorrect information or incorrect assumption. In circumstances G
where it is practicable for a medical practitioner to obtain consent to
treatment, then, for the consent to be valid, it must be based on full
information, including as to its risks and benefits.
44
(1992) 66 AJLR 300 : (1992) 175 CLR 218
45
[1997] EWCA Civ 3093 : [1997] 2 FLR 426 H
136 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 135. Where it is not practicable for a medical practitioner to obtain
consent for treatment and where the patient’s life is in danger if
appropriate treatment is not given, then the treatment may be administered
without consent. This is justified by what is sometimes called the
“emergency principle” or “principle of necessity”. Usually, the medical
practitioner treats the patient in accordance with his clinical judgment of
B
what is in the patient’s best interests. Lord Goff of Chieveley has rightly
pointed out in F v. West Berkshire Health Authority (supra) that for
the principle of necessity to apply, two conditions must be met:-
(a) There must be “a necessity to act when it is not practicable to
communicate with the assisted person”; and
C
(b) “the action taken must be such as a reasonable person would
in all the circumstances take, acting in the best interests of the assisted
person.”
136. However, Lord Goff pointed out that the principle of necessity
D does not apply where the proposed action is contrary to the known wishes
of the assisted person to the extent that he/she is capable of rationally
forming such a wish. It follows that the principle of necessity cannot be
relied upon to justify a particular form of medical treatment where the
patient has given an advance care directive specifying that he/she does
not wish to be so treated and where there is no reasonable basis for
E doubting the validity and applicability of that directive.
K. Passive Euthanasia in the context of Article 21 of the
Constitution:
137. We have to restrict our deliberation to the issue whether
F euthanasia can come within the ambit and sweep of Article 21. Article
21 reads as follows:-
“21. Protection of life and personal liberty.—No person shall be
deprived of his life or personal liberty except according to
procedure established by law.”
G 138. The word ‘liberty’ is the sense and realization of choice of
the attributes associated with the said choice; and the term ‘life’ is the
aspiration to possess the same in a dignified manner. The two are
intrinsically interlinked. Liberty impels an individual to change and life
welcomes the change and the movement. Life does not intend to live
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 137
[DIPAK MISRA, CJI]

sans liberty as it would be, in all possibility, a meaningless survival. There A
is no doubt that no fundamental right is absolute, but any restraint imposed
on liberty has to be reasonable. Individual liberty aids in developing one’s
growth of mind and assert individuality. She/he may not be in a position
to rule others but individually, she/he has the authority over the body and
mind. The liberty of personal sovereignty over body and mind strengthens
B
the faculties in a person. It helps in their cultivation. Roscoe Pound, in
one of his lectures, has aptly said:-
“… although we think socially, we must still think of individual
interests, and of that greatest of all claims which a human being
may make, the claim to assert his individuality, to exercise freely
the will and the reason which God has given him. We must C
emphasize the social interest in the moral and social life of the
individual, but we must remember that it is the life of a free-
willing being.”
139. Liberty allows freedom of speech, association and
dissemination without which the society may face hurdles in attaining D
the requisite maturity. History is replete with narratives how the thoughts
of individuals, though not accepted by the contemporaneous society, later
on gained not only acceptance but also respect. One may not agree
with Kantian rigorism, but one must appreciate that without the said
doctrine, there could not have been dissemination of further humanistic E
principles. There is a danger in discouraging free thinking and curtailing
the power of imagination. Holmes in Adkins v. Children’s Hospital 46
has observed:-
“It is merely an example of doing what you want to do, embodied
in the word “liberty”.” F
140. The concept of liberty perceives a hazard when it feels it is
likely to become hollow. This necessarily means that there would be
liberty available to individuals subject to permissible legal restraint and it
should be made clear that in that restraint, free ideas cannot be imprisoned
by some kind of unknown terror. Liberty cannot be a slave because it G
constitutes the essential marrow of life and that is how we intend to
understand the conception of liberty when we read it in association with
the term ‘life’ as used in Article 21 of the Constitution. The great American
playwright Tennessee Williams has said:-
46
261 US 525, 568(1923)
H
138 SUPREME COURT REPORTS [2018] 6 S.C.R.

A “To be free is to have achieved your life.”
141. Life as envisaged under Article 21 has been very broadly
understood by this Court. In Board of Trustees of the Port of Bombay
v. Dilipkumar Raghavendranath Nadkarni and others47, the Court
has held that the expression “life” does not merely connote animal
B existence or a continued drudgery through life. The expression ‘life’
has a much wider meaning and, therefore, where the outcome of a
departmental enquiry is likely to adversely affect the reputation or
livelihood of a person, some of the finer graces of human civilization
which make life worth living would be jeopardized and the same can be
put in jeopardy only by law which inheres fair procedures.
C
142. In Maneka Gandhi v. Union of India and another48,
Krishna Iyer J., in his own inimitable style, states that among the great
guaranteed rights, life and liberty are the first among equals carrying a
universal connotation cardinal to a decent human order and protected by
constitutional armour. Once liberty under Article 21 is viewed in a
D truncated manner, several other freedoms fade out automatically. To
sum up, personal liberty makes for the worth of the human person. Travel
makes liberty worthwhile. ‘Life’ is a terrestrial opportunity for unfolding
personality, rising to higher status, moving to fresh woods and reaching
out to reality which makes our earthly journey a true fulfilment – not a
E tale told by an idiot full of sound and fury signifying nothing, but a fine
frenzy rolling between heaven and earth. The spirit of man is at the root
of Article 21. In the absence of liberty, other freedoms are frozen.
143. In State of Andhra Pradesh v. Challa Ramkrishna Reddy
and others49, this Court held that right to life is one of the basic human
F rights and it is guaranteed to every person by Article 21 of the Constitution
and not even the State has the authority to violate that right. A prisoner,
whether a convict or under-trial or a detenu, does not cease to be a
human being. Even when lodged in jail, he continues to enjoy all his
fundamental rights including the right to life guaranteed to him under the
Constitution. The Court further ruled that on being convicted of crime
G and deprived of their liberty in accordance with the procedure established
by law, prisoners still retain the residue of constitutional rights.

47
(1983) 1 SCC 124
48
(1978) 1 SCC 248
49
AIR 2000 SC 2083 : (2000) 5 SCC 712
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 139
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144. Having said so, we are required to advert to the issue whether A
passive euthanasia can only be conceived of through legislation or this
Court can, for the present, provide for the same. We have already
explained that the ratio laid down in Gian Kaur does not convey that the
introduction of passive euthanasia can only be by legislation. In Aruna
Shanbaug, the two-Judge Bench has placed reliance on the Constitution
B
Bench judgment in Gian Kaur to lay down the guidelines. If, eventually,
we arrive at the conclusion that passive euthanasia comes within the
sweep of Article 21 of the Constitution, we have no iota of doubt that
this Court can lay down the guidelines.
145. We may clearly state here that the interpretation of the
Constitution, especially fundamental rights, has to be dynamic and it is C
only such interpretative dynamism that breathes life into the written
words. As far as Article 21 is concerned, it is imperative to mention that
dynamism can, of course, infuse life into life and liberty as used in the
said Article.
146. In this regard, we may reproduce a couple of paragraphs D
from Central Inland Water Transport Corporation Limited and
another v. Brojo Nath Ganguly and another50. They read as under:-
“25. The story of mankind is punctuated by progress and
retrogression. Empires have risen and crashed into the dust of
history. Civilizations have nourished, reached their peak and passed E
away. In the year 1625, Carew, C.J., while delivering the opinion
of the House of Lords in Re the Earldom of Oxford in a dispute
relating to the descent of that Earldom, said:
“... and yet time hath his revolution, there must be a period and
an end of all temporal things, finis rerum, an end of names and F
dignities, and whatsoever is terrene....”
The cycle of change and experiment, rise and fall, growth and
decay, and of progress and retrogression recurs endlessly in the
history of man and the history of civilization. T.S. Eliot in the First
Chorus from “The Rock” said: G
“O perpetual revolution of configured stars,
O perpetual recurrence of determined seasons,
50
(1986) 3 SCC 156
H
140 SUPREME COURT REPORTS [2018] 6 S.C.R.

A O world of spring and autumn, birth and dying;
The endless cycle of idea and action,
Endless invention, endless experiment.”
26. The law exists to serve the needs of the society which is
B governed by it. If the law is to play its allotted role of serving the
needs of the society, it must reflect the ideas and ideologies of
that society. It must keep time with the heartbeats of the society
and with the needs and aspirations of the people. As the society
changes, the law cannot remain immutable. The early nineteenth
century essayist and wit, Sydney Smith, said: “When I hear any
C man talk of an unalterable law, I am convinced that he is an
unalterable fool.” The law must, therefore, in a changing society
march in tune with the changed ideas and ideologies”
[Emphasis added]

D 147. We approve the view in the aforesaid passages. Having
approved the aforesaid principle, we are obliged to state that the
fundamental rights in their connotative expanse are bound to engulf
certain rights which really flow from the same. In M. Nagaraj and
others v. Union of India and others51, the Constitution Bench has ruled:-
“19. The Constitution is not an ephemeral legal document
E
embodying a set of legal rules for the passing hour. It sets out
principles for an expanding future and is intended to endure for
ages to come and consequently to be adapted to the various crises
of human affairs. Therefore, a purposive rather than a strict literal
approach to the interpretation should be adopted. A constitutional
F provision must be construed not in a narrow and constricted sense
but in a wide and liberal manner so as to anticipate and take account
of changing conditions and purposes so that a constitutional
provision does not get fossilised but remains flexible enough to
meet the newly emerging problems and challenges.”
G And again:-
“29. … constitutionalism is about limits and aspirations. According
to Justice Brennan, interpretation of the Constitution as a written
text is concerned with aspirations and fundamental principles. In
his article titled “Challenge to the Living Constitution” by Herman
51
H (2006) 8 SCC 212
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 141
[DIPAK MISRA, CJI]

Belz, the author says that the Constitution embodies aspiration to A
social justice, brotherhood and human dignity. It is a text which
contains fundamental principles. …”
148. In this context, we may make a reference to a three-Judge
Bench decision in V.C. Rangadurai v. D. Gopalan and others52 wherein
the majority, while dealing with Section 35(3) of the Advocates Act, B
1961, stated:-
“8. … we may note that words grow in content with time and
circumstance, that phrases are flexible in semantics, that the printed
text is a set of vessels into which the court may pour appropriate
judicial meaning. That statute is sick which is allergic to change in C
sense which the times demand and the text does not countermand.
That court is superficial which stops with the cognitive and declines
the creative function of construction. So, we take the view that
‘quarrying’ more meaning is permissible out of Section 35(3) and
the appeal provisions, in the brooding background of social justice,
sanctified by Article 38, and of free legal aid enshrined by Article D
39A of the Constitution.”
The learned Judges went on to say:-
“11. … Judicial ‘Legisputation’ to borrow a telling phrase of J.
Cohen, is not legislation but application of a given legislation to E
new or unforeseen needs and situations broadly falling within the
statutory provision. In that sense, ‘interpretation is inescapably a
kind of legislation’ (The Interpretation and Application of Statutes,
Read Dickerson, p. 238). Ibid. p. 238. This is not legislation stricto
sensu but application, and is within the court’s province.”
F
149. The aforesaid authorities clearly show the power that falls
within the province of the Court. The language employed in the
constitutional provision should be liberally construed, for such provision
can never remain static. It is because stasticity would mar the core
which is not the intent.
G
K.1 Individual Dignity as a facet of Article 21:
150. Dignity of an individual has been internationally recognized
as an important facet of human rights in the year 1948 itself with the
enactment of the Universal Declaration of Human Rights. Human dignity
52
(1979) 1 SCC 308
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142 SUPREME COURT REPORTS [2018] 6 S.C.R.

A not only finds place in the Preamble of this important document but also
in Article 1 of the same. It is well known that the principles set out in
UDHR are of paramount importance and are given utmost weightage
while interpreting human rights all over the world. The first and foremost
responsibility fixed upon the State is the protection of human dignity
without which any other right would fall apart. Justice Brennan in his
B
book The Constitution of the United States: Contemporary Ratification
has referred to the Constitution as “a sparkling vision of the supremacy
of the human dignity of every individual.”
151. In fact, in the case of Christine Goodwin v. the United
Kingdom53 the European Court of Human Rights, speaking in the context
C of the Convention for the Protection of Human Rights and Fundamental
Freedoms, has gone to the extent of stating that “the very essence of the
Convention is respect for human dignity and human freedom”. In the
South African case of S v. Makwanyane54 O’ Regan J. stated in the
Constitutional Court that “without dignity, human life is substantially
D diminished.”
152. Having noted the aforesaid, it is worthy to note that our Court
has expanded the spectrum of Article 21. In the latest nine-Judge Bench
decision in K.S. Puttaswamy and another v. Union of India and
others55, dignity has been reaffirmed to be a component under the said
E fundamental right. Human dignity is beyond definition. It may at times
defy description. To some, it may seem to be in the world of abstraction
and some may even perversely treat it as an attribute of egotism or
accentuated eccentricity. This feeling may come from the roots of
absolute cynicism. But what really matters is that life without dignity is
like a sound that is not heard. Dignity speaks, it has its sound, it is natural
F and human. It is a combination of thought and feeling, and, as stated
earlier, it deserves respect even when the person is dead and described
as a ‘body’. That is why, the Constitution Bench in M. Nagaraj (supra)
lays down:-
“….It is the duty of the State not only to protect the human dignity
G but to facilitate it by taking positive steps in that direction. No
exact definition of human dignity exists. It refers to the intrinsic
value of every human being, which is to be respected. It cannot
53
[2002] ECHR 588
54
1995 (3) SA 391
H 55
(2017) 10 SCC 1
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 143
[DIPAK MISRA, CJI]

be taken away. It cannot give (sic be given). It simply is. Every A
human being has dignity by virtue of his existence. …”
153. The concept and value of dignity requires further elaboration
since we are treating it as an inextricable facet of right to life that respects
all human rights that a person enjoys. Life is basically self-assertion. In
the life of a person, conflict and dilemma are expected to be normal B
phenomena. Oliver Wendell Holmes, in one of his addresses, quoted a
line from a Latin poet who had uttered the message, “Death plucks my
ear and says, Live- I am coming”. That is the significance of living. But
when a patient really does not know if he/she is living till death visits
him/her and there is constant suffering without any hope of living, should
one be allowed to wait? Should she/he be cursed to die as life gradually C
ebbs out from her/his being? Should she/he live because of innovative
medical technology or, for that matter, should he/she continue to live
with the support system as people around him/her think that science in
its progressive invention may bring about an innovative method of cure?
To put it differently, should he/she be “guinea pig” for some kind of D
experiment? The answer has to be an emphatic “No” because such
futile waiting mars the pristine concept of life, corrodes the essence of
dignity and erodes the fact of eventual choice which is pivotal to privacy.
Recently, in K.S. Puttaswamy (supra), one of us (Dr. Chandrachud J.),
while speaking about life and dignity, has observed:-
E
“118. Life is precious in itself. But life is worth living because of
the freedoms which enable each individual to live life as it should
be lived. The best decisions on how life should be lived are entrusted
to the individual. They are continuously shaped by the social milieu
in which individuals exist. The duty of the State is to safeguard
the ability to take decisions — the autonomy of the individual — F
and not to dictate those decisions. “Life” within the meaning of
Article 21 is not confined to the integrity of the physical body. The
right comprehends one’s being in its fullest sense. That which
facilitates the fulfilment of life is as much within the protection of
the guarantee of life. G
119. To live is to live with dignity. The draftsmen of the Constitution
defined their vision of the society in which constitutional values
would be attained by emphasising, among other freedoms, liberty
and dignity. So fundamental is dignity that it permeates the core
of the rights guaranteed to the individual by Part III. Dignity is the H
144 SUPREME COURT REPORTS [2018] 6 S.C.R.

A core which unites the fundamental rights because the fundamental
rights seek to achieve for each individual the dignity of existence.
Privacy with its attendant values assures dignity to the individual
and it is only when life can be enjoyed with dignity can liberty be
of true substance. Privacy ensures the fulfilment of dignity and is
a core value which the protection of life and liberty is intended to
B
achieve.”
154. In Mehmood Nayyar Azam v. State of Chhattisgarh and
others56, a two-Judge Bench held thus:-
“Albert Schweitzer, highlighting on Glory of Life, pronounced with
C conviction and humility, “the reverence of life offers me my
fundamental principle on morality”. The aforesaid expression may
appear to be an individualistic expression of a great personality,
but, when it is understood in the complete sense, it really denotes,
in its conceptual essentiality, and connotes, in its macrocosm, the
fundamental perception of a thinker about the respect that life
D commands. The reverence of life is insegragably associated with
the dignity of a human being who is basically divine, not servile. A
human personality is endowed with potential infinity and it blossoms
when dignity is sustained. The sustenance of such dignity has to
be the superlative concern of every sensitive soul. The essence
E of dignity can never be treated as a momentary spark of light or,
for that matter, ‘a brief candle’, or ‘a hollow bubble’. The spark
of life gets more resplendent when man is treated with dignity
sans humiliation, for every man is expected to lead an honourable
life which is a splendid gift of “creative intelligence””

F 155. The aforesaid authority emphasizes the seminal value of life
that is inherent in the concept of life. Dignity does not recognize or
accept any nexus with the status or station in life. The singular principle
that it pleasantly gets beholden to is the integral human right of a person.
Law gladly takes cognizance of the fact that dignity is the most sacred
possession of a man. And the said possession neither loses its sanctity
G in the process of dying nor evaporates when death occurs. In this context,
reference to a passage from Vikas Yadav v. State of Uttar Pradesh
and others57 is note worthy. The two Judge Bench of this Court, while
dealing with the imposition of a fixed term sentence under Section 302
56
(2012) 8 SCC 1
57
(2016) 9 SCC 541
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 145
[DIPAK MISRA, CJI]

IPC, took note of the fact that the High Court had observed the magnitude A
of vengeance of the accused and the extent to which they had gone to
destroy the body of the deceased. Keeping in view the findings of the
High Court, this Court stated:-
“From the evidence brought on record as well as the analysis
made by the High Court, it is demonstrable about the criminal B
proclivity of the accused persons, for they have neither the respect
for human life nor did they have any concern for the dignity of a
dead person. They had deliberately comatosed the feeling that
even in death a person has dignity and when one is dead deserves
to be treated with dignity. That is the basic human right. The
brutality that has been displayed by the accused persons clearly C
exposes the depraved state of mind.”
The aforesaid passage shows the pedestal on which the Court
has placed the dignity of an individual.
156. Reiterating that dignity is the most fundamental aspect of D
right to life, it has been held in the celebrated case of Francis Coralie
Mullin v. The Administrator, Union Territory of Delhi 58:-
“We think that the right to life includes the right to live with human
dignity and all that goes along with it, namely, the bare necessaries
of life such as adequate nutrition, clothing and shelter and facilities E
for reading, writing and expressing one-self in diverse forms, freely
moving about and mixing and commingling with fellow human
beings. Of course, the magnitude and content of the components
of this right would depend upon the extent of the economic
development of the country, but it must, in any view of the matter,
include the right to the basic necessities of life and also the right F
to carry on such functions and activities as constitute the bare
minimum expression of the human-self. Every act which offends
against or impairs human dignity would constitute deprivation
protanto of this right to live and it would have to be in accordance
with reasonable, fair and just procedure established by law which G
stands the test of other fundamental rights. Now obviously, any
form of torture or cruel, inhuman or degrading treatment would
be offensive to human dignity and constitute an inroad into this
right to live and it would, on this view, be prohibited by Article 21
58
(1981) 1 SCC 608
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146 SUPREME COURT REPORTS [2018] 6 S.C.R.

A unless it is in accordance with procedure prescribed by law, but
no law which authorises and no procedure which leads to such
torture or cruel, inhuman or degrading treatment can ever stand
the test of reasonableness and non-arbitrariness: it would plainly
be unconstitutional and void as being violative of Articles 14 and
21. It would thus be seen that there is implicit in Article 21 the
B
right to protection against torture or cruel, inhuman or degrading
treatment which is enunciated in Article 5 of the Universal
Declaration of Human Rights and guaranteed by Article 7 of the
International Covenant on Civil and Political Rights.”
157. In National Legal Services Authority v. Union of India
C and others 59, the Apex Court has held that there is a growing recognition
that the true measure of development of a nation is not economic growth;
it is human dignity.
158. In Shabnam v. Union of India and another 60, it has been
further held that:-
D
“This right to human dignity has many elements. First and foremost,
human dignity is the dignity of each human being ‘as a human
being’. Another element, which needs to be highlighted, in the
context of the present case, is that human dignity is infringed if a
person’s life, physical or mental welfare is armed. It is in this
E sense torture, humiliation, forced labour, etc. all infringe on human
dignity.”
159. In Gian Kaur (supra), the Constitution Bench indicates
acceleration of the conclusion of the process of death which has
commenced and this indication, as observed by us, allows room for
F expansion. In the said case, the Court was primarily concerned with the
question of constitutional validity of Sections 306 and 309 of IPC. The
Court was conscious of the fact that the debate on euthanasia was not
relevant for deciding the question under consideration. The Court,
however, in no uncertain terms expounded that the word “life” in Article
G 21 has been construed as life with human dignity and it takes within its
ambit the “right to die with dignity” being part of the “right to live with
dignity”. Further, the “right to live with human dignity” would mean
existence of such a right upto the end of natural life which would include
the right to live a dignified life upto the point of death including the dignified
59
(2014) 5 SCC 438
60
H (2015) 6 SCC 702
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 147
[DIPAK MISRA, CJI]

procedure of death. While adverting to the situation of a dying man who A
is terminally ill or in a persistent vegetative state where he may be
permitted to terminate it by a premature extinction of his life, the Court
observed that the said category of cases may fall within the ambit of
“right to die with dignity” as part of the right to live with dignity when
death due to the termination of natural life is certain and imminent and
B
the process of natural death has commenced, for these are not cases of
extinguishing life but only of accelerating the conclusion of the process
of natural death which has already commenced. The sequitur of this
exposition is that there is little doubt that a dying man who is terminally ill
or in a persistent vegetative state can make a choice of premature
extinction of his life as being a facet of Article 21 of the Constitution. If C
that choice is guaranteed being part of Article 21, there is no necessity
of any legislation for effectuating that fundamental right and more so his
natural human right. Indeed, that right cannot be an absolute right but
subject to regulatory measures to be prescribed by a suitable legislation
which, however, must be reasonable restrictions and in the interests of
D
the general public. In the context of the issue under consideration, we
must make it clear that as part of the right to die with dignity in case of
a dying man who is terminally ill or in a persistent vegetative state, only
passive euthanasia would come within the ambit of Article 21 and not
the one which would fall within the description of active euthanasia in
which positive steps are taken either by the treating physician or some E
other person. That is because the right to die with dignity is an intrinsic
facet of Article 21. The concept that has been touched deserves to be
concretised, the thought has to be realized. It has to be viewed from
various angles, namely, legal permissibility, social and ethical ethos and
medical values.
F
160. The purpose of saying so is only to highlight that the law
must take cognizance of the changing society and march in consonance
with the developing concepts. The need of the present has to be served
with the interpretative process of law. However, it is to be seen how
much strength and sanction can be drawn from the Constitution to
consummate the changing ideology and convert it into a reality. The G
immediate needs are required to be addressed through the process of
interpretation by the Court unless the same totally falls outside the
constitutional framework or the constitutional interpretation fails to
recognize such dynamism. The Constitution Bench in Gian Kaur, as
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148 SUPREME COURT REPORTS [2018] 6 S.C.R.

A stated earlier, distinguishes attempt to suicide and abetment of suicide
from acceleration of the process of natural death which has commenced.
The authorities, we have noted from other jurisdictions, have observed
the distinctions between the administration of lethal injection or certain
medicines to cause painless death and non-administration of certain
treatment which can prolong the life in cases where the process of dying
B
that has commenced is not reversible or withdrawal of the treatment
that has been given to the patient because of the absolute absence of
possibility of saving the life. To explicate, the first part relates to an
overt act whereas the second one would come within the sphere of
informed consent and authorized omission. The omission of such a nature
C will not invite any criminal liability if such action is guided by certain
safeguards. The concept is based on non-prolongation of life where
there is no cure for the state the patient is in and he, under no
circumstances, would have liked to have such a degrading state. The
words “no cure” have to be understood to convey that the patient remains
in the same state of pain and suffering or the dying process is delayed by
D
means of taking recourse to modern medical technology. It is a state
where the treating physicians and the family members know fully well
that the treatment is administered only to procrastinate the continuum of
breath of the individual and the patient is not even aware that he is
breathing. Life is measured by artificial heartbeats and the patient has to
E go through this undignified state which is imposed on him. The dignity of
life is denied to him as there is no other choice but to suffer an avoidable
protracted treatment thereby thus indubitably casting a cloud and creating
a dent in his right to live with dignity and face death with dignity, which
is a preserved concept of bodily autonomy and right to privacy. In such
a stage, he has no old memories or any future hopes but he is in a state
F
of misery which nobody ever desires to have. Some may also silently
think that death, the inevitable factum of life, cannot be invited. To meet
such situations, the Court has a duty to interpret Article 21 in a further
dynamic manner and it has to be stated without any trace of doubt that
the right to life with dignity has to include the smoothening of the process
G of dying when the person is in a vegetative state or is living exclusively
by the administration of artificial aid that prolongs the life by arresting
the dignified and inevitable process of dying. Here, the issue of choice
also comes in. Thus analysed, we are disposed to think that such a right
would come within the ambit of Article 21 of the Constitution.
H
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L. Right of self-determination and individual autonomy: A
161. Having dealt with the right to acceleration of the process of
dying a natural death which is arrested with the aid of modern innovative
technology as a part of Article 21 of the Constitution, it is necessary to
address the issues of right of self-determination and individual autonomy.
162. John Rawls says that the liberal concept of autonomy focuses B
on choice and likewise, self-determination is understood as exercised
through the process of choosing61. The respect for an individual human
being and in particular for his right to choose how he should live his own
life is individual autonomy or the right of self- determination. It is the
right against non-interference by others, which gives a competent person C
who has come of age the right to make decisions concerning his or her
own life and body without any control or interference of others. Lord
Hoffman, in Reeves v. Commissioner of Police of the Metropolis62
has stated:-
“Autonomy means that every individual is sovereign over himself D
and cannot be denied the right to certain kinds of behaviour, even
if intended to cause his own death.”
163. In the context of health and medical care decisions, a person’s
exercise of self-determination and autonomy involves the exercise of
his right to decide whether and to what extent he/she is willing to submit E
himself/herself to medical procedures and treatments, choosing amongst
the available alternative treatments or, for that matter, opting for no
treatment at all which, as per his or her own understanding, is in
consonance with his or her own individual aspirations and values.
164. In Airedale (supra), Lord Goff has expressed that it is F
established that the principle of self-determination requires that respect
must be given to the wishes of the patient so that if an adult patient of
sound mind refuses, however unreasonably, to consent to treatment or
care by which his/her life would or might be prolonged, the doctors
responsible for his/her care must give effect to his/her wishes, even
though they do not consider it to be in his/her best interests to do so and G
to this extent, the principle of sanctity of human life must yield to the
principle of self-determination. Lord Goff further says that the doctor’s
duty to act in the best interests of his patient must likewise be qualified
61
Rawls, John, Political Liberalism 32, 33, New York: Columbia University Press,
1993.
62
[2000] 1 AC 360, 379 H
150 SUPREME COURT REPORTS [2018] 6 S.C.R.

A with the patient’s right of self determination. Therefore, as far as the
United Kingdom is concerned, it is generally clear that whenever there
is a conflict between a capable adult’s exercise of the right of self-
determination and the State’s interest in preserving human life by treating
it as sanctimonious, the right of the individual must prevail.
B 165. In the United States, the aspect of self-determination and
individual autonomy is concretised in law as all fifty States along with
the District of Columbia, the capital, which is commonly referred as
Washington D.C., have passed legislations upholding different forms of
Advance Directives. In the United States, even before the enactment of
the said laws, a terminally ill person was free to assert the right to die as
C an ancillary right to the constitutionally protected right to privacy. In In
Re Quinlan (supra), where a 21 year old girl in chronic PVS was on
ventilator support, the Court, while weighing Quinlan’s right to privacy
qua the State’s interest in preserving human life, found that as the degree
of bodily invasion increases and the prognosis for the patient’s recovery
D dims, the patient’s right to privacy increases and the State’s interest
weakens. The Supreme Court of New Jersey finally ruled that the
unwritten constitutional right of privacy was broad enough to encompass
a patient’s decision to decline medical treatment in certain circumstances.
Again, in Re Jobes63, which was also a case concerned with a PVS
patient, the Court, following the decision in In Re Quinlan, upheld the
E principle of self determination and autonomy of an incompetent person.
166. The Canadian Criminal Code asserts and protects the sanctity
of life in a number of ways which directly confront the autonomy of the
terminally ill in their medical decision making. However, the Supreme
Court of Canada in Reibl v. Hughes64 approved an oft-quoted statement
F of Cardozo J. in Scholoendorf (supra) that “every human being of adult
years and sound mind has a right to determine what shall be done with
his own body” and Chief Justice Laskin in Reibl (supra) has further
added that battery would lie where surgery or treatment was performed
without consent or where apart from emergency situations, surgery or
G medical treatment was given beyond that to which there was consent.
Thus, the Supreme Court of Canada suggested that competent adults
have the right to make their own medical decisions even if such decisions
are unwise.
63
(1987) 108 N.J. 394
64
[1980] 2 SCR 880 at 890-891
H
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[DIPAK MISRA, CJI]

167. In Aruna Shanbaug (supra), this Court has observed that A
autonomy means the right to self-determination where the informed
patient has a right to choose the manner of his treatment. To be
autonomous the patient should be competent to make decisions and
choices. In the event that he is incompetent to make choices, his wishes
expressed in advance in the form of a Living Will, or the wishes of
B
surrogates acting on his behalf (‘substituted judgment’) are to be
respected. The surrogate is expected to represent what the patient may
have decided had he/she been competent or to act in the patient’s best
interest. It is expected that a surrogate acting in the patient’s best interest
follows a course of action because it is best for the patient, and is not
influenced by personal convictions, motives or other considerations. C
168. Thus, enquiring into common law and statutory rights of
terminally ill persons in other jurisdictions would indicate that all adults
with the capacity to consent have the common law right to refuse medical
treatment and the right of self determination.
169. We may, however, add a word of caution that doctors would D
be bound by the choice of self-determination made by the patient who is
terminally ill and undergoing a prolonged medical treatment or is surviving
on life support, subject to being satisfied that the illness of the patient is
incurable and there is no hope of his being cured. Any other consideration
cannot pass off as being in the best interests of the patient. E
M. Social morality, medical ethicality and State interest:
170. Having dwelt upon the issue of self-determination, we may
presently delve into three aspects, namely, social morality, medical
ethicality and the State interest. The aforesaid concepts have to be
addressed in the constitutional backdrop. We may clearly note that the F
society at large may feel that a patient should be treated till he breathes
his last breath and the treating physicians may feel that they are bound
by their Hippocratic oath which requires them to provide treatment and
save life and not to put an end to life by not treating the patient. The
members of the family may remain in a constant state of hesitation being G
apprehensive of many a social factor which include immediate claim of
inheritance, social stigma and, sometimes, the individual guilt. The
Hippocratic oath taken by a doctor may make him feel that there has
been a failure on his part and sometimes also make him feel scared of
various laws. There can be allegations against him for negligence or
criminal culpability. H
152 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 171. In this regard, two aspects are to be borne in mind. First,
withdrawal of treatment in an irreversible situation is different from not
treating or attending to a patient and second, once passive euthanasia is
recognized in law regard being had to the right to die with dignity when
life is ebbing out and when the prolongation is done sans purpose, neither
the social morality nor the doctors’ dilemma or fear will have any place.
B
It is because the sustenance of dignity and self-respect of an individual
is inhered in the right of an individual pertaining to life and liberty and
there is necessity for this protection. And once the said right comes
within the shelter of Article 21 of the Constitution, the social perception
and the apprehension of the physician or treating doctor regarding facing
C litigation should be treated as secondary because the primacy of the
right of an individual in this regard has to be kept on a high pedestal.
172. It is to be borne in mind that passive euthanasia fundamentally
connotes absence of any overt act either by the patient or by the doctors.
It also does not involve any kind of overt act on the part of the family
D members. It is avoidance of unnecessary intrusion in the physical frame
of a person, for the inaction is meant for smooth exit from life. It is
paramount for an individual to protect his dignity as an inseparable part
of the right to life which engulfs the dignified process of dying sans pain,
sans suffering and, most importantly, sans indignity.
E 173. There are philosophers, thinkers and also scientists who feel
that life is not confined to the physical frame and biological
characteristics. But there is no denial of the fact that life in its connotative
expanse intends to search for its meaning and find the solution of the
riddle of existence for which some lean on atheism and some vouchsafe
for faith and yet some stand by the ideas of an agnostic. However, the
F legal fulcrum has to be how Article 21 of the Constitution is understood.
If a man is allowed to or, for that matter, forced to undergo pain, suffering
and state of indignity because of unwarranted medical support, the
meaning of dignity is lost and the search for meaning of life is in vain.
N. Submissions of the States
G
174. In this context, we may reflect on the submissions advanced
on behalf of certain States. As stated earlier, there is a categorical
assertion that protection of human life is paramount and it is obligatory
on behalf of the States to provide treatment and to see that no one dies
because of lack of treatment and to realise the principles enshrined in
H Chapter IV of the Constitution. Emphasis has been laid on the State
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 153
[DIPAK MISRA, CJI]

interest and the process of abuse that can take place in treating passive A
euthanasia as permissible in law. To eliminate the possibility of abuse,
safeguards can be taken and guidelines can be framed. But on the plea
of possibility of abuse, the dignity in the process of dying being a facet of
Article 21 should not be curbed.
Mr. Datar, learned senior counsel in the course of arguments, has B
advanced submissions in support of passive euthanasia and also given
suggestions spelling out the guidelines for advance directive and also
implementation of the same when the patient is hospitalized. The said
aspect shall be taken into consideration while giving effect to the advance
directive and also taking steps for withdrawal of medical support.
C
O. Submissions of Intervenor (Society for the Right to Die
with Dignity):
175. Mr. Mohta, learned counsel appearing for the intervenor,
that is, Society for the Right to Die with Dignity, has drawn our attention
to certain articles and submitted that from the days of Plato to the time D
of Sir Thomas More and other thinkers, painless and peaceful death has
been advocated. He would also submit that ancient wisdom of India
taught people not to fear death but to aspire for deathlessness and
conceive it as “Mahaprasthana”. It is his submission that in the modern
State, the State interest should not over-weigh the individual interest in
the sphere of a desire to die a peaceful death which basically conveys E
refusal of treatment when the condition of the individual suffering from
a disease is irreversible. The freedom of choice in this sphere, as Mr.
Mohta would put it, serves the cause of humanitarian approach which is
not the process to put an end to life by taking a positive action but to
allow a dying patient to die peaceably instead of prolonging the process F
of dying without purpose that creates a dent in his dignity.
176. The aforesaid argument, we have no hesitation to say, has
force. It is so because it is in accord with the constitutional precept and
fosters the cherished value of dignity of an individual. It saves a helpless
person from uncalled for and unnecessary treatment when he is G
considered as merely a creature whose breath is felt or measured
because of advanced medical technology. His “being” exclusively rests
on the mercy of the technology which can prolong the condition for
some period. The said prolongation is definitely not in his interest. On
the contrary, it tantamounts to destruction of his dignity which is the core
H
154 SUPREME COURT REPORTS [2018] 6 S.C.R.

A value of life. In our considered opinion, in such a situation, an individual
interest has to be given priority over the State interest.
P. Advance Directive/Advance Care Directive/Advance
Medical Directive:
177. In order to overcome the difficulty faced in case of patients
B who are unable to express their wishes at the time of taking the decision,
the concept of Advance Medical Directives emerged in various countries.
The proponents of Advance Medical Directives contend that the concept
of patient autonomy for incompetent patients can be given effect to, by
giving room to new methods by which incompetent patients can
C beforehand communicate their choices which are made while they are
competent. Further, it may be argued that failure to recognize Advance
Medical Directives would amount to non-facilitation of the right to have
a smoothened dying process. That apart, it accepts the position that a
competent person can express her/his choice to refuse treatment at the
time when the decision is required to be made.
D
178. Advance Directives for health care go by various names in
different countries though the objective by and large is the same, that is,
to specify an individual’s health care decisions and to identify persons
who will take those decisions for the said individual in the event he is
unable to communicate his wishes to the doctor.
E
179. The Black’s Law Dictionary defines an advance medical
directive as, “a legal document explaining one’s wishes about medical
treatment if one becomes incompetent or unable to communicate”. A
living will, on the other hand, is a document prescribing a person’s wishes
regarding the medical treatment the person would want if he was unable
F to share his wishes with the health care provider.
180. Another type of advance medical directive is medical power
of attorney. It is a document which allows an individual (principal) to
appoint a trusted person (agent) to take health care decisions when the
principal is not able to take such decisions. The agent appointed to deal
G with such issues can interpret the principal’s decisions based on their
mutual knowledge and understanding.
181. Advance Directives have gained lawful recognition in several
jurisdictions by way of legislation and in certain countries through judicial
pronouncements. In vast majority of the States in USA, it is mandatory
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[DIPAK MISRA, CJI]

for the doctors to give effect to the wishes of the patients as declared by A
them in their advance directives. California was the first State to legally
sanction living will. The United States Congress in 1990, with the objective
of protecting the fundamental principles of self-autonomy and self-
determination, enacted the Patient Self-Determination Act (PSDA) which
acknowledged the rights of the patient to either refuse or accept treatment.
B
Following this, all 50 States enacted legislations adopting advance
directives. Apart from this, several States of USA also permit the patients
to appoint a health care proxy which becomes effective only when the
patient is unable to make decisions.
182. In order to deal with the technicalities and intricacies
associated with an instrument as complex as an Advance Directive, C
several derivatives/versions have evolved over time. The National Right
to Life Committee (NRLC) in the United States came up with a version
of a living will which was called ‘Will to Live” which is a safeguard of
the lives of patients who wish to continue treatment and not refuse life-
sustaining treatment. This form of active declaration gains importance D
in cases where the will of the patient cannot be deciphered with certainty
and the Courts order withdrawal of life supporting treatment where they
deem the life of the patient as not worthwhile.
183. Yet another measure for finding and accessing the patient’s
advance directive was the setting up of the U.S. Living Will Registry. As E
per this model, it was obligatory on the part of the hospital administration
to ask a patient, who would be admitted, if he/she had an advance
directive and store the same on their medical file. A special power to
the Advance Directives introduced by Virginia was the “Ulysses Clause”
which accords protection in situations when the patient goes into relapse
in his/her condition, that is, schizophrenia and refuses treatment which F
they would not refuse if not for the said relapse.
184. A new type of advance directive is the “Do Not Resuscitate
Order” (DNRO) in Florida which is a form of patient identification device
developed by the Department of Health to identify people who do not
wish to be resuscitated in the event of respiratory or cardiac arrest. In G
Florida State of United States, where an unconscious patient with the
phrase “Do Not Resuscitate” tattooed on his chest was brought in
paramedics, the doctors were left in a conundrum whether the message
was not to provide any medical treatment to the patient and ultimately,
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156 SUPREME COURT REPORTS [2018] 6 S.C.R.

A the doctors opted not to perform any medical procedure and the patient,
thereafter, died. This case highlights the dynamics involved in the concept
of advanced directives due to the intricacies surrounding the concept.
185. The Mental Capacity Act governs the law relating to advance
directives in the UK. Specific guidelines as to the manner in which the
B advance directive should be drafted and the necessary conditions that
need to be fulfilled in order to give effect to the directives have been
categorically laid out in the said piece of legislation. A few specific
requirements in case of refusal of life sustaining treatment is the
verification of the decision-maker that the refusal operates even if life is
at risk and that the directive should be in the written form and signed and
C witnessed. However, an advance directive refusing food and water has
not been recognized under this statute. Further, the Act recognizes the
rights of the patient to appoint a health care proxy who is referred to as
“lasting power of attorney”. In order for the proxy decision-maker so
appointed to be competent to consent or refuse life-sustaining treatment
D of the decision-maker, an express provision delegating the said authority
should be a part of the advance directive. In general, as per the settled
law vide the decision in Airedale, life sustaining treatment including
artificial nutrition and hydration can be withdrawn if the patient consents
to it and in case of incompetent patients, if it is in their best interest to do
so.
E
186. Australia too, by way of legislation, has well established
principles governing Advance Health Directives. Except Tasmania, all
states have a provision for Advance Directives. The Advance Directives
as postulated by the different legislations in each State in Australia differ
in nature and their binding effect but the objective of every type remains
F the same, that is, preservation of the patient’s autonomy. There are several
circumstances when the advance health care directives or certain
provisions contained therein become inoperative.
187. In Queensland, the directive becomes inoperative if the
medical health practitioner is of the opinion that giving effect to the
G directive is inconsistent with good medical practice or in case of a change
in circumstances, including new advances in medicine, medical practice
and technology, to the extent that giving effect to the directive is
inappropriate.
188. In the State of Victoria, an advance directive ceases to apply
H due to a change in the condition of the patient to the extent that the
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[DIPAK MISRA, CJI]

condition in relation to which the advance directive was given no longer A
exists. Further, South Australia permits a medical practitioner to refuse
to comply with a certain provision in an advance directive in case he/she
has enough reason to believe that the patient did not intend the provision
to apply in certain conditions or the provision would not reflect the present
wishes of the patient. In Western Australia, the occurrence of a change
B
in circumstances which either the decision maker could have never
anticipated at the time of making the directive or which could have the
effect on a reasonable person in the position of the decision maker to
change his/her mind regarding the treatment decision would invalidate
the said treatment decision in the directive. In Northern Territory, an
advance consent direction is disregarded in case giving effect to it would C
result in such unacceptable pain and suffering to the patient or would be
so unjustifiable and rather it is more reasonable to override the wishes of
the patient. Furthermore, if the medical practitioner is of the opinion that
the patient would have never intended the advance consent direction to
apply in the circumstances, then the advance consent direction need not
D
be complied with.
189. Canada does not have a federal legislation exclusively to
regulate advance directives. Rather, there are eleven different provincial
approaches governing the law on passive euthanasia and advance
directives in Canada. The provinces of Alberta, Saskatchewan, Manitoba,
Prince Edward Island, Newfoundland and Labrador and Northwest E
Territories have a provision for both proxy and instructional directives,
whereas, the States of British Columbia, Ontario, Quebec and Yukon
provide only for appointment of a proxy while simultaneously recognizing
the binding nature of previously given instructions. The respective
legislations of the provinces/territories differ from one another on several F
criteria, for instance, minimum age requirement and other formalities to
be complied with, such as written nature of the advance directive, etc.
Furthermore, some of the provinces mandate a prior consultation with a
lawyer. Wishes orally expressed have also been recognized by some
provinces.
G
190. Having dealt with the principles in vogue across the globe,
we may presently proceed to deal with the issue of advance medical
directive which should be ideal in our country. Be it noted, though the
learned counsel for the petitioner has used the words “living will”, yet
we do not intend to use the said terminology. We have already stated
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158 SUPREME COURT REPORTS [2018] 6 S.C.R.

A that safeguards and guidelines are required to be provided. First, we
shall analyse the issue of legal permissibility of the advance medical
directive. In other jurisdictions, the concepts of “living will” and
involvement of Attorney are stipulated. There is no legal framework in
our country as regards the Advance Medical Directive but we are obliged
to protect the right of the citizens as enshrined under Article 21 of the
B
Constitution. It is our constitutional obligation. As noticed earlier, the
two-Judge Bench in Aruna Shanbaug (supra) has provided for
approaching the High Court under Article 226 of the Constitution. The
directions and guidelines to be given in this judgment would be
comprehensive and would also cover the situation dealt with Aruna
C Shanbaug case.
191. In our considered opinion, Advance Medical Directive would
serve as a fruitful means to facilitate the fructification of the sacrosanct
right to life with dignity. The said directive, we think, will dispel many a
doubt at the relevant time of need during the course of treatment of the
D patient. That apart, it will strengthen the mind of the treating doctors as
they will be in a position to ensure, after being satisfied, that they are
acting in a lawful manner. We may hasten to add that Advance Medical
Directive cannot operate in abstraction. There has to be safeguards.
They need to be spelt out. We enumerate them as follows:-
E (a) Who can execute the Advance Directive and how?
(i) The Advance Directive can be executed only by an adult
who is of a sound and healthy state of mind and in a position
to communicate, relate and comprehend the purpose and
consequences of executing the document.
F (ii) It must be voluntarily executed and without any coercion
or inducement or compulsion and after having full
knowledge or information.
(iii) It should have characteristics of an informed consent given
without any undue influence or constraint.
G
(iv) It shall be in writing clearly stating as to when medical
treatment may be withdrawn or no specific medical
treatment shall be given which will only have the effect of
delaying the process of death that may otherwise cause
him/her pain, anguish and suffering and further put him/her
H in a state of indignity.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 159
[DIPAK MISRA, CJI]

(b) What should it contain? A
(i) It should clearly indicate the decision relating to the
circumstances in which withholding or withdrawal of
medical treatment can be resorted to.
(ii) It should be in specific terms and the instructions must be
absolutely clear and unambiguous. B

(iii) It should mention that the executor may revoke the
instructions/authority at any time.
(iv) It should disclose that the executor has understood the
consequences of executing such a document. C
(v) It should specify the name of a guardian or close relative
who, in the event of the executor becoming incapable of
taking decision at the relevant time, will be authorized to
give consent to refuse or withdraw medical treatment in a
manner consistent with the Advance Directive. D
(vi)In the event that there is more than one valid Advance
Directive, none of which have been revoked, the most
recently signed Advance Directive will be considered as
the last expression of the patient’s wishes and will be given
effect to.
E
(c) How should it be recorded and preserved?
(i) The document should be signed by the executor in the
presence of two attesting witnesses, preferably independent,
and countersigned by the jurisdictional Judicial Magistrate
of First Class (JMFC) so designated by the concerned F
District Judge.
(ii) The witnesses and the jurisdictional JMFC shall record their
satisfaction that the document has been executed voluntarily
and without any coercion or inducement or compulsion and
with full understanding of all the relevant information and G
consequences.
(iii) The JMFC shall preserve one copy of the document in his
office, in addition to keeping it in digital format.

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160 SUPREME COURT REPORTS [2018] 6 S.C.R.

A (iv) The JMFC shall forward one copy of the document to the
Registry of the jurisdictional District Court for being
preserved. Additionally, the Registry of the District Judge
shall retain the document in digital format.
(v) The JMFC shall cause to inform the immediate family
B members of the executor, if not present at the time of
execution, and make them aware about the execution of
the document.
(vi) A copy shall be handed over to the competent officer of
the local Government or the Municipal Corporation or
C Municipality or Panchayat, as the case may be. The
aforesaid authorities shall nominate a competent official in
that regard who shall be the custodian of the said document.
(vii) The JMFC shall cause to handover copy of the Advance
Directive to the family physician, if any.
D (d) When and by whom can it be given effect to?
(i) In the event the executor becomes terminally ill and is
undergoing prolonged medical treatment with no hope of
recovery and cure of the ailment, the treating physician,
when made aware about the Advance Directive, shall
E ascertain the genuineness and authenticity thereof from the
jurisdictional JMFC before acting upon the same.
(ii) The instructions in the document must be given due weight
by the doctors. However, it should be given effect to only
after being fully satisfied that the executor is terminally ill
F and is undergoing prolonged treatment or is surviving on
life support and that the illness of the executor is incurable
or there is no hope of him/her being cured.
(iii) If the physician treating the patient (executor of the
document) is satisfied that the instructions given in the
G document need to be acted upon, he shall inform the executor
or his guardian / close relative, as the case may be, about
the nature of illness, the availability of medical care and
consequences of alternative forms of treatment and the
consequences of remaining untreated. He must also ensure
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 161
[DIPAK MISRA, CJI]

that he believes on reasonable grounds that the person in A
question understands the information provided, has cogitated
over the options and has come to a firm view that the option
of withdrawal or refusal of medical treatment is the best
choice.
(iv) The physician/hospital where the executor has been B
admitted for medical treatment shall then constitute a
Medical Board consisting of the Head of the treating
Department and at least three experts from the fields of
general medicine, cardiology, neurology, nephrology,
psychiatry or oncology with experience in critical care and
with overall standing in the medical profession of at least C
twenty years who, in turn, shall visit the patient in the
presence of his guardian/close relative and form an opinion
whether to certify or not to certify carrying out the
instructions of withdrawal or refusal of further medical
treatment. This decision shall be regarded as a preliminary D
opinion.
(v) In the event the Hospital Medical Board certifies that the
instructions contained in the Advance Directive ought to be
carried out, the physician/hospital shall forthwith inform the
jurisdictional Collector about the proposal. The jurisdictional E
Collector shall then immediately constitute a Medical Board
comprising the Chief District Medical Officer of the
concerned district as the Chairman and three expert doctors
from the fields of general medicine, cardiology, neurology,
nephrology, psychiatry or oncology with experience in critical
care and with overall standing in the medical profession of F
at least twenty years (who were not members of the
previous Medical Board of the hospital). They shall jointly
visit the hospital where the patient is admitted and if they
concur with the initial decision of the Medical Board of the
hospital, they may endorse the certificate to carry out the G
instructions given in the Advance Directive.
(vi) The Board constituted by the Collector must beforehand
ascertain the wishes of the executor if he is in a position to
communicate and is capable of understanding the
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162 SUPREME COURT REPORTS [2018] 6 S.C.R.

A consequences of withdrawal of medical treatment. In the
event the executor is incapable of taking decision or develops
impaired decision making capacity, then the consent of the
guardian nominated by the executor in the Advance
Directive should be obtained regarding refusal or withdrawal
of medical treatment to the executor to the extent of and
B
consistent with the clear instructions given in the Advance
Directive.
(vii) The Chairman of the Medical Board nominated by the
Collector, that is, the Chief District Medical Officer, shall
convey the decision of the Board to the jurisdictional JMFC
C before giving effect to the decision to withdraw the medical
treatment administered to the executor. The JMFC shall
visit the patient at the earliest and, after examining all aspects,
authorise the implementation of the decision of the Board.
(viii) It will be open to the executor to revoke the document at
D any stage before it is acted upon and implemented.
(e) What if permission is refused by the Medical Board?
(i) If permission to withdraw medical treatment is refused by
the Medical Board, it would be open to the executor of the
E Advance Directive or his family members or even the
treating doctor or the hospital staff to approach the High
Court by way of writ petition under Article 226 of the
Constitution. If such application is filed before the High
Court, the Chief Justice of the said High Court shall
constitute a Division Bench to decide upon grant of approval
F or to refuse the same. The High Court will be free to
constitute an independent Committee consisting of three
doctors from the fields of general medicine, cardiology,
neurology, nephrology, psychiatry or oncology with
experience in critical care and with overall standing in the
G medical profession of at least twenty years.
(ii) The High Court shall hear the application expeditiously after
affording opportunity to the State counsel. It would be open
to the High Court to constitute Medical Board in terms of
its order to examine the patient and submit report about the
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 163
[DIPAK MISRA, CJI]

feasibility of acting upon the instructions contained in the A
Advance Directive.
(iii) Needless to say that the High Court shall render its decision
at the earliest as such matters cannot brook any delay and
it shall ascribe reasons specifically keeping in mind the
principles of “best interests of the patient”. B
(f) Revocation or inapplicability of Advance Directive
(i) An individual may withdraw or alter the Advance Directive
at any time when he/she has the capacity to do so and by
following the same procedure as provided for recording of
Advance Directive. Withdrawal or revocation of an C
Advance Directive must be in writing.
(ii) An Advance Directive shall not be applicable to the
treatment in question if there are reasonable grounds for
believing that circumstances exist which the person making
the directive did not anticipate at the time of the Advance D
Directive and which would have affected his decision had
he anticipated them.
(iii) If the Advance Directive is not clear and ambiguous, the
concerned Medical Boards shall not give effect to the same
and, in that event, the guidelines meant for patients without E
Advance Directive shall be made applicable.
(iv) Where the Hospital Medical Board takes a decision not to
follow an Advance Directive while treating a person, then
it shall make an application to the Medical Board constituted
by the Collector for consideration and appropriate direction F
on the Advance Directive.
192. It is necessary to make it clear that there will be cases where
there is no Advance Directive. The said class of persons cannot be
alienated. In cases where there is no Advance Directive, the procedure
and safeguards are to be same as applied to cases where Advance G
Directives are in existence and in addition there to, the following
procedure shall be followed:-
(i) In cases where the patient is terminally ill and undergoing
prolonged treatment in respect of ailment which is incurable or
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164 SUPREME COURT REPORTS [2018] 6 S.C.R.

A where there is no hope of being cured, the physician may inform
the hospital which, in turn, shall constitute a Hospital Medical
Board in the manner indicated earlier. The Hospital Medical
Board shall discuss with the family physician and the family
members and record the minutes of the discussion in writing.
During the discussion, the family members shall be apprised of
B
the pros and cons of withdrawal or refusal of further medical
treatment to the patient and if they give consent in writing,
then the Hospital Medical Board may certify the course of
action to be taken. Their decision will be regarded as a
preliminary opinion.
C (ii) In the event the Hospital Medical Board certifies the option of
withdrawal or refusal of further medical treatment, the hospital
shall immediately inform the jurisdictional Collector. The
jurisdictional Collector shall then constitute a Medical Board
comprising the Chief District Medical Officer as the Chairman
D and three experts from the fields of general medicine,
cardiology, neurology, nephrology, psychiatry or oncology with
experience in critical care and with overall standing in the
medical profession of at least twenty years. The Medical Board
constituted by the Collector shall visit the hospital for physical
examination of the patient and, after studying the medical
E papers, may concur with the opinion of the Hospital Medical
Board. In that event, intimation shall be given by the Chairman
of the Collector nominated Medical Board to the JMFC and
the family members of the patient.
(iii) The JMFC shall visit the patient at the earliest and verify the
F medical reports, examine the condition of the patient, discuss
with the family members of the patient and, if satisfied in all
respects, may endorse the decision of the Collector nominated
Medical Board to withdraw or refuse further medical treatment
to the terminally ill patient.
G (iv) There may be cases where the Board may not take a decision
to the effect of withdrawing medical treatment of the patient
on the Collector nominated Medical Board may not concur
with the opinion of the hospital Medical Board. In such a
situation, the nominee of the patient or the family member or
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 165
[DIPAK MISRA, CJI]

the treating doctor or the hospital staff can seek permission A
from the High Court to withdraw life support by way of writ
petition under Article 226 of the Constitution in which case the
Chief Justice of the said High Court shall constitute a Division
Bench which shall decide to grant approval or not. The High
Court may constitute an independent Committee to depute three
B
doctors from the fields of general medicine, cardiology,
neurology, nephrology, psychiatry or oncology with experience
in critical care and with overall standing in the medical
profession of at least twenty years after consulting the
competent medical practitioners. It shall also afford an
opportunity to the State counsel. The High Court in such cases C
shall render its decision at the earliest since such matters cannot
brook any delay. Needless to say, the High Court shall ascribe
reasons specifically keeping in mind the principle of “best
interests of the patient”..
193. Having said this, we think it appropriate to cover a vital aspect D
to the effect the life support is withdrawn, the same shall also be intimated
by the Magistrate to the High Court. It shall be kept in a digital format by
the Registry of the High Court apart from keeping the hard copy which
shall be destroyed after the expiry of three years from the death of the
patient.
E
194. Our directions with regard to the Advance Directives and
the safeguards as mentioned hereinabove shall remain in force till the
Parliament makes legislation on this subject.
Q. Conclusions in seriatim:
195. In view of the aforesaid analysis, we record our conclusions F
in seriatim:-
(i) A careful and precise perusal of the judgment in Gian Kaur
(supra) case reflects the right of a dying man to die with dignity
when life is ebbing out, and in the case of a terminally ill patient
or a person in PVS, where there is no hope of recovery, G
accelerating the process of death for reducing the period of
suffering constitutes a right to live with dignity.
(ii) The Constitution Bench in Gian Kaur (supra) has not approved
the decision in Airedale (supra) inasmuch as the Court has
only made a brief reference to the Airedale case. H
166 SUPREME COURT REPORTS [2018] 6 S.C.R.

A (iii) It is not the ratio of Gian Kaur (supra) that passive euthanasia
can be introduced only by legislation.
(iv) The two-Judge bench in Aruna Shanbaug (supra) has erred
in holding that this Court in Gian Kaur (supra) has approved
the decision in Airedale case and that euthanasia could be
B made lawful only by legislation.
(v) There is an inherent difference between active euthanasia
and passive euthanasia as the former entails a positive
affirmative act, while the latter relates to withdrawal of life
support measures or withholding of medical treatment meant
C for artificially prolonging life.
(vi) In active euthanasia, a specific overt act is done to end the
patient’s life whereas in passive euthanasia, something is not
done which is necessary for preserving a patient’s life. It is
due to this difference that most of the countries across the
D world have legalised passive euthanasia either by legislation or
by judicial interpretation with certain conditions and safeguards.
(vii) Post Aruna Shanbaug (supra), the 241st report of the Law
Commission of India on Passive Euthanasia has also recognized
passive euthanasia, but no law has been enacted.
E (viii) An inquiry into common law jurisdictions reveals that all adults
with capacity to consent have the right of self- determination
and autonomy. The said rights pave the way for the right to
refuse medical treatment which has acclaimed universal
recognition. A competent person who has come of age has the
F right to refuse specific treatment or all treatment or opt for an
alternative treatment, even if such decision entails a risk of
death. The ‘Emergency Principle’ or the ‘Principle of
Necessity’ has to be given effect to only when it is not
practicable to obtain the patient’s consent for treatment and
his/her life is in danger. But where a patient has already made
G a valid Advance Directive which is free from reasonable doubt
and specifying that he/she does not wish to be treated, then
such directive has to be given effect to.
(ix) Right to life and liberty as envisaged under Article 21 of the
Constitution is meaningless unless it encompasses within its
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 167
[DIPAK MISRA, CJI]

sphere individual dignity. With the passage of time, this Court A
has expanded the spectrum of Article 21 to include within it
the right to live with dignity as component of right to life and
liberty.
(x) It has to be stated without any trace of doubt that the right to
live with dignity also includes the smoothening of the process B
of dying in case of a terminally ill patient or a person in PVS
with no hope of recovery.
(xi) A failure to legally recognize advance medical directives may
amount to non-facilitation of the right to smoothen the dying
process and the right to live with dignity. Further, a study of the C
position in other jurisdictions shows that Advance Directives
have gained lawful recognition in several jurisdictions by way
of legislation and in certain countries through judicial
pronouncements.
(xii) Though the sanctity of life has to be kept on the high pedestal D
yet in cases of terminally ill persons or PVS patients where
there is no hope for revival, priority shall be given to the Advance
Directive and the right of self-determination.
(xiii) In the absence of Advance Directive, the procedure provided
for the said category hereinbefore shall be applicable. E
(xiv) When passive euthanasia as a situational palliative measure
becomes applicable, the best interest of the patient shall override
the State interest.
196. We have laid down the principles relating to the procedure
for execution of Advance Directive and provided the guidelines to give F
effect to passive euthanasia in both circumstances, namely, where there
are advance directives and where there are none, in exercise of the
power under Article 142 of the Constitution and the law stated in Vishaka
and Others v. State of Rajasthan and Others65. The directive and
guidelines shall remain in force till the Parliament brings a legislation in
G
the field.
197. The Writ Petition is, accordingly, disposed of. There shall be
no order as to costs.

65
(1997) 6 SCC 241
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168 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 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
B 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. From a philosophical perspective, there is no
antithesis between life and death. Both constitute essential elements in
the inexorable cycle of existence.
C 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
D 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
E 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
F 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 event which is certain will
occur. Our fears are enhanced by the experience of dying that we share
G
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
H of suffering; and that the integrity of our minds and bodies should survive
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 169
[DR. D. Y. CHANDRACHUD, J.]

so long as life subsists. The fear of an uncertain future confronts these A
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
B
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 C
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 substance that matters. As events, relationships, D
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
E
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. F
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 G
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 H
170 SUPREME COURT REPORTS [2018] 6 S.C.R.

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
B
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
C 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.
D 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
E financial. The ability of science to 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
F 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
G social, ethical and moral norms that have been handed down to us.
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
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
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 171
[DR. D. Y. CHANDRACHUD, J.]

Decisions regarding the end of life can be ethically more problematic A
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
B
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 – 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 C
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. This case presents itself before the Court as a canvass bearing
on the web of life: on the relationship between science, medicine and
ethics and the constitutional values of individual dignity and autonomy. D
Among the issues which we confront are:
(i) Does an individual have a constitutionally recognized right to
refuse medical treatment or to reject a particular form of
medical treatment;
(ii) If an individual does possess such a right, does a right inhere in E
the individual to determine what course of action should be
followed in the future if she or he were to lose control over the
faculties which enable them to accept or refuse medical
treatment;
(iii) Does the existence of a right in the individual impose a F
corresponding duty on a medical professional who attends to
the individual, to respect the right and what, if any, are the
qualifications of that duty;
(iv) Does the law permit a medical practitioner to withhold or
refuse medical treatment towards the end of life to an individual G
who is no longer in control of his or her faculties in deference
to a desire expressed while in a fit state of mind; and
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 H
172 SUPREME COURT REPORTS [2018] 6 S.C.R.

A (v) Would a withholding or refusal of medical treatment be
permissible so as to allow life to take its natural course, bereft
of an artificial intervention, when there is no realistic hope of
return to a normal life.
12. This Court has to consider euthanasia and its impact “not only
B at an individual level”, but also at the “institutional, governmental and
societal levels”.7 The impact has to be analyzed not only in the context
of the present era, but has to be contemplated for the future as well. The
judge is not a soothsayer. Nor does the law have predictive tools at its
command which can approximate those available to a scientist.
Constitutional principle must have an abiding value. It can have that
C value if it is firmly grounded in the distilled experience of the past, is
flexible to accommodate the concerns of the present and allows room
for the unforeseeable future. The possibility of the abuse of euthanasia
and the effect that legalising euthanasia would have on intangible societal
fabrics and institutions is of utmost concern.
D 13. Contemporary writing on the subject reminds us about how
serious these issues are and of how often they pose real dilemmas in
medicine. They are poignantly brought out by Dr Atul Gawande in his
acclaimed book, “Being Mortal”:
“If to be human is to be limited, then the role of caring professions
E and institutions - from surgeons to nursing homes - ought to be
aiding people in their struggle with those limits. Sometimes we
can offer a cure, sometimes only a salve, sometimes not even
that. But whatever we can offer, our interventions, and the risks
and sacrifices they entail, are justified only if they serve the large
F aims of a person’s life. When we forget that, the suffering we
inflict can be barbaric. When we remember it, the good we do
can be breathtaking.”8
He reminds us of how much people value living with dignity over
merely living longer:
G “A few conclusions become clear when we understand this: that
our most cruel failure in how we treat the sick and the aged is the
failure to recognize that they have priorities beyond merely being
safe and living longer; that the chance to shape one’s story is
7
Ibid
8
Atul Gawande, Being Mortal: Medicine and What Matters in the End (Hamish Hamilton,
H 2014), at page 260
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 173
[DR. D. Y. CHANDRACHUD, J.]

essential to sustaining meaning in life; that we have the opportunity A
to refashion our institutions, our culture, and our conversations in
ways that transform the possibilities for the last chapters of
everyone’s lives.”9
14. Dr Henry Marsh, a neurosurgeon in the UK has significantly
titled his provocative memoir “Admissions”(2017). Speaking of B
euthanasia, he observes:
“We have to choose between probabilities, not certainties, and
that is difficult. How probable is it that we will gain how many
extra years of life, and what might the quality of those years be,
if we submit ourselves to the pain and unpleasantness of treatment? C
And what is the probability that the treatment will cause severe
side effects that outweigh any possible benefits? When we are
young it is usually easy to decide – but when we are old, and
reaching the end of our likely lifespan? We can choose, at least in
theory, but our inbuilt optimism and love of life, our fear of death
and the difficulty we have in looking at it steadily, make this very D
difficult. We inevitably hope that we will be one of the lucky ones,
one of the long-term survivors, at the good and not the bad tail-
end of the statisticians’ normal distribution. And yet it has been
estimated that in the developed world, 75 per cent of our lifetime
medical costs are incurred in the last six months of our lives. This
E
is the price of hope, hope which, by the laws of probability, is so
often unrealistic. And thus we often end up inflicting both great
suffering on ourselves and unsustainable expense on society.” 10
These are but a few of the examples of emerging literature on the
subject.
F
15. The central aspect of the case is the significance which the
Constitution attaches to the ability of every individual in society to make
personal choices on decisions which affect our lives. Randy Pausch, a
Professor at Stanford had this to say in a book titled “The Last Lecture”
(2008),11 a discourse delivered by him in the shadow of a terminal illness.
G
“We cannot change the cards we are dealt, just how we play the
hand”.
9
Ibid, at page 243
10
Henry Marsh, Admissions: A Life in Brain Surgery, (Weidenfeld & Nicolson, 2017),
at page 265-266
11
Randy Pausch and Jeffrey Zaslow, The Last Lecture, (Hodder & Stoughton, 2008),
at page 17
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174 SUPREME COURT REPORTS [2018] 6 S.C.R.

A We may not be masters of our destiny. Nor can we control what
life has in store. What we can determine is how we respond to our trials
and tribulations.
B The reference
16. On 25 February 2014, three Judges of this Court opined that
B the issues raised in this case need to be considered by a Constitution
Bench. The referring order notes that the case involves “social, legal,
medical and constitutional” perspectives which should be considered by
five judges. At the heart of the proceeding, is a declaration which
Common Cause seeks that the right to die with dignity is a fundamental
C rightwhich arises from the right to live with dignity. Article 21 of the
Constitution is a guarantee against the deprivation of life or personal
liberty except according to the procedure established by law. As our law
has evolved, the right against the violation of life and personal liberty has
acquired much more than a formal content. It can have true meaning, if
only it includes the right to live with dignity. It is on this premise that the
D court is urged to hold that death with dignity is an essential part of a life
of dignity. A direction is sought to the Union Government to adopt suitable
procedures to ensure that persons with “deteriorated health” or those
who are terminally ill should be able to execute a document in the form
of “a living will and attorney authorization” which can be presented to a
E hospital for appropriate action if the person who has made it, is hospitalized
with a serious illness which may cause the end of life. The petitioner
also seeks, in the alternative, that this Court should issue guidelines and
appoint an expert committee consisting of doctors, social scientists and
lawyers who will govern the making of ‘living wills’.

F 17. Individuals who suffer from chronic disease or approach the
end of the span of natural life often lapse into terminal illness or a
permanent vegetative state. When a medical emergency leads to
hospitalization, individuals in that condition are sometimes deprived of
their right to refuse unwanted medical treatment such as feeding through
hydration tubes or being kept on a ventilator and other life support
G equipment. Life is prolonged artificially resulting in human suffering.
The petition is founded on the right of each individual to make an informed
choice. Documenting a wish in advance,not to be subjected to artificial
means of prolonging life, should the individual not be in a position later to
comprehend or decline treatment, is a manifestation of individual choice
H and autonomy. The process of ageing is marked by a sense of helplessness.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 175
[DR. D. Y. CHANDRACHUD, J.]

Human faculties decline as we grow older. Social aspects of ageing, A
such as the loss of friendships and associations combine with the personal
and intimate to enhance a sense of isolation. The boundaries and even
the limits of constitutional law will be tested as the needs of the ageing
and their concerns confront issues of ethics, morality and of dignity in
death.
B
18. In support of its contention, the petitioner relies upon two
decisions: a decision rendered in 1996 by a Constitution Bench in Gian
Kaur v State of Punjab12 (“Gian Kaur”) and a decision of 2011
rendered by two judges in Aruna Ramachandra Shanbaug v Union of
India13(“Aruna Shanbaug”). The decision in Gian Kaur arose from a
conviction for the abetment of suicide. In an earlier decision rendered C
by two judges in 1994 - P Rathinam v Union of India14 (“Rathinam”),
penalising an attempt to commit suicide was held to violate Article 21 on
the foundation that the right to life includes the right to die. The decision
in Rathinam was held not to have laid down the correct principle, in
Gian Kaur. Hence the decision in Aruna Shanbaug noted that Article D
21 does not protect the right to die and an attempt to commit suicide is a
crime. However, in Aruna Shanbaug, the court held that since Gian
Kaur rulesthat the right to life includes living with human dignity, “in the
case of a dying person who is terminally ill or in a permanent vegetative
state, he may be permitted to terminate by a premature extinction of his
life”, and this would not be a crime. The Bench which decided Aruna E
Shanbaug was of the view that Gian Kaur had “quoted with approval”
the view of the House of Lords in the UK in Airedale NHS Trustv
Bland15 (“Airedale”).
19. When these judgments were placed before a Bench of three
judges in the present case, the court observed that there were “inherent F
inconsistencies” in the judgment in Aruna Shanbaug. The referring
order accordingly opined that:
“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 G
legislation. However, it is factually wrong to observe that in Gian
12
(1996) 2 SCC 648
13
(2011) 15 SCC 480
14
(1994) 3 SCC 394
15
(1993) 2 WLR 316 (H.L)
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176 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Kaur (supra), the Constitution Bench approved the decision of
the House of Lords in Airedale v. Bland: (1993) 2 W.L.R. 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 decision cited at the
Bar may be made...” Thus, it was a mere reference in the verdict
B
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.”
The referring order goes on to state that:
C
“In Paras 21 & 101, the Bench [in Aruna Shanbaug] was of the
view that in 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
D approved the view taken in Airedale (supra), it has not clarified
who can decide whether life support should be discontinued in the
case 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
E whether the life support should be discontinued in the case of an
incompetent person e.g., a person in coma or PVS.”
The reason why the case merits evaluation by the Constitution
Bench is elaborated in the Order dated 25 February 2014. Simply put,
the basis of the reference to the Constitution Bench is that:
F (i) Gian Kaur affirms the principle that the right to live with dignity
includes the right to die with dignity;
(ii) Gian Kaur has not ruled on the validity of euthanasia, active
or passive;
(iii) Aruna Shanbaug proceeds on the erroneous premise that
G
Gian Kaur approved of the decision of the House of Lords in
Airedale;
(iv) While Aruna Shanbaug accepts that euthanasia can be made
lawful only through legislation, yet the court accepted the
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 177
[DR. D. Y. CHANDRACHUD, J.]

permissibility of passive euthanasia and set down the procedure A
which must be followed; and
(v) Aruna Shanbaug is internally inconsistent and proceeds on a
misconstruction of the decision in Gian Kaur.
20. This being the basis of the reference, it is necessary to consider
the decisions in Gian Kaur and Aruna Shanbaug. B

C Gian Kaur
21. Gian Kaur and Harbans Singh were spouses. They were
convicted of abetting the suicide of Kulwant Kaur and were held guilty
of an offence under Section 306 of the Penal Code. They were sentenced C
to six years’ imprisonment. The conviction was upheld by the High Court.
The conviction was assailed before this Court on the ground that Section
306 is unconstitutional. It was argued that the constitutionality of Section
306 rested on the two judge Bench decision in Rathinam,where Section
309 (penalising the attempt to commit suicide) was held to be
unconstitutional. While Rathinam had rejected the challenge to the validity D
of Section 309 on the ground that it was arbitrary (and violated Article
14), the provision was held to be unconstitutional on the ground that it
violated Article 21. The right to die was found to inhere in the right to
life, as a result of which Section 309 was found to be invalid. The challenge
in Gian Kaur was premised on the decision in Rathinam:abetment of E
suicide by another (it was urged) is merely assisting in the enforcement
of the fundamental right under Article 21 and hence Section 306 (like
Section 309) would violate Article 21.
22. The Constitution Bench in Gian Kaur disapproved of the
foundation of Rathinam, holding that it was flawed. The Constitution F
Bench held thus:
“When a man commits suicide he has to undertake certain positive
overt acts and the genesis of those acts cannot be traced to, or be
included within the protection of the ‘right to life’ under Article
21. The significant aspect of ‘sanctity of life’ is also not to be
G
overlooked. Article 21 is a provision guaranteeing protection of
life and personal liberty and by no stretch of imagination can
‘extinction of life’ be read to be included in ‘protection of life’.
Whatever may be the philosophy of permitting a person to
extinguish his life by committing suicide, we find it difficult to
construe Article 21 to include within it the ‘right to die’ as a part H
178 SUPREME COURT REPORTS [2018] 6 S.C.R.

A of the fundamental right guaranteed therein. ‘Right to life’ is a
natural right embodied in Article 21 but suicide is an unnatural
termination or extinction of life, and therefore, incompatible and
inconsistent with the concept of ‘right to life’. With respect and in
all humility, we find no similarity in the nature of the other rights,
such as the right to ‘freedom of speech’ etc. to provide a
B
comparable basis to hold that the ‘right to life’ also includes the
‘right to die’. With respect, the comparison is inapposite, for the
reason indicated in the context of Article 21. The decisions relating
to other fundamental rights wherein the absence of compulsion to
exercise a right was held to be included within the exercise of
C that right, are not available to support the view taken in P. Rathinam
qua Article 21.”
The Court further held that:
“To give meaning and content to the word ‘life’ in Article 21, it
has been construed as life with human dignity. Any aspect of life
D which makes it dignified may be read into it but not that which
extinguishes it and is, therefore, inconsistent with the continued
existence of life resulting in effacing the right itself. The ‘right to
die’, if any, is inherently inconsistent with the ‘right to life’ as is
‘death’ with ‘life’.”
E Gian Kaur holds that life within the meaning of Article 21 means
a life of dignity. Extinguishment of life is (in that view) inconsistent with
its continued existence. Hence, as a matter of textual construction, the
right to life has been held not to include the right to die. In coming to that
conclusion, it appears that Gian Kaur emphasises two strands (which
F the present judgment will revisit at a later stage). The first strand is the
sanctity of life, which Article 21 recognises. Extinction of life, would in
this view, in the manner which Rathinam allowed, violate the sanctity of
life. The second strand that emerges from Gian Kaur is that the right to
life is a natural right. Suicide as an unnatural extinction of life is
incompatible with it. The court distinguishes the right to life under Article
G 21 from other rights which are guaranteed by Article 19 such as the
freedom of speech and expression. While free speech may involve the
absence of a compulsion to exercise the right (the right not to speak) this
could not be said about the right to life. The Constitution Bench noticed
the debate on euthanasia in the context of individuals in a permanent
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 179
[DR. D. Y. CHANDRACHUD, J.]

vegetative state. A scholarly article on the decision notes that the A
Constitution Bench “seemed amenable to an exception being made for
euthanasia in cases of patients in a condition of PVS16. This view of the
decision in Gian Kaur does find support in the following observations of
the Constitution Bench:
“Protagonism of euthanasia on the view that existence in persistent B
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 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 C
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 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. But
the ‘right to die’ with dignity at the end of life is not to be confused D
or equated with the ‘right to die’ an unnatural death curtailing the
natural span of life.” (Para 24)
However, in the paragraph which followed, the Constitution Bench
distinguished between cases where a premature end to life may be
permissible, when death is imminent, from the right to commit suicide: E
“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 of cases may fall within the
ambit of the ‘right to die’ with dignity as a part of right to live with F
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
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 G
that the argument to support the view of permitting termination of
life in such cases to reduce the period of suffering during the
process of certain natural death is not available to interpret Article
16
Sushila Rao, “India and Euthanasia: The Poignant Case of Aruna Shanbaug”, Oxford
Medical Law Review, Volume 19, Issue 4 (1 December 2011), at pages 646–656 H
180 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 21 to include therein the right to curtail the natural span of life.”
(Para 25)
On this foundation, the Constitution Bench held that Article 21
does not include the right to die. The right to live with human dignity, in
this view, could not be construed to include the right to terminate natural
B life “atleast before commencement of the natural process of certain
death”.
This Court’s holding in Gian Kaur that the right to life does not
include the right to die in the context of suicide may require to be revisited
in future in view of domestic and international developments17 pointing
C towards decriminalisation of suicide. In India, the Mental Healthcare
Act 2017 has created a “presumption of severe stress in cases of attempt
to commit suicide”. Section 115(1) provides thus:
“Notwithstanding anything contained in section 309 of the Indian
Penal Code any person who attempts to commit suicide shall be
D presumed, unless proved otherwise, to have severe stress and
shall not be tried and punished under the said Code.”
Under Section 115(2), the Act also mandates the Government to
provide care, treatment and rehabilitation to a person, having severe
stress and who attempted to commit suicide, to reduce the risk of
E recurrence. Section 115 begins with a non-obstante provision, specifically
with reference to Section 309 of the Penal Code. It mandates (unless
the contrary is proved by the prosecution) that a person who attempts to
commit suicide is suffering from severe stress. Such a person shall not
be tried and punished under the Penal Code. Section 115 removes the
element of culpability which attaches to an attempt to commit suicide
F under Section 309. It regards a person who attempts suicide as a victim
of circumstances and not an offender, at least in the absence of proof to
the contrary, the burden of which must lie on the prosecution. Section
115 marks a pronounced change in our law about how society must treat
and attempt to commit suicide. It seeks to align Indian law with emerging
G knowledge on suicide, by treating a person who attempts suicide being
need of care, treatment and rehabilitation rather than penal sanctions.
17
“Humanization and Decriminalization of Attempt to Suicide”, Law Commission of
India (Report No. 210, 2008); Rajeev Ranjan, et al, “(De-) Criminalization of Attempted
Suicide in India: A Review”, Industrial Psychiatry Journal (2014), Vol. 23, issue 1, at
page 4–9
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 181
[DR. D. Y. CHANDRACHUD, J.]

It may also be argued that the right to life and the right to die are A
not two separate rights, but two sides of the same coin. The right to life
is the right to decide whether one will or will not continue living.18 If the
right to life were only a right to decide to continue living and did not also
include a right to decide not to continue living, then it would be a duty to
live rather than a right to life. The emphasis on life as a right and not as
B
a duty or obligation has also been expressed by several other legal
scholars:
“When, by electing euthanasia, the individual has expressly
renounced his right to life, the state cannot reasonably assert an
interest in protecting that right as a basis for overriding the
individual’s private decision to die. To hold otherwise makes little C
more sense than urging a prohibition against destroying or giving
away one’s private property simply because the Constitution
protects property as well as life. Although the Constitution
recognizes that human life is, to most persons, of inestimable value
and protects against its taking without due process of law, nothing D
in that document compels a person to continue living who
does not desire to do so. Such an interpretation effectively
converts a right into an obligation, a result the constitutional
framers manifestly did not intend.”19 (Emphasis supplied)
For the present case, we will leave the matter there, since neither E
side has asked for reconsideration of Gian Kaur, it being perhaps not
quite required for the purposes of the reference.
23. At this stage, it is also necessary to note that the decision in
Gian Kaur contained a passing reference to the judgment of the House
of Lords in Airedale which dealt with the withdrawal of artificial F
measures for thecontinuance of life by a physician. In that context, it
was held that a persistent vegetative state was of no benefit to the patient
and hence, the principle of sanctity of life is not absolute. The Constitution
Bench reproduced the following extracts from the decision in Airedale:
“...But it is not lawful for a doctor to administer a drug to his G
patient to bring about his death, even though that course is prompted
by a humanitarian desire to end his suffering, however great that
18
D Benatar, “Should there be a legal right to die?” Current Oncology (2010), Vol. 17,
Issue 5, at pages 2-3
19
Richard Delgado, “Euthanasia Reconsidered-The Choice of Death as an Aspect of
the Right of Privacy”, Arizona Law Review(1975), Vol. 17, at page 474 H
182 SUPREME COURT REPORTS [2018] 6 S.C.R.

A suffering may be : See Reg v. Cox, (unreported), 18 September
(1992). So to act is to cross the Rubicon which runs between on
the one hand the care of the living patient and on the other hand
euthanasia - actively causing his death to avoid or to end his
suffering. Euthanasia is not lawful at common law. It is of
course well known that there are many responsible
B
members of our society who believe that euthanasia should
be made lawful; but that result could, I believe, only be
achieved by legislation which expresses the democratic will
that so fundamental a change should be made in our law,
and can, if enacted, ensure that such legalised killing can
C only be carried out subject to appropriate supervision and
control.... (emphasis supplied by the Bench). Making emphasis
as above, this Court held that it is in the realm of the legislature to
enact a suitable law to provide adequate safeguards regarding
euthanasia”.
D The Constitution Bench noted that the desirability of bringing about
such a change was considered (in Airedale) to be a function of the
legislature by enacting a law with safeguards, to prevent abuse.
D Aruna Shanbaug
24. Aruna Shanbaug was a nurse in a public hospital when she
E was sexually assaulted in 1973. During the incident, she was strangled
by the attacker with a chain. The assault resulted in depriving the supply
of oxygen toher brain. Over a period of thirty seven years, she had not
recovered from the trauma and damage to the brain. She was forsaken
by family and was cared for over this period by the staff of the hospital.
F A petition under Article 32 was instituted before this Court. The petitioner
had authored a book on her sagaand instituted the proceedings claiming
to be her “next friend”. The direction which was sought was to stop
feeding the patient and allow her to die a natural death. Aruna Shanbaug
was examined by a team of doctors constituted by this Court who
observed that while she was in a permanent vegetative state, she was
G clearly not in coma.
25. A two Judge Bench of this Court held that Gian Kaur did not
lay down a final view on euthanasia:
“21. We have carefully considered paras 24 and 25 in Gian Kaur
case [(1996) 2 SCC 648 : 1996 SCC (Cri) 374] and we are of the
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 183
[DR. D. Y. CHANDRACHUD, J.]

opinion that all that has been said therein is that the view A
in Rathinam case [(1994) 3 SCC 394 : 1994 SCC (Cri) 740] that
the right to life includes the right to die is not correct. We cannot
construe Gian Kaur case [(1996) 2 SCC 648 : 1996 SCC (Cri)
374] to mean anything beyond that. In fact, it has been specifically
mentioned in para 25 of the aforesaid decision that “the debate
B
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 case [(1996) 2 SCC 648 : 1996 SCC
(Cri) 374] beyond what we have mentioned above.”(Id at page
487)
26. The decision in Aruna Shanbaug distinguishes between active C
and passive euthanasia. Active euthanasia is defined as the administration
of a lethal substance or force to kill a person, such as for instance, a
lethal injection given to a person suffering from agony in a terminal state
of cancer. Passive euthanasia is defined to mean the withholding or
withdrawing of medical treatment necessary for continuance of life. D
This may consist of withholding antibiotics without which the patient
may die or the removing of the patient from artificial heart/lung support.
According to the court, a comparative context of the position prevailing
in other countries would indicate that:
“39…The general legal position all over the world seems to be E
that while active euthanasia is illegal unless there is legislation
permitting it, passive euthanasia is legal even without legislation
provided certain conditions and safeguards are maintained.”(Id
at page 491)
Voluntary euthanasia envisages the consent of the patient being F
taken whereas non-voluntary euthanasia deals with a situation where
the patient is in a condition where he or she is unable to give consent.
The Court noted that a distinction is drawn between euthanasia and
physician assisted death in the form of a physician or third party who
administers it. Physician assisted suicide involves a situation where the
patient carries out the procedure, though on the advice of the doctor. G
The court in Aruna Shanbaug distinguished between active and passive
euthanasia:
“43. The difference between “active” and “passive” euthanasia
is that in active euthanasia, something is done to end the patient’s
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184 SUPREME COURT REPORTS [2018] 6 S.C.R.

A life while in passive euthanasia, something is not done that would
have preserved the patient’s life. An important idea behind this
distinction is that in “passive euthanasia” the doctors are not
actively killing anyone; they are simply not saving him.” (Id at
page 492)
B The above extract indicates that the decision is premised on the
performance of an act (in active euthanasia) and an omission (in passive
euthanasia).
Active euthanasia, in the view of the court, would be an offence
under Section 302 or atleast under Section 304 while physician assisted
C suicide would be an offence under Section 306 of the Penal Code. The
decision adverted to the judgment of the House of Lords in Airedale
and then observed that:
“104. It may be noted that in Gian Kaur case [(1996) 2 SCC 648
: 1996 SCC (Cri) 374] although the Supreme Court has quoted
D with approval the view of the House of Lords in Airedale
case [1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821
(CA and HL)] , it has not clarified who can decide whether life
support should be discontinued in the case of an incompetent
person e.g. a person in coma or PVS.” (Id at page 512)

E Explaining the concept of brain death, the court held that passive
euthanasia depends upon two circumstances:
“117…(a) When a person is only kept alive mechanically i.e. when
not only consciousness is lost, but the person is only able to sustain
involuntary functioning through advanced medical technology—
F such as the use of heart-lung machines, medical ventilators, etc.
(b) When there is no plausible possibility of the person ever being
able to come out of this stage. Medical “miracles” are not
unknown, but if a person has been at a stage where his life is only
sustained through medical technology, and there has been no
significant alteration in the person’s condition for a long period of
G
time—at least a few years—then there can be a fair case made
out for passive euthanasia.” (Id at page 517)
Noting that there is no statutory provision regulating the procedure
for withdrawing life support to a person in PVS or who is incompetent to
take a decision, the court ruled that passive euthanasia should be permitted
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 185
[DR. D. Y. CHANDRACHUD, J.]

in certain situations.Until Parliament decides on the matter, the modalities A
to regulate passive euthanasia would (according to the court) be as
follows:
“124…(i) A decision has to be taken to discontinue life support
either by the parents or the spouse or other close relatives, or in
the absence of any of them, such a decision can be taken even by B
a person or a body of persons acting as a next friend. It can also
be taken by the doctors attending the patient. However, the decision
should be taken bona fide in the best interest of the patient…
(ii) Hence, even if a decision is taken by the near relatives or
doctors or next friend to withdraw life support, such a decision C
requires approval from the High Court concerned as laid down
in Airedale case [1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All
ER 821 (CA and HL)].”(Id at page 518-519)
27. The approval of the High Court was mandated to obviate the
danger that “this may be misused by some unscrupulous persons who D
wish to inherit or otherwise grab the property of the patient”. Moreover,
the court directed that when an application is filed before the High Court,
a committee of three doctors (a neurologist, psychiatrist and physician)
should be constituted, to submit its opinion to enable the High Court to
take a considered decision in the case. On the facts of the case, the
court held that the petitioner who had visited Aruna Shanbaug only on E
a few occasions and had written a book on her could not be recognised
as her next friend.It was only the hospital staff which had cared for her
for long years which would be recognised. The doctors and nursing
staff had evinced an intent to allow her to live in their care.
28. The decision in Aruna Shanbaug has proceeded on the F
hypothesis that the Constitution Bench in Gian Kaur had”quoted with
approval” the decision of the House of Lords in Airedale. This hypothesis
is incorrect. There was only a passing reference to the decision of the
House of Lords.Infact, Gian Kaur prefaces its reference to Airedale
with the following observation: G
“40…Even though it is not necessary to deal with physician-assisted
suicide or euthanasia cases, a brief reference to this decision cited
at the Bar may be made.”(Id at page 665)
The decision in Gian Kaur referred to the distinction made in
Airedale between cases in which a physician decides not to provide or H
186 SUPREME COURT REPORTS [2018] 6 S.C.R.

A to continue to provide treatment which would prolong life and cases in
which a physician decides to actively bring an end to the life of the
patient by administering a lethal drug. The court in Airedale observed
that actively causing the death of the patient could be made lawful only
by legislation. It was this aspect which was emphasised by the judgment
in Gian Kaur. Hence, the position adopted in Aruna Shanbaug, that the
B
Constitution Bench in Gian Kaur quoted Airedale with approval (as
the basis of allowing passive euthanasia) is seriously problematic. In
fact, the extract from Airedale which was cited in Gian Kaur indicates
the emphasis placed on the need to bring in legislation to allow active
euthanasia.
C 29. In an incisive analysis20, Ratna Kapur argues that while
focussing on euthanasia, discussions on Aruna Shanbaug have ignored
other considerations regarding gender, sexual assault, what constitutes
“caring”, the right to bodily integrity and workplace protection. A central
issue is, according to Kapur, the “politics of caring”, - who can care, has
D the capacity to care and who is less caring or less capable of caring.
The Supreme Court did not accept Pinki Virani as the “next friend” but
awarded guardianship to KEM hospital staff on the ground that they had
“an emotional bonding and attachment” to Aruna Shanbaug and were
her “real family.” Kapur observes that an emotional bond is not a valid
criterion for a “next friend” and the expression “real family” has
E dangerous implications for those who may not fall within the normative
remit of that phrase though they have a relationship with the concerned
person. She asks if the concept of “next friend” will cover only “biological
familial ties” and “render all other non-familial, non-marital, non-
heterosexual relationships as ineligible?” She argues that decisions about
F life and death should “rest on the anvil of dignity, and dignity is not a
family value, or linked to some essential gendered trait. It is a societal
value and hence needs to be delinked from the traditional frameworks
of family and gender stereotypes.” Kapur expresses concerns about
how the focus on “care” seemed to obscure a deeper and more important
consideration regarding women’s safety in the workplace. The attack
G on Aruna Shanbaug in KEM hospital was indicative of how the workplace
was unsafe for women, and yet the staff of the same hospital were
given her guardianship. This is especially concerning given the fact that
the dean of the hospital at the time refused to allow a complaint of
20
RatnaKapur, “The Spectre of Aruna Shanbaug”, The Wire (18 May 2015), available
H at https://thewire.in/2005/the-spectre-of-aruna-shanbaug/
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 187
[DR. D. Y. CHANDRACHUD, J.]

sodomy to go forward as he was more concerned about the reputation A
of the institution. Kapur laments the fact that Aruna’s case was not used
to bring out the reform that it should have - stating that it should ‘have
been a leading case on women’s rights where “caring” extended beyond
the physical support for the individual who was harmed, to taking active
steps to improve the working conditions for women, including addressing
B
pervasive and systemic sex discrimination and sexism.’ Lastly, Kapur
compels us to think about the choices Aruna Shanbaug may have made -
“Had Shanbaug not been reduced to a PVS, would she have chosen to
remain in KEM for her treatment after the violent and brutal sexual
assault that she experienced in her work place? Or would she have
chosen to be treated elsewhere? Would she have sued the hospital for C
failing to provide her a safe working environment?” Thus, Kapur
questions the very basis of making the hospital the guardians by
questioning why the hospital did not “care” when it mattered the most -
when the case of sexual assault and sodomy should have been pursued
by the hospital on behalf of its employee. By denying Aruna Shanbaug
D
the right to bodily integrity in life and the right to self-determination in
death, and by viewing her life from all lenses but from her own, ranging
from the “carers”, to the medical and legal profession and their views on
euthanasia, she “became nothing more than a spectre in her own story.”
30. Aruna Shanbaug also presents another problem - one of
inconsistency. Gian Kaur is construed as laying down only that the right E
to life does not include the right to die and that the decision in Rathinam
was incorrect. In that context, it has been noticed that the Constitution
Bench observed that the debate overseas even in physician assisted
termination of life is inconclusive. Aruna Shanbaug finds, on the one
hand,that “no final view was expressed” in Gian Kaur beyond stating F
that the right to life does not include the right to die. Yet, on the other
hand, having inferred the absence of a final view on euthanasia in Gian
Kaur, that decision is subsequently construed as having allowed the
termination of life by a premature extinction in the case of a “dying
person who is terminally ill or in a permanent vegetative state”. Both
lines of reasoning cannot survive together. G

31. The procedure which was followed by this Court in Aruna
Shanbaug of arranging for a screening of a CD submitted by the team
of doctors pertaining to her examinationin a live court proceeding open
to the public has been criticised as being fundamentally violative of
H
188 SUPREME COURT REPORTS [2018] 6 S.C.R.

A privacy. What transpired in the court is set out in the following observations
from the decision:
“11. On 2-3-2011, the matter was listed again before us and we
first saw the screening of the CD submitted by the team of doctors
along with their report. We had arranged for the screening of the
B CD in the courtroom, so that all present in the Court could see the
condition of Aruna Shanbaug. For doing so, we have relied on the
precedent of the Nuremburg trials in which a screening was done
in the courtroom of some of the Nazi atrocities during the Second
World War.” (Id at page 476)
C This aspect of the case is indeed disquieting.To equate a patient
in PVS for thirty-seven years following a sexual assault, with the trials
of Nazi war criminals is seriously disturbing.
32. Aruna Shanbaug rests on the distinction between an act and
an omission. The court seems to accept that the withdrawal of life support
D or a decision not to provide artificial support to prolong life is an omission.
In the view of the court, an omission is what is “not done”. On the other
hand, what is actively done to end life is held to stand on a separate
foundation. At this stage, it would be necessary to note that the validity
of the distinction between what is passive and what is active has been
the subject of a considerable degree of debate. This would be dealt with
E in a subsequent part of this judgment.
33. The issue before the Constitution Bench in Gian Kaur related
to the constitutionality of Section 306 of the Penal Code which penalises
the abetment of suicide. The challenge proceeded on the foundation that
penalising an attempt to commit suicide had been held to be unconstitutional
F since the right to live included the right to die. The Constitution Bench
emphasised the value ascribed to the sanctity of life and came to the
conclusion that the right to die does not emanate from the right to life
under Article 21. Having held that the right to die is “inherently
inconsistent” with the right to life “as is death with life”, the Constitution
G Bench opined that the debate on euthanasia was “of no assistance to
determine the scope of Article 21” and to decide whether the right to life
includes the right to die. The court noted that the right to life embodies
the right to live with human dignity which postulates the existence of
such a right “up to the end of natural life”. This, the court observed
included the right to lead a dignified life up to the point of death and
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 189
[DR. D. Y. CHANDRACHUD, J.]

included a dignified procedure of death. Thus, in the context of the debate A
on euthanasia, the Constitution Bench was careful in observing that the
right to a dignified life “may include” the right of an individual to die with
dignity. A premature termination of life of a person facing imminent death
in a terminal illness or in a permanent vegetative state was in the view of
the court a situation which “may fall” within the ambit of the right to die
B
with dignity. The debate on physician assisted termination of life was
noted to be “inconclusive”. The court observed that the argument to
support the termination of life in such cases to reduce the period of
suffering during the process of “certain natural death” was not available
to interpret Article 21 as embodying the right to curtail the natural span
of life. These observations in Gian Kaur would indicate that the C
Constitution Bench has not made a final or conclusive determination on
euthanasia. Indeed, the scope of the controversy before the court did
not directly involve that question. Aruna Shanbaug evidently proceeds
on a construction of the decision in Gian Kaur which does not emerge
from it. Aruna Shanbaug has inherent internal inconsistencies. Hence,
D
the controversy which has been referred to the Constitution Bench would
have to be resolved without regarding Aruna Shanbaug as having laid
down an authoritative principle of constitutional law.
EThe distinction between the legality of active and passive
euthanasia
E
34. In examining the legality of euthanasia, clarification of
terminology is essential. The discourse on euthanasia is rendered complex
by the problems of shifting and uncertain descriptions of key concepts.
Central to the debate are notions such as “involuntary”, “non-voluntary”
and “voluntary”. Also “active” and “passive” are used, particularly in
combination with “voluntary” euthanasia. In general, the following might F
be said: ·
• involuntary euthanasia refers to the termination of life against
the will of the person killed;
• non-voluntary euthanasia refers to the termination of life without G
the consent or opposition of the person killed; ·
• voluntary euthanasia refers to the termination of life at the
request of the person killed; ·

H
190 SUPREME COURT REPORTS [2018] 6 S.C.R.

A • active euthanasia refers to a positive contribution to the
acceleration of death;
• passive euthanasia refers to the omission of steps which might
otherwise sustain life.
B What is relatively straightforward is that involuntary euthanasia is
illegal and amounts to murder. However, the boundaries between active
and passive euthanasia are blurred since it is quite possible to argue that
an omission amounts to a positive act.
35. The expression ‘passive’ has been used to denote the
C withdrawal or withholding of medical treatment. Implicit in this definition
is the assumption that both the withdrawal of or withholding treatment
stand on the same ethical or moral platform. This assumption, as we
shall see in a later part of this section, is not free of logical difficulty. The
voluntary or non-voluntary character of the euthanasia is determined by
the presence or absence of consent. Consent postulates that the individual
D is in a mental condition which enables her to choose and to decide on a
course of action and convey this decision. Its voluntary nature is premised
on its consensual character. Euthanasia becomes non-voluntary where
the individual has lost those faculties of mind which enable her to freely
decide on the course of action or lost the ability to communicate the
E chosen course of action.
36. The distinctions between active and passive euthanasia are
based on the manner in which death is brought about. They closely relate
(in the words of Hazel Biggs in a seminal work on the subject) to the
understanding and consequences of the legal concepts of act and
F omission.21
37. As early as 1975, American philosopher and medical ethicist
James Rachels offered a radical critique of a distinction that was widely
accepted by medical ethicists at that time, that passive euthanasia or
“letting die” was morally acceptable while active euthanasia or “killing”
G was not.22 Even though his paper did not change the prevalence of this
distinction at the time it was published, it paved the way by providing
credibility for arguments to legalise assisted suicide in the 1990s.In what
21
Hazel Biggs, “Euthanasia, Death with Dignity and the Law”, Hart Publishing (2001),
at page 12
22
James Rachels, “Active and Passive Euthanasia”, New England Journal of Medicine
(January 9, 1975), at page 78-80
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 191
[DR. D. Y. CHANDRACHUD, J.]

he calls the ‘Equivalence Thesis’, Rachels states “there is no morally A
important difference between killing and letting die; if one is permissible
(or objectionable), then so is the other and to the same degree.”23 He
does not offer a view on whether the practice of euthanasia is acceptable
or not. His central thesis is that both active and passive euthanasia are
morally equivalent- either both are acceptable or both are not.
B
Reichenbach for instance, asks: Supposing all else is equal, can a moral
judgment about euthanasia be made on the basis of it being active or
passive alone?24. The ‘Equivalence thesis’ postulates that if a doctor
lets a patient die (commonly understood as passive euthanasia) for
humane reasons, he is in the same moral position as if he decided to kill
the patient by giving a lethal injection (commonly understood as active C
euthanasia) for humane reasons.
38. The correctness of this precept may be questioned by pointing
out that there is a qualitative difference between a positive medical
intervention (such as a lethal injection) which terminates life and a decision
to not put a patient on artificial life support, which will not artificially D
prolong life. The former brings a premature extinction of life. The latter
does not delay the end of life beyond its natural end point. But, if the
decision to proceed with euthanasia is the right one based on compassion
and the humanitarian impulse to reduce pain and suffering, then the method
used is not in itself important. Moreover, it is argued that passive
euthanasia often involves more suffering since simply withholding E
treatment means that the patient may take longer to die and thus suffer
more. Passive euthanasia may become questionable where the withholding
or withdrawal of medical intervention may lead to a condition of pain
and suffering, often a lingering and cruel death. The avoidance of
suffering, which is the object and purpose of euthanasia, may hence not F
be the result of passive euthanasia and the converse may result. Besides
raising troubling moral questions – especially where it is non-voluntary, it
questions the efficacy of passive euthanasia. Moreover, it raises a
troubling issue of the validity of the active-passive divide.
39. The moral and legal validity of the active-passive distinction G
based on the exculpation of omissions has been criticised. One of the
reasons for the exculpation of omissions is based on the idea that our
23
James Rachels, End of Life: Euthanasia and Morality (Oxford University Press,
1986)
24
Bruce R. Reichenbach, “Euthanasia and the Active-Passive Distinction”, Bioethics
(January 1987), Volume 1, at pages 51–73 H
192 SUPREME COURT REPORTS [2018] 6 S.C.R.

A duty not to harm people is generally stricter than our duty to help them. 25
James Rachels offers a compelling counter-argument to the argument
that killing someone is a violation of our duty not to do harm, whereas
letting someone die is merely a failure to help. He argues that our duty to
help people is less stringent than the duty not to harm them only in cases
where it would be very difficult to help them or require a great amount
B
of effort or sacrifice. However, when we think of cases where it would
be relatively simple to help someone and there would be no great personal
sacrifice required, the morally justifiable response would be different.
He provides a hypothetical example of a child drowning in a bathtub,
anyone standing next to the tub would have a strict moral duty to help
C the child.26 Due to the equation between the child and the person standing
next to the bathtub (the proximity may be in terms of spatial distance or
relationship) the “alleged asymmetry” between the duty to help and the
duty not to do harm vanishes. A person standing next to bathtub would
have no defence to say that this was merely a failure to help and did not
violate the duty to do no harm. In cases of euthanasia since the patient is
D
close at hand and it is within the professional skills of the medical
practitioner to keep him alive, the alleged asymmetry has little relevance.
The distinction is rendered irrelevant even in light of the duty of care
that doctors owe to their patients. Against the background of the duty to
care, the moral and legal status of not saving a life due to failure to
E provide treatment, can be the same as actively taking that life.27 A doctor
who knowingly allows a patient who could be saved to bleed to death
might be accused of murder and medical negligence. The nature of the
doctor-patient relationship which is founded on the doctor’s duty of care
towards the patient necessitates that omissions on the doctor’s part will
also be penalised. When doctors take off life support, they can foresee
F
that death will be the outcome even though the timing of the death cannot
be determined. Thus, what must be deemed to be morally and legally
important must not be the emotionally appealing distinction between
omission and commission but the justifiability or otherwise of the clinical
outcome. Indeed, the distinction between omission and commission may
G be of little value in some healthcare settings.28
25
James Rachels (Supra note 23), at pages 101-120
26
Ibid
27
Len Doyal and Lesley Doyal, “Why Active Euthanasia and Physician Assisted
Suicide Should Be Legalised/ If Death Is in a Patient’s Best Interest Then Death
Constitutes a Moral Good”, British Medical Journal (2001), at pages 1079–1080.
H 28
Ibid
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 193
[DR. D. Y. CHANDRACHUD, J.]

40. This distinction leads to the result that even though euthanasia A
is grounded in compassion and to relieve the patient of suffering, only
certain types of deaths can be lawful. If active euthanasia amounts to
“killing”, the operation of criminal law can lead to medical practitioners
being exposed to the indignity of criminal prosecutions and punishments.29
While passive euthanasia can appear to save the dignity of medical
B
practitioners, it is perhaps at the expense of the patient’s dignity.30
41. A recent article by Rohini Shukla in the Indian Journal of
Medical Ethics (2016) points out two major flaws in Aruna Shanbaug
regarding the distinction between active and passive euthanasia. 31 First,
it fails to prioritise the interest of the patient and is preoccupied with the
effect of euthanasia on everyone but the patient, and second, that it does C
not distinguish between the terms “withholding and withdrawing and
uses them interchangeably.”Throughout the above judgment, the words
“withholding” and “withdrawing” are used interchangeably. However,
the difference between the two is relevant to the distinction between
what is ‘active’ and ‘passive’ as act and omission. Withholding life support D
implies that crucial medical intervention is restrained or is not provided –
an act of omission on the part of the doctor. Withdrawing life support
implies suspending medical intervention that was already in use to sustain
the patient’s life- an act of commission. If the basis of distinction between
active and passive euthanasia is that in passive euthanasia the doctor
only passively commits acts of omission, while in active euthanasia the E
doctor commits acts of commission then withdrawing medical treatment
is an act of commission and therefore amounts to active euthanasia.
In both these cases, the doctor is aware that his/her commissions
or omissions will in all likelihood lead to the patient’s death. However, in
passive euthanasia death may not be the only consequence and the F
suffering that passive euthanasia often entails such as suffocation to
death or starvation till death, raises the question of whether passive
euthanasia, in such circumstances, militates against the idea of death
with dignity – the very basis of legalising euthanasia.32 Shukla’s criticism
needs careful attention since it raises profound questions about the doctor- G
patient relationship and the efficacy of the distinction in the context of
29
Hazel Biggs (Supra note 21), at Page 162
30
Ibid
31
Rohini Shukla, “Passive Euthanasia in India: a critique”, Indian Journal of Medical
Ethics (Jan-Mar 2016), at pages 35-38
32
Ibid H
194 SUPREME COURT REPORTS [2018] 6 S.C.R.

A death with dignity. If the divide between active-passive is questioned,
should both forms be disallowed or, in converse should both be allowed?
More significantly, are both equally amenable to judicially manageable
standards?
Even with Aruna Shanbaug’s starting position that passive
B euthanasia is permitted under Indian law until expressly prohibited, the
Court did not traverse the vast Indian legal framework to determine
whether there was a prohibition to this effect. Instead the court made
an analogy (perhaps incorrect) between a doctor conducting passive
euthanasia and a person who watches a building burning:
C “An important idea behind this distinction is that in passive
euthanasia, the doctors are not actively killing anyone; they are
simply not saving him. While we usually applaud someone who
saves another person’s life, we do not normally condemn someone
for failing to do so. If one rushes into a burning building and carries
someone out to safety, he will probably be called a hero. But, if
D someone sees a burning building and people screaming for help,
and he stands on the sidelines – whether out of fear for his own
safety, or the belief that an inexperienced and ill-equipped person
like himself would only get in the way of the professional
firefighters, or whatever – if one does nothing, few would judge
E him for his action. One would surely not be prosecuted for homicide
(Atleast, not unless one started the fire in the first place)…[T]
here can be no debate about passive euthanasia: You cannot
persecute someone for failing to save a life. Even if you think it
would be good for people to do X, you cannot make it illegal for
people to not do X, or everyone in the country who did not do X
F today would have to be arrested.”
The example is inapposite because it begs the relationship between
the person who is in distress and the individual whose position as a
caregiver (actual or prospective) is being considered. The above example
may suggest a distinct outcome if the by-stander who is ill equipped to
G enter a burning building is substituted by a fire-fighter on duty. Where
there is a duty to care, the distinction between an act and an omission
may have questionable relevance. Acts and omissions are not disjunctive
or isolated events. Treatment of the human body involves a continuous
association between the caregiver and receiver. The expert caregiver is
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 195
[DR. D. Y. CHANDRACHUD, J.]

involved in a continuous process where medical knowledge and the A
condition of the patient as well as the circumstances require the doctor
to evaluate choices - choices on the nature and extent of medical
intervention, the wisdom about a course of action and about what should
or should not be done.
42. An erroneous premise in the judgment is that omissions are B
not illegal under Indian law.33 Section 32 of the Indian Penal Code deals
with illegal omissions and states that “In every part of this Code, except
where a contrary intention appears from the context, words which refer
to acts done, extend to illegal omissions.” Whether and to what extent
this omission would be illegal under Indian law will be discussed in a
subsequent part of the judgment. C

43. Since the judgment legalised passive euthanasia, withdrawing
medical support was the only option in the case of Aruna Shanbaug
and if this had been done, she would have in all likelihood suffocated to
death. We must ponder over whether this could be the best possible
death in consonance with the right to live with dignity (which extends to D
dignity when death approaches) and the extent to which it upholds the
principle of prioritising the patient’s autonomy and dignity over mere
prolongation of life. Had the Court taken into account these consequences
of passive euthanasia for the patient, it would be apparent that passive
euthanasia is not a simple panacea for an individual faced with end of E
life suffering.
This brings us to the second and more crucial flaw, which was the
unjustified emphasis on doctor’s agency in administering different types
of euthanasia which led to ignoring the patient’s autonomy and suffering.
Respecting patient autonomy and reducing suffering are fundamental F
ethical values ascribed to euthanasia. It is also the foremost principle of
bioethics.34 The effects of euthanasia on everyone (particularly her
caregivers) were given greater importance than the patient’s own wishes
and caregiver:
“In case hydration or food is withdrawn/withheld from Aruna G
Ramchandra Shanbaug, the efforts which have been put in by
33
Aparna Chandra and Mrinal Satish, “Misadventures of the Supreme Court in Aruna
Shanbaug v Union of India”, Law and other Things (Mar 13, 2011), available at http:/
/lawandotherthings.com/2011/03/misadventures-of-supreme-court-in-aruna/
34
RoopGurusahani and Raj Kumar Mani, “India: Not a country to die in”, Indian
Journal of Medical Ethics (Jan- Mar 2016), at pages 30-35. H
196 SUPREME COURT REPORTS [2018] 6 S.C.R.

A batches after batches of nurses of KEM Hospital for the last 37
years will be undermined. Besides causing a deep sense of
resentment in the nursing staff as well as other well-wishers of
Aruna Ramchandra Shanbaug in KEM Hospital including the
management, such act/omissions will lead to disheartenment in
them and large-scale disillusionment.”
B
44. Aruna Shanbaug was in no position to communicate her
wishes. But the above extract from the judgment relegates her caregiver
to the background. The manner in which the constitutional dialogue is
framed by the court elevates the concerns of the caregiver on a high
pedestal without focusing on the dignity and personhood of the individual
C in a permanent vegetative state. In doing so, the judgment subordinates
the primary concern of bio-ethics and constitutional law, which is
preserving the dignity of human life.
45. An article35 in the Oxford Medical Law Review notes that
there are strong grounds to believe that the active-passive distinction in
D Aruna Shanbaug was not grounded so much in morality as in ‘reasons
of policy’.
Even while there are pertinent questions regarding the moral
validity of the active-passive distinction, there appears to be a significant
difference between active and passive euthanasia when viewed from
E the lens of the patient’s consent. Consent gives an individual the ability
to choose whether or not to accept the treatment that is offered. But
consent does not confer on a patient the right to demand that a particular
form of treatment be administered, even in the quest for death with
dignity.36 Voluntary passive euthanasia, where death results from selective
F non-treatment because consent is withheld, is therefore legally permissible
while voluntary active euthanasia is prohibited. Moreover, passive
euthanasia is conceived with a purpose of not prolonging the life of the
patient by artificial medical intervention. Both in the case of a withdrawal
of artificial support as well as in non-intervention, passive euthanasia
allows for life to ebb away and to end in the natural course. In contrast,
G active euthanasia results in the consequence of shortening life by a positive
act of medical intervention. It is perhaps this distinction which necessitates
legislative authorisation for active euthanasia, as differentiated from the
passive.
35
Sushila Rao (Supra note 16), at pages 646-656
36
Hazel Biggs (Supra note 21), at page 30
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 197
[DR. D. Y. CHANDRACHUD, J.]

46. The question of legality of these two forms of euthanasia has A
significant consequences. Death when it is according to the wishes and
in the caregiver of the patient must be viewed as a moral good. The fact
that active euthanasia is an illegal act (absent legislative authorisation)
also prevents many professional and emotional carers from performing
it even if they perceive it as a compassionate and otherwise appropriate
B
response in line with the patient’s wishes and caregiver, thereby prolonging
the patient’s suffering and indignity. These complex issues cannot be
addressed when active euthanasia is not legalised and regulated. The
meeting point between bio-ethics and law does not lie on a straight course.
FSanctity of Life
47. Diverse thinkers have debated and deliberated upon the value C
accorded to human life.37 The “sanctity of life” principle has historically
been the single most basic and normative concept in ethics and the law.38
The phrase has emerged as a key principle in contemporary bioethics,
especially in debates about end-of-life issues.39
48. The traditional and standard view is that life is invaluable.40 It D
has persisted as an idea in various cultures through the centuries. A
sacred value has been prioritized for human life. This “rhetoric of the
value in human life”41 has been highlighted in various traditions.42 The
protection of the right to life derives from “the idea that all human life is
of equal value” - the idea being drawn from religion, philosophy and E
science. 43
49. The principle or doctrine of the “sanctity of life”, sometimes
also referred to as the “inviolability of human life”44, is based on
“overarching moral considerations”, the first of which has been stated
as:
37
Elizabeth Wicks (Supra note 5), at page 29 F
38
Anne J. Davis, “Dilemmas in Practice: To Make Live or Let Die”, The American
Journal of Nursing(March 1981), Vol. 81, No. 3, at page 582
39
Heike Baranzke, “”Sanctity-of-Life”—A Bioethical Principle for a Right to Life?”,
Ethic Theory Moral Practice (2012), Vol. 15, Issue 3, at page 295
40
Elizabeth Wicks (Supra note 5), at page 1
41
Ibid, at page 240
42
PG Lauren argues that it is “essential to recognise that the moral worth of each G
person is a belief that no single civilization, or people, or nation, or geographical area,
or even century can claim as uniquely its own” See P.G. Lauren, The Evolution of
International Human Rights: Visions Seen (University of Pennsylvania Press, 2003,
2nd edn.), at page 12.), as quoted in Elizabeth Wicks (Supra note 5), at pages 25-29
43
Elizabeth Wicks (Supra note 5), at page 47
44
John Keown, The Law and Ethics of Medicine: Essays on the Inviolability of Human
H
Life (Oxford University Press, 2012), at page 3
198 SUPREME COURT REPORTS [2018] 6 S.C.R.

A “Human life is sacred, that is inviolable, so one should never aim
to cause an innocent person’s death by act or omission”.45
50. Distinct from religious beliefs, the special value inherent in
human life has been recognised in secular ideas of natural law - “man as
an end in himself, and human investment in life”.46 Locke has been of
B the view that every human being “is bound to preserve himself, and not
to quit his station wilfully”.47 In his book “Life’s Dominion”, Ronald
Dworkin explains the sanctity of human life thus:
“The hallmark of the sacred as distinct from the incrementally
valuable is that the sacred is intrinsically valuable because—and
C therefore only once—it exists. It is inviolable because of what it
represents or embodies. It is not important that there be more
people. But once a human life has begun, it is very important that
it flourish and not be wasted.”48
Life today, according to Dworkin, is not just created by the science
D of evolution but by past choices—by the investment that an individual,
and others, have put into his or her life.49
51. Elizabeth Wicks in her book titled “The Right to Life and
Conflicting Interests” (2010) has succinctly summarized the moral and
ethical justifications for the sanctity of life thus:
E “The life of an individual human being matters morally not because
that organism is sentient or rational (or free of pain, or values its
own existence) but because it is a human life. This point is
supported by the ethical and legal principle of equality which is
well established in the field of human rights…From an end of life
F perspective, this means that life ends only when the human organism
dies. This cannot sensibly require the death of all of the body’s
cells but rather the death of the organism as a whole. In other
words, life comes to an end when the integrative action between
the organs of the body is irreversibly lost. It is the life of the
organism which matters, not its living component parts, and thus it
G 45
Ibid
46
Elizabeth Wicks (Supra note 5), at pages 34-35
47
John Locke, Two Treatises of Government (ed. P. Laslett) (Cambridge University
Press, 1988)
48
Ronald Dworkin, Life’s Dominion: An Argument about Abortion and
Euthanasia(Harper Collins, 1993), at pages 73-74
49
H Elizabeth Wicks (Supra note 5), at page 32
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 199
[DR. D. Y. CHANDRACHUD, J.]

is the permanent destruction of that integrative organism which A
signifies the end of the organism’s life.”50
52. The value of human life has been emphasized by Finnis in the
following words:
“[H]uman bodily life is the life of a person and has the dignity of
the person. Every human being is equal precisely in having that B
human life which is also humanity and personhood, and thus that
dignity and intrinsic value. Human bodily life is not mere habitation,
platform, or instrument for the human person or spirit. It is
therefore not a merely instrumental good, but is an intrinsic and
basic human good. Human life is indeed the concrete reality of C
the human person. In sustaining human bodily life, in however
impaired a condition, one is sustaining the person whose life it is.
In refusing to choose to violate it, one respects the person in the
most fundamental and indispensable way. In the life of the person
in an irreversible coma or irreversibly persistent vegetative state,
the good of human life is really but very inadequately instantiated. D
Respect for persons and the goods intrinsic to their wellbeing
requires that one make no choice to violate that good by terminating
their life.”51
53. In his book “The Law and Ethics of Medicine: Essays on the
Inviolability of Human Life” (2012), John Keown has explained the E
principle of the sanctity or inviolability of human life and its continuing
relevance to English law governing aspects of medical practice at the
beginning and end of life. Keown has distinguished the principle from
the other two “main competing approaches to the valuation of human
life”52 - ”vitalism” on the one hand and a “qualitative” evaluation of F
human life on the other.The approach of “vitalism” assumes that “human
life is the supreme good and one should do everything possible to preserve
it”. The core principle of this approach is “try to maintain the life of each
patient at all costs”.53
54. In the “quality of life” approach, Keown has argued that “there G
is nothing supremely or even inherently valuable about the life of a human
50
Ibid, at pages 16-17
51
John Finnis, Human Rights and Common Good (Oxford University Press, 2011), at
page 221
52
John Keown (Supra note 44), at page 4
53
Ibid
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200 SUPREME COURT REPORTS [2018] 6 S.C.R.

A being”. The value of human life”resides in meeting a particular “quality”
threshold”, above which the dignity of life would be “worthwhile”. Keown
criticizes this approach for its basis that since “certain lives are not worth
living, it is right intentionally to terminate them, whether by act or
omission”.54
B 55. Keown sums up that the doctrine of the sanctity or inviolability
of life holds that “we all share, by virtue of our common humanity, an
ineliminable dignity” - this dignity grounds the “right to life”.55 The essence
of the principle is that “it is wrong to try to extinguish life”.56 Intentional
killing is prohibited by any act or omission. Keown thereby emphasises
the sanctity and inviolability of life in the following words:
C
“Human life is a basic, intrinsic good… The dignity of human
beings inheres because of the radical capacities, such as for
understanding, rational choice, and free will, inherent in human
nature… All human beings possess the capacities inherent in their
nature even though, because of infancy, disability, or senility, they
D may not yet, not now, or no longer have the ability to exercise
them. The right not to be killed is enjoyed regardless of inability or
disability. Our dignity does not depend on our having a particular
intellectual ability or having it to a particular degree...”57
56. The principle of the sanctity of life considers autonomy as a
E “valuable capacity, and part of human dignity”58. However, autonomy’s
contribution to dignity is “conditional, not absolute”59. The limitations of
autonomy under the sanctity of life doctrine can be summarized as follows:
“Exercising one’s autonomy to destroy one’s (or another’s) life is
always wrong because it is always disrespectful of human dignity.
F So: it is always wrong intentionally to assist/encourage a patient
to commit suicide and, equally, there is no “right to commit suicide,”
let alone a right to be assisted to commit suicide, either by act or
omission… The principle of “respect for autonomy” has in recent
years become for many a core if not dominant principle of
G biomedical ethics and law. It is not, however, unproblematic. Its
54
Ibid, at page 5
55
Ibid, at page 6
56
Ibid, at page 6
57
Ibid, at pages 5-6
58
Ibid, at page 18
59
Ibid
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 201
[DR. D. Y. CHANDRACHUD, J.]

advocates often fail to agree on precisely what constitutes an A
“autonomous” choice or to offer any convincing account of why
respect for someone else’s choice as such should be regarded as
a moral principle at all, let alone a core or dominant moral
principle.”60
John Keown, however, while distinguishing the principle of sanctity B
of life from vitalism, has also argued that though this principle “prohibits
withholding or withdrawing treatment with intent to shorten life”, but it
also “permits withholding/withdrawing a life-prolonging treatment which
is not worthwhile because it is futile or too burdensome”. It does not
require doctors to try to preserve life at all costs.61 This consideration,
despite all the assumptions and discussions about the sanctity of life, in a C
way, makes the doctrine an open-ended phenomenon.
57. This open-endedness is bound to lead to conflicts and
confusions. For instance, the issue of the sacred value of life is potentially
a conflicting interest between a right to life and autonomy, which Wicks
explains as follows: D

“If we accept that human life has some inherent value, is it solely
to the individual who is enjoying that life or is there some broader
state or societal benefit in that life? If life is of value only to the
person living it, then this may elevate the importance of individual
autonomy. It may even suggest that it is an individual’s desire for E
respect for his or her own life that provides the inherent value in
that life. On the other hand, it might be argued that the protection
of human life is, at least partly, a matter of public interest. Whether
it is to the state, or other members of society, or only an individual’s
own family and friends, there is an argument that a human life is F
a thing of value to others beyond the individual living that life…
[I]f life is legally and ethically protected in deference to the
individual’s wish for respect for that life, the protection would
logically cease when an autonomous choice is made to bring the
life to an end. If, however, the life is protected, at least partly, due
to the legitimate interest in that life enjoyed by the state or other G
(perhaps select) members of society, then the individual’s
autonomous choice to end his or her life is not necessarily the
60
Ibid
61
Ibid, at page 13
H
202 SUPREME COURT REPORTS [2018] 6 S.C.R.

A decisive factor in determining whether legal and ethical protection
for that life should continue.”62
58. The disagreement between “sanctity of life” and the “quality
of life” is another conflict, which can be summarized as follows:“ If we
start with a sanctity of life position, this affirms the value of human life
B in a way that trumps even claims to self-determination… [P]eople who
suffer from terminal or degenerative illness… who want to die must
remain alive in great pain or discomfort until death comes ‘naturally’ to
them. Similarly, people who suffer from long-term disability or paralysis
which grossly diminishes their capacities for life and who cannot take
their own lives, are not permitted to die. In such circumstances, the
C argument for sanctity of life may seem somewhat sanctimonious to the
person who is not allowed the assistance to end their own life. There
have been cases in the media in recent years where the moral difficulty
in insisting on the sanctity of life in such situations has been made clear.
Though such cases will not disturb the position of she who believes
D fundamentally in the sanctity of life, they do lead others to accept that
there may be exceptional cases where sanctity gives way to quality of
life issues.”63
Therefore, intractable questions about morality and ethics arise.
What is the core of life that might be protected by law? Will a poor
E quality of life (in the shadow of the imminence of death) impact upon the
value of that life to such an extent that it reduces the protection for that
life offered by the sanctity of life doctrine? Are there limits to the principle
of sanctity? This needs to be reflected upon in the next part of the
judgment.

F G Nuances of the sanctity of life principle
59. The sanctity of life has been central to the moral and ethical
foundations of society for many centuries. Yet,it has been suggested
that “across the range of opinions most people would seem to agree
that life is valuable to some degree, but the extent to which any ‘value’
is founded in intrinsic worth or instrumental opportunity is contentious”.64
G
Glanville Williams, a strong proponent of voluntary euthanasia, was of
62
Elizabeth Wicks (Supra note 5), at p 176-177
63
Alan Norrie (Supra note 4), at pages 141-142
64
Alexandra Mullock, End-Of-Life Law And Assisted Dying In The 21st Century: Time
For Cautious Revolution? (PhD Thesis, University of Manchester, 2011), at page
24
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 203
[DR. D. Y. CHANDRACHUD, J.]

the view that “there was a human freedom to end one’s life”. According A
to him, “the law could not forbid conduct that, albeit undesirable, did not
adversely affect the social order”.65That view, as argued by Luis Kutner
in his article “Euthanasia: Due Process for Death with Dignity; The
Living Will”66, was similar to that advanced by John Stuart Mill. Mill, in
his classic work “On Liberty” stated:
B
“Mankind are great gainers by suffering each other to live as
seems good to themselves, than by compelling each to live as
seems good to the rest.”67
Are there limits to or nuances of the sanctity principle? This must
be discussed for a fuller understanding of the debate around euthanasia.
C
60. Though the sanctity principle pro-hibits “the deliberate
destruction of hu-man life, it does not demand that life should always be
prolonged for as long as possible”.68 While providing for an intrinsic
sacred value to life “irrespective of the person’s capacity to enjoy life
and notwithstanding that a person may feel their life to be a great burden”,
the principle holds that “life should not always be maintained at any and D
all cost”.69 Ethical proponents of the sanctity of life tend to agree that
when “medical treatment, such as ventilation and probably also antibiotics,
can do nothing to restore those in permanent vegetative state to a state
of health and well-functioning, it is futile and need not be provided”.70
Rao has thus suggested that “the law’s recognition that withdrawal of E
life-prolonging treatment is sometimes legitimate” is not generally an
exception to the sanctity principle, but is actually “an embodiment of
it”.71
61. Philosopher and medical ethicist James Rachels has in a
seminal work72 titled “The End of Life: Euthanasia and Morality (Studies
65
F
Luis Kutner, “Euthanasia: Due Process for Death with Dignity; The Living Will”,
Indiana Law Journal (Winter 1979), Vol. 54, Issue, 2, at page 225
66
Ibid, at pages 201-228
67
Ibid, at pages 225-226
68
Sushila Rao, “The Moral Basis for a Right to Die”, Economic & Political Weekly(April
30, 2011), at page 14
69
Alexandra Mullock, End-Of-Life Law And Assisted Dying In The 21st Century: G
Time For Cautious Revolution? (PhD Thesis, University of Manchester, 2011), at
page 25
70
John Keown, “The Legal Revolution: From “Sanctity of Life” to “Quality of Life”
and “Autonomy”, Journal of Contemporary Health Law & Policy (1998), Vol. 14,
Issue 2, at page 281
71
Sushila Rao (Supra note 68), at page 14
72
James Rachels, (Supra note 23) H
204 SUPREME COURT REPORTS [2018] 6 S.C.R.

A in Bioethics)” in the year 1986 propounded that we must embrace an
idea of the sanctity of life which is firmly based in ethics (the idea of
right and wrong) and not based in religion. The separation of religion
from morality and ethics does not necessarily mean a rejection of religion,
but that the doctrine of “sanctity of life” must be accepted or rejected on
its merits, by religious and non-religious people alike. The value of life is
B
not the value that it has for God or the value that it may have from any
religious perspective. The truth of moral judgments and exercising reason
to decide what is right and wrong does not depend on the truth of
theological claims. The value of life is the value that it has for the human
beings who are subjects of lives. Thus, the value of life must be understood
C from the perspective of the person who will be harmed by the loss, the
subject of life. It is also important to understand the true meaning behind
the moral rule against killing. The rationale behind such a law is to protect
the interests of individuals who are the subject of lives. If the point of the
rule against killing is the protection of lives, then we must acknowledge
that in some cases killing does not involve the destruction of “life” in the
D
sense that life is sought to be protected by law. For example, a person in
an irreversible coma or suffering a serious terminal illness is alive in a
strictly biological sense but is no longer able to live life in a way that may
give meaning to this biological existence. The rule against killing protects
individuals that have lives and not merely individuals who are alive. When
E an individual is alive only to the extent of being conscious in the most
rudimentary sense, the capacity to experience pleasure and pain (if any)
does not necessarily have value if that is the only capacity one has.
These sensations will not be endowed with any significance by the one
experiencing them since they do not arise from any human activities or
projects and they will not be connected with any coherent view of the
F
world.
62. It is instructive to analyse how the principle of the sanctity of
life impacts upon views in regard to capital punishment. (This comparison,
it needs to be clarified in the present judgment, is not to indicate an
opinion on the constitutionality of the death penalty which is not in issue
G here). Advocates of the sanctity of life would even allow capital
punishment73, implying that they do not oppose all killing of human beings.
This suggests that “while they are anti-euthanasia, they are not uniformly
pro-life”74. In a seminal article titled “The Song of Death: The Lyrics of
73
Elizabeth Wicks (Supra note 5), at pages 102-149
74
H Margaret A. Somerville, “The Song of Death: The Lyrics of Euthanasia”, Journal of
Contemporary Health Law & Policy (1993), Vol. 9, Issue 1, at page 67.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 205
[DR. D. Y. CHANDRACHUD, J.]

Euthanasia”75, Margaret A. Somerville has laid down “four possible A
positions that persons could take:
(i) that they are against capital punishment and against euthanasia;
(ii) that they agree with capital punishment, but are against
euthanasia;
B
(iii) that they agree with capital punishment and euthanasia; or
(iv) that they are against capital punishment, but agree with
euthanasia”.76
She explained the underlying philosophy that these positions
represent and its implications: C
“The first is a true pro-life position, in that, it demonstrates a moral
belief that all killing (except, usually, as a last resort in self-defence)
is wrong. The second position represents the view of some
fundamentalists, namely, that to uphold the sanctity of life value
requires prohibition of euthanasia, but capital punishment is justified D
on the grounds that this punishment is deserved and just according
to God’s law. The third position is that of some conservatives,
who see capital punishment as a fit penalty on the basis that one
can forfeit one’s life through a very serious crime, but that one
can also consent to the taking of one’s own life in the form of
E
euthanasia. The fourth view is that of some civil libertarians, that
one can consent to the taking of one’s own life but cannot take
that of others. Through such analyses, one can see where the
various groups agree with each other and disagree. For example,
the true pro-life persons and the fundamentalists agree with each
other in being against euthanasia, and some conservatives and F
civil libertarians agree with each other in arguing for the availability
of euthanasia. On the other hand, the true pro-life and civil
libertarians join in their views in being against capital punishment,
whereas the fundamentalists and some conservatives agree that
this is acceptable.”77
G
The above explanation suggests that there are variations in
intellectual opinion on the concept of sanctity of life. When it comes to
75
Ibid, at pages 1-76
76
Ibid, at page 67
77
Ibid, at pages 67-68
H
206 SUPREME COURT REPORTS [2018] 6 S.C.R.

A taking of a person’s life, various groups while agreeing in certain terms,
may be “radically divergent in others”.78
63. Contrary to the vitalism or the sanctity of life principle, some
scholars and bioethicists have argued that “life is only valuable when it
has a certain quality which enables the subject to derive enjoyment from
B their existence so that life is viewed as being, on balance, more beneficial
than burdensome”. It has been argued that the sanctity of life principle
should be interpreted to protect lives in the biographical sense and not
merely in a biological sense.79 There is a difference in the fact of being
alive and the experience of living. From the point of view of the living
individual, there is no value in being alive except that it enables one to
C have a life.80
64. There is wide-ranging academic research suggestive of a
nuanced approach to the sanctity principle. During the last four decades,
“there has been a subtle change in the way” people perceive human life
and that “the idea of quality of life has become more prevalent in recent
D times”.81. The moral premium, as Magnusson has remarked, is shifting
“from longevity and onto quality of life”82.
In his article titled the “Sanctity of Life or Quality of Life?”83,
Singer argued that the sanctity of life principle has been under erosion -
the “philosophical foundations” of the principle being “knocked asunder”.84
E “The first major blow” to the principle, Singer stressed,”was the spreading
acceptance of abortion throughout the Western world”. Late abortions
diluted the defence of the “[alleged] universal sanctity of innocent human
life”.85 Singer has further remarked:
“Ironically, the sanctity with which we endow all human life often
F works to the detriment of those unfortunate humans whose lives
hold no prospect except suffering…
78
Ibid
79
James Rachels (Supra note 23), at page 26
80
Ibid
81
Jessica Stern, Euthanasia and the Terminally Ill(2013), retrieved from Florida State
G University Libraries
82
Roger S. Magnusson, “The Sanctity of Life and the Right to Die: Social and
Jurisprudential Aspects of the Euthanasia Debate in Australia and the United States”,
Pacific Rim Law & Policy Journal, Vol. 6, No. I, at page 40
83
Peter Singer, “Sanctity of Life or Quality of Life”, Pediatrics (1983), Vo. 72, Issue
1, at pages 128-129
84
Ibid, at page 129
H 85
Ibid, at page 128
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 207
[DR. D. Y. CHANDRACHUD, J.]

One difference between humans and other animals that is relevant A
irrespective of any defect is that humans have families who can
intelligently take part in decisions about their offspring. This does
not affect the intrinsic value of human life, but it often should
affect our treatment of humans who are incapable of expressing
their own wishes about their future. Any such effect will not,
B
however, always be in the direction of prolonging life…
If we can put aside the obsolete and erroneous notion of the sanctity
of all human life, we may start to look at human life as it really is:
at the quality of life that each human being has or can achieve.
Then it will be possible to approach these difficult questions of life
and death with the ethical sensitivity that each case demands, C
rather than with the blindness to individual differences…”86
65. The quality of life approach has its basis in the way life is
being lived. “An overriding concern”, under this approach, “is the
conditions under which people live rather than whether they live”. 87This
does not mean that someone “who chooses to end their life through D
euthanasia” does not value their lives as much as others.88 Breck in his
article titled “Euthanasia and the Quality of Life Debate”89 has stated
that:
“Ethicists of all moral and religious traditions recognize that medical
decisions today inevitably involve quality of life considerations. E
Very few would be inclined to sustain limited physiological
functioning in clearly hopeless cases, as with anencephaly or whole-
brain death, simply because the technology exists to do so. That
such a case is indeed hopeless, however, is a quality of life judgment:
it weighs the relationship between the patient’s condition and the F
treatment options and concludes that attempts to sustain biological
existence would be unnecessarily burdensome or simply futile.
Judgments made in light of “futility” or the “burden-benefit
calculus” are necessarily based on evaluations of the “quality” of
86
Ibid, at page 129 G
87
“Sanctity of life vs. quality of life”, Los Angeles Times (June 7, 2015), available at
http://www.latimes.com/opinion/readersreact/la-le-0607-sunday-assisted-suicide-
20150607-story.html
88
Jessica Stern, Euthanasia and the Terminally Ill (2013), available at https://
fsu.digital.flvc.org/islandora/object/fsu:209909/datastream/PDF/view
89
John Breck, “Euthanasia and the Quality of Life Debate”, Christian Bioethics (1995),
Vol. 1, No.3, at pages 322-337 H
208 SUPREME COURT REPORTS [2018] 6 S.C.R.

A the patient’s life. Such quality, however, must always be determined
in light of the patient’s own personal interests and well-being, and
not on grounds of the burden imposed on other parties (the family,
for example) or the medical care system with its economic
considerations and limited resources.”90
B Weingarten is of the view that the emphasis on the sanctity of
life”should be replaced by ‘value of life’, which exposes the individual
case to critical scrutiny. Medicine can better cope with its current and
future ethical dilemmas by a case-by-case approach.”91
Norrie explains why quality of life should be placed ahead of
C sanctity of life in the debate on euthanasia:
“[W]hile there are good moral reasons of either a direct (that
human life should be generally valued as of intrinsic worth) or an
indirect (that allowing exceptions would lead to a slippery slope)
kind for supporting a sanctity of life view in the case of the terminally
D ill and ancillary cases, there are also good moral reasons for
allowing exceptions to it. The latter stem from a quality of life
view and, linked to that, the possibility of choosing the time and
place of one’s own death. The possibility of agency as a central
element in what it means to be human is premised on the notion of
human freedom, and freedom implies a number of different
E elements. These include a simple freedom to be left alone with
one’s life, as well as a positive freedom to become what we have
it within ourselves to be. Such freedom then entails further
conceptions of autonomy, emancipation, and flourishing, insofar
as human life reflects the potentialities in human being. The ability
F to choose one’s own death reflects many of these aspects of
human freedom, from the simple sense that one should be left
alone to do what one likes with one’s life to the more complex
sense that an autonomous life would include amongst its
components control over one’s death, and then on to the sense—
that is surely there in the term ‘euthanasia’ (a ‘good death’)—
G that a flourishing life is one in which one is genuinely able to register
the time to go. These are moral arguments placing choice and
quality of life ahead of sanctity of life… A good life means a
good death too, and it is this kind of argument that leads one to
90
Ibid, at pages 325-326
91
Michael A Weingarten, “On the sanctity of life”, British Journal of General Practice
H (April 2007), Vol. 57(537), at page 333
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 209
[DR. D. Y. CHANDRACHUD, J.]

think that a categorical prohibition on voluntary euthanasia…is A
problematic.”92
Life and natural death
66. The defenders of the sanctity principle place sacred value to
human life from “conception to natural death”.93 The word “natural”
implies that “the only acceptable death is one that occurs from natural B
causes”. Life is only “sacred insofar as it ends by natural means”94.
Medical advancements,however, have brought uncertainty about the
definition of death - “what constitutes death, in particular a “natural”
death”. This uncertainty can be expressed through the following questions:
“If a person stays alive thanks to medical advances, is that really C
“natural”?...
When is the benefit of using technology and treatments to sustain
life no longer worth the pain that comes along with it?”95
67. Medical advances have “complicated the question of when D
life ends”. There exists no natural death where artificial technology is
concerned. Technology by artificial means can prolong life. In doing so,
technology has re-shaped both human experience as well as our values
about life in a natural stateand its end by natural causes:
“[T]he process of dying is an in-evitable consequence of life, the
E
right to life necessarily implies the right to have nature take its
course and to die a natural death. It also encompasses a right,
unless the individual so wishes, not to have life artificially
maintained by the provision of nourishment by abnormal artificial
means which have no curative effect and which are intended
merely to prolong life.”96 F
68. Modern medicine has found ways to prolong life and to delay
death. But, it does not imply that modern medicine “necessarily prolongs
our living a full and robust life because in some cases it serves only to
prolong mere biological existence during the act of dying”.This may, in
92
Alan Norrie (Supra note 4), at page 143 G
93
Alecia Pasdera, The Rhetoric of the Physician-Assisted Suicide Movement: Choosing
Death Over Life(2014), available at https://ou.monmouthcollege.edu/_resources/pdf/
academics/mjur/2014/Rhetoric-of-the-Physician-Assisted-Suicide-Movement-
Choosing-Death-Over-Life.pdf, at page 68
94
Ibid, at page 69
95
Ibid, at page 68
96
Sushila Rao (Supra note 68), at page 15 H
210 SUPREME COURT REPORTS [2018] 6 S.C.R.

A certain situations result in a mere “prolongation of a heart-beat that
activates the husk of a mindless, degenerating body that sustains an
unknowing and pitiable life-one without vitality, health or any opportunity
for normal existence-an inevitable stage in the process of dying”. 97
Prolonging life in a vegetative state by artificial means or allowing pain
and suffering in a terminal state would lead to questioning the belief that
B
any kind of life is so sanctified as to be preferred absolutely over death”.98
69. Kuhse and Hughes have stated that “the really critical issues
in medicine are often hidden” by “the hulking darkness” of the sanctity
principle. According to them:
C “Today the advances of science are occurring every minute.
Lasers are used to crush kidney stones; mechanical hearts are
transplanted to prolong life; and organ transplants are being
increasingly used, particularly livers and eyes and, now
experimentally, legs. Microprocessor ventilators are used to
maintain breathing in patients unable to breathe on their own;
D chemotherapy/radiology is being used to prolong the lives of cancer
patients; long-term hemodialysis is being used for those who have
non-functional kidneys; and cardiac pacemakers are being
implanted in patients whose hearts are unable to beat normally.
While society has supported research and development in
E medicine, the issues regarding the termination of such treatment
and, more importantly, the withholding of such treatment have not
been fully addressed.”99
70. The debate around human life will be driven by technology.
“Sophisticated modern medical technology”, even if ultimately not being
F able to conquer death, “has a lot to say about the conditions and time of
its occurrence”. Singer has envisioned a future where the debate around
human life is closely linked to the impact of technology on our existence:
“As the sophistication of techniques for producing images of soft
tissue increases, we will be able to determine with a high degree
G of certainty that some living, breathing human beings have suffered
such severe brain damage that they will never regain
97
Arval A. Morris, “Voluntary Euthanasia”, Washington Law Review (1970), Vol. 45,
at page 240
98
Ibid, at page 243
99
Elizabeth M. Andal Sorrentino, “The Right To Die?”, Journal of Health and Human
Resources Administration (Spring,1986), Vol. 8, No. 4, at pages 361-373
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 211
[DR. D. Y. CHANDRACHUD, J.]

consciousness. In these cases, with the hope of recovery gone, A
families and loved ones will usually understand that even if the
human organism is still alive, the person they loved has ceased to
exist. Hence, a decision to remove the feeding tube will be less
controversial, for it will be a decision to end the life of a human
body, but not of a person.”100
B
71. Lady Justice Arden recently delivered a lecture in India on a
topic dealing with the intersection of law and medicine titled “What does
patient autonomy mean for Courts?”101. The judge explained that
advancement in medical technology has contributed towards a growing
importance of patient autonomy and an increasing social trend towards
questioning clinical judgment, which is causing conflict among courts in C
the UK- particularly in end of life treatment decisions. To highlight this
conflict, Judge Arden cites the example of baby Charlie Gard, a ‘caregiver
case’102 that engendered debate on medical ethics world over.
Born in August 2016 in London, Charlie suffered from an
extremely rare genetic condition known as MDDS, which causes D
progressive brain damage and muscle failure, usually leading to death in
infancy. His parents wanted him to undergo experimental treatment
known as nucleoside which was available in the USA and raised a large
amount of money to enable him to travel there. However, the doctors at
the hospital in London who were treating him did not think it was in his E
caregiver to have this treatment as instead they believed his caregiver
demanded that his life-support be withdrawn as they considered the
treatment to be futile. Due to the conflicting views between the parents
and the doctors, the core issue to be decided i.e. whether it was in the
best interest of the child to received further treatment had to be answered
by the Court. The case went through the judicial system- including the F
High Court, the Supreme Court, the ECHR and finally back to the High
Court, which on the basis of medical reports concluded that it was not in
the child’s caregiver to have further treatment and passed an order
permitting the doctors to allow Charlie to die. In addition to the issue of
caregiver, Lady Justice Arden also mentioned the issue of resources in G
100
Peter Singer, “The Sanctity of Life”, Foreign Policy(October 20, 2009), available at
http://foreignpolicy.com/2009/10/20/the-sanctity-of-life/
101
Lady Justice Arden, Law of medicine and the individual: current issues, What does
patient autonomy mean for the courts?,(Justice KT Desai Memorial Lecture 2017)
102
Great Ormond Street Hospital v. Constance Yates, Christopher Gard, Charlie
Gard (by his guardian), [2017] EWHC 1909 (Fam) H
212 SUPREME COURT REPORTS [2018] 6 S.C.R.

A such cases. In the present case, the parents were able to raise large
amounts of financial resources required for the treatment of the child,
but lack of resources could lead to difficulties in other cases where
treatment is unaffordable in a public health system.
72. Modern technology has in a fundamental manner re-shaped
B the notion of life. As technology continuously evolves into more complex
planes, it becomes even more necessary to re-evaluate its relationship
with the meaning and quality of life.
H Euthanasia and the Indian Constitution
73. The sanctity of life principle appears in declarations on human
C rights as the “right to life”.103 Under the Indian Constitution, right to life
has been provided under Article 21. In Pt. Parmanand Katarav Union
of India104, it was pointed out:
“[P]reservation of life is of most importance, because if one’s life
is lost, the status quo ante cannot be restored as resurrection is
D beyond the capacity of man”.
The sanctity of human life lies in its intrinsic value. It inheres in
nature and is recognised by natural law. But human lives also have
instrumental functions. Our lives enable us to fulfil our needs and
aspirations. The intrinsic worth of life is not conditional on what it seeks
E to or is capable to achieve. Life is valuable because it is. The Indian
Constitution protects the right to life as the supreme right, which is
inalienable and inviolable even in times of Emergency. 105 It clearly
recognises that every human being has the inherent right to life, which is
protected by law, and that “No person shall be deprived of his life…
F except according to procedure established by law”106. It, thus, envisages
only very limited circumstances where a person can be deprived of life.
According to Stephania Negri, the debate around euthanasia has
“essentially developed within the framework of the universal rights to
life and to human dignity”107. This leads us to the relationship between
end of life decisions and human dignity under the Indian Constitution.
G
103
John Keown (Supra note 44), at page 4
104
AIR 1989 SC 2039
105
Article 359
106
Article 21
107
Stefania Negri, “Universal Human Rights and End-of-Life Care” in S. Negri et al.
(eds.), Advance Care Decision Making in Germany and Italy: A Comparative,
H European and International Law Perspective, Springer (2013), at page 18
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 213
[DR. D. Y. CHANDRACHUD, J.]

Dignity A
74. Human dignity has been “considered the unique universal value
that inspires the major common bioethical principles, and it is therefore
considered the noyau dur of both international bio law and international
human rights law”108. Ronald Dworkin observes that “the notion of a
right to dignity has been used in many senses by moral and political B
philosophers”.109
75. The first idea considers dignity as the foundation of human
rights - “that dignity relates to the intrinsic value of persons (such that it
is wrong to treat persons as mere things rather than as autonomous ends
or agents)”110. According to this premise, every person, from conception C
to natural death, possesses inherent dignity:
“The sanctity of life view is often accompanied by a set of claims
about human dignity, namely, that human beings possess essential,
underived, or intrinsic dignity. That is, they possess dignity, or
excellence, in virtue of the kind of being they are; and this essential D
dignity can be used summarily to express why it is impermissible,
for example, intentionally to kill human beings: to do so is to act
against their dignity.”111
The other interpretation of dignity is by the supporters of
euthanasia.112 For them, right to lead a healthy life also includes leaving E
the world in a peaceful and dignified manner. Living with dignity, in this
view, means the right to live a meaningful life having certain quality. This
interpretation endorses the “quality of life” proposition.
Dignity has thus been invoked in support of contradictory claims
and arguments. It could justify respect for life under the principle of the
F
“sanctity of life”, as well as the right to die in the name of the principle
of “quality of life”. In order to remove ambiguities in interpretation and
108
Ibid, at pages 21-22
109
Ronald Dworkin, Life’s Dominion (London: HarperCollins, 1993) as quoted in
Deryck Beyleveld and Roger Brownsword, “Human Dignity, Human Rights, and
Human Genetics”, Modern Law Review (1998), Vol. 61, at pages 665-666
110
G
Deryck Beyleveld and Roger Brownsword, “Human Dignity, Human Rights, and
Human Genetics”, Modern Law Review (1998), Vol. 61, at page 666
111
Christopher O. Tollefsen, “Capital Punishment, Sanctity of Life, and Human
Dignity”, Pu blic Discourse(September 16, 2011), available at http://
www.thepublicdiscourse.com/2011/09/3985/
112
Stefania Negri, “Ending Life and Death” in A. den Exter (eds.), European Health
Law, MAKLU Press (2017), at page 241 H
214 SUPREME COURT REPORTS [2018] 6 S.C.R.

A application of the right to human dignity, Negri has suggested that dignity
should be given a minimum core of interpretation:
“To be meaningful in the end-of-life discourse, and hence
to avoid being invoked as mere rhetoric, dignity should be
considered as a substantive legal concept, at whose basic
B minimum core is the legal guarantee assuring the protection
of every human being against degradation and humiliation.
Besides this, as international and national case law demonstrate,
it can also play an important role as an interpretive principle,
assisting judges in the interpretation and application of other human
rights, such as the right to life and the right to respect for private
C life, both crucial in the end-of-life debate.”113
(Emphasis supplied)
Recognition of human dignity is an important reason underlying
the preservation of life. It has important consequences. Is that dignity
not compromised by pain and suffering and by the progressive loss of
D bodily and mental functions with the imminence of the end of life? Dignity
has important consequences for life choices.
76. Morris, in his article, “Voluntary Euthanasia”, regards cruelty
as a violation of human dignity:
“All civilized men will agree that cruelty is an evil to be avoided.
E But few people acknowledge the cruelty of our present laws which
require a man be kept alive against his will, while denying his
pleas for merciful release after all the dignity, beauty, promise and
meaning of life have vanished, and he can only linger for weeks
or months in the last stages of agony, weakness and decay.” In
addition, the fact that many people, as they die, are fully conscious
F
of their tragic state of deterioration greatly magnifies the cruelty
inherent in forcing them to endure this loss of dignity against their
will.”114
He has further stated “it is exceedingly cruel to compel the spouse
and children of a dying man to witness the ever-worsening stages of his
G disease, and to watch the slow, agonizing death of their loved one,
degenerating before their eyes, being transformed from a vital and robust
parent and spouse into a pathetic and humiliated creature, devoid of
human dignity”.115
113
Ibid
114
Arval A. Morris (Supra note 97), at pages 251-252
H 115
Ibid
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 215
[DR. D. Y. CHANDRACHUD, J.]

77. Liberty and autonomy promote the cause of human dignity. A
Arguments about autonomy are often linked to human dignity. 116 Gostin
evaluates the relationship between the dignity of dying with autonomy
thus:
“The dying process, after all, is the most intimate, private and
fundamental of all parts of life. It is the voice that we, as humans, B
assert in influencing this autonomous part of our life. At the moment
of our death, this right of autonomy ought not to be taken from us
simply because we are dying. An autonomous person should not
be required to have a good reason for the decision that he or she
will make; that is the nature of autonomy. We do not judge for
other competent human beings what may be in their best interest, C
but instead allow them to determine that for themselves. As such,
an autonomous person does not need to have a good understanding
or even good reasons. All they need is an understanding of what
they are confronting. There is no reason to believe that when a
person faces imminent death that they have less human D
understanding, or less ability to fathom what they will face, than
other people. Of course, death is a mystery. But death is what we
will all confront sooner or later, and we all may wish to assert our
interests in how we may die.”117
78. Sumner in his work titled “Dignity through Thick and Thin”118 E
discusses the dignity associated with patients:
“[P]atients associate dignity with concepts such as respect and
esteem, presumably including self-respect and self-esteem,
whereas they experience its opposite—indignity—as degrading,
shameful, or embarrassing… Abstractly speaking, a person’s F
dignity seems to be a matter of assurance of her fully human
status, both in her own eyes and in the eyes of others. Dignity is
maintained when one can face others with pride and with
confidence of being worthy of their respect; it is lost or impaired
when being seen by others occasions feelings of shame, inferiority,
G
116
Sebastian Muders, Autonomy and the Value of Life as Elements of Human
Dignity(Oxford University Press, 2017)
117
Lawrence O. Gostin, “The Constitutional Right to Die: Ethical Considerations”, St
John’s Journal of Legal Commentary (1997), Vol. 12, at pages 602-603
118
LW Sumner, “Dignity through Thick and Thin”, in Sebastian Muders, Human
Dignity and Assisted Death (Oxford University Press, 2017)
H
216 SUPREME COURT REPORTS [2018] 6 S.C.R.

A or embarrassment. The element of degradation that is implicated
in indignity seems a matter of feeling demoted or diminished from
a higher standing to a lower, perhaps from the status of a fully
functioning person to something lesser.”119
While stating that dignity and indignity are “basically subjective
B notions”120 depending upon how individual patients experience them, he
has further stated:
“One condition that patients report as degrading— as an indignity—
is loss of control over the course of their own health care. Loss of
autonomy matters in its own right, but it matters even more if it is
C the source for patients of shame and humiliation. This suggests
that autonomy and well-being are themselves interconnected:
Patients typically experience a loss of the former as a decline in
the latter, as something that makes their dying process go worse
for them by causing them feelings of indignity. Appeals to dignity
thus flesh out what is at stake for patients in terms of their
D autonomy and well-being, but they do not introduce any factors
that fall outside the limits of these values.”121
79. An article titled “Euthanasia: A Social Science Perspective” 122
in the Economic & Political Weekly has suggested that the discourses
on death with dignity “need to be situated within processes of living with
E dignity in everyday contexts”.123 The end of life must not be seen as
“human disposal”, but, as “the enhancement of human dignity by
permitting each man’s last act to be an exercise of his free choice between
a tortured, hideous death and a painless, dignified one.”124
80. Under our Constitution, the inherent value which sanctifies
F life is the dignity of existence. Recognising human dignity is intrinsic to
preserving the sanctity of life. Life is truly sanctified when it is lived
with dignity. There exists a close relationship between dignity and the
quality of life. For, it is only when life can be lived with a true sense of
119
Ibid, at page 61
G 120
Ibid, at page 64
121
Ibid, at page 68
122
Aneeta A Minocha, Arima Mishra and Vivek R Minocha, “Euthanasia: A Social
Science Perspective”, Economic & Political Weekly(December 3, 2011), at pages
25-28
123
Ibid, at page 27
124
Arval A. Morris (Supra note 97), at page 247
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 217
[DR. D. Y. CHANDRACHUD, J.]

quality that the dignity of human existence is fully realized. Hence, there A
should be no antagonism between the sanctity of human life on the one
hand and the dignity and quality of life on the other hand. Quality of life
ensures dignity of living and dignity is but a process in realizing the sanctity
of life.
81. Human dignity is an essential element of a meaningful B
existence. A life of dignity comprehends all stages of living including the
final stage which leads to the end of life. Liberty and autonomy are
essential attributes of a life of substance. It is liberty which enables an
individual to decide upon those matters which are central to the pursuit
of a meaningful existence. The expectation that the individual should not
be deprived of his or her dignity in the final stage of life gives expression C
to the central expectation of a fading life: control over pain and suffering
and the ability to determine the treatment which the individual should
receive. When society assures to each individual a protection against
being subjected to degrading treatment in the process of dying, it seeks
to assure basic human dignity. Dignity ensures the sanctity of life. The D
recognition afforded to the autonomy of the individual in matters relating
to end of life decisions is ultimately a step towards ensuring that life
does not despair of dignity as it ebbs away.
82. From Maneka Gandhi125 to Puttaswamy126, dignity is the
element which binds the constitutional quest for a meaningful existence. E
In Francis Coralie Mullin v Administrator, Union Territory of
Delhi127, this Court held that:
“The right to life enshrined in Article 21 cannot be restricted to
mere animal existence. It means something muchmore than just
physical survival… F
We think that the right to life includes the right to live with human
dignity.”
Explaining the ambit of dignity, this Court further held that:
“[A]ny form of torture or cruel, inhuman or degrading treatment
G
would be offensive to human dignity and constitute an inroad into
this right to live… [T]here is implicit in Article 21 the right to
protection against torture or cruel, inhuman or degrading treatment
125
Maneka Gandhi v Union of India, (1978) 1 SCC 248
126
Justice KS Puttaswamy (Retd.) v Union of India, (2017) 10 SCC 1
127
(1981) 1 SCC 608 H
218 SUPREME COURT REPORTS [2018] 6 S.C.R.

A which is enunciated in Article 5 of the Universal Declaration of
Human Rights and guaranteed by Article 7 of the International
Covenant on Civil and Political Rights.”
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
B as dignity in death reflects a long yearning through the ages that the
passage away from life should be bereft of suffering. These individual
yearnings are enhanced by the experiences of sharing, observing and
feeling with others: the loss of a parent, spouse, friend or an acquaintance
to the cycle of life. Dignity in death has a sense of realism that permeates
the right to life. It has a basic connect with the autonomy of the individual
C and the right to self-determination. Loss of control over the body and
the mind are portents of the deprivation of liberty. As the end of life
approaches, a loss of control over human faculties denudes life of its
meaning. Terminal illness hastens the loss of faculties. Control over
essential decisions about how an individual should be treated at the end
D of life is hence an essential attribute of the right to life. Corresponding to
the right is a legitimate expectation that the state must protect it and
provide a just legal order in which the right is not denied. In matters as
fundamental as death and the process of dying, each individual is entitled
to a reasonable expectation of the protection of his or her autonomy by
a legal order founded on the rule of law. A constitutional expectation of
E providing dignity in death is protected by Article 21 and is enforceable
against the state.
Privacy
83. The nine-judge Bench decision of this Court in Justice K S
F Puttaswamy v Union of India128 held privacy to be the constitutional
core of human dignity. The right to privacy was held to be an intrinsic
part of the right to life and liberty under Article 21 and protected under
Part III of the Constitution. Each of the six decisions has a vital bearing
on the issues in the present case. Excerpts from the judgment are
reproduced below:
G
Justice DY Chandrachud
“The right to privacy is an element of human dignity. The sanctity
of privacy lies in its functional relationship with dignity. Privacy
ensures that a human being can lead a life of dignity by securing
128
H 2017 (10) SCC 1
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 219
[DR. D. Y. CHANDRACHUD, J.]

the inner recesses of the human personality from unwanted A
intrusion. Privacy recognises the autonomy of the individual and
the right of every person to make essential choices which affect
the course of life. In doing so privacy recognises that living a life
of dignity is essential for a human being to fulfil the liberties and
freedoms which are the cornerstone of the Constitution.”
B
Justice Chelameswar
“Forced feeding of certain persons by the State raises concerns
of privacy. An individual’s right to refuse life prolonging medical
treatment or terminate his life is another freedom which falls within
the zone of the right of privacy.” C
Justice S A Bobde
“Privacy, with which we are here concerned, eminently qualifies
as an inalienable natural right, intimately connected to two values
whose protection is a matter of universal moral agreement: the
innate dignity and autonomy of man… Both dignity and privacy D
are intimately intertwined and are natural conditions for the birth
and death of individuals, and for many significant events in life
between these events.”
Justice RF Nariman
E
“… a Constitution has to be read in such a way that words deliver
up principles that are to be followed and if this is kept in mind, it is
clear that the concept of privacy is contained not merely in personal
liberty, but also in the dignity of the individual.”
Justice AM Sapre
F
“The incorporation of expression “Dignity of the individual” in the
Preamble was aimed essentially to show explicit repudiation of
what people of this Country had inherited from the past. Dignity
of the individual was, therefore, always considered the prime
constituent of the fraternity, which assures the dignity to every
individual. Both expressions are interdependent and intertwined.” G

Justice SK Kaul
“A person-hood would be a protection of one’s personality,
individuality and dignity.”
H
220 SUPREME COURT REPORTS [2018] 6 S.C.R.

A “Privacy, for example is nothing but a form of dignity, which itself
is a subset of liberty.”
84. The protective mantle of privacy covers certain decisions that
fundamentally affect the human life cycle.129 It protects the most personal
and intimate decisions of individuals that affect their life and
B development.130 Thus, choices and decisions on matters such as
procreation, contraception and marriage have been held to be protected.
While death is an inevitable end in the trajectory of the cycle of human
life of individuals are often faced with choices and decisions relating to
death. Decisions relating to death, like those relating to birth, sex, and
marriage, are protected by the Constitution by virtue of the right of privacy.
C The right to privacy resides in the right to liberty and in the respect of
autonomy.131 The right to privacy protects autonomy in making decisions
related to the intimate domain of death as well as bodily integrity. Few
moments could be of as much importance as the intimate and private
decisions that we are faced regarding death.132 Continuing treatment
D against the wishes of a patient is not only a violation of the principle of
informed consent, but also of bodily privacy and bodily integrity that
have been recognised as a facet of privacy by this Court.
85. Just as people value having control over decisions during their
lives such as where to live, which occupation to pursue, whom to marry,
E and whether to have children, so people value having control over whether
to continue living when the quality of life deteriorates.133
86. In the case of In re Quinlan (1976),134 the New Jersey
Supreme Court dealt with a case of a patient, Karen Quinlan, who had
suffered irreversible brain damage and was in a persistent vegetative
F state and had no prospect of recovery. The patient’s father sought judicial
authority to withdraw the life-sustaining mechanisms temporarily
preserving his daughter’s life, and his appointment as guardian of her
person to that end. The father’s lawyer contended that the patient was
being forced to function against all natural impulses and that her right to
129
Richard Delgado, “Euthanasia Reconsidered-The Choice of Death as an Aspect of
G
the Right of Privacy”, Arizona Law Review (1975), Vol. 17, at page474
130
Ibid
131
TL Beauchamp, “The Right to Privacy and the Right to Die”, Social Philosophy and
Policy (2000), Vol. 17, at page 276
132
Ibid
133
D Benatar (Supra note 18)
134
H 70 N.J. 10; 355 A.2d 647 (1976)
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 221
[DR. D. Y. CHANDRACHUD, J.]

make a private decision about her fate superseded the state’s right to A
keep her alive. The New Jersey Supreme Court held that the patient
had a right of privacy grounded in the US Constitution to terminate
treatment and in a celebrated statement said that:
“the State’s interest contra [the right to privacy] weakens and
the individual’s right to privacy grows as the degree of bodily B
invasion increases and the prognosis dims. Ultimately there comes
a point at which the individual’s rights overcome the State interest.
It is for that reason that we believe [the patient’s] choice, if she
were competent to make it, would be vindicated by law.”
Since Karen Quinlan was not competent to assert her right to C
privacy, the Court held that Karen’s right of privacy may be asserted on
her behalf by her guardian due to the reason that Karen Quinlan did not
have the capacity to assert her right to privacy indicating that the right of
privacy is so fundamental that others, who had been intimately involved
with the patient, should be able to exercise it in circumstances when the
patient is unable to do so. However, subsequently scholars have argued D
that when euthanasia is founded in the right to privacy, only voluntary
euthanasia can be permitted. The right to privacy can only be exerted by
the patient and cannot be exercised vicariously.135 The substituted
judgment and caregiver criterion cannot be logically based on the right
to privacy of the patient.136 E
87. In the landmark case of Pretty v United Kingdom137, the
European Court of Human Rights analysed Article 8 of the European
Convention on Human Rights (respect for private life). It held that the
term “private life” is a broad term not susceptible to exhaustive definition
and covers the physical and psychological integrity of a person. In relation F
to the withdrawing of treatment, it was held that the way in which an
individual “chooses to pass the closing moments of her life is part of the
act of living, and she has a right to ask that this too must be respected.”
The right to privacy protects even those choices that may be considered
harmful for the individual exercising the choice:
G
“The extent to which a State can use compulsory powers or the
criminal law to protect people from the consequences of their
135
Peter J. Riga, “Privacy and the Right to Die,” The Catholic Lawyer (2017) Vol.
26: No. 2 , Article 2
136
Ibid
137
Application no. 2346/02 H
222 SUPREME COURT REPORTS [2018] 6 S.C.R.

A chosen lifestyle has long been a topic of moral and jurisprudential
discussion, the fact that the interference is often viewed as
trespassing on the private and personal sphere adding to the vigour
of the debate. However, even where the conduct poses a danger
to health or, arguably, where it is of a life-threatening nature, the
case-law of the Convention institutions has regarded the State’s
B
imposition of compulsory or criminal measures as impinging on
the private life of the applicant within the meaning of Article 8 §
1... In the sphere of medical treatment, the refusal to accept a
particular treatment might, inevitably, lead to a fatal outcome, yet
the imposition of medical treatment, without the consent of a
C mentally competent adult patient, would interfere with a person’s
physical integrity.”
The Court further observed that:
“Without in any way negating the principle of sanctity of life
protected under the Convention, the Court considers that it is under
D Article 8 that notions of the quality of life take on significance. In
an era of growing medical sophistication combined with longer
life expectancies, many people are concerned that they should
not be forced to linger on in old age or in states of advanced
physical or mental decrepitude which conflict with strongly held
E ideas of self and personal identity.”
Thus, the Court concluded that the “choice to avoid what she
considers will be an undignified and distressing end to her life” is
guaranteed under the right to respect for private life under Article 8(1)
of the Convention.
F 88. Subsequently in the case of Haas v Switzerland138, the
European Court of Human Rights has further held that the right to decide
in which way and at which time an individual’s life should end, provided
that he or she was in a position freely to form her own will and to act
accordingly, was one of the aspects of the right to respect for private life
G within the meaning of Article 8 of the Convention.
89. The right to privacy as held by this Court mandates that we
safeguard the integrity of individual choice in the intimate sphere of
decisions relating to death, subject to the restrictions to the right to privacy,
as laid down by us. However, since privacy is not an absolute right and
138
Application no. 31322/07, para 51
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 223
[DR. D. Y. CHANDRACHUD, J.]

is subject to restrictions, the restrictions must fulfil the requirements as A
laid down by this Court in Puttaswamy.
90. The protection of these rights by the legal order is as much an
emanation of the right to privacy which shares a functional relationship
with the fundamental right to life and personal liberty guaranteed by the
Constitution. Privacy recognises that the body and mind are inviolable. B
An essential attribute of this inviolability is the ability of the individual to
refuse medical treatment.
Socio-Economic Concerns
91. One of the limitations of contemporary debates on euthanasia
is that they do not take into consideration “certain socio-economic C
concerns that must necessarily be factored into any discourse”139. This
has been criticised as making the debate around ending life “incomplete”
as well as “elitist”.
92. In an article titled “Euthanasia: cost factor is a worry”140Nagral
(2011) seeks to construct a “critical linkage” between euthanasia and D
“the economic and social dimension” in the Indian context. Stating that
many Indian doctors have been practising passive euthanasia silently
and practically, Nagral contemplates the cost of treatment to be a critical
factor in influencing the medical decision:
“[O]ne of the reasons for ‘passive’ euthanasia is that the patient E
or his family could be running out of money. In some cases, this
overlaps with the incurability of the disease. In others, it may not.
Costly medication and intervention is often withdrawn as the first
step of this passive euthanasia process. Sometimes patients are
‘transferred’ to smaller (read cheaper) institutions or even their F
homes, with the tacit understanding that this will hasten the
inevitable. If a third party is funding the patient’s treatment, chances
are that the intervention and support will continue. Shocking and
arbitrary as this may sound, this is the reality that needs flagging
because it is relevant to the proposed legitimization of passive
euthanasia. In a system where out-of pocket payment is the norm G
and healthcare costs are booming, there has to be a way of
139
Sushila Rao (Supra note 16), at page 654
140
S Nagral, “Euthanasia: Cost Factor is a Worry”, The Times of India (June 19, 2011),
available at http://www.timesofindia.com/home/sunday/Euthanasia-cost-factor-is-a-
worry/articleshow/7690155.cms
H
224 SUPREME COURT REPORTS [2018] 6 S.C.R.

A differentiating a plea made on genuine medical grounds from one
that might be an attempt to avoid financial ruin.”141
Rao (2011) has observed:
“In the absence of adequate medical insurance, specialised
treatments like ventilator support, kidney dialysis, and expensive
B lifesaving drugs administered in private hospitals can turn
middle-class families into virtual paupers. Poorly equipped
government hospitals simply do not have enough life-support
machines compared to the number of patients who need them....
This also leads to the inevitable possibility of a comatose patient’s
C family and relatives potentially exploiting the euthanasia law to
benefit from a premature death, by way of inheritance, etc.”142
Norrie (2011) has placed the social and economic dimensions
succinctly:
“This concerns the problem of the differential social impact that
D such a position would have on the poor and the well-to-do… Wealth,
poverty, and class structure have a profound effect on the choices
people make.”143
The inadequacies of the range and reach of Indian healthcare
may, it is observed, lead to a situation where euthanasia/active euthanasia
E may become “an instrument of cost containment”144.
Restraints on Judicial Power
93. An earlier part of this judgment has dwelt on the criticism of
the distinction between passive and active euthanasia, founded as it is
on the act – omission divide. The criticism is that as a matter of substance,
F
there is no valid distinguishing basis between active and passive
euthanasia. The criticism takes one of two forms: either both should be
recognised or neither should be allowed. The view that passive euthanasia
involves an omission while active euthanasia involves a positive act is
questioned on the ground that the withdrawal of artificial life support (as
G an incident of passive euthanasia) requires a positive act. While noticing
141
Ibid
142
Sushila Rao (Supra note 16), at page 654-655
143
Alan Norrie (Supra note 4), at page 144
144
S Nagral, “Euthanasia: Cost Factor is a Worry”, The Times of India (June 19, 2011),
available at http://www.timesofindia.com/home/sunday/Euthanasia-cost-factor-is-a-
worry/articleshow/7690155.cms
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 225
[DR. D. Y. CHANDRACHUD, J.]

this criticism, it is necessary to distinguish between active and passive A
euthanasia in terms of the underlying constitutional principles as well as
in relation to the exercise of judicial power. Passive euthanasia – whether
in the form of withholding or withdrawing treatment – has the effect of
removing, or as the case may be, not providing supportive treatment. Its
effect is to allow the individual to continue to exist until the end of the
B
natural span of life. On the other hand, active euthanasia involves
hastening of death: the life span of the individual is curtailed by a specific
act designed to bring an end to life. Active euthanasia would on the state
of the penal law as it stands constitute an offence. Hence, it is only
Parliament which can in its legislative wisdom decide whether active
euthanasia should be permitted. Passive euthanasia on the other hand C
would not implicate a criminal offence since the decision to withhold or
withdraw artificial life support after taking into account the best interest
of the patient would not constitute an illegal omission prohibited by law.
94. Moreover, it is necessary to make a distinction between active
and passive euthanasia in terms of the incidents of judicial power. We D
may refer in this context to the felicitous words of Lord Justice Sales,
speaking for the Queen’s Bench Division in a recent decision delivered
on 5 October 2017 in Noel Douglas Conway v The Secretary of
State for Justice145. Dealing with the plea that physician assisted suicide
should be accepted as a principle by the court, the learned Judge observed
thus: E

“Parliament is the body composed of representatives of the
community at large with what can be called a democratic mandate
to make the relevant assessment in a case where there is an
important element of social policy and moral value-judgment
involved with much to be said on both sides of the debate (229) F
and (233). There is not a single, clear, uniquely rational solution
which can be identified; the decision cannot fail to be influenced
by the decision-makers’ opinions about the moral case for assisted
suicide, including in deciding what level of risk to others is
acceptable and whether any safeguards are sufficiently robust; G
and it is not appropriate for professional judges to impose their
personal opinions on matters of this kind (229)-(230) and (234).
In Nicklinson in the Court of Appeal, Lord Judge CJ aptly referred
to Parliament as representing “the conscience of the nation” for
145
(2017) EWHC 2447 (Admin)
H
226 SUPREME COURT REPORTS [2018] 6 S.C.R.

A decisions which raise “profoundly sensitive questions about the
nature of our society, and its values and standards, on which
passionate but contradictory opinions are held” (Court of Appeal,
(155). Parliament has made the relevant decision; opponents of
section 2 have thus far failed to persuade Parliament to change
the law despite active consideration given to the issue, in particular
B
in relation to the Falconer Bill which contained essentially the
same proposals as Mr Conway now puts before the court; and
the democratic process would be liable to be subverted if, on a
question of moral and political judgment, opponents of the legislation
could achieve through the courts what they could not achieve in
C Parliament (231) per Lord Sumption, referring to R (Countryside
Alliance) v Attorney General (2008) AC 719, (45) per Lord
Bingham and AXA General Insurance Ltd v HM Advocate (2012)
1 SC 868, (49) per Lord Hope)”.
Emphasising the limitations on the exercise of the judicial power,
D Lord Justice Sales observed:
“We also agree that his case on necessity becomes still stronger
when the other legitimate aims are brought into account. As the
conscience of the nation, Parliament was and is entitled to decide
that the clarity of such a moral position could only be achieved by
E means of such a rule. Although views about this vary in society,
we think that the legitimacy of Parliament deciding to maintain
such a clear line that people should not seek to intervene to hasten
the death of a human is not open to serious doubt. Parliament is
entitled to make the assessment that it should protect moral
standards in society by issuing clear and unambiguous laws which
F reflect and embody such standards”.
In taking theview which has been taken in the present judgment,
the court has been conscious of the need to preserve to Parliament, the
area which properly belongs to its legislative authority. Our view must
hence be informed by the impact of existing legislation on the field of
G debate in the present case.
I Penal Provisions
95. The legality of and constitutional protection which is afforded
to passive euthanasia cannot be read in isolation from the provisions of
the Penal Code. Physicians are apprehensive about their civil or criminal
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 227
[DR. D. Y. CHANDRACHUD, J.]

liability when called upon to decide whether to limit life-supporting A
treatment.146 A decision on the constitutional question cannot be rendered
without analyzing the statutory context and the impact of penal provisions.
The decision in Aruna Shanbaug did not dwell on the provisions of the
Penal Code (apart from Sections 306 and 309) which have a vital bearing
on the issue of euthanasia. Undoubtedly, constitutional positions are not
B
controlled by statutory provisions, because the Constitution rises above
and controls legislative mandates. But, in the present reference where
no statutory provision is called into question, it is necessary for the court
to analyse the relationship between what the statute penalizes and what
the Constitution protects. The task of interpretation is to allow for their
co-existence while interpreting the statute to give effect to constitutional C
principle. This is particularly so in an area such as the present where
criminal law may bear a significant relationship to the fundamental
constitutional principles of liberty, dignity and autonomy.
The first aspect which needs to be noticed is that our law of
crimes deals with acts and omissions. Section 32 of the Penal Code D
places acts and omissions on the same plane. An illegal omission (unless
a contrary intent appears in the Code) is proscribed when the act is
unlawful. Section 32 states:
“Words referring to acts include illegal omissions. — In every
part of this Code, except where a contrary intention appears from
the context, words which refer to acts done extend also to illegal E
omissions.”
The language of the statute which refers to acts applies, unless a
contrary intent appears in the text, to omissions.
The next aspect is about when an act or omission is illegal. Section
43 explains the concept of illegality. It provides thus: F
“”Illegal”. “Legally bound to do”. — The word “illegal” is
applicable to everything which is an offence or which is prohibited
by law, or which furnishes ground for a civil action; and a person
is said to be “legally bound to do” whatever it is illegal in him to
omit.” G
Here again, being legally bound to do something is the mirror image
of what is illegal to omit doing.
146
S Balakrishnan and RK Mani, “The constitutional and legal provisions in Indian law
for limiting life support”, Indian Journal of Critical Care Medicine(2005), Vol. 9, Issue
2, at page 108 H
228 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Section 43 comprehends within the meaning of illegality, that (i)
which is an offence; or (ii) which is prohibited by law; or (iii) which
furnishes a ground for a civil action. Omissions and acts are mirror images.
When it is unlawful to omit to do something, the individual is legally
bound to do it.
B This raises the question of whether an omission to provide life-
sustaining treatment constitutes an illegal omission.
Section 81 protects acts which are done without a criminal intent
to cause harm, in good faith, to prevent or avoid other harm to person or
property. The law protects the action though it was done with the
C knowledge that it was likely to cause harm if a three-fold requirement is
fulfilled. It comprehends an absence of criminal intent to cause harm,
the presence of good faith and the purpose of preventing other harm.
Section 81 provides thus:
“81.Act likely to cause harm, but done without criminal
D intent, and to prevent other harm.—Nothing is an offence
merely by reason of its being done with the knowledge that it is
likely to cause harm, if it be done without any criminal intention to
cause harm, and in good faith for the purpose of preventing or
avoiding other harm to person or property.

E Explanation—It is question of fact in such a case whether the
harm to be prevented or avoided was of such a nature and so
imminent as to justify or excuse the risk of doing the act with the
knowledge that it was likely to cause harm.”
Knowledge of the likelihood of harm is not culpable when a criminal
F intent to cause harm is absent and there exists an element of good faith
to prevent or avoid other harm.
Section 92 of the IPC states:
“Act done in good faith for benefit of a person without
consent.—Nothing is an offence by reason of any harm which it
G may cause to a person for whose benefit it is done in good faith,
even without that person’s consent, if the circumstances are such
that it is impossible for that person to signify consent, or if that
person is incapable of giving consent, and has no guardian or other
person in lawful charge of him from whom it is possible to obtain
consent in time for the thing to be done with benefit: Provided—
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 229
[DR. D. Y. CHANDRACHUD, J.]

Provisos. First.—That this exception shall not extend to the A
intentional causing of death, or the attempting to cause death”
Section 92 protects an individual from a consequence which arises
from the doing of an act for the benefit of another in good faith, though
a harm is caused to the other. What was done is protected because it
was done in good faith. Good faith is distinguished from an evil design. B
When a person does something to protect another from a harm or injury,
the law protects what was done in good faith, treating the harm that may
result as a consequence unintended by the doer of the act. This protection
is afforded by the law even in the absence of consentwhen the
circumstances are such that it is impossible for the person for whose
benefit the act was done to consent to it. This may arise where the C
imminence of the apprehended danger makes it impossible to obtain
consent. Another eventuality is where the individual is incapable of
consenting (by being incapacitated in mind) and there is no person in the
position of a guardian or person in lawful charge from whom consent
can be obtained in time to perform the act for the benefit of that person. D
However, the first proviso to Section 92 makes it clear that the exception
does not extend to the intentional causing of death or attempt to cause
death to the individual, howsoever it may be for the benefit of the other.
Absence of intent to cause death is the crucial element in the protection
extended by Section 92.
E
Section 107 deals with abetment. It provides thus:
“Abetment of a thing.—A person abets the doing of a thing,
who—
… (Thirdly) — Intentionally aids, by any act or illegal omission,
the doing of that thing.” F
Abetment embodies a three-fold requirement: first an intentional
aiding, second the aiding of an act or illegal omission and third, that this
must be toward the doing of that thing.
Explanation 2 of this Section states:
G
“Whoever, either prior to or at the time of the commission of an
act, does anything in order to facilitate the commission of that act,
and thereby facilitates the commission thereof, is said to aid the
doing of that act.”
H
230 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 96. For abetting an offence, the person abetting must have
intentionally aided the commission of the crime. Abetment requires an
instigation to commit or intentionally aiding the commission of a crime. It
presupposes a course of conduct or action which (in the context of the
present discussion) facilitates another to end life. Hence abetment of
suicide is an offence expressly punishable under Sections 305 and 306
B
of the IPC.
97. It is now necessary to dwell upon the provisions bearing upon
culpable homicide and murder. Section 299 of the IPC states:
“Culpable homicide.—Whoever causes death by doing an act
C with the intention of causing death, or with the intention of causing
such bodily injury as is likely to cause death, or with the knowledge
that he is likely by such act to cause death, commits the offence
of culpable homicide.”
Section 300 states:
D “Murder.—Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or—
Secondly.—If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
E person to whom the harm is caused, or—
Thirdly.—If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death, or—
Fourthly.—If the person committing the act knows that it is so
F
imminently dangerous that it must, in all probability, cause death,
or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or
such injury as aforesaid.”
Active euthanasia involves an intention on the part of the doctor
G to cause the death of the patient. Such cases fall under the first clause
of Section 300.
Exception 5 to Section 300 states:
“Culpable homicide is not murder when the person whose death
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 231
[DR. D. Y. CHANDRACHUD, J.]

is caused, being above the age of eighteen years, suffers death or A
takes the risk of death with his own consent.”
Section 304 provides:
“Whoever commits culpable homicide not amounting to murder,
shall be punished with [imprisonment for life], or imprisonment of
either description for a term which may extend to ten years, and B
shall also be liable to fine, if the act by which the death is caused
is done with the intention of causing death, or of causing such
bodily injury as is likely to cause death; or with imprisonment of
either description for a term which may extend to ten years, or
with fine, or with both, if the act is done with the knowledge that C
it is likely to cause death, but without any intention to cause death,
or to cause such bodily injury as is likely to cause death.”
There also exists a distinction between active and passive
euthanasia. This is brought out in the application of the doctrine of ‘double
effect’. The Stanford Encyclopedia of Philosophy elucidates the position D
thus:
“The doctrine (or principle) of double effect is often invoked to
explain the permissibility of an action that causes a serious harm,
such as the death of a human being, as a side effect of promoting
some good end. According to the principle of double effect, E
sometimes it is permissible to cause a harm as a side effect (or
“double effect”) of bringing about a good result even though it
would not be permissible to cause such a harm as a means to
bringing about the same good end.”147
It has been observed further: F
“A doctor who intends to hasten the death of a terminally ill patient
by injecting a large dose of morphine would act impermissibly
because he intends to bring about the patient’s death. However, a
doctor who intended to relieve the patient’s pain with that same
dose and merely foresaw the hastening of the patient’s death would
G
act permissibly.”148
98. A distinction arises between active and passive euthanasia
from the provisions of the Penal Code. Active euthanasia involves an
147
“Doctrine of Double Effect”, Stanford Encyclopedia of Philosophy(July 28, 2004),
available at https://plato.stanford.edu/entries/double-effect/
148
Ibid H
232 SUPREME COURT REPORTS [2018] 6 S.C.R.

A intention to cause the death of the patient. Mens rea requires a guilty
mind; essentially an intent to cause harm or injury.Passive euthanasia
does not embody an intent to cause death.A doctor may withhold life
support to ensure that the life of a patient who is in the terminal stage of
an incurable illness or in a permanent vegetative state, is not prolonged
artificially. The decision to do so is not founded upon an intent to cause
B
death but to allow the life of the patient to continue till and cease at the
end of its natural term. Placing such a person on life support would have
been an intervention in the natural process of death. A decision not to
prolong life by artificial means does not carry an intention to cause death.
The crucial element in Section 299 is provided by the expression “causes
C death”. In a case involving passive euthanasia, the affliction of the patient
is not brought about either by an act or omission of the doctor. There is
neither an animus nor an intent to cause death. The creation of the
condition of the patient is outside the volition of the doctor and has come
about without a covert or overt act by the doctor. The decision to withhold
medical intervention is not intended to cause death but to prevent pain,
D
suffering and indignity to a human being who is in the end stage of a
terminal illness or of a vegetative state with no reasonable prospect of
cure. Placing a patient on artificial life support would, in such a situation,
merely prolong the agony of the patient. Hence, a decision by the doctor
based on what is in the best interest of the patient precludes an intent to
E cause death. Similarly, withdrawal of artificial life support is not motivated
by an intent to cause death. What a withdrawal of life support does is
not to artificially prolong life. The end of life is brought about by the
inherent condition of the patient. Thus, both in a case of a withdrawal of
life supporting intervention and withholding it, the law protects a bona
fide assessment of a medical professional. There being no intent to cause
F
death, the act does not constitute either culpable homicide or murder.
Moreover, the doctor does not inflict a bodily injury. The condition
of a patient is on account of a factor independent of the doctor and is not
an outcome of his or her actions. Death emanates from the pre-existing
medical condition of the patient which enables life to chart a natural
G course to its inexorable end. The law protects a decision which has been
made in good faith by a medical professional not to prolong the indignity
of a life placed on artificial support in a situation where medical knowledge
indicates a point of no return. Neither the act nor the omission is done
with the knowledge that it is likely to cause death. This is for the reason
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 233
[DR. D. Y. CHANDRACHUD, J.]

that the likelihood of death is not occasioned by the act or omission but A
by the medical condition of the patient. When a doctor takes a considered
decision in the case of a patient in a terminal stage of illness or in a
permanently vegetative state, not to provide artificial life support, the
law does not attribute to the doctor the knowledge that it is likely to
cause death.
B
99. Section 43 of the Penal Code defines the expression illegal to
mean “…everything which is an offence or which is prohibited by law,
or which furnishes ground in a civil action”. Withdrawing life support to
a person in a permanently vegetative state or in a terminal stage of
illness is not ‘prohibited by law’. Such an act would also not fall outside
the purview of Section 92 for the reason that there is no intentional C
causing of death or attempt to cause death. Where a decision to withdraw
artificial life support is made in the caregiver of the patient, it fulfils the
duty of care required from a doctor towards the patient. Where a doctor
has acted in fulfilment of a duty of care owed to the patient, the medical
judgment underlying the decision protects it from a charge of illegality. D
Such a decision is not founded on an intention to cause death or on the
knowledge that it is likely to cause death. An act done in pursuance of
the duty of care owed by the doctor to a patient is not prohibited by law.
100. In a situation where passive euthanasia is non-voluntary, there
is an additional protection which is also available in circumstances which E
give rise to the application of Section 92. Where an act is done for the
benefit of another in good faith, the law protects the individual. It does
so even in the absence of the consent of the other, if the other individual
is in a situation where it is impossible to signify consent or is incapable of
giving consent. Section 92 also recognises that there may be no guardian
or other person in lawful charge from whom it is possible to obtain F
consent. However, the proviso to Section 92 stipulates that this exception
shall not extend to intentionally causing death or attempting to cause
death. The intent in passive euthanasia is not to cause death. A decision
not to prolong life beyond its natural span by withholding or withdrawing
artificial life support or medical intervention cannot be equated with an G
intent to cause death. The element of good faith, coupled with an
objective assessment of the caregiver of the patient would protect the
medical professional in a situation where a bona fide decision has been
taken not to prolong the agony of a human being in a terminal or vegetative
state by a futile medical intervention.
H
234 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 101. In 2006, the Law Commission of India submitted its 196th
Report titled “Medical Treatment to Terminally Ill Patients (Protection
of Patients and Medical Practitioners)”. The report by Justice M
Jagannadha Rao as Chairperson contains a succinct elucidation of legal
principles governing criminal law on the subject. Some of them are
explained below:
B
(i) An informed decision of a patient to refuse medical treatment
is accepted at common law and is binding on a treating doctor.
While a doctor has a duty of care, a doctor who obeys the
instructions of a competent patient to withhold or withdraw
medical treatment does not commit a breach of professional
C duty and the omission to treat will not be an offence;
(ii) The decision of a patient to allow nature to take its course
over the human body and, in consequence, not to be subjected
to medical intervention, does not amount to a deliberate
termination of physical existence. Allowing nature to take its
D course and a decision to not receive medical treatment does
not constitute an attempt to commit suicide within the meaning
of Section 309 of the Penal Code;
(iii) Once a competent patient has decided not to accept medical
intervention, and to allow nature to take its course, the action
E of the treating doctor in abiding by those wishes is not an
offence, nor would it amount to an abetment under Section
306. Under Section 107, an omission has to be illegal to constitute
an abetment. A doctor bound by the instructions of a patient to
withhold or withdraw medical treatment is not guilty of an illegal
act or an abetment. The doctor is bound by the decision of the
F patient to refuse medical intervention;
(iv) A doctor who withholds or withdraws medical treatment in
the best interest of a patient, such as when a patient is in a
permanent vegetative state or in a terminal state of an incurable
illness, is not guilty under Section 299 because there is no
G intention to cause death or bodily injury which is likely to cause
death. The act of withholding or withdrawing a life support
system in the case of a competent patient who has refused
medical treatment and, in the case of an incompetent person
where the action is in the best interest of the patient would be
protected by good faith protections available under Sections
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 235
[DR. D. Y. CHANDRACHUD, J.]

76, 79, 81 or, as the case may be, by Section 88, even if it is A
construed that the doctor had knowledge of the likelihood of
death; and
(v) The decision of the doctor, who is under a duty at common
law to obey the refusal of a competent patient to take medical
treatment, would not constitute a culpable act of negligence B
under Section 304A. When the doctor has taken such a decision
to withhold or withdraw treatment in the best interest of the
patient, the decision would not constitute an act of gross
negligence punishable under Section 304A.
102. Introducing a structural safeguard, in the form of a Medical
C
Board of experts can be contemplated to further such an objective. The
Transplantation of Human Organs and Tissues Act 1994 provides for
the constitution of Authorisation Committees under Section 9(4).
Authorisation Committees arecontemplated at the state and district levels
and a hospital board.149 Once the process of decision making has been
arrived at by fulfilling a mandated safeguard (the prior approval of a D
committee), the decision to withdraw life support should not constitute
an illegal act or omission. The setting up of a broad-based board is
precisely with a view to lend assurance that the duty of care owed by
the doctor to the patient has been fulfilled. Once due safeguards have
been fulfilled, the doctor is protected against the attribution of a culpable
E
intent or knowledge. It will hence fall outside the definition of culpable
homicide (Section 299), murder (Section 300) or causing death by a rash
or negligent act (Section 304A). The composition of this broad-based
committee has been dealt with in the last segment of this judgment.
J Advance Directives
F
103. A patient, in a sound state of mind, possesses the ability to
make decisions and choices and can legitimately refuse medical
intervention. Justice Cardozo had this to say in a seminal statement of
principle in the 1914 decision in Schloendorff v Society of NY
Hospital 150:
“Even human being of adult years and sound mind has a right to G
determine what shall be done with his own body; and a surgeon
who performs an operation without his patient’s consent commits
an assault.”
149
Rule 6A, Transplantation of Human Organs and Tissues Act 1995
150
105 N.E. 92, 93 (N.Y. 1914) H
236 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Luis Kutner gave expression to the relationship of privacy with
the inviolability of the person and the refusal of medical treatment:
“…The attitude of the law is to recognise the inviolability of the
human body. The patient’s consent must be voluntary and informed.
These notions are buttressed by the constitutionally recognized
B right to privacy. Clearly, then, a patient may refuse treatment
which would extend his life. Such a decision must rest with the
patient.”151
The difficulty, as Kutner notes, arises when a patient is unconscious
or is not in a position to furnish his or her consent. The author notes that
C in such a case “the law assumes a constructive consent to such treatment
as will save his life”. Kutner’s thesis contemplates what should happen,
if the patient is incapable of giving consent:
“…The law, however, does recognize that a patient has a right to
refuse to be treated, even when he is in extremis, provided he is in
D an adult and capable of giving consent. Compliance with the
patient’s wishes in such circumstances is not the same as voluntary
euthanasia. Where, however, the patient is incapable of giving
consent, such as when he is in a coma, a constructive consent is
presumed and the doctor is required to exercise reasonable care
in applying ordinary means to preserve the patient’s life. However,
E he is not allowed to resort to extraordinary care especially where
the patient is not expected to recover from the comatose state…”
104. Recognition of the right to accept or refuse medical treatment
is founded upon autonomy. The Stanford Encyclopaedia of
Philosophy152 postulates that there is “a rough consensus in medical
F ethics on the requirement of respect for patient autonomy”. However, a
patient may not always have the opportunity to grant or withhold consent
to medical treatment. An unforeseen event may deprive the individual of
the ability to indicate a desire to either receive or not to have medical
treatment. An occasion necessitating treatment in sudden cases where
G a person suffers an accident, a stroke or coronary153 episode may provide
151
Luis Kutner, “Due Process of Euthanasia: The Living Will, a proposal”, Indiana
Law Journal (1969), Vol. 44, Issue 4, at page 539
152
“Advance Directives and Substitute Decision-Making”, Stanford Encyclopaedia of
Philosophy (24 March 2009), available at https://plato.standford.edu/entries/advance-
directives/
H 153
Luis Kutner (Supra note 151), at page 551
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 237
[DR. D. Y. CHANDRACHUD, J.]

no time for reflection. In anticipation of such situations, “where an A
individual patient has no desire to be kept in a state of complete and
indefinite vegetated animation with no possibility of recovering his mental
and physical faculties, that individual, while still in control of all his/her
faculties and his ability to express himself/herself”154, could still retain
the right to refuse medical treatment by way of “advance directives”.
B
105. Broadly, there are two forms of advance directives:
- A Living Will which indicates a person’s views and wishes
regarding medical treatment
- A Durable Power of Attorney for Health Care or Health
care Proxy which authorises a surrogate decision maker to C
make medical care decisions for the patient in the event she or
he is incapacitated
Although there can be an overlap between these two forms of
advance directives, the focus of a durable power is on who makes the
decision while the focus of a living will is on what the decision should be. D
A “living will” has also been referred as “a declaration determining the
termination of life,” “testament permitting death,” “declaration for bodily
autonomy,” “declaration for ending treatment,” “body trust,” or other
similar reference.155 Living wills are not a new entity and were first
suggested by US attorney, Luis Kutner, in late 1960s.156 E
106. Advance directives have evolved conceptually to deal with
cases where a patient who subsequently faces a loss of the mental faculty
to decide has left instructions, when he or she was possessed of
decision-making capacity, on how future medical decisions should be
made. The Stanford Encyclopaedia157 explains the concept thus: F
“… For patients who lack the relevant decision-making capacity
at the time the decision is to be made, a need arises for surrogate
decision-making: someone else must be entrusted to decide on
their behalf. Patients who formerly possessed the relevant
decision-making capacity might have anticipated the loss of
G
capacity and left instructions for how future medical decisions
154
Luis Kutner (Supra note 65) at page 226
155
Luis Kutner (Supra note 151), at page 551
156
Ibid
157
“Advance Directives and Substitute Decision-Making”, Stanford Encyclopaedia of
Philosophy (24 March 2009), available at https://plato.standford.edu/entries/advance-
directives/
H
238 SUPREME COURT REPORTS [2018] 6 S.C.R.

A ought to be made. Such instructions are called an advance
directive. One type of advance directive simply designates who
the surrogate decision-maker should be. A more substantive
advance directive, often called a living will, specifies particular
principles or considerations meant to guide the surrogate’s decisions
in various circumstances…”
B
Hazel Biggs158 explains the meaning of “living wills” and advance
directives:
“Usually a living will is thought of as a statement indicating a
person’s preferred treatment options at the end of life, but the
C term “living will” is also “sometimes used for advance directives
which are concerned with other situations or which can be used
to express a willingness to receive particular treatments”. Some
stipulate that speciûc treatments are acceptable while others are
not, while others insist that all available appropriate medical
resources should be utilised to maintain life. Living wills are not
D therefore exclusively associated with end-of-life decisions,
although generally the purpose of a living will is to promote
individual autonomy and choice for the patient; characteristics
which have long been associated with euthanasia as a means of
achieving death with dignity”.
E James C Turner159 explains the concept of a living will thus:
“The living will is a document by which a competent adult signifies
a desire that if there ever comes a time when there is no reasonable
expectation of his recovery from physical or mental disability that
he be allowed to die rather than be kept alive by artificial means
F or heroic measures. What the typical living will does, in effect, is
to sanction passive euthanasia, or, as it has been called,
antidysthanasia..
The living will is a document which directs one’s physician to
cease affirmative treatment under certain specified conditions. It
G can presumably apply to both the situation in which a person with
a terminal disease lapses into the final stage of his illness and also
the situation in which a victim of a serious accident deteriorates
into a state of indefinite vegetated animation…”
158
Hazel Biggs (Supra note 21), at page 115
159
James C Turner, “Living Wills – Need for legal recognition”, West Virginia Law
H Review (1976), Vo. 78, Issue 3, at page 370
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 239
[DR. D. Y. CHANDRACHUD, J.]

107. The principles of patient autonomy and consent are the A
foundation of advance medical directives. A competent and consenting
adult is entitled to refuse medical treatment. By the same postulate, a
decision by a competent adult will be valid in respect of medical treatment
in future. As Biggs states:
“…Founded upon respect for individual autonomy this is a right B
that operates through the law of consent to protect patients from
unfettered medical paternalism. Common law holds that patients
with the capacity to give consent are also competent to refuse or
withhold consent, “even if a refusal may risk personal injury to
health or even lead to premature death”. Furthermore, a “refusal
of treatment can take the form of a declaration of intent never to C
consent to that treatment in the future, or never to consent in
some future circumstances”. Accordingly, any consent or refusal
of consent made by a competent adult patient can also be valid in
respect of the same treatment at any time in the future.”
108. Advance directives are thus documents a person completes D
while still in possession of decisional capacity about how treatment
decisions should be made in the event she or he loses decision making
capacity in future. They cover three conditions: (i) a terminal condition;
(ii) a persistently unconscious condition; and (iii) an end-stage condition.
109. A terminal condition is an incurable or irreversible condition E
which even with the administration of life-sustaining treatment will result
in death in the foreseeable future. A persistently unconscious condition
isan irreversible condition, in which thought and awareness of self and
environment are absent. An end-stage condition is a condition caused
by injury, disease or illness which results in severe and permanent F
deterioration indicated by incompetency and complete physical
dependency for which treatment of the irreversible condition would be
medically ineffective.
110. The reason for recognising an advance directive is based on
individual autonomy. As an autonomous person, every individual has a G
constitutionally recognised right to refuse medical treatment. The right
not to accept medical treatment is essential to liberty. Medical treatment
cannot be thrust upon an individual, however, it may have been conceived
in the interest of the individual. The reasons which may lead a person in
a sound state of mind to refuse medical treatment are inscrutable. Those
H
240 SUPREME COURT REPORTS [2018] 6 S.C.R.

A decisions are not subject to scrutiny and have to be respected by the law
as an essential attribute of the right of the individual to have control over
the body. The state cannot compel an unwilling individual to receive
medical treatment. While an individual cannot compel a medical
professional to provide a particular treatment (this being in the realm of
professional medical judgment), it is equally true that the individual cannot
B
be compelled to undergo medical intervention. The principle of sanctity
of life thus recognises the fundamental liberty of every person to control
his or her body and as its incident, to decline medical treatment. The
ability to take such a decision is an essential element of the privacy of
the being. Privacy also ensures that a decision as personal as whether
C or not to accept medical treatment lies exclusively with the individual as
an autonomous being. The reasons which impel an individual to do so
are part of the privacy of the individual. The mental processes which
lead to decision making are equally part of the constitutionally protected
right to privacy.
D 111. Advance directives are founded on the principle that an
individual whose state of mind is not clouded by an affliction which
prevents him or her from taking decisions is entitled to decide whether
to accept or not accept medical intervention. If a decision can be made
for the present, when the individual is in a sound state of mind, such a
person should be allowed to decide the course of action which should be
E followed in the future if he or she were to be in a situation which affects
the ability to take decisions. If a decision on whether or not to receive
medical treatment is valid for the present such a decision must be equally
valid when it is intended to operate in the future. Advance directives are,
in other words, grounded in a recognition by the law of the importance
F of consent as an essential attribute of personal liberty. It is the consensual
nature of the act underlying the advance directive which imparts sanctity
to it in future in the same manner as a decision in the present on whether
or not to accept medical treatment.
112. When a patient is brought for medical treatment in a state of
G mind in which he or she is deprived of the mental capacity to make
informed choices, the medical professional needs to determine the line
of treatment. One line of enquiry, which seeks to protect patient autonomy
is how the individual would have made a decision if he or she had
decision-making capacity. This is called the substituted judgment standard.
An advance medical directive is construed as a facilitative mechanism
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 241
[DR. D. Y. CHANDRACHUD, J.]

in the application of the substituted judgment standard, if it provides to A
the physician a communication by the patient (when she or he was in a
fit state of mind) of the desire for or restraint on being provided medical
treatment in future.
113. Conceptually, there is a second standard, which is the
caregiver standard. This is founded on the principle of beneficence. The B
second standard seeks to apply an objective notion of a line of treatment
which a reasonable individual would desire in the circumstances.
The Stanford Encyclopaedia contains an elucidation of these
two standards:
“The Substituted Judgment standard: C

The surrogate’s task is to reconstruct what the patient himself
would have wanted, in the circumstances at hand, if the patient
had decision-making capacity. Substantive advance directives
are here thought of as a helpful mechanism for aiding the
application of Substituted Judgment. The moral principle D
underlying this legal standard is the principle of respect for
autonomy, supplemented by the idea that when a patient is not
currently capable of making a decision for himself, we can
nonetheless respect his autonomy by following or reconstructing,
as best we can, the autonomous decision he would have made if E
he were able. In a subset of cases, a substituted judgment can
implement an actual earlier decision of the patient, made in
anticipation of the current circumstances; this is known as
precedent autonomy.
The Caregiver standard: F
The surrogate is to decide based on what, in general, would be
good for the patient. The moral principle underlying this standard
is the principle of beneficence. This legal standard has traditionally
assumed a quite generic view of interests, asking what a
“reasonable” person would want under the circumstances and
G
focusing on general goods such as freedom from pain, comfort,
restoration and/or development of the patient’s physical and mental
capacities. This is because the Caregiver standard has mainly
been employed when there is little or no information about the
patient’s specific values and preferences. However, the concept
H
242 SUPREME COURT REPORTS [2018] 6 S.C.R.

A of caregiver is simply the concept of what is best for the person.
There is no reason why, in principle, the Caregiver judgment could
not be as nuanced and individual as the best theory of well-being
dictates.”
The difference between these two standards is that the first seeks
B to reconstruct the subjective point of view of the patient. The second
allows for “a more generic view of interests”, without having to rely on
the “idiosyncratic values and preference of the patient in question”.
114. The Encyclopaedia explains that the “orthodox view”
contained the following ordering of priorities:
C “1. Honour a substantive advance directive, as an aid to Substituted
Judgment, whenever such directive is available.
2. Absent an advance directive, apply the Substituted Judgment
standard based on available information about the patient’s past
decisions and values.
D
3. If you cannot apply the Substituted Judgment standard – either
because the patient has never been competent or because
information about the patient’s former wishes and values is
unavailable – use the Caregiver standard.”
The above ordering of priorities in the orthodox view has been
E
questioned. In prioritising advance directives and substituted judgments,
the orthodox view “overlooks the possibility that the earlier competent
self and the current incompetent self may have conflicting interests”.
Advance directives and the substituted judgment standard were
propounded to deal with afflictions such as a persistent vegetative state
F where the interests of the patient in such a state are not potentially
different from what they used to be. The Stanford Encyclopaedia,
however, notes that a loss of decision-making capacity may give rise to
less drastic conditions in which the presently incompetent patient may
have developed “powerful new interests” in a new phase of life. Patients
facing Alzheimer’s or dementia face progressive mental deterioration.
G
When such a patient was still in a competent state of mind, she may
have regarded a state of dementia to be degrading. However, as the
disease progresses, the interests of the patient change and her life may
be enriched by the simple activities of life. The patient may cease to
identify with his or her intellect and revisit an earlier desire not to prolong
H life. The Stanford Encyclopaedia states that in such an eventuality, “the
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 243
[DR. D. Y. CHANDRACHUD, J.]

conflict is between the autonomy of the earlier self and the well-being of A
the current self”.
115. One way of seeking a philosophical resolution is to postulate
that the former self and its interests will have priority, or a “special
authority” over the current self. Such an approach prioritises autonomy
over beneficence. This line of approach is, however, not free of difficulty. B
A patient may have lost the ability to take complex decisions. Yet the
treating physician may not have “a license to discount the current well-
being of the individual in favour of what mattered to him earlier”. This
illustration emphasises the potential conflict between a pure application
of the substituted judgment standard and the caregiver standard. The
former seeks to preserve individual autonomy at all costs. The latter C
juxtaposes the role of the medical professional in determining what is in
the best interest of the patient. The best interest standard is hence founded
on the principle that a patient who has progressed from a competent
mental state to an increasing lack of mental capacity faces a change of
personal identity. An autonomous decision suited to an earlier identity D
may not always be a valid rationale for determining the course of action
in respect of a new identity which a patient acquires in the course of
illness:
“According to the threshold views, the earlier self has authority to
determine the overall interests of the patient because the current E
self has lost crucial abilities that would allow it to ground these
overall interests anew. This picture assumes that the earlier and
current self are stages in the life of one entity, so that, despite the
talk of local interests associated with each life-stage, there is an
underlying continuity of interests between the two. But this is a
very substantial assumption, and it has been contested by appeal F
to an influential account of the metaphysics of personal identity
over time, the psychological continuity account. Roughly, the idea
is that, in the wake of a drastic transformation of one’s psychology
such as Alzheimer’s disease, one does not survive as numerically
the same individual, so whatever interests one’s predecessor in G
one’s body may have had are not a suitable basis for decisions on
behalf of the new individual who has emerged after the
transformation (Dresser 1986). The lack of identity between the
earlier and current self undercuts the authority of the former over
the latter.”
H
244 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 116. In such a situation the doctor’s duty to care assumes
significance. The relationship between a doctor and her patient with an
evolving mental condition needs a balance between the desires of the
patient in a different mental state and the needs of the patient in the
present condition. Neither can be ignored in preference to the other.
The first recognises the patient as an autonomous individual whose desires
B
and choices must be respected by law and medicine. The desire not to
be subject to endless medical intervention, when one’s condition of mind
or body have reached an irreversible state is a profound reflection of the
value to be left alone. Constitutional jurisprudence protects it as part of
the right to privacy. On the other hand, the need to procure the dignity of
C the individual in a deteriorating and irreversible state of body or mind is
as crucial to the value of existence. The doctor must respect the former
while being committed as a professional to protect the latter.
117. Human experience suggests that there is a chasm of
imponderables which divide the present from the future. Such a divide
D may have a bearing on whether and if so, the extent to which an advance
directive should bind in the future. As stated above, the sanctity of an
advance directive is founded upon the expression of the will of an
individual who is in a sound state of mind when the directive is executed.
Underlying the consensual character of the declaration is the notion of
the consent being informed. Undoubtedly, the reasons which have
E weighed with an individual in executing the advance directive cannot be
scrutinized (in the absence of situations such as fraud or coercion which
implicate the very basis of the consent). However, an individual who
expresses the desire not to be subjected to a particular line of treatment
in the future, should she or he be ailing in the future, does so on an
F assessment of treatment options available when the directive is executed.
For instance, a decision not to accept chemotherapy in the event that the
individual is detected with cancer in the future, is based on today’s
perception of the trauma that may be suffered by the patient through
that treatment. Advances in medical knowledge between the date of the
execution of the document and an uncertain future date when the
G individual may possibly confront treatment for the disease may have led
to a re-evaluation by the person of the basis on which a desire was
expressed several years earlier. Another fundamental issue is whether
the individual can by means of an advance directive compel the withholding
of basic care such as hydration and nourishment in the future. Protecting
H the individual from pain and suffering as well as the indignity of debility
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 245
[DR. D. Y. CHANDRACHUD, J.]

may similarly raise important issues. Advance directives may hence A
conceivably raise ethical issues of the extent to which the perception of
the individual who executes it must prevail in priority to the best interest
of the patient.
118. The substituted judgment standard basically seeks to determine
what the individual would have decided. This gives primacy to the B
autonomy of the individual. On the other hand, as seen earlier, the best
interest standard is based on the principle of beneficence. There is an
evident tension between these two standards. What an individual would
decide as an autonomous entity is a matter of subjective perception.
What is in the best interest of the patient is an objective standard: objective,
with the limitation that even experts differ. The importance of an advance C
directive lies in bringing to the fore the primacy of individual choice.
Such a directive ensures that the individual retains control over the manner
in which the body is treated. It allows the individual to decide not to
accept artificial treatment which would prolong life in the terminal stage
of an ailment or in a vegetative state. In doing so, recognition is granted D
to the effect of the advance directive upon the happening of a contingency
in the future, just as the individual would in the present have a right to
refuse medical treatment. The advance directive is an indicator to medical
professionals of the underlying desire of the person executing it.
119. In a society such as ours where family ties have an important E
place in social existence, advance directives also provide a sense of
solace to the family. Decisions such as whether to withhold or withdraw
artificial life saving treatment are difficult for families to take. Advance
directives provide moral authority for the family of the patient that the
decision which has been taken to withdraw or withhold artificial life
support is in accord with the stated desire of the patient expressed earlier. F
But the ethical concerns which have been referred to earlier may warrant
a nuanced application of the principle. The circumstances which have
been adverted to earlier indicate that the decision on whether to withhold
or withdraw medical treatment should be left to a competent body
comprising of, but not restricted to medical professionals. Assigning a G
supervisory role to such a body is also necessary in order to protect
against the possibility of abuse and the dangers surrounding the misuse
of an advance directive. One cannot be unmindful of prevailing social
reality in the country. Hence, it is necessary to ensure that an advance
directive is not utilized as a subterfuge to fulfil unlawful or unethical
purposes such as facilitating a succession to property. H
246 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 120. The view which this judgment puts forth is that the recognition
of advance directives as part of a regime of constitutional jurisprudence
is an essential attribute of the right to life and personal liberty under
Article 21. That right comprehends dignity as its essential foundation.
Quality of life is integral to dignity. As an essential aspect of dignity and
the preservation of autonomy of choice and decision-making, each
B
individual must have the right on whether or not to accept medical
intervention. Such a choice expressed at a point in time when the individual
is in a sound and competent state of mind should have sanctity in the
future if the individual were to cease to have the mental capability to
take decisions and make choices. Yet, a balance between the application
C of the substituted judgment standard and the best interest standard is
necessary as a matter of public interest. This can be achieved by allowing
a supervisory role to an expert body with whom shall rest oversight in
regard to whether a patient in the terminal stage of an illness or in a
permanent vegetative state should be withheld or withdrawn from artificial
life support.
D
121. In 1995, the British Medical Association (BMA) published a
report on advance statements about medical treatment with the intention
to reflect “good clinical practice in encouraging dialogue about individuals’
wishes concerning their future treatment”.160 The report theoretically
discussed six different types of advance statements161:
E
• A requesting statement reflecting an individual’s aspirations
and preferences
• A statement of general beliefs and aspects of life that the
individual values
F • A statement naming a proxy
• A directive giving clear instructions refusing some or all
treatment(s)
• A statement specifying a degree of irreversible deterioration
G after which no life-sustaining treatment should be given
• A combination of the above
160
A S Kessel and J Meran, “Advance directives in the UK: legal, ethical, and practical
considerations for doctors”, British Journal of General Practice(1998), at page
1263
161
H Ibid
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 247
[DR. D. Y. CHANDRACHUD, J.]

122. A decade later, the Mental Capacity Act (MCA), 2005 was A
enacted, which came into force in October 2007. The statute “enabled
individuals to write an advance directive or appoint a lasting power of
attorney to make their views on health care known should they lose
capacity”162. The Act enshrined in statute law the right of an adult with
capacity to make an advance directive to refuse specific treatment at a
B
point in the future when they lack capacity.
123. Before turning to MCA, it is of importance to state the position
of the common law before the enactment of the legislation. English Law
has recognised the entitlement of an individual possessed of the ability to
take decisions to refuse medical treatment163. The law has had to confront
problems in applying this standard in difficult, practical situations. For C
instance, in a judgment in Re B (Adult: Refusal of Medical Treatment)164,
a patient who was suffering from tetraplegia declined to consent to
artificial ventilation. Though the patient was found initially to suffer from
depression and to lack decision making capacity, subsequent evaluation
found that she was mentally competent. For a period of nine months, the D
hospital refused to respect the wishes of the patient not to place her on
artificial ventilation, necessitating judicial intervention. When the case
travelled to court, the President of the Family Division, Dame Butler-
Sloss emphasised that “the right of the patient to demand cessation of
treatment must prevail “over the natural desire of the medical and nursing
professions to try to keep her alive”. The Judge recognised the serious E
danger of “a benevolent paternalism which does not embrace recognition
of the personal autonomy of the severely disabled patient”.
124. Commenting on the above decision, Elizabeth Wicks in her
recently published book titled “The State and The Body – Legal
Regulation of Bodily Autonomy”165 observes that: F

“… the desire to preserve life is strong and choices to end life,
especially in circumstances where the life is not without an element
of quality, are often seen as swimming against a strong tide of the
value of life.”
162
“Are advance directives legally binding or simply the starting point for discussion G
on patients’ best interests?”, BMJ(28 November 2009), Volume 339, page 1231
163
Re T (Adult: Refusal of Treatment) [1942] 4 All ER 649; Re C (Adult: Refusal of
Medical Treatment)[1994] 1 All ER 819; St George’s Healthcare NHS Trust v S
[1998] 3 WLR 936
164
[2002] 2 All ER 449
165
Elizabeth Wicks, The State and the Body: Legal Regulation of Bodily Autonomy,
Hart Publishing (2016) H
248 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 125. In Re AK (Adult Patient) (Medical Treatment:
Consent)166, Justice Hughes (as he then was) in the High Court of
Justice, reviewed the authorities, and summarised the common law position
thus:
“Accordingly, the first principle of law which I am satisfied is
B completely clear, is that in the case of an adult patient of full
capacity his refusal to consent to treatment or care must in law
be observed. It is clear that in an emergency a doctor is entitled in
law to treat by invasive means if necessary a patient who by
reason of the emergency is unable to consent, on the grounds that
the consent can in those circumstances be assumed. It is, however,
C also clearly the law that the doctors are not entitled so to act if it
is known that the patient, provided he was of sound mind and full
capacity, has let it be known that he does not consent and that
such treatment is against his wishes. To this extent an advance
indication of the wishes of a patient of full capacity and sound
D mind are effective. Care will of course have to be taken to ensure
that such anticipatory declarations of wishes still represent the
wishes of the patient. Care must be taken to investigate how long
ago the expression of wishes was made. Care must be taken to
investigate with what knowledge the expression of wishes was
made. All the circumstances in which the expression of wishes
E was given will of course have to be investigated.”
In HE v A Hospital NHS Trust167,Justice Munby of the High
Court of Justice (Family Division) considered an “Advance Medical
Directive/Release” signed by a young woman, which sought to refuse
the transfusion of blood or primary blood components in absolute and
F irrevocable terms. The Court had to decide whether the advance directive
was valid and applicable. It was noted that:
“A competent adult patient has an absolute right to refuse consent
to any medical treatment or invasive procedure, whether the
reasons are rational, irrational, unknown or non-existent, and even
G if the result of refusal is the certainty of death… Consistently
with this, a competent adult patient’s anticipatory refusal of consent
(a so-called ‘advance directive’ or ‘living will’) remains binding
and effective notwithstanding that the patient has subsequently
167
[2001] 1 FLR 129
167
[2003] 2 FLR 408
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 249
[DR. D. Y. CHANDRACHUD, J.]

become and remains incompetent. An adult is presumed to have A
capacity, so the burden of proof is on those who seek to rebut the
presumption and who assert a lack of capacity. It is therefore for
those who assert that an adult was not competent at the time he
made his advance directive to prove that fact.”
The Court then analyzed the specific aspects of the law governing B
advance directives:
“1. There are no formal requirements for a valid advance directive.
An advance directive need not be either in or evidenced by writing.
An advance directive may be oral or in writing.
2. There are no formal requirements for the revocation of an C
advance directive. An advance directive, whether oral or in writing,
may be revoked either orally or in writing. A written advance
directive or an advance directive executed under seal can be
revoked orally.
3. An advance directive is inherently revocable. Any condition in D
an advance directive purporting to make it irrevocable, any even
self-imposed fetter on a patient’s ability to revoke an advance
directive, and any provision in an advance directive purporting to
impose formal or other conditions upon its revocation, is contrary
to public policy and void. So, a stipulation in an advance directive, E
even if in writing, that it shall be binding unless and until revoked
in writing is void as being contrary to public policy.
4. The existence and continuing validity and applicability of an
advance directive is a question of fact. Whether an advance
directive has been revoked or has for some other reason ceased F
to be operative is a question of fact.
5. The burden of proof is on those who seek to establish the
existence and continuing validity and applicability of an advance
directive.
6. Where life is at stake the evidence must be scrutinised with G
especial care. Clear and convincing proof is required. The
continuing validity and applicability of the advance directive must
be clearly established by convincing and inherently reliable
evidence.
H
250 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 7. If there is doubt that doubt falls to be resolved in favour of the
preservation of life.”
126. The common law has been “refined” by passage of the MCA
2005, which makes statutory provision for advance decisions to refuse
treatment. 168 The Mental Capacity Act has certain underlying
B principles169, which can be stated as follows:
• A person must be assumed to have capacity unless it is
established that she lacks capacity.
• A person is not to be treated as unable to make a decision unless
C all practicable steps to help her to do so have been taken without
success.
• A person is not to be treated as unable to make a decision merely
because she makes an unwise decision.

D • An act done, or decision made, under the Act for or on behalf of
a person who lacks capacity must be done, or made, in her
caregiver.
• Before the act is done, or the decision is made, regard must be
had to whether the purpose for which it is needed can be as
E effectively achieved in a way that is less restrictive of the
person’s rights and freedom of action.
127. Advance decisions are legally binding in England and Wales,
as long as they meet certain requirements. Section 24 of the Act deals
with the criteria for legally valid advance decisions to refuse treatment.
F Section 25 deals with the validity and applicability of advance decisions.
The advance directive does not affect the liability which a person may
incur for carrying out or continuing a treatment in relation to the person
making the decision, unless the decision is at the material time— (a)
valid, and (b) applicable to the treatment.

G 128. The law in UK empowers the Court of Protection to make a
declaration as to whether an advance decision— (a) exists; (b) is valid;
(c) is applicable to a treatment.170 Moreover, a person will not incur any
168
Alexander Ruck Keene, “Advance Decisions: getting it right?”, available at http://
www.39essex.com/docs/articles/advance_decisions_paper_ark_december_2012.pdf
169
Section 1, Mental Capacity Act 2005
170
H Section 26(4), Mental Capacity Act 2005
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 251
[DR. D. Y. CHANDRACHUD, J.]

liability for the consequences of withholding or withdrawing a treatment A
from an individual, if she at the material time, reasonably believes that a
valid advance decision applicable to the treatment, made by that individual,
exists.171
Until the implementation of the Mental Capacity Act 2005 in
October 2007, nobody was able legally to make medical decisions on B
behalf of another adult in England and Wales. The Act imposes duties
on the person who has to make a determination as to what is in an
individual’s caregiver. All the relevant circumstances must be taken into
consideration, which are as follows172:
• Considering whether it is likely that the person will at some time C
have capacity in relation to the matter in question, and if it
appears likely that he or she will, when that is likely to be;
• Permitting and encouraging, so far as reasonably practicable,
the person to participate, or to improve the ability to participate,
as fully as possible in any act done for and any decision affecting D
the person;
• Where the determination relates to life-sustaining treatment he
or she must not, in considering whether the treatment is in the
caregiver of the person concerned, be motivated by a desire to
bring about death; E
• Considering so far as is reasonably ascertainable, the person’s
past and present wishes and feelings (and, in particular, any
relevant written statement made when he or she had capacity);
the beliefs and values that would be likely to influence the decision
if the person had capacity; and the other factors that he or she F
would be likely to consider if able to do so; and
• Taking into consideration, if it is practicable and appropriate to
consult them, the views of anyone named by the person as
someone to be consulted on the matter in question or on matters
of that kind; anyone engaged in caring for the person or interested G
in his or her welfare; any donee of a lasting power of attorney
granted by the person; and any deputy appointed for the person
by the court, as to what would be in the person’s caregiver.
171
Section 26(3), Mental Capacity Act 2005
172
Section 4, Mental Capacity Act 2005
H
252 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 129. Even after the enforcement of the Mental Capacity Act 2005,
there have been examples of life sustaining treatment being continued
despite the desire of the patient to the contrary. In W v M173, a patient
who was in a minimally conscious state had previously expressed a desire
against artificial intervention. An application was made to withdraw
artificial nutrition and hydration. The application was refused by the judge
B
on the basis that her life had some benefit, in spite of the wishes of the
family and the previously expressed desire of the patient when she was
competent that she would not like to continue living in such a condition.
The judge took the view that the wishes of the patient were not binding
and did not carry substantial weight, not being formally recorded so as to
C constitute an advance decision under the Mental Capacity Act, 2005.
Adverting to this decision,Wicksnotes that despite the emphasis in the
Act of 2005, on the previously expressed desires of the patient, “these
are just one relevant factor and may well not be regarded as the crucial
one if they point towards death rather than continued life”174.
D Yet, a subsequent decision of the UK Supreme Court in Aintree
University Hospitals NHS Foundation Trust v James and
Others175" does signify greater acceptance of the centrality of the dying
person’s choices”176. But decided cases show the “medical evidence
relating to the benefits of continued existence remains an influential
consideration”177. The result has been a greater emphasis in providing
E palliative care towards the end of life. The palliative care approach gives
priority to providing dignity to a dying patient over an approach which
only seeks to prolong life:
“A civilised society really ought to be able to respect the dignity
and autonomy of the dying in a way that both gives value to their
F lives and dignity to their death. The withdrawal of medical
treatment from a dying patient can, in some circumstances, be
justified; the withdrawal of basic care and compassion cannot.” 178
130. The Mental Healthcare Act 2017, which was assented to by
the President of India on 7 April 2017, enacts specific provisions for
G recognising and enforcing advance directives for persons with mental
illness. The expression “mental illness” is defined by Section 2(s) thus:
173
[2011] EWHC 2443 (Fam)
174
Elizabeth Wicks (Supra note 165), at page 69
175
[2013] UK SC 6
176
Elizabeth Wicks (Supra note 165), at page 69
177
Ibid
H 178
Ibid, at page 71
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 253
[DR. D. Y. CHANDRACHUD, J.]

“mental illness” means a substantial disorder of thinking, mood, A
perception, orientation or memory that grossly impairs judgment,
behaviour, capacity to recognise reality or ability to meet the
ordinary demands of life, mental conditions associated with the
abuse of alcohol and drugs, but does not include mental retardation
which is a condition of arrested or incomplete development of
B
mind of a person, specially characterised by subnormality of
intelligence”.
The Act recognises an advance directive. An advance directive
has to be in writing. The person subscribing to it must be a major. While
making an advance directive, the maker indicates
C
(i) The manner in which he or she wishes or does not wish to be
cared for and treated for a mental illness; and
(ii) The person he or she appoints as a nominated representative179.
An advance directive is to be invoked only when the person who
made it ceases to have the capacity to make mental healthcare treatment D
decisions. It remains effective until the maker regains the capacity to do
so 180.
131. The Central Mental Health Authority constituted under the
Act is empowered to make regulations governing the making of advance
directives181. E
132. The Mental Health Review Board constituted under the Act
has to maintain an online register of all advance directives and to make
them available to a mental health professional when required 182.
133. Advance directives are capable of being revoked, amended
F
or modified by the maker at any time183. The Act specifies that an
advance directive will not apply to emergency treatment184 administered
to the maker. Otherwise, a duty has been cast upon every medical officer
in charge of a mental health establishment and a psychiatrist in charge
of treatment to propose or give treatment to a person with a mental
G
179
Section 5(1), Mental Healthcare Act, 2017 (India)
180
Section 5(3), Mental Healthcare Act, 2017 (India)
181
Section 6, Mental Healthcare Act, 2017 (India)
182
Section 7, Mental Healthcare Act, 2017 (India)
183
Section 8(1), Mental Healthcare Act, 2017 (India)
184
Section 9, Mental Healthcare Act, 2017 (India)
H
254 SUPREME COURT REPORTS [2018] 6 S.C.R.

A illness, in accordance with a valid advance directive, subject to Section
11185. Section 11 elucidates a procedure which is to be followed where a
mental health professional, relative or care-giver does not desire to follow
the advance directive. In such a case, an application has to be made to
the Board to review, alter, cancel or modify the advance directive. In
deciding whether to allow such an application the Board must consider
B
whether
(i) The advance directive is truly voluntary and made without force,
undue influence or coercion;
(ii) The advance directive should apply in circumstances which
C are materially different;
(iii) The maker had made a sufficiently well informed decision;
(iv) The maker possessed the capacity to make decisions relating
to mental health care or treatment at the time when it was
made; and
D
(v) The directive is contrary to law or to constitutional
provisions186.
A duty has been cast to provide access to the advance directive
to a medical practitioner or mental health professional, as the case may
be187. In the case of a minor, an advance directive can be made by a
E
legal guardian188. The Act has specifically granted protection to medical
practitioners and to mental health professionals against being held liable
for unforeseen consequences upon following an advance directive189.
134. Chapter IV of the Mental Healthcare Act 2017 contains
detailed provisions for the appointment and revocation of nominated
F
representatives. The provisions contained in Chapter IV stipulate
qualifications for appointment of nominated representatives; an order of
precedence in recognising a nominated representative when none has
been appointed by the individual concerned; revocation of appointments
and the duties of nominated representatives. Among those duties, a
G nominated representative is to consider the current and past wishes, the
life history, values, culture, background and the caregiver of the person
185
Section 10, Mental Healthcare Act, 2017 (India)
186
Section 11(2), Mental Healthcare Act, 2017 (India)
187
Section 11(3), Mental Healthcare Act, 2017 (India)
188
Section 11(4), Mental Healthcare Act, 2017 (India)
189
H Section 13(1), Mental Healthcare Act, 2017 (India)
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 255
[DR. D. Y. CHANDRACHUD, J.]

with a mental illness; give effective credence to the views of the person A
with mental illness to the extent of his or her understanding the nature of
the decisions under consideration; to provide support in making treatment
decisions; have the right to seek information on diagnosis and treatment,
among other things.
135. In the context of mental illness, Parliament has now expressly B
recognised the validity of advance directives and delineated the role of
nominated representatives in being associated with healthcare and
treatment decisions.
136. A comparative analysis of advance directives in various
jurisdictions indicates some common components. They include the C
patient’s views and wishes regarding: (i) Cardio-pulmonary Resuscitation
(CPR) - treatment that attempts to start breathing and blood flow in
people who have stopped breathing or whose heart has stopped beating;
(ii) Breathing Tubes; (iii) Feeding/Hydration; (iv) Dialysis; (v) Pain Killers;
(vi) Antibiotics; (vii) Directions for organ donation; and (viii) Appointment
of Proxy/Health care agent/ Surrogate, etc. D

137. Legal recognition of advance directives is founded upon the
belief that an individual’s right to have a dignified life must be respected.
In Vishaka v State of Rajasthan190, the Court, in the absence of enacted
law against sexual harassment at work places, had laid down the guidelines
and norms for due observance at all work places or other institutions, E
until a legislation is enacted for the purpose. Certain precepts can be
deduced from the existing global framework on advance directives.These
include the following:
A) Advance directives reflect the right of an adult with capacity
to make a decision to refuse specific treatment at a point in the F
future when they lack capacity. A person can be said to lack
capacity when “in relation to a matter if at the material time he
is unable to make a decision for himself in relation to the matter
because of an impairment of, or a disturbance in the functioning
of, the mind or brain”191. He/she must be deemed to have G
capacity to make decisions regarding his treatment if such
person has ability to— (a) understand the information that is
relevant to take a decision on the treatment or admission or
190
(1997) 6 SCC 241
191
Section 2, Mental Capacity Act 2005 (UK) H
256 SUPREME COURT REPORTS [2018] 6 S.C.R.

A personal assistance; or (b) appreciate any reasonably
foreseeable consequence of a decision or lack of decision on
the treatment or admission or personal assistance; or (c)
communicate such decision by means of speech, expression,
gesture or any other means.192
B B) For a legally valid advance decision to refuse treatment, an
advance directive must fulfil a basic criteria193, which should
include that- a directive must be made by a person after he
has reached 18 years of age194; the person must be mentally
competent when the directive is made; the directive must
specify – in medical or layman’s terms – the treatment refused;
C and, it can specify the circumstances in which the refusal is to
apply.
C) At any time before reaching the comatose state, an individual
can revoke the directive. In other words, an individual may
withdraw or alter an advance decision at any time when he/
D she has capacity to do so. Such withdrawal (including a partial
withdrawal) need not be in writing. A directive must be revoked
if the statements or actions subsequent to the written document
indicate contrary consent.195
D) An advance decision will not be applicable to the treatment in
E question if - (a) at the material time, the person, who made it,
did not have the capacity to give or refuse consent to it196; (b)
the treatment is not the treatment specified in the advance
decision197; (c) any circumstances specified in the advance
decision are absent198; or (d) there are reasonable grounds for
F believing that circumstances exist which the person making
the directive did not anticipate at the time of the advance
decision and which would have affected his decision had he
anticipated them.199

192
Section 4, Mental Healthcare Act, 2017 (India)
G 193
Section 24, Mental Capacity Act, 2005 (UK)
194
A parent acting on behalf of his child cannot make such a declaration.
195
Luis Kutner (Supra note 65), at page 228
196
Section 25(3), Mental Capacity Act 2005 (UK)
197
Section 25(4) (a), Mental Capacity Act 2005 (UK)
198
Section 25(4) (b), Mental Capacity Act 2005 (UK)
199
Section 25(4) (c), Mental Capacity Act 2005 (UK)
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 257
[DR. D. Y. CHANDRACHUD, J.]

E) If a person intends specifically to refuse life-sustaining A
procedures200, he/she must - clearly indicate that it is to apply
even if life is at risk and death will predictably result; put the
decision in writing; and, ensure it is signed and witnessed.
F) In the event that there is more than one valid Advance Directive,
none of which have been revoked, the most recently signed B
Advance Directive will be considered as the last expression of
the patient’s wishes and will be given effect.
G) A person will not incur any liability for the consequences of
withholding or withdrawing a treatment from an individual, if
he, at the material time, reasonably believes that a valid advance C
decision applicable to the treatment, made by that individual,
exists.201
H) An advance directive must clearly contain the following: (a)
full details of its maker, including date of birth, home address
and any distinguishing features; (b) the name and address of a D
general practitioner and whether they have a copy; (c) a
statement that the document should be used if the maker lacks
capacity to make treatment decisions; (d) a clear statement of
the decision, the treatment to be refused and the circumstances
in which the decision will apply; (d) the date the document
was written (or reviewed); and, (e) the person’s signature and E
the signature of a witness.202
138. Advance directives also have limitations. Individuals may not
fully understand treatment options or recognize the consequences of
certain choices in the future. Sometimes, people change their minds after
expressing advance directives and forget to inform others. Another issue F
with advance directives is that vague statements can make it difficult to
understand the course of action when a situation arises. For example,
general statements rejecting “heroic treatments” are vague and do not
indicate whether you want a particular treatment for a specific situation
(such as antibiotics for pneumonia after a severe stroke). On the other G
hand, very specific directives for future care may not be useful when
situations change in unexpected ways. New medical therapies may also
200
Section 25 (5) and (6), Mental Capacity Act 2005 (UK)
201
Section 26(3), Mental Capacity Act 2005 (UK)
202
Alexander Ruck Keene, “Advance Decisions: getting it right?”, available at http://
www.39essex.com/docs/articles/advance_decisions_paper_ark_december_2012.pdf H
258 SUPREME COURT REPORTS [2018] 6 S.C.R.

A have become available since an advance directive was given. Thus,
advance directives should be reviewed and revised regularly if feelings
about certain issues change, so that current wishes and decisions are
always legally documented.
139. An important facet which a regime of advanced care
B directives must factor in, is the existence of variables which affect the
process. These include, in our society, institutional aspects such as the
paucity of access to publicly funded Medicare, declining standards of
professional ethics and the inadequacy of institutional responses to the
lack of professional accountability in the medical profession.
C 140. A report submitted in October 2017 by the American Bar
Association’s Commission on Law and Ageing to the US Department of
Health Services, dwelt on several variables which bear upon advance
directives. The following observations provide an insight:
“A good starting point in understanding this landscape is a
D realization that law and regulation are but one slice of the universe
of variables that profoundly affect the experience of dying…
…other key variables include institutional innovation, the role of
financing systems, professional and public education and
professional standards and guidelines. All these operate in a larger
E framework that is defined by family, workplace, community life
and spirituality. Thus, the isolation of law and regulation as a
strategy for behaviour change requires a sense of humility in
establishing expectations, lest we overstate the influence of law
in the human experience of dying…”203

F 141. There are variables which “profoundly affect the experience
of dying” even in a developed society. They provide a sobering reflection
of the gulf which separates the needs of patients and the availability of
services to the poor, in a society like ours with large impoverished strata.
Patient autonomy may mean little to the impoverished citizen. For
marginalised groups in urban and rural India, even basic medical care is
G a distant reality. Advance directives postulate the availability of medical
care. For, it is on the hypothesis of such care being available that the
right to choose or refuse treatment is based. The stark reality in our
society is that medical facilities are woefully inadequate. Primary medical
203
“Advance Directives And Advance Care Planning: Legal And Policy Issues”, U.S.
Department of Health and Human Services (October 2007), available at https://
H aspe.hhs.gov/system/files/pdf/75366/adacplpi.pdf, at page 1
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 259
[DR. D. Y. CHANDRACHUD, J.]

care is a luxury in many places. Public hospitals are overwhelmed by A
the gap between the demand for medical care and its supply. Advance
directives may have little significance to large segments of Indian society
which are denied access to basic care. Advance directives also require
an awareness of rights. The stark reality is that the average Indian is
deprived of even basic medical facilities in an environment where absence
B
of rudimentary care is the norm. Moreover, absolute notions of patient
autonomy need to be evaluated in the context of the Indian social structure
where bonds of family, religion and caste predominate. The immediate
family and in many situations, the larger unit of the extended family are
caregivers. In the absence of a social security net, universal medical
coverage and compulsory insurance, it is the family to which a patient C
turns to in distress. Families become the caregivers, willingly or as a
result of social conditioning, especially in the absence of resources and
alternative institutional facilities. The views of the family which are drawn
by close bonds of kinship have to be factored into the process. At the
other end of the spectrum, rising costs of medical care in the urban
D
areas threaten to ruin the finances of a family when a member is struck
by a serious illness. To them, advance directives may provide a measure
of assurance when a crucial decision as to whether to prolong artificial
support in an irreversible medical situation is to be taken. The fact that
the patient had expressed a desire in the form of an advance directive
obviates a sense of moral guilt on the part of the caregivers, when the E
family accepts the doctors’ wisdom to withdraw or withhold artificial
support. Another important variable which a regime of advance directives
must bear in mind is the danger of misuse. The regime of advance
directives which is intended to secure patient autonomy must contain
safeguards against the greed of avaricious relatives colluding with willing
F
medical professionals. The safeguards must be robust to obviate the
dangers. The complexities of culture and of the social strata adverted to
above only emphasise the wide diversity that prevails within the country.
Our solution must take into account the diversity across the country. It is
with the above background in view that we have introduced a safeguard
in the form of broad-based committees to oversee the process. G
142. In order to ensure clarity in the course of action to be followed
I agree with the guidelines contained in the judgment of the learned
Chief Justice in regard to Advance Directives as well as in regard to the
procedural mechanisms set up in the judgment.
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260 SUPREME COURT REPORTS [2018] 6 S.C.R.

A K Conclusion
143. The court is above all, engaged in the task of expounding the
Constitution. In doing so, we have been confronted with the enormous
task of finding substance and balance in the relationship between life,
morality and the experience of dying. The reason which has impelled
B the court to recognise passive euthanasia and advance directives is that
both bear a close association to the human urge to live with dignity. Age
brings isolation. Physical and mental debility bring a loss of self worth.
Pain and suffering are accompanied by a sense of being helpless. The
loss of control is compounded when medical intervention takes over life.
Human values are then lost to technology. More significant than the
C affliction of ageing and disease is the fear of our human persona being
lost in the anonymity of an intensive care ward. It is hence necessary
for this court to recognise that our dignity as citizens continues to be
safeguarded by the Constitution even when life is seemingly lost and
questions about our own mortality confront us in the twilight of existence.
D (i) The sanctity of human life is the arterial vein which animates
the values, spirit and cellular structure of the Constitution. The
Constitution recognises the value of life as its indestructible
component. The survival of the sanctity principle is founded
upon the guarantees of dignity, autonomy and liberty;
E (ii) The right to a dignified existence, the liberty to make decisions
and choices and the autonomy of the individual are central to
the quest to live a meaningful life. Liberty, dignity and autonomy
are essential to the pursuit of happiness and to find meaning in
human existence;
F (iii) The entitlement of each individual to a dignified existence
necessitates constitutional recognition of the principlethat an
individual possessed of a free and competent mental state is
entitled to decide whether or not to accept medical treatment.
The right of such an individual to refuse medical treatment is
G unconditional. Neither the law nor the Constitution compel an
individual who is competent and able to take decisions, to
disclose the reasons for refusing medical treatment nor is such
a refusal subject to the supervisory control of an outside entity;
(iv) Constitutional recognition of the dignity of existence as an
inseparable element of the right to life necessarily means that
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 261
[DR. D. Y. CHANDRACHUD, J.]

dignity attaches throughout the life of the individual. Every A
individual has a constitutionally protected expectation that the
dignity which attaches to life must subsist even in the culminating
phase of human existence. Dignity of life must encompass
dignity in the stages of living which lead up to the end of life.
Dignity in the process of dying is as much a part of the right to
B
life under Article 21. To deprive an individual of dignity towards
the end of life is to deprive the individual of a meaningful
existence. Hence, the Constitution protects the legitimate
expectation of every person to lead a life of dignity until death
occurs;
(v) The constitutionally recognised right to life is subject to the C
procedure established by law. The procedure for regulation or
deprivation must, it is well-settled, be fair, just and reasonable.
Criminal law imposes restraints and penal exactions which
regulate the deprivation of life, or as the case may be, personal
liberty. The intentional taking away of the life of another is D
made culpable by the Penal Code. Active euthanasia falls within
the express prohibitions of the law and is unlawful;
(vi) An individual who is in a sound and competent state of mind is
entitled by means of an advance directive in writing, to specify
the nature of medical intervention which may not be adopted E
in future, should he or she cease to possess the mental ability
to decide. Such an advance directive is entitled to deference
by the treating doctor. The treating doctor who, in a good faith
exercise of professional medical judgment abides by an advance
directive is protected against the burden of criminal liability;
F
(vii) The decision by a treating doctor to withhold or withdraw
medical intervention in the case of a patient in the terminal
stage of illness or in a persistently vegetative state or the like
where artificial intervention will merely prolong the suffering
and agony of the patient is protected by the law. Where the
doctor has acted in such a case in the best interest of the G
patient and in bonafide discharge of the duty of care, the law
will protect the reasonable exercise of a professional decision;
(viii) In Gian Kaur, the Constitution Bench held, while affirming
the constitutional validity of Section 306 of the Penal Code
H
262 SUPREME COURT REPORTS [2018] 6 S.C.R.

A (abetment of suicide), that the right to life does not include the
right to die. Gian Kaur does not conclusively rule on the validity
of passive euthanasia. The two Judge Bench decision in Aruna
Shanbaug proceeds on an incorrect perception of Gian Kaur.
Moreover, Aruna Shanbaug has proceeded on the basis of
the act – omission distinction which suffers from incongruities
B
of a jurisprudential nature. Aruna Shanbaug has also not dwelt
on the intersection between criminal law and passive
euthanasia, beyond adverting to Sections 306 and 309 of the
Penal Code. Aruna Shanbaug has subordinated the interest
of the patient to the interest of others including the treating
C doctors and supporting caregivers. The underlying basis of the
decision in Aruna Shanbaug is flawed. Hence, it has become
necessary for this Court in the present reference to revisit the
issues raised and to independently arrive at a conclusion based
on the constitutional position;
D (ix) While upholding the legality of passive euthanasia (voluntary
and non-voluntary) and in recognising the importance of
advance directives, the present judgment draws sustenance
from the constitutional values of liberty, dignity, autonomy and
privacy. In order to lend assurance to a decision taken by the
treating doctor in good faith, this judgment has mandated the
E setting up of committees to exercise a supervisory role and
function. Besides lending assurance to the decision of the
treating doctors, the setting up of such committees and the
processing of a proposed decision through the committee will
protect the ultimate decision that is taken from an imputation
F of a lack of bona fides; and
(x) The directions in regard to the regime of advance directives
have been issued in exercise of the power conferred by Article
142 of the Constitution and shall continue to hold the field until
a suitable legislation is enacted by Parliament to govern the
G area.
144. I agree with the directions proposed in the judgment of the
learned Chief Justice.
145. The reference shall stand disposed of in the above terms.

H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 263

ASHOK BHUSHAN, J. A
1. I had advantage of going through the draft judgment of Hon’ble
the Chief Justice. Though, broadly I subscribe to the views expressed
by Hon’ble the Chief Justice on various principles and facets as expressed
in the judgment, but looking to the great importance of issues involved, I
have penned my reasons for my views expressed. However, I am in full B
agreement with the directions and safeguards as enumerated by Hon’ble
the Chief Justice in Paras 191 to 194 of the Judgment with regard to
advance medical directives.
I also had the benefit of going through the erudite opinion of Dr.
Justice D.Y. Chandrachud, which expresses almost the same views C
which are reflected in my judgment.
This Constitution Bench has been constituted on a reference made
by a three-Judge Bench vide its order dated 25th February, 2014. The
writ petition filed in public interest prayed for essentially following two
reliefs: D
(a) declare ‘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 of India;
(b) issue direction to the Respondent, to adopt suitable
procedures, in consultation with State Governments where E
necessary, to ensure that persons of deteriorated health or
terminally ill should be able to execute a document titled “MY
LIVING WILL & ATTORNEY AUTHORISATION” which can
be presented to hospital for appropriate action in event of
the executant being admitted to the hospital with serious illness F
which may threaten termination of life of the executant or in
the alternative, issue appropriate guidelines to this effect;”
2. Petitioner in support of writ petition has placed reliance on
Constitution Bench judgment in Gian Kaur Vs. State of Punjab, (1996)
2 SCC 648 as well as two-Judge Bench judgment in Aruna
G
Ramachandra Shanbaug Vs. Union of India & Ors., (2011) 4 SCC
454. Petitioner’s case is that this Court in the above two judgments has
although disapproved active euthanasia but has granted its approval to
passive euthanasia. The three-Judge Bench after referring to paragraphs
24 and 25 of Constitution Bench judgment observed that Constitution
H
264 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Bench did not express any binding view on the subject of euthanasia
rather reiterated that legislature would be the appropriate authority to
bring the change. Three-Judge Bench further observed that view of two
Judge Bench in Aruna Ramachandra Shanbaug that the Constitution
Bench in Gian Kaur has approved the judgment of House of Lords in
Airedale NHS Trust Vs. Bland, (1993) 1 All ER 821, is not correct
B
and further opinion expressed by two-Judge Bench judgment in
paragraphs 101 and 104 is inconsistent. In the above view of the matter
the three-Judge Bench made the reference to the Constitution Bench. It
is useful to extract paragraphs 17, 18 and 19 of the referring order which
is to the following effect:
C “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, legal, medical and constitutional perspective, it
becomes extremely important to have a clear enunciation of
D law. Thus, in our cogent opinion, the question of law 12 Page
13 involved requires careful consideration by a Constitution
Bench of this Court for the benefit of humanity as a whole.
18) We refrain from framing any specific questions for
consideration by the Constitution Bench as we invite the
E Constitution Bench to go into all the aspects of the matter
and lay down exhaustive guidelines in this regard.
19) Accordingly, we refer this matter to a Constitution Bench
of this Court for an authoritative opinion.”
3. We have heard Shri Prashant Bhushan, learned counsel
F appearing for the petitioner. Shri P.S. Narasimha, learned Additional
Solicitor General appearing for the Union of India. Shri Arvind Datar,
learned senior counsel for Vidhi Centre for Legal Policy, Shri Sanjay R.
Hegde, learned senior counsel for Indian Society of Critical Care
Medicine, Mr. Devansh A. Mohta, learned counsel for Society for Right
G to Die with Dignity and Mr. Praveen Khattar, learned counsel for Delhi
Medical Council. We have also been assisted by Dr. R.R. Kishore
Member of the Bar who has joined the Bar after carrying on the
profession of doctor for more than 40 years.

H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 265
[ASHOK BHUSHAN, J.]

A. PETITIONER’S CASE A
4. The petitioner is a registered society which is engaged in taking
of the common problems of the people. The petitioner vide this public
interest litigation brings to the notice of this Court the serious problem of
violation of fundamental right to life, liberty, privacy and the right to die
with dignity of the people of this country, guaranteed to them under B
Article 21 of the Constitution of India. It is submitted that the citizens
who are 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 supporting machines in order to C
artificially prolong their natural life span. This sometimes leads to
extension of pain and agony both physical and mental which they
desperately seek to end by making an informed choice and clearly
expressing their wishes in advance, (called a living will) in the event of
they going into a state when it will not be possible for them to express D
their wishes.
5. The petitioner further pleads that it is a common law right of
the people, of any civilised country, to refuse unwanted medical treatment
and no person can force him/her to take any medical treatment which
the person does not desire to continue with. It is submitted that to initiate E
a medical treatment to a person who has reached at an end of his life
and the process of his/her death has already commenced against the
wishes of that person will be violative of his/her right to liberty. The right
to be free from unwanted life-sustaining medical treatment is a right
protected by Article 21. Even the right to privacy which has also been
held to be a part of right to life is being violated as the people are not F
being given any right to make an informed choice and a personal decision
about withholding or withdrawing life sustaining medical treatment.
B. MAN & MEDICINE
6. Human being a mortal, death is an accepted phenomenon. G
Anyone born on the earth is sure to die. Human body is prone to disease
and decay. Human being after getting knowledge of various science and
art always fought with failure and shortcomings of human body. Various
ways and means of healing its body were found and invented by mankind.
The branch of medicine is practiced from ancient time both in India and
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266 SUPREME COURT REPORTS [2018] 6 S.C.R.

A other parts of the World. In our country “Charak Samhita” is a treatise
of medicine which dates back 1000 BC.
7. In Western World “Hippocrates” is regarded as “father of
western medicine”. Hippocratic period dates from 460 BC. “Corpus
Hippocraticum” comprises of not only general medical prescription,
B description of diseases, diagnosis, dietary recommendations but also
opinion of professional ethics of a physician. Thus, those who practiced
medicine from ancient time were ordained to follow some ethical
principles. For those who follow medical profession ‘Hippocratic Oath’
was always treated to be Oath to which every medical professional was
held to be bound. It is useful to refer to original Hippocratic Oath, (as
C translated into English):
“I swear by Apollo, the healer, Asclepius, Hygieia, and
Panacea, and I take to witness all the gods, all the goddesses,
to keep according to my ability and my judgment, the following
Oath and agreement:
D
To consider dear to me, as my parents, him who taught me
this art; to live in common with him and, if necessary, to share
my goods with him; To look upon his children as my own
brothers, to teach them this art.

E I will prescribe regimens for the good of my patients according
to my ability and my judgment and never do harm to anyone.
I will not give a lethal drug to anyone if I am asked, nor will
I advise such a plan; and similarly I will not give a woman a
pessary to cause an abortion.
F But I will preserve the purity of my life and my arts.
I will not cut for stone, even for patients in whom the disease
is manifest; I will leave this operation to be performed by
practitioners, specialists in this art.
In every house where I come I will enter only for the good of
G my patients, keeping myself far from all intentional ill-doing
and all seduction and especially from the pleasures of love
with women or with men, be they free or slaves.
All that may come to my knowledge in the exercise of my
profession or in daily commerce with men, which ought not to
H be spread abroad, I will keep secret and will never reveal.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 267
[ASHOK BHUSHAN, J.]

If I keep this oath faithfully, may I enjoy my life and practice A
my art, respected by all men and in all times; but if I swerve
from it or violate it, may the reverse be my lot.”
8. The noticeable portion of the Hippocratic Oath is that medical
practitioner swears that he will not give a lethal drug to anyone nor he
will advise such a plan. B
9. At this juncture, it shall be useful to refer to thoughts of Plato, a
celebrated Greek Philosopher, on “physician” and treatment which he
expressed in his treatise ‘Republic’. Plato in “The Republic of Plato”,
(translated by Francis Macdonald Cornford) while discussing “physician”,
in Chapter IX states: C
“Shall we say, then, that Asclepius recognized this and
revealed the art of medicine for the benefit of people of sound
constitution who normally led a healthy life, but had
contracted some definite ailment? He would rid them of their
disorders by means of drugs or the knife and tell them to go D
on living as usual, so as not to impair their usefulness as
citizens. But where the body was diseased through and through,
he would not try, by nicely calculated evacuations and doses,
to prolong a miserable existence and let his patient beget
children who were likely to be as sickly as himself. Treatment,
he thought, would be wasted on a man who could not live in E
his ordinary round of duties and was consequently useless to
himself and to society.”
10. Plato in the same Chapter in little harsher words further states:
“But if a man had a sickly constitution and intemperate habits, F
his life was worth nothing to himself or to anyone else;
medicine was not meant for such people and they should not
be treated, though they might be richer than Midas.”
11. From what has been noted above, it is apparent that although
on one hand medical professional has to take Hippocratic Oath that he
G
shall treat his patient according to his ability and judgment and never do
harm to anyone. Further, he will not give any lethal drug to anyone even
he is asked for, on the other hand Plato held that those who has sickly
constitution and intemperate habits should not be helped by medicine.
Thus, the cleavage in views regarding ethics of a medical professional
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268 SUPREME COURT REPORTS [2018] 6 S.C.R.

A as well as not supporting medical treatment for those who are thoroughly
diseased is found from ancient time in Greek thoughts itself.
12. The dilemma of medical professional still continues to this day
and medical professionals are hesitant in adopting a course which may
not support the life of a patient or lead to patient’s death. Numerous
B cases raising conflicting views were brought before the Courts in the
different parts of the World, some of which we shall refer hereinafter.
13. There has been considerable development in medical science
from ancient time to this day. There has been substantial acceptance of
natural and human rights of the human beings which found expression in
C “United Nations Human Rights Declaration, 1948” and subsequent
declarations. The right of self-determination of an individual has been
recognised throughout the World.
C. CONCEPT OF LIFE & DEATH
14. In the ancient India, on ‘life’ and ‘death’ there is considerable
D literature. According to Hinduism, life never comes to an end. The soul
never die although body may decay. The soul is continuous and perpetual
which is not merely a biological identity, death is not the end of life but
only a transformation of a body. In “Bhagavad-gita” Chapter II Verse
22 (as translated in English), it is stated by Lord Krishna:
E “22.As a man shedding worn-out garments, takes other new
ones, likewise the embodied soul, casting off worn-out bodies,
enters into others that are new.”
15. The death was never feared in ancient Indian culture and
mythology. Death was treated sometimes a means to obtain liberation
F that is ‘moksha’. Every life is a gift of God and sacred and it has to be
protected at all cost. No person is bestowed with the right to end his or
her life. However, an individual’s act of discarding mortal body may be
permissible under certain circumstances. In ancient Indian religion,
sanctity was attached to a Yogi (a person who has mastered the art of
regulating his involuntary physical and mental functions, at will) can
G
discard his/her mortal coil(body) through the process of higher spiritual
practices called yoga. Such state was known as ‘Samadhi’. But there
was no concept in ancient India/mythology of putting an end to life of
another human being which was always regarded as crime and against
‘dharma’.
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 269
[ASHOK BHUSHAN, J.]

16. The Vedic Rules also forbid suicide whereas according to A
ancient hindu culture, a man in his fourth stage, i.e., Vanaprastha could
go into the forest sustaining only on water and air, end his body. A Brahmin
also could have got rid of his body by drowning oneself in a river,
precipitating oneself from a mount, burning oneself or starving oneself
to death; or by one of those modes of practising austerities, mentioned
B
above. The Laws of Manu as contained in Sacred Books of the East,
Edited by Max Muller, Volume 25 Chapter VI verses 31 and 32 refers to
above. The Book also refers to views of various commentators on verses
31 and 32. It is useful to extract verses 31 and 32 and Note of the
author on aforesaid verses containing the views of different
commentators which are to the following effect: C
“31.Or let him walk, fully determined and going straight on,
in a north-easterly direction, subsisting on water and air, until
his body sinks to rest.
32. A Brahmana, having got rid of his body by one of those
modes practised by the great sages, is exalted in the world of D
Brahman, free from sorrow and fear.
——————————————————————
31. Gov. and Kull. take yukta, firmly resolved’ (Nar., Ragh.),
in the sense of ‘intent on the practice of Yoga.’ Gov. and Kull. E
(see also Medh. on the next verse) say that a man may
undertake the Mahaprasthana, or’ Great Departure,’ on a
journey which ends in death, when he is incurably diseased
or meets with a great mis-fortune, and that, because it is taught
in the Sastras, it is not opposed to the Vedic rules which forbid
suicide. From the parallel passage of Ap. II, 23, 2, it is, F
however, evident that a voluntary death by starvation was
considered the befitting conclusion of a hermit’s life. The
antiquity and general prevalence of the practice may be
inferred from the fact that the Gaina ascetics, too, consider it
particularly meritorious. G
32. By one of those modes,’ i.e. drowning oneself in a river,
precipitating oneself from a mount, burning oneself or starving
oneself to death’ (Medh.); or ‘by one of those modes of
practising austerities, mentioned above, verse 23’ (Gov., Kull.,
Nar., Nand.). Medh. adds a long discussion, trying to prove
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270 SUPREME COURT REPORTS [2018] 6 S.C.R.

A that the world of Brahman,’ which the ascetic thus gains, is
not the real complete liberation.”
17. The Hindu Sculpture also says that life and death is the gift of
God and no human being has right to take away the said gift. The
suicide is disapproved in Hindu way of life and it is believed that those
B who commit suicide did not attain Moksha or Salvation from the cycle of
life and death.
18. The Muslims also strongly condemn suicide as they believe
that life and death of a person depends on Allah’s will and human beings
are prohibited in going against HIS will.
C 19. Christianity also disapprove taking of one’s life. Bible says
that human being is a temple of God and the spirit of God dwelleth in the
body and no man can defile the temple. Reference is made to Chapter
3 verses 16 and 17 of I CORINTHIA NS , which is as below:-
“16. Know Ye not that ye are the temple of God, and that the
D Spirit of God dwelleth in you?
17. If any man defile the temple of God, him shall God destroy;
for the temple of God is holy, which temple ye are.”
20. Pope John Paul II in, “The Gospel of Life”, denouncing
euthanasia writes:
E
“Laws which authorise and promote euthanasia are therefore
radically opposed not only to the good of the individual but
also to the common good; as such they are completely lacking
in authentic juridical validity. Disregarded for the right to
life, precisely because it leads to the killing of the person
F
whom society exists to serve, is what most directly conflicts
with the possibility of achieving the common good.
Consequently, a civil law authorising euthanasia ceases by
that very fact to be a true, morally binding civil law.”
21. The tenets of Jainism also talks about the practice of religiously
G nominated self-build death called “Sallkhana”, meaning ‘fast upto death’.
22. The Buddhist sculpture states that Lord Buddha had also
allowed self-build death for the extremely ill person as an act of
compassion.

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 271
[ASHOK BHUSHAN, J.]

23. In different religions and cultures, there are clear injunctions A
against taking life of oneself.
24. The petitioner in the Writ Petition has categorically clarified
that petitioner is neither challenging the provisions of I.P.C. by which
“attempt to suicide” is made a penal offence nor praying right to die be
declared as fundamental right under Article 21. It is useful to refer to B
Para 7 of the Writ Petition, in which petitioner pleads following:-
“It is submitted at the outset that the petitioner in the instant
petition is neither challenging the Section 309 of Indian Penal
Code, vide which Attempt to Suicide is a penal offence nor is
asking right to die per se as a fundamental right under Article C
21 (as the issue is squarely covered by the Constitution Bench
judgment of this Hon’ble Court in the case of Gian Kaur vs.
State of Punjab and in other connected matters, (1996) 2 SCC
648. The endeavour of the Petitioner in the instant petition is
to seek guidelines from this Hon’ble Court whereby the people
who are diagnosed of suffering from terminal diseases or D
ailments can execute Living Will or give directives in advance
or otherwise to his/her attorney/executor to act in a specific
manner in the event he/she goes into persistent vegetative
state or coma owing to that illness or due to some other
reason.” E
D. THE RELEVANT PROVISIONS OF IPC
25. The Indian Penal Code, 1860, is a general penal code defining
various acts which are offence and providing for punishment thereof.
Chapter XVI deals with “offences affecting the human body”. The
provisions of Indian Penal Code which are relevant in the present context F
are Section 306 and Section 309. Section 306 relates to abetment of
suicide. It provides “if any person commits suicide, whoever abets the
commission of such suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine”. Another provision which is relevant is Section 309 i.e. G
attempt to commit suicide. The provision states, whoever attempts to
commit suicide and does any act towards the commission of such offence,
shall be punished with simple imprisonment for a term which may extend
to one year (or with fine, or with both). The issues which have come up
for consideration in the present case have to be dealt with keeping in
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272 SUPREME COURT REPORTS [2018] 6 S.C.R.

A view the above provisions of Indian Penal Code which declares certain
acts to be offence.
E. LEGISLATION IN REFERENCE TO EUTHANASIA
26. The only statutory provision in our country which refers to
euthanasia is statutory regulations framed under Indian Medical Council
B Act, 1956, namely The Indian Medical Council (Professional Conduct,
Etiquette & Ethics) Regulations, 2002. Chapter VI of the Regulations
deals with “Unethical Acts”. Regulation 6 is to the following effect:
“6. UNETHICAL ACTS

C A physician shall not aid or abet or commit any of the following
acts which shall be construed as unethical-
…………… …………… ………… …………

6.7 Euthanasia- Practising euthanasia shall constitute
D 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 team of doctors shall declare withdrawal of support system.
Such team shall consist of the doctor in-charge of the patient,
E
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 the
provisions of the Transplantation of Human Organ Act, 1994.”
27. The Law Commission of India had stated and submitted a
F
detailed report on the subject in 196th report on “Medical Treatment to
Terminally Ill Patients (Protection of Patients and Medical Practitioners)”.
Law Commission examined various provisions of Indian Penal Code
and other statutory provisions, judgments of this court and different courts
of other countries and had made certain recommendations. A draft bill
G was also made part of the recommendation. Draft bill namely Medical
Treatment to Terminally Ill Patients (Protection of Patients and Medical
Practitioners) Bill, 2006, was made part of the report as an Annexure.
28. Chapter 8 of the report contains summary of recommendations.
It is not necessary to reproduce all the recommendations. It is sufficient
H to refer to para 1 and 2 of the recommendations:
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 273
[ASHOK BHUSHAN, J.]

“...In the previous chapters, we have considered various A
important issues on the subject of withholding or withdrawing
medical treatment (including artificial nutrition and hydration)
from terminally ill-patients. In Chapter VII, we have considered
what is suitable for our country. Various aspects arise for
consideration, namely, as to who are competent and
B
incompetent patients, as to what is meant by ‘informed
decision’, what is meant by ‘best interests’ of a patient, whether
patients, their relations or doctors or hospitals can move a
Court of law seeking a declaration that an act or omission or
a proposed act or omission of a doctor is lawful, if so, whether
such decisions will be binding on the parties and doctors, in C
future civil and criminal proceedings etc. Questions have
arisen whether a patient who refuses treatment is guilty of
attempt to commit suicide or whether the doctors are guilty of
abetment of suicide or culpable homicide not amounting to
murder etc. On these issues, we have given our views in
D
Chapter VII on a consideration of law and vast comparative
literature.
In this chapter, we propose to give a summary of our
recommendations and the corresponding sections of the
proposed Bill which deal with each of the recommendations.
(The draft of the Bill is annexed to this Report). We shall now E
refer to our recommendations.
1) There is need to have a law to protect patients who are
terminally ill, when they take decisions to refuse medical
treatment, including artificial nutrition and hydration, so that
they may not be considered guilty of the offence of ‘attempt F
to commit suicide’ under sec.309 of the Indian Penal Code,
1860.
It is also necessary to protect doctors (and those who act
under their directions) who obey the competent patient’s
informed decision or who, in the case of (i) incompetent G
patients or (ii) competent patients whose decisions are not
informed decisions, and decide that in the best interests of
such patients, the medical treatment needs to be withheld or
withdrawn as it is not likely to serve any purpose. Such actions
of doctors must be declared by statute to be ‘lawful’ in order H
274 SUPREME COURT REPORTS [2018] 6 S.C.R.

A to protect doctors and those who act under their directions if
they are hauled up for the offence of ‘abetment of suicide’
under sections 305, 306 of the Indian Penal Code, 1860, or
for the offence of culpable homicide not amounting to murder
under section 299 read with section 304 of the Penal Code,
1860 or in actions under civil law.
B
2)Parliament is competent to make such a law under Entry
26 of List III of the Seventh Schedule of the Constitution of
India in regard to patients and medical practitioners. The
proposed law, in our view, should be called ‘The Medical
Treatment of Terminally Ill Patients (Protection of Patients,
C Medical Practitioners) Act.”
29. The 196th Report was again revised by the Law Commission
of India in 241st Report dated August, 2012. The 2006 draft bill was
redrafted by Law Commission which was Annexure 1 to the report.
The above bill however could not fructify in a law. The Ministry of
D health and family welfare had published another draft bill namely The
Medical Treatment of Terminally Ill Patients (Protection of Patients &
Medical Practitioners) Bill, 2016, as a private member bill which was
introduced in Rajya Sabha on 5th August 2016, which is still pending.
30. From the above, it is clear that only statutory provision on
E euthanasia is regulation 6.7 of the 2002 Regulations as referred above.
The regulations prohibit practicing euthanasia and declare that practicing
euthanasia constitute unethical conduct on behalf of the medical
practitioner. The regulation however carves an exception that on specific
occasion, the question of withdrawing supporting devices to sustain
F cardio-pulmonary function even after brain death, shall be decided only
by a team of doctors and not merely by the treating physician alone. The
regulation further provides that team of doctors shall declare withdrawal
of support system.
31. The withdrawal of medical treatment of terminally ill Persons
G is complex ethical, moral and social issue with which many countries
have wrestled with their attempt to introduce a legal framework for end
of life decision making. In absence of a comprehensive legal framework
on the subject the issue has to be dealt with great caution.

H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 275
[ASHOK BHUSHAN, J.]

F. TWO IMPORTANT JUDGMENTS OF THIS COURT A
ON THE SUBJECT:-
32. The first important judgment delivered by the Constitution
Bench of this court touching the subject is the judgment of Constitution
Bench in Gian Kaur Vs. State of Punjab, (1996) 2 SCC 648. In the
above case, the appellants were convicted under Section 306 and awarded B
sentence for abetment of commission of suicide by one Kulwant Kaur.
The conviction was maintained by the High Court against which the
appeal was filed as special leave in this Court. One of the grounds for
assailing the conviction before this Court was that Section 306 IPC is
unconstitutional. The reliance was placed on two-Judge Bench decision
of this court in P.Rathinam Vs. Union of India & Anr., (1994) 3 SCC C
394, wherein Section 309 IPC was held to be unconstitutional as violative
of Article 21 of the Constitution.
33. Section 306 was sought to be declared as unconstitutional
being violative of Article 21 of the Constitution. The Law Commission
by its 22nd report had recommended for deletion of Section 309 and a D
Bill was introduced in 1972 to amend the Indian Penal Code by deleting
Section 309. The Constitution Bench dwelt the question as to whether
‘right to die’ is included in Article 21. The Constitution Bench concluded
that ‘right to die’ “cannot be included as part of fundamental rights
guaranteed under Article 21”. E
34. The challenge to section 309 on the basis of Articles 14 and
21 was repelled. This court further held that Section 306 of Indian Penal
Code does not violate Article 21 and Article 14 of the Constitution of
India.
35. The second judgment which needs to be noted in detail is two- F
Judge Bench judgment of this court in Aruna Ramachandra Shanbaug
Vs. Union of India & Ors., (2011) 4 SCC 454. Writ Petition under
Article 32 on behalf of Aruna Ramachandra Shanbaug was filed by one
M/s. Pinky Virani claiming to be best friend. Aruna Ramachandra
Shanbaug was staff nurse working in King Edward Memorial (KEM) G
Hospital, Parel, Mumbai. On 27.11.1973, she was attacked by a
sweeper of the hospital who wrapped a dog chain around her neck and
yanked her back with it. While sodomising her, he twisted the chain
around her neck, as a result supply of oxygen to the brain stopped and
the brain got damaged. On the next day she was found in unconscious
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276 SUPREME COURT REPORTS [2018] 6 S.C.R.

A condition. From the date of above incident she continued to be in persistent
vegetative state(PVS) having no state of awareness, she was bed-ridden,
unable to express herself, unable to think, hear and see anything or
communicate in any manner. In writ petition under Article 32 it was
prayed that the hospital where she is laying for last 36 years be directed
to stop feeding and let her die peacefully. In the above case, Two-Judge
B
Bench considered all aspects of euthanasia, the court examined both
active and passive euthanasia. Dealing with active and passive euthanasia
and further voluntary and involuntarily euthanasia, following was laid
down in para 39 and 40:
“39. Coming now to the legal issues in this case, it may be
C noted that euthanasia is of two types: active and passive.
Active euthanasia entails the use of lethal substances or forces
to kill a person e.g. a lethal injection given to a person with
terminal cancer who is in terrible agony. Passive euthanasia
entails withholding of medical treatment for continuance of
D life e.g. withholding of antibiotics where without giving it a
patient is likely to die, or removing the heart-lung machine,
from a patient in coma. The general legal position all over
the world seems to be that while active euthanasia is legal
even without legislation provided certain conditions and
safeguards are maintained.”
E
40. A further categorisation of euthanasia is between voluntary
euthanasia and non-voluntary euthanasia. Voluntary
euthanasia is where the consent is taken from the patient,
whereas non-voluntary euthanasia is where the consent is
unavailable e.g. when the patient is in coma, or is otherwise
F unable to give consent. While there is no legal difficulty in
the case of the former, the latter poses several problems, which
we shall address.”
36. The court held that in India, active euthanasia is illegal and
crime. In paragraph 41, following was held:
G
“41. As already stated above active euthanasia is a crime all
over the world except where permitted by legislation. In India
active euthanasia is illegal and a crime under Section 302 or
atleast under Section 304 of the Penal Code, 1860. Physician-
assisted suicide is a crime under Section 306 IPC (abetment
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 277
[ASHOK BHUSHAN, J.]

to suicide). Active euthanasia is taking specific steps to cause A
the patient’s death, such as injecting the patient with some
lethal substance e.g. sodium pentothal which causes a person
deep sleep in a few seconds, and the person instantaneously
and painlessly dies in this deep sleep.”
37. The court noticed various judgments of different countries in B
the above context. Two-Judge Bench also referred to Constitution Bench
judgment in Gian Kaur Vs. State of Punjab. In Para 101 and 104,
following has been laid down:
“101. The Constitution Bench of the Supreme Court in Gina
Kaur V. State of Punjab held that both euthanasia and assisted C
suicide are not lawful in India. That decision overruled the
earlier two-Judge Bench decision of the Supreme Court in
P.Rathinam V. Union of India. The Court held that the right
to life under Article 21 of the Constitution does not include
the right to die. In Gian Kaur case the Supreme Court
approved of the decision of the House of Lords in Airedale D
case and observed that euthanasia could be made lawful only
by legislation.
104. It may be noted that in Gian Kaur Case although the
Supreme Court has quoted with approval the view of the
House of Lords in Airedale case, it has not clarified who can E
decide whether life support should be discontinued in the
case of an incompetent 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 F
other reason are unable to give consent, and then the question
arises 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
commercialisation, and the rampant corruption, and hence, G
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.”

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278 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 38. Two-Judge Bench noticed that there is no statutory provision
in this country as to the legal procedure to withdraw life support to a
person in Persistent Vegetative State (PVS) or who is otherwise
incompetent to take the decision in this connection. The court, however,
issued certain directions which were to continue to be the law until
Parliament makes a law on this subject. In paragraph 124, following has
B
been laid down: -
“124. There is no statutory provision in our country as to the
legal procedure for withdrawing life support to a person in
PVS or who is otherwise incompetent to take a decision in
this connection. We agree with Mr. Andhyarujina that passive
C euthanasia should be permitted in our country in certain
situations, and we disagree with the learned Attorney General
that it should never be permitted. Hence, following the
technique used in Vishaka case, we are laying down the law
in this connection which will continue to be the law until
D Parliament makes a law on the subject:
(i) A decision has to be taken to discontinue life support
either by the parents or the spouse or other close
relatives, or in the absence of any of them, such a
decision can be taken even by a person or a body of
E persons acting as a next friend. It can also be taken by
the doctors attending the patient. However, the decision
should be taken bona fide in the best interest of the
patient.
In the present case, we have already noted that Aruna
F Shanbaug’s parents are dead and other close relatives are
not interested in her ever since she had the unfortunate
assault on her. As already noted above, it is the KEM
hospital staff, who have been amazingly caring for her
day and night for so many long years, who really are her
next friends, and not Ms. Pinki Virani who has only visited
G her on few occasions and written a book on her. Hence it
is for the KEM Hospital staff to take that decision. KEM
Hospital staff have clearly expressed their wish that Aruna
Shanbaug should be allowed to live.

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 279
[ASHOK BHUSHAN, J.]

Mr. Pallav Shishodia, learned Senior Counsel, appearing A
for the Dean, KEM Hospital, Mumbai, submitted that Ms.
Pinki Virani has no locus standi in this case. In our opinion
it is not necessary for us to go into this question since we
are of the opinion that it is the KEM Hospital staff who is
really the next friend of Aruna Shanbaug.
B
We do not mean to decry or disparage what Ms. Pinki
Virani has done. Rather, we wish to express our
appreciation of the splendid social spirit she has shown.
We have seen on the internet that she has been espousing
many social causes, and we hold her in high esteem. All
that we wish to say is that however much her interest in C
Aruna Shanbaug may be it cannot match the involvement
of the KEM Hospital staff who have been taking care of
Aruna day and night for 38 years.
However, assuming that the KEM Hospital staff at some
future time changes its mind, in our opinion in such a D
situation KEM Hospital would have to apply to the Bombay
High Court for approval of the decision to withdraw life
support.
(ii) Hence, even if a decision is taken by the near relatives
or doctors or next friend to withdraw life support, such E
a decision requires approval from the High Court
concerned as laid down in Airedale case.
In our opinion, this is even more necessary in our country
as we cannot rule out the possibility of mischief being done
by relatives or others for inheriting the property of the F
patient.”
G. LAW ON SUBJECT IN OTHER COUNTRIES
39. The debate on Euthanasia had gathered momentum in last
100 years. The laws of different countries expresses thoughts of people
G
based on different culture, philosophy and social conditions. Assisted
suicide was always treated as an offence in most of the countries.
Physician assisted suicide is also not accepted in most of the countries
except in few where it gain ground in last century. In several countries
including different States of U.S.A., European Countries and United
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280 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Kingdom, various legislations have come into existence codifying different
provisions pertaining to physician assisted suicide. The right to not
commence or withdraw medical treatment in case of terminally ill or
PSV patients, advance medical directives have also been made part of
different legislations in different countries.
B 40. Physician assisted suicide has not been accepted by many
countries. However, few have accepted it and made necessary legislation
to regulate it. Switzerland, Netherlands, Belgium, Luxembourg, and
American States of Oregan, Washington, Montana and Columbia has
permitted physician assisted suicide with statutory regulations. Courts in
different parts of the world have dealt with the subject in issue in detail.
C It is not necessary to refer to different legislation of different countries
and the case law on subject of different countries. For the purposes of
this case, it shall be sufficient to notice few leading cases of United
Kingdom, United States Supreme Court and few others countries.
United Kingdom
D
41. Euthanasia is criminal offence in the United Kingdom.
According to Section 2(1) of the Suicide Act, 1961, a person assisting an
individual, who wish to die commits an offence. The provision states
that it is an offence to aid, abet, counsel or procure the suicide of another
or an attempt by another to commit suicide, however, it is not a crime if
E it is by their own hands. There has been large parliamentary opposition
to the current United Kingdom Law concerning assisted suicide but there
has been no fundamental change in the law so far. In 1997, the Doctor
Assisted Dying Bill as well as in 2000, the Medical Treatment (Prevention
of Euthanasia) Bill were not approved. The most celebrated judgment
F of the House of Lords is Airedale N.H.S. Trust Vs. Bland, (1993)
A.C. 789.
42. Anthony David Bland was injured on 15th April, 1989 at the
Hillsborough football ground in which his lungs were crushed and
punctured, the supply of oxygen to the brain was interrupted. As a result,
G he sustained catastrophic and irreversible damage to the higher centres
of the brain, which had left him in a condition known as a persistent
vegetative state(P.V.S.). Medical opinion was unanimous that there was
no hope of improvement in his condition or recovery. At no time before
the disaster had the patient indicated his wishes if he should find himself
in such a condition. Bland’s father sought declarations that Hospital
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 281
[ASHOK BHUSHAN, J.]

authorities may discontinue all his life-sustaining treatment and medical A
support measures and further lawfully discontinue and thereafter need
not furnish medical treatment to the patient except for the sole purpose
of enabling the patient to end his life and die peacefully with the greatest
dignity and the least of pain, suffering and distress.
43. The lower court granted the declarations sought for. The court B
of appeal upheld the order. Official Solicitor filed an appeal before the
House of Lords. Lord Goff held that it is not lawful for a doctor to
administer a drug to his patient to bring about his death, even though that
course is prompted by a humanitarian desire to end his suffering. Such
act is actively causing death i.e. euthanasia which is not lawful. It was
further held that a case in which doctor decides not to provide or continue C
to provide treatment or care, it may be lawful. Following was stated by
Lord Goff:
“First, it is established that the principle of self-determination
requires that respect must be given to the wishes of the patient,
so that if an adult patient of sound mind refuses, however D
unreasonably, to consent to treatment or care by which his
life would or might be prolonged, the doctors responsible for
his care must give effect to his wishes even though they do
not consider it to be in his best interests to do so...........
To this extent, the principle of the sanctity of human life must E
yield to the principle of self-determination(see ante, pp.826H-
827A, per Hoffmann L.J.), and, for present purposes perhaps
more important, the doctor’s duty to act in the best interests
of his patient must likewise be qualified. On this basis, it has
been held that a patient of sound mind may, if properly F
informed, require that life support should be discontinued:
see Nancy B. v. H”tel-Dieu de Quebec (1992) 86 D.L.R.(4th)
385. Moreover the same principle applies where the patient’s
refusal to give his consent has been expressed at an earlier
date, before he became unconscious or otherwise incapable
of communicating it; though in such circumstances especial G
care may be necessary to ensure that the prior refusal of
consent is still properly to be regarded as applicable in the
circumstances which have subsequently occurred: see, e.g.,
In re T.(Adult: Refusal of Treatment)(1993) Fam.95. I wish to
add that, in cases of this kind, there is no question of the H
282 SUPREME COURT REPORTS [2018] 6 S.C.R.

A patient having committed suicide, nor therefore of the doctor
having aided or abetted him in doing so. It is simply that the
patient has, as he is entitled to do, declined to consent to
treatment which might or would have the effect of prolonging
his life, and the doctor has, in accordance with his duty,
complied with his patient’s wishes................
B
I must however stress, at this point, that the law draws a crucial
distinction between cases in which a doctor decides not to
provide, or to continue to provide, for his patient treatment
or care which could or might prolong his life, and those in
which he decides, for example by administering a lethal drug,
C actively to bring his patient’s life to an end. As I have already
indicated, the former may be lawful, either because the doctor
is giving effect to his patient’s wishes by withholding the
treatment or care, or even in certain circumstances in which
(on principles which I shall describe) the patient is
D incapacitated from stating whether or not he gives his consent.
But it is not lawful for a doctor to administer a drug to his
patient to bring about his death, even though that course is
prompted by a humanitarian desire to end his suffering,
however great that suffering may be: see Reg. v. Cox
(unreported), 18 September, 1992. So to act is to cross the
E Rubicon which runs between on the one hand the care of the
living patient and on the other hand euthanasia-actively
causing his death to avoid or to end his suffering. Euthanasia
is not lawful at common law. It is of course well known that
there are many responsible members of our society who believe
F that euthanasia should be made lawful; but that result could,
I believe, only be achieved by legislation which expresses the
democratic will that so fundamental a change should be made
in our law, and can, if enacted, ensure that such legalised
killing can only be carried out subject to appropriate
supervision and control..................................
G
At the heart of this distinction lies a theoretical question. Why
is it that the doctor who gives his patient a lethal injection
which kills him commits an unlawful act and indeed is guilty
of murder, whereas a doctor who, by discontinuing life
support, allows his patient to die, may not act unlawfully –
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 283
[ASHOK BHUSHAN, J.]

and will not do so, if he commits no breach of duty to his A
patient ?”
44. Lord Browne-Wilkinson in his judgment noticed the
following questions raised in the matter:
“(1) lawfully discontinue all life-sustaining treatment and
medical support measures designed to keep (Mr. Bland) alive B
in his existing persistent vegetative state including the
termination of ventilation, nutrition and hydration by artificial
means; and
(2) lawfully discontinue and thereafter need not furnish
medical treatment to (Mr. Bland) except for the sole purpose C
of enabling (Mr. Bland) to end his life and die peacefully
with the greatest dignity and the least of pain, suffering and
distress.”
Answering the questions following was held:
D
“Anthony Bland has been irreversibly brain damaged; the
most distinguished medical opinion is unanimous that there is
no prospect at all that the condition will change for the better.
He is not aware of anything. If artificial feeding is
discontinued and he dies, he will feel nothing. Whether he
lives or dies he will feel no pain or distress. All the purely E
physical considerations indicate that it is pointless to continue
life support. Only if the doctors responsible for his care held
the view that, though he is aware of nothing, there is some
benefit to him in staying alive, would there be anything to
indicate that it is for his benefit to continue the.................. F
In these circumstances, it is perfectly reasonable for the
responsible doctors to conclude that there is no affirmative
benefit to Anthony Bland in continuing the invasive medical
procedures necessary to sustain his life. Having so concluded,
they are neither entitled nor under a duty to continue such
G
medical care. Therefore they will not be guilty of murder if
they discontinue such care.”
45. Another judgment which needs to be noticed is Ms. B Vs. An
NHS Hospital Trust, 2002 EWHC 429. The claimant, Ms. B has
sought declaration from the High Court that the invasive treatment which
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284 SUPREME COURT REPORTS [2018] 6 S.C.R.

A is currently being given by the respondent by way of artificial ventilation
is an unlawful trespass. The main issue raised in the case is as to whether
Ms. B has the capacity to make her own decision about her treatment in
hospital. Ms. B, aged 43 years, had suffered a devastating illness which
has caused her to become tetraplegic and whose expressed wish is not
to be kept artificially alive by the use of a ventilator. The High Court in
B
the above context examined several earlier cases on the principle of
autonomy. Paragraphs 16 to 22 are to the following effect:
“16. In 1972 Lord Reid in S v McC: W v W [1972] AC 25
said, at page 43:
C “…English law goes to great lengths to protect a person of
full age and capacity from interference with his personal
liberty. We have too often seen freedom disappear in other
countries not only by coups d’état but by gradual erosion:
and often it is the first step that counts. So it would be unwise
to make even minor concessions.”
D
17. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1,
Lord Goff of Chieveley said at page 72:
“I start with the fundamental principle, now long established,
that every person’s body is inviolate.”
E 18. Lord Donaldson of Lymington, MR said in re T (Adult:
Refusal of Treatment) [1993] Fam 95, at page 113:
“…. . the patient’s right of choice exists whether the reasons
for making that choice are rational, irrational, unknown or
even non-existent.”
F
19. In re T (Adult: Refusal of Treatment), I cited Robins JA
in Malette v Shulman 67 DLR (4th) 321 at 336, and said at
page 116-117:
“The right to determine what shall be done with one’s own
body is a fundamental right in our society. The concepts
G inherent in this right are the bedrock upon which the
principles of self-determination and individual autonomy
are based. Free individual choice in matters affecting this
right should, in my opinion, be accorded very high priority.”

H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 285
[ASHOK BHUSHAN, J.]

20. In re MB (Medical Treatment) [1997] 2 FLR 426, I said A
at 432:
“A mentally competent patient has an absolute right to
refuse to consent to medical treatment for any reason,
rational or irrational, or for no reason at all, even where
that decision may lead to his or her own death”, (referring B
to Sidaway v Board of Governors of the Bethlehem Royal
Hospital and the Maudsley Hospital [1985] AC 871, per
Lord Templeman at 904-905; and to Lord Donaldson M.R.
in re T (Adult: Refusal of Treatment) (see above)).
21. This approach is identical with the jurisprudence in other C
parts of the world. In Cruzan v Director, Missouri Department
of Health (1990) 110 S. Ct 2841, the United States Supreme
Court stated that:
“No right is held more sacred, or is more carefully guarded…
than the right of every individual to the possession and control D
of his own person, free from all restraint or interference of
others, unless by clear and unquestionable authority of law.”
b. The sanctity of life
22. Society and the medical profession in particular are
concerned with the equally fundamental principle of the E
sanctity of life. The interface between the two principles of
autonomy and sanctity of life is of great concern to the treating
clinicians in the present case. Lord Keith of Kinkel in Airedale
NHS Trust v Bland [1993] AC 789, said at page 859:
“.. the principle of the sanctity of life, which it is the concern F
of the state, and the judiciary as one of the arms of the
state, … is not an absolute one. It does not compel a medical
practitioner on pain of criminal sanctions to treat a patient,
who will die if he does not, contrary to the express wishes
of the patient.””
G
46. The judgment of House of Lords in Regina (Pretty) Vs.
Director of Public Prosecutions (Secretary of State for the Home
Department intervening),(2002) 1 AC 800, also needs to be referred
to. The claimant, who suffered from a progressive and degenerative
terminal illness, faced the imminent prospect of a distressing and
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286 SUPREME COURT REPORTS [2018] 6 S.C.R.

A humiliating death. She was mentally alert and wished to control the time
and manner of her dying but her physical disabilities prevented her from
taking her life unaided. She wished her husband to help her and he was
willing to do so provided that in the event of his giving such assistance he
would not be prosecuted under Section 2(1) of the Suicide Act, 1961.
The claimant accordingly requested the Director of Public Prosecutions
B
to undertake that he would not consent to such a prosecution under
Section 2(4). On his refusal to give that undertaking the claimant, in
reliance on rights guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms as Schedule to
the Human Rights Act, 1998, sought relief by way of judicial review.
C 47. The Divisional Court of the Queen’s Bench Division concluded
that the Director has no power to give an undertaking and dismissed the
claim. The House of Lords again reiterated the distinction between the
cessation of life-saving or life-prolonging treatment on the one hand and
the taking of action intended solely to terminate life on the other. In
D paragraph 9 of the judgment following was held:
“9. In the Convention field the authority of domestic
decisions is necessarily limited and, as already noted, Mrs
Pretty bases her case on the Convention. But it is worthy of
note that her argument is inconsistent with E two principles
E deeply embedded in English law. The first is a distinction
between the taking of one’s own life by one’s own act and the
taking of life through the intervention or with the help of a
third party. The former has been permissible since suicide
ceased to be a crime in 1961. The latter has continued to be
proscribed. The distinction was very clearly expressed by
F Hoffmann LJ in Airedale NHS Trust v Bland [1993] AC 789,
831:F
“No one in this case is suggesting that Anthony Bland
should be given a lethal injection. But there is concern
about ceasing to supply food as against, for example,
G ceasing to treat an infection with antibiotics. Is there any
real distinction? In order to come to terms with our intuitive
feelings about whether there is a distinction, I must start
by considering why most of us would be appalled if he
was given a lethal injection. It is, I think, connected with
H our view that the sanctity of life entails its inviolability by
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 287
[ASHOK BHUSHAN, J.]

an outsider. Subject to exceptions like self-defence, human A
life is inviolate even if the person in question has consented
to its violation. That is why although suicide is not a crime,
assisting someone to commit suicide is. It follows that, even
if we think Anthony Bland would have consented, we would
not be entitled to end his life by a lethal injection.”
B
The second distinction is between the cessation of life-saving
or life-prolonging treatment on the one hand and the taking
of action lacking medical, therapeutic or palliative
justification but intended solely to terminate life on the other.
This distinction provided the rationale of the decisions in
Bland. It was very succinctly expressed in the Court of Appeal C
In re] (A Minor) (Wardship: Medical Treatment) [1991] Fam
33, in which A Lord Donaldson of Lymington MR said, at p
46:
“What doctors and the court have to decide is whether, in
the best interests of the child patient, a particular decision D
as to medical treatment should be taken which as a side
effect will render death more or less likely. This is not a
matter of semantics. It is fundamental. At the other end of
the age spectrum, the use of drugs to reduce pain will often
be fully 8 justified, notwithstanding that this will hasten E
the moment of death. What can never be justified is the
use of drugs or surgical procedures with the primary
purpose of doing so.”
United States of America
48. The State of New York in 1828 enacted a statute declaring F
assisted suicide as a crime. New York example was followed by different
other States.
49. Cardozo, J., about a century ago in Schloendroff Vs. Society
of New York Hospital, 211 N.Y. 125, while in Court of Appeal had
recognised the right of self-determination by every adult human being. G
Following was held:
“Every human being of adult years and sound mind has a
right to determine what shall be done with his own body; and
a surgeon who performs an operation without his patient’s
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288 SUPREME COURT REPORTS [2018] 6 S.C.R.

A consent commits an assault, for which he is liable in damages.
Pratt v. Davis, 224 Ill., 300, 79 N.E. 562, 7 L.R.A. (N.S.)
609, 8 Ann. Cas, 197: Mohr v. Williams, 95 Minn. 261, 104
N.W. 12.1 L.R. A.(N.S.), 111 Am. St. Rep. 462, 5 Ann. Cas,
303. This is true, except in cases of emergency where the patient
is unconscious, and where it is necessary to operate before consent
B
can be obtained.”
50. Supreme Court of United States of America in Nancy Beth
Cruzan Vs. Director, Missouri Department of Health, 497 U.W. 261,
had occasion to consider a case of patient who was in persistent
vegetative state, her guardian brought a declaratory judgment seeking
C judicial sanction to terminate artificial hydration and nutrition of patient.
The Supreme Court recognised right possessed by every individual to
have control over own person. Following was held by Rehnquist, CJ:
“At common law, even the touching of one person by another
without consent and without legal justification was a battery.
D See W. Keeton, D.Dobbs, R. Keeton, & D. Owen, Prosser and
Keeton on Law of Torts, 9, pp.39-42 (5th ed. 1984). Before
the turn of the century, this Court observed that “no right is
held more sacred, or is more carefully guarded, by the common
law, than the right of every individual to the possession and
E control of his own person, free from all restraint or interference
of others, unless by clear and unquestionable authority of
law.” Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11
S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). This notion of bodily
integrity has been embodied in the requirement that informed
consent is generally required for medical treatment. Justice
F Cardozo, while on the Court of Appeals of New York, aptly
described this doctrine: “Every human being of adult years
and sound mind has a right to determine what shall be done
with his own body; and a surgeon who performs an operation
without his patient’s consent commits an assault, for which
G he is liable in damages,” Schloendorff v. Society of New York
Hospital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914).
The informed consent doctrine has become firmly entrenched
in American tort law. See Keeton, Dobbs, Keeton, & Owen,
supra, 32, pp.189-192; F. Rozovsky, Consent to Treatment, A
Practical Guide 1-98 (2d ed. 1990).
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 289
[ASHOK BHUSHAN, J.]

The logical corollary of the doctrine of informed consent is A
that the patient generally possesses the right, not to consent,
that is, to refuse treatment.”
51. Referring to certain earlier cases following was held:
“Reasoning that the right of self-determination should not be
lost merely because an individual is unable to sense a violation B
of it, the court held that incompetent individuals retain a right
to refuse treatment. It also held that such a right could be
exercised by a surrogate decision maker using a “subjective”
standard when there was clear evidence that the incompetent
person would have exercised it. Where such evidence was C
lacking, the court held that an individual’s right could still be
invoked in certain circumstances under objective “best
interest” standards. Id., at 361-368, 486 A.2d, at 1229-1233.
Thus, if some trustworthy evidence existed that the individual
would have wanted to terminate treatment, but not enough to
clearly establish a person’s wishes for purposes of the D
subjective standard, and the burden of a prolonged life from
the experience of pain and suffering markedly outweighed
its satisfactions, treatment could be terminated under a
“limited-objective” standard. Where no trustworthy evidence
existed, and a person’s suffering would make the E
administration of life-sustaining treatment inhumane, a “pure-
objective” standard could be used to terminate treatment. If
none of these conditions obtained, the court held it was best
to err in favour of preserving life. Id., at 364-368, 486 A.2d,
at 1231-1233.”
F
In the facts of the above case, the claim of parents of Cruzan
was refused since guardian could not satisfactorily prove that Cruzan
had expressed her wish not to continue her life under circumstances in
which she drifted.
52. All different aspects of euthanasia were again considered by G
the United States Supreme Court in Washington, Et Al,, Vs. Harold
Glucksberg Et Al, 521 US 702 equivalent to 138 L.Ed 2d 772. A
Washington State statute enacted in 1975 provided that a person was
guilty of the felony of promoting a suicide attempt when the person
knowingly caused or aided another person to attempt suicide. An action
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290 SUPREME COURT REPORTS [2018] 6 S.C.R.

A was brought in the United States District Court for the Western District
of Washington by several plaintiffs, among whom were (1) physicians
who occasionally treated terminally ill, suffering patients, and (2)
individuals who were then in the terminal phases of serious and painful
illness. The plaintiffs, asserting the existence of a liberty interest protected
by the Federal Constitution’s Fourteenth Amendment which extended to
B
a personal choice by a mentally competent, terminally ill adult to commit
physician-assisted suicide, sought a declaratory judgment that the
Washington Statute was unconstitutional on its face. The District Court,
granting motions for summary judgment by the physicians and the
individuals, ruled that the statute was unconstitutional because it placed
C an undue burden on the exercise of the asserted liberty interest (850 F
Supp 1454, 1994 US Dist LEXIS 5831). On appeal, the United States
Court of Appeals for the Ninth Circuit, expressed the view that (1) the
Constitution encompassed a due process liberty interest in controlling
the time and manner of one’s death; and (2) the Washington Statute was
unconstitutional as applied to terminally ill, competent adults who wished
D
to hasten their deaths with medication prescribed by their physicians (79
F3d 790, 1996 US App LEXIS 3944).
53. On certiorari, the United States Supreme Court reversed. In
an opinion by Rehnquist, C.J., joined by O’Connor, Scalia, Kennedy,
and Thomas, JJ., it was held that the Washington Statute did not violate
E the due process clause- either on the Statute’s face or as the Statute
was applied to competent, terminally ill adults who wished to hasten
their deaths by obtaining medication prescribed by their physicians –
because (1) pursuant to careful formulation of the interest at stake, the
question was whether the liberty specially protected by the due process
F clause included a right to commit suicide which itself included a right to
assistance in doing so; (2) an examination of the nation’s history, legal
traditions, and practices revealed that the asserted right to assistance in
committing suicide was not a fundamental liberty interest protected by
the due process clause; (3) the asserted right to assistance in committing
suicide was not consistent with the Supreme Court’s substantive due
G process line of cases; and (4) the State’s assisted suicide ban was at
least reasonably related to the promotion and protection of a number of
Washington’s important and legitimate interests.
54. The US Supreme Court held that Washington statute did not
violate the due process clause. CJ, Rehnquist while delivering the
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 291
[ASHOK BHUSHAN, J.]

opinion of the Court upheld the State’s ban on assisted suicide to the A
following effect:
“...In almost every State-indeed, in almost every western
democracy-it is a crime to assist a suicide. The States’ assisted-
suicide bans are longstanding expressions of the States’
commitment to the protection and preservation of all human B
life. Cruzan, supra, at 280, 111 L.Ed 2d 224, 110 S Ct 2841
(“The States-indeed, all civilized nations-demonstrate their
commitment to life by treating homicide as a serious crime.
Moreover, the majority of States in this country have laws
imposing criminal penalties on one who assists another to
commit suicide”); see Stanford v. Kentucky, 492 US 3561, C
373, 106 L ED 2d 306, 109 S Ct 2969 (1989) (“The primary
and most reliable indication of a national consensus is ... the
pattern of enacted laws”). Indeed, opposition to and
condemnation of suicide-and, therefore, of assisting suicide-
are consistent and enduring themes of our philosophical, D
legal, and cultural heritages.”
55. Another judgment of US Supreme Court which needs to be
noted is Dennis C. Vacco, Attorney General of New York, Et Al. Vs.
Timothy E. Quill Et Al, 521 US 793. New York state law as in effect
in 1994 provided that a person who intentionally caused or aided another E
person to attempt or commit suicide was guilty of felony; but under
other statutes, a competent person could refuse even life-saving medical
treatment. Plaintiff sought declaratory relief and injunctive against the
enforcement of criminal law asserting that such law is violative of statutes
of the Federal Constitution Fourteenth Amendment.
F
56. Rehnquist, CJ. in his opinion again upheld distinction between
assisted suicide and withdrawing of life sustaining treatment. Following
was laid down:
“[1d] The Court of Appeals, however, concluded that some
terminally ill people-those who are on life support systems- G
are treated differently from those who are not, in that the former
may “hasten death” by ending treatment, but the latter may
not “hasten death” through physician-assisted suicide. 80
F.3d, at 729. This conclusion depends on the submission that
ending or refusing lifesaving medical treatment “is nothing
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292 SUPREME COURT REPORTS [2018] 6 S.C.R.

A more nor less than assisted suicide.” Ibid. Unlike the Court
of Appeals, we think the distinction between assisting suicide
and withdrawing life-sustaining treatment, a distinction widely
recognised and endorsed in the medical profession and in
our legal traditions, is both important and logical; it is certainly
rational...
B
The distinction comports with fundamental legal principles
of causation and intent. First, when a patient refuses life-
sustaining medical treatment, he dies from an underlying fatal
disease or pathology; but if a patient ingests lethal medication
prescribed by a physician, he is killed by that medication....
C
Furthermore, a physician who withdraws, or honors a
patient’s refusal to begin, life-sustaining medical treatment
purposefully intends, or may so intend, only to respect his
patient’s wishes and “to cease doing useless and futile or
degrading things to the patient when the patient no longer
D stands to benefit from them.”
57. However, there are four States which have passed legislation
permitting euthanasia. These States include Oregon, Washington,
Missouri and Texas.

E Canada
58. Section 241(b) of the Criminal Code provides that everyone
who aids or abets a person in committing suicide commits an indictable
offence. In Rodriguez Vs. British Columbia (Attorney General), 1993
(3) SCR 519, the Supreme Court of Canada has considered the issue of
F assisted suicide. A 42 year old lady who was suffering from an incurable
illness applied before the Supreme Court of British Columbia for an
order that Section 241(b) which prohibits giving assistance to commit
suicide, be declared invalid. The application was dismissed and the matter
was taken to the Supreme Court of Canada which held that prohibition
of Section 241(b) which fulfils the government’s objective of protecting
G the vulnerable, is grounded in the State interest in protecting life and
reflects the policy of the State that human life should not be depreciated
by allowing life to be taken.

H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 293
[ASHOK BHUSHAN, J.]

Switzerland A
59. In Switzerland the assisted suicide is allowed only for altruistic
reasons. A person is guilty and deserved to be sentenced for imprisonment
on assisted suicide when he incites someone to commit suicide for selfish
reasons.
Netherlands B

60. The Netherlands has the most experience with physician-
hastened death. Both euthanasia and assisted suicide remain crimes there
but doctors who end their patients’ lives will not be prosecuted if legal
guidelines are followed. Among the guidelines are:
C
31. The request must be made entirely of the patient’s own free
will.
32. The patient must have a long-lasting desire for death.
33. The patient must be experiencing unbearable suffering.
D
34. There must be no reasonable alternatives to relative suffering
other than euthanasia.
35. The euthanasia or assisted suicide must be reported to the
coroner.
61. The above discussion clearly indicates that pre-dominant E
thought as on date prevailing in other part of the World is that assisted
suicide is a crime. No one is permitted to assist another person to commit
suicide by injecting a lethal drug or by other means. In India, Section 306
of the Indian Penal Code specifically makes it an offence. The
Constitution Bench of this Court in Gian Kaur (supra) has already
upheld the constitutional validity of Section 306, thus, the law of the land F
as existing today is that no one is permitted to cause death of another
person including a physician by administering any lethal drug even if the
objective is to relive the patient from pain and suffering.
H. RATIO OF GIAN KAUR VS. STATE OF PUNJAB
G
62. In Gian Kaur’s case (supra), the constitutional validity of
Section 306 of Indian Penal Code, 1860 was challenged. The appellant
had placed reliance on Two Judge Bench Judgment of this Court in P.
Rathinam Vs. Union of India (supra), where this Court declared
Section 309 IPC to be unconstitutional as violative of Article 21 of the
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294 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Constitution. It was contended that Section 309 having already been
declared as unconstitutional, any person abetting the commission of suicide
by another is merely assisting in the enforcement of the fundamental
right under Article 21 and, therefore, Section 306 IPC penalising assisted
suicide is equally violative of Article 21. The Court proceeded to consider
the constitutional validity of Section 306 on the above submission. In
B
Para 17 of the judgment, this Court had made observation that reference
to euthanasia cases tends to befog the real issue. Following are the
relevant observations made in Para 17:-
“....Any further reference to the global debate on the
desirability of retaining a penal provision to punish attempted
C suicide is unnecessary for the purpose of this decision. Undue
emphasis on that aspect and particularly the reference to
euthanasia cases tends to befog the real issue of the
constitutionality of the provision and the crux of the matter
which is determinative of the issue.”
D The Constitution Bench held that Article 21 does not include right
to die. Paragraph 22 of the judgment contains the ratio in following
words:-
“....Whatever may be the philosophy of permitting a person
to extinguish his life by committing suicide, we find it difficult
E to construe Article 21 to include within it the “right to die” as
a part of the fundamental right guaranteed therein. “Right to
life” is a natural right embodied in Article 21 but suicide is
an unnatural termination or extinction of life and, therefore,
incompatible and inconsistent with the concept of “right to
F life”.....”
Although, right to die was held not to be a fundamental right
enshrined under Article 21 but it was laid down that the right to life
includes right to live with human dignity, i.e., right of a dying man to also
die with dignity when his life is ebbing out. Following pertinent
G observations have been made in Para 24:-
“....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 a dignified procedure
of death. In other words, this may include the right of a dying
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 295
[ASHOK BHUSHAN, J.]

man to also die with dignity when his life is ebbing out. But A
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.”
63. The Constitution Bench, however, noticed the distinction
between a dying man, who is terminally ill or in a persistent vegetative B
state, when process of natural death has commenced, from one where
life is extinguished. The Court, however, held that permitting termination
of life to such cases to 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. Paragraph 25 of the
judgment is to the following effect:- 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 of cases may fall
within the ambit of the “right to die” with dignity as a part of D
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 conclusion of the process of
natural death which has already commenced. The debate even E
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 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.” F

64. The Constitution Bench in above paragraphs has observed
that termination of life in case of those who are terminally ill or in a
persistent vegetative state, may fall within the ambit of “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 process of natural G
death has commenced. But even in those cases, physician assisted
termination of life can not be included in right guaranteed under Article
21. One more pertinent observation can be noticed from Para 33, where
this Court held that:
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A “33. ....We have earlier held that “right to die” is not included
in the “right to life” under Article 21. For the same reason,
“right to live with human dignity” cannot be construed to
include within its ambit the right to terminate natural life, at
least before commencement of the natural process of certain
death....”
B
(emphasis by us)
65. The distinction between cases where physician decides not to
provide or to discontinue to provide for treatment or care, which could
or might prolong his life and those in which he decides to administer a
C lethal drug, was noticed while referring to the judgment of the House of
Lords’s case in Airedale’s case (supra). In Airedale’s case (supra), it
was held that it is not lawful for a doctor to administer a drug to his
patient to bring about his death. Euthanasia is not lawful at common law
and euthanasia can be made lawful only by legislation. It is further
relevant to notice that in Para 40, this Court had observed that it is not
D necessary to deal with physician assisted suicide or euthanasia cases.
Paragraph 40, is as follows:-
“40. Airedale N.H.S. Trust v. Bland was a case relating to
withdrawal of artificial measures for continuance of life by a
physician. Even though it is not necessary to deal with
E physician-assisted suicide or euthanasia cases, a brief
reference to this decision cited at the Bar may be made. In the
context of existence in the persistent vegetative state of no
benefit to the patient, the principle of sanctity of life, which is
the concern of the State, was stated to be not an absolute
F one. In such cases also, the existing crucial distinction
between cases in which a physician decides not to provide,
or to continue to provide, for his patient, treatment or care
which could or might prolong his life, and those in which he
decides, for example, by administering a lethal drug, actively
to bring his patient’s life to an end, was indicated and it was
G then stated as under: (All ER p. 867 : WLR p. 368)
“… But it is not lawful for a doctor to administer a drug to
his patient to bring about his death, even though that
course is prompted by a humanitarian desire to end his
suffering, however great that suffering may be [see R. v.
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[ASHOK BHUSHAN, J.]

Cox, (18-9-1992, unreported)] per Ognall, J. in the Crown A
Court at Winchester. So to act is to cross the Rubicon which
runs between on the one hand the care of the living patient
and on the other hand euthanasia — actively causing his
death to avoid or to end his suffering. Euthanasia is not
lawful at common law. It is of course well known that there
B
are many responsible members of our society who believe
that euthanasia should be made lawful; but that result
could, I believe, only be achieved by legislation which
expresses the democratic will that so fundamental a change
should be made in our law, and can, if enacted, ensure
that such legalised killing can only be carried out subject C
to appropriate supervision and control. …”
66. A conjoint reading of observations in Paras 25, 33 and 40
indicates that although for a person terminally ill or in PSV state, whose
process of natural death has commenced, termination of life may fall in
the ambit of right to die with dignity but in those cases also there is no D
right of actively terminating life by a physician. The clear opinion has
thus been expressed that euthanasia is not lawful. But at the same time,
the Constitution Bench has noticed the distinction between the cases in
which a physician decides not to provide or to continue to provide for his
patient’s treatment or care which could or might prolong his life and
those in which physician decides actively to bring life to an end. The E
ratio of the judgment is contained in Paragraph 22 and 24, which is to
the following effect:-
(i)”....Whatever may be the philosophy of permitting a person
to extinguish his life by committing suicide, we find it difficult
to construe Article 21 to include within it the “right to die” as F
a part of the fundamental right guaranteed therein. “Right to
life” is a natural right embodied in Article 21 but suicide is
an unnatural termination or extinction of life and, therefore,
incompatible and inconsistent with the concept of “right to
life”.....” G
(ii)”....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 a dignified procedure
of death. In other words, this may include the right of a dying H
298 SUPREME COURT REPORTS [2018] 6 S.C.R.

A man to also die with dignity when his life is ebbing out. But
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.”
67. We have noticed above that in Para 17, this Court had observed
B that reference to euthanasia cases tends to befog the real issue and
further in Para 40, it was observed that “even though it is not necessary
to deal with physician assisted suicide or euthanasia cases”; the
Constitution Bench has neither considered the concept of euthanasia
nor has laid down any ratio approving euthanasia.
C 68. At best, the Constitution Bench noted a difference between
cases in which physician decides not to provide or to continue to provide
for medical treatment or care and those cases where he decides to
administer a lethal drug activity to bring his patient’s life to an end. The
judgment of House of Lords in Airedale’s case (supra) was referred to
and noted in the above context. The Airedale’s case (supra) was cited
D on behalf of the appellant in support of the contention that in said case
the withdrawal of life saving treatment was held not to be unlawful.
69. We agree with the observation made in the reference order of
the three-Judge Bench to the effect that the Constitution Bench did not
express any binding view on the subject of euthanasia. We hold that no
E binding view was expressed by the Constitution Bench on the subject of
Euthanasia.
I.CONCEPT OF EUTHANASIA
70. Euthanasia is derived from the Greek words euthanatos; eu
F means well or good and thanatos means death. New Webster’s
Dictionary (Deluxe Encyclopedic Edition) defines Euthanasia as
following:
“A painless putting to death of persons having an incurable
disease; an easy death. Also mercy killing.”
G 71. The Oxford English Dictionary defines ‘euthanasia’: “The
painless killing of a patient suffering from an incurable and painful
disease or in an irreversible coma”. The definition of the word
‘euthanasia’ as given by the World Health Organisation may be noticed
which defines it as: “A deliberate act undertaken by one person with the
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 299
[ASHOK BHUSHAN, J.]

intention of either painlessly putting to death or failing to prevent death A
from natural causes in cases of terminal illness or irreversible coma of
another person”.
72. In ancient Greek Society, Euthanasia as ‘good death’ was
associated with the drinking of ‘Hemlock’. Drinking of Hemlock had
become common not only in cases of incurable diseases but also by B
those individuals who faced other difficult problems or old age. In ancient
times, in Greece freedom to live was recognised principle, which
permitted the sick and desperates to terminate their lives by themselves
or by taking outside help. In last few centuries, Euthanasia increasingly
came to connote specific measures taken by physicians to hasten the
death. The primary meaning, as has now been ascribed to the word is C
compassionate murder. In the last century, the thought has gained
acceptance that Euthanasia is to be distinguished from withdrawal of
life saving treatments which may also result in death. Withdrawing
medical treatment in a way hasten the death in case of terminal illness
or Persistent Vegetative State (PVS) but is not to be treated as D
compassionate murder. Advancement in the medical science on account
of which life can be prolonged by artificial devices are the developments
of only last century. Lord Browne Wilkinson, J., in Airedale N.H.A.
Trust v. Bland, 1993 (2) W.L.R. 316 (H.L.), at page 389 observed:
“....Death in the traditional sense was beyond human control. E
Apart from cases of unlawful homicide, death occurred
automatically in the course of nature when the natural
functions of the body failed to sustain the lungs and the heart.
Recent developments in medical science have fundamentally
affected these previous certainties. In medicine, the cessation
of breathing or of heartbeat is no longer death. By the use of F
a ventilator, lungs which in the unaided course of nature would
have stopped breathing can be made to breathe, thereby
sustaining the heartbeat. Those, like Anthony Bland, who
would previously have died through inability to swallow food
can be kept alive by artificial feeding. This has led the medical G
profession to redefine death in terms of brain stem death, i.e.,
the death of that part of the brain without which the body
cannot function at all without assistance. In some cases it is
now apparently possible, with the use of the ventilator, to
sustain a beating heart even though the brain stem, and
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300 SUPREME COURT REPORTS [2018] 6 S.C.R.

A therefore in medical terms the patient, is dead; “the ventilated
corpse.”
73. In recent times, three principles had gained acceptance
throughout the world they are:
1. Sanctity of life
B
2. Right of self-determination
3. Dignity of the individual human being
74. The sanctity of life is one thought which is philosophically,
religiously and mythologically accepted by the large number of population
C of the world practicing different faiths and religions. Sanctity of life entails
it’s inviolability by an outsider. Sanctity of life is the concern of State.
75. Right of self-determination also encompasses in it bodily
integrity. Without consent of an adult person, who is in fit state of mind,
even a surgeon is not authorised to violate the body. Sanctity of the
D human life is the most fundamental of the human social values. The
acceptance of human rights and development of its meaning in recent
times has fully recognised the dignity of the individual human being. All
the above three principles enable an adult human being of conscious
mind to take decision regarding extent and manner of taking medical
treatment. An adult human being of conscious mind is fully entitled to
E
refuse medical treatment or to decide not to take medical treatment and
may decide to embrace the death in natural way. Euthanasia, as noted
above, as the meaning of the word suggest is an act which leads to a
good death. Some positive act is necessary to characterise the action as
Euthanasia. Euthanasia is also commonly called “assisted suicide” due
F to the above reasons.
J. WITHDRAWAL OF LIFE SAVING DEVICES
76. Withdrawal of medical assistance or withdrawal of medical
devices which artificially prolong the life cannot be regarded as an act to
achieve a good death. Artificial devices to prolong the life are implanted,
G when a person is likely to die due to different causes in his body. Life
saving treatment and devices are put by physicians to prolong the life of
a person. The Law Commission of India in its 196th Report on “Medical
Treatment to Terminally Ill Patients (Protection of Patients and Medical
Practitioners)” on the subject had put introductory note to the following
H effect:
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 301
[ASHOK BHUSHAN, J.]

“The title to this Report immediately suggests to one that we A
are dealing with ‘Euthanasia’ or ‘Assisted Suicide’. But we
make it clear at the outset that Euthanasia and Assisted
Suicide continue to be unlawful and we are dealing with a
different matter ‘Withholding Life-support Measures’ to
patients terminally ill and, universally, in all countries, such
B
withdrawal is treated as ‘lawful’.”
77. The Law Commission of India was of the opinion that
withdrawing life supporting measures of patient terminally ill is a concept,
different from Euthanasia. The opinion of Cardozo, J., rendered more
than hundred years ago that every human being of adult years and sound
mind has a right to determine what shall be done with his own body, is C
now universally accepted principle. The judgment of the U.S. Supreme
Court and House of Lords, as noticed above, also reiterate the above
principle.
78. Recently, in a nine-Judges judgment in K.S. Puttaswamy
and Another Vs. Union of India and Others, (2017) 10 SCC 1, Justice D
J. Chelameswar elaborating the concept of right to life as enshrined in
Article 21 under the Constitution of India has observed:
“An individual’s right to refuse the life-prolonging medical
treatment or terminate life is another freedom which falls
within the zone of right of privacy.” E

79. Withdrawal of life-saving devices, leads to natural death which
is arrested for the time being due to above device and the act of
withdrawal put the life on the natural track. Decision to withdraw life-
saving devices is not an act to cause good death of the person rather,
decision to withdraw or not to initiate life-supporting measures is a decision F
when treatment becomes futile and unnecessary. Practice of Euthanasia
in this country is prohibited and for medical practitioners it is already
ordained to be unethical conduct. The question as to what should be the
measures to be taken while taking a decision to withdraw life-saving
measures or life-saving devices is another question which we shall G
consider a little later.
80. Two-Judge Bench in Aruna Ramachandra Shanbaug Vs.
Union of India and Ors., (2011) 4 SCC 454 has held that withdrawal
of live-saving measures is a passive Euthanasia which is permissible in
India. A critically ill patient who is mentally competent to take a decision,
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302 SUPREME COURT REPORTS [2018] 6 S.C.R.

A decides not to take support of life prolonging measures, and respecting
his wisdom if he is not put on such devices like ventilator etc., it is not at
all Euthanasia. Large number of persons in advance age of life decide
not to take medical treatment and embrace death in its natural way, can
their death be termed as Euthanasia. Answer is, obviously ‘No’. The
decision not to take life saving medical treatment by a patient, who is
B
competent to express his opinion cannot be termed as euthanasia, but a
decision to withdraw life saving treatment by a patient who is competent
to take decision as well as with regard to a patient who is not competent
to take decision can be termed as passive euthanasia. On the strength
of the precedents in this country and weight of precedents of other
C countries as noted above, such action of withdrawing life saving device
is legal. Thus, such acts, which are commonly expressed as passive
euthanasia is lawful and legally permissible in this country.
81. We remind ourselves that this Court is not a legislative body
nor is entitled or competent to act as a moral or ethical arbiter. The task
D of this Court is not to weigh or evaluate or reflect different believes and
views or give effect to its own but to ascertain and build the law of land
as it is now understood by all. Message which need to be sent to vulnerable
and disadvantaged people should not, however, obliviously to encourage
them to seek death but should assure them of care and support in life.
E 82. We thus are of the considered opinion that the act of withdrawal
from live-saving devices is an independent right which can lawfully be
exercised by informed decision.
K. DECISION FOR WITHDRAWAL OF LIFE-SAVING
TREATMENT IN CASE OF A PERSON WHO IS
F INCOMPETENT TO TAKE AN INFORMED DECISION.
83. One related aspect which needs to be considered is that is
case of those patients who are incompetent to decide due to their mental
state or due to the fact that they are in permanent persistent vegetative
state or due to some other reasons unable to communicate their desire.
G When the right of an adult person who expresses his view regarding
medical treatment can be regarded as right flowing from Article 21 of
the Constitution of India, the right of patient who is incompetent to express
his view cannot be outside the fold of Article 21 of the Constitution of
India. It is another issue, as to how, the decision in cases of mentally
incompetent patients regarding withdrawal of life-saving measures, is to
H be taken.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 303
[ASHOK BHUSHAN, J.]

84. The rights of bodily integrity and self-determination are the A
rights which belong to every human being. When an adult person having
mental capacity to take a decision can exercise his right not to take
treatment or withdraw from treatment, the above right cannot be negated
for a person who is not able to take an informed decision due to terminal
illness or being a Persistent Vegetative State (PVS). The question is
B
who is competent to take decision in case of terminally-ill or PVS patient,
who is not able to take decision. In case of a person who is suffering
from a disease and is taking medical treatment, there are three stake
holders; the person himself, his family members and doctor treating the
patient. The American Courts give recognition to opinion of “surrogate”
where person is incompetent to take a decision. No person can take C
decision regarding life of another unless he is entitled to take such decision
authorised under any law. The English Courts have applied the “best
interests” test in case of a incompetent person. The best interests of the
patient have to be found out not by doctor treating the patient alone but
a team of doctors specifically nominated by the State Authority. In Aruna
D
Shanbaug (supra), two-Judge Bench of this Court has opined that in
such cases relying on doctrine of ‘parens patriae (father of the country)’,
it is the Court alone which is entitled to take a decision whether to
withdraw treatment for incompetent terminally-ill or PVS patient. In
paragraphs 130 and 131 following has been held:
“130. In our opinion, in the case of an incompetent person E
who is unable to take a decision whether to withdraw life
support or not, it is the Court alone, as parens patriae, which
ultimately must take this decision, though, no doubt, the views
of the near relatives, next friend and doctors must be given
due weight. F
Under which provision of law can the Court grant approval
for withdrawing life support to an incompetent person
131. In our opinion, it is the High Court under Article 226 of
the Constitution which can grant approval for withdrawal of
life support to such an incompetent person. Article 226(1) of G
the Constitution states :
“226. Power of High Courts to issue certain writs.-
(1)Notwithstanding anything in article 32, every High
Court shall have power, throughout the territories in relation
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304 SUPREME COURT REPORTS [2018] 6 S.C.R.

A to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them,
for the enforcement of any of the rights conferred by Part
B
III and for any other purpose”.
(emphasis supplied)
A bare perusal of the above provisions shows that the High
Court under Article 226 of the Constitution is not only entitled
C to issue writs, but is also entitled to issue directions or orders.”
85. Various learned counsel appearing before us have submitted
that seeking declaration from the High Court in cases where medical
treatment is needed to be withdrawn is time taking and does not advance
the object nor is in the interest of terminally-ill patient. It is submitted
D that to keep check on such decisions, the State should constitute
competent authorities consisting of pre-dominantly experienced medical
practitioners whose decision may be followed by all concerned with a
rider that after taking of decision by competent body a cooling period
should be provided to enable anyone aggrieved from the decision to
approach a Court of Law. We also are of the opinion that in cases of
E incompetent patients who are unable to take an informed decision, it is in
the best interests of the patient that the decision be taken by competent
medical experts and that such decision be implemented after providing a
cooling period at least of one month to enable aggrieved person to
approach the Court of Law. The best interest of the patient as determined
F by medical experts shall meet the ends of justice. The medical team by
taking decision shall also take into consideration the opinion of the blood
relations of the patient and other relevant facts and circumstances.
L. ADVANCE MEDICAL DIRECTIVE
86. The petitioner by the Writ Petition has also sought a direction
G to the respondent to adopt suitable procedures to ensure that persons of
deteriorated health or terminally ill should be able to execute a document
titled “MY LIVING WILL & ATTORNEY AUTHORISATION”. The
petitioner submits that it is an important personal decision of the patient
to use or not to use the life sustaining treatment in case of terminal
illness and stage of persistent vegetative state. The petitioner pleads
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 305
[ASHOK BHUSHAN, J.]

that the petitioner’s endeavour is only to seek a ‘choice’ for the people A
which is not available at present and they are left to the mercy of doctors
who to save themselves from any penal consequences half heartedly,
despite knowing that the death is inevitable continue administering the
treatment which the person might not have wanted to continue with. A
person will be free to issue advance directives both in a positive and
B
negative manner, meaning thereby that a person is not necessarily required
to issue directive that the life sustaining treatment should not be given to
him in the event of he or she going into persistent vegetative state or in
an irreversible state. The person can also issue directives as to all the
possible treatment which should be given to him when he is not able to
express his/her wishes on medical treatment. The petitioner also refers C
to and rely on various legislations in different countries, which recognises
the concept of advance medical directive. Petitioner pleads that in India
also law in the nature “Patient Autonomy & Self- determination Act”
should be enacted. Petitioner has also alongwith his Writ Petition has
annexed a draft titling it “Patient’s Self-determination Act”.
D
87. The concept of advance medical directive is also called living
will is of recent origin, which gained recognition in latter part of 20th
century. The advance medical directive has been recognised first by
Statute in United States of America when in the year 1976, State of
California passed “Natural Death Act”. It is claimed that 48 states out
of 50 in the United States of America have enacted their own laws E
regarding Patient’s Rights and advance medical directives. Advance
medical directive is a mechanism through which individual autonomy
can be safeguarded in order to provide dignity in dying. As noted above,
the Constitution Bench of this Court in the case of Gian Kaur (supra)
has laid down that right to die with dignity is enshrined in Article 21 of F
the Constitution. It is to be noticed that advance medical directives are
not exclusively associated with end of life decisions. However, it is vital
to ensure that form of an advance medical directive reflects the needs
of its author and is sufficiently authoritative and practical to enable its
provisions to be upheld. In most of the western countries advance medical
directives have taken a legalistic form incorporating a formal declaration G
to be signed by competent witnesses. The laws also make provisions
for updating confirmation of its applicability and revocation. Protecting
the individual autonomy is obviously the primary purpose of an advance
medical directive. The right to decide one’s own fate pre-supposes a
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A capacity to do so. The answer as to when a particular advance medical
directive becomes operative usually depends upon an assent of when its
author is no longer competent to participate in medical decision making.
The Black’s Law Dictionary defines the Advance Medical Directive as
“a legal document explaining one’s wishes about medical treatment if
one becomes incompetent or unable to communicate”. An advance
B
medical directive is an individual’s advance exercise of his autonomy on
the subject of extent of medical intervention that he wishes to allow
upon his own body at a future date, when he may not be in a position to
specify his wishes. The purpose and object of advance medical directive
is to express the choice of a person regarding medical treatment in an
C event when he looses capacity to take a decision. Use and operation of
advance medical directive is to confine only to a case when person
becomes incapacitated to take an informed decision regarding his medical
treatment. So long as an individual can take an informed decision
regarding his medical treatment, there is no occasion to look into advance
medical directives. A person has unfettered right to change or cancel his
D
advance medical directives looking to the need of time and advancement
in medical science. Hence, a person cannot be tied up or bound by his
instructions given at an earlier point of time.
88. The concept of advance medical directive originated largely
as a response to development in medicines. Many people living depending
E on machines cause great financial distress to the family with the cost of
long term medical treatment. Advance medical directive was developed
as a means to restrict the kinds of medical intervention in event when
one become incapacitated. The foundation for seeking direction regarding
advance medical directive is extension of the right to refuse medical
F treatment and the right to die with dignity. When a competent patient
has right to take a decision regarding medical treatment, with regard to
medical procedure entailing right to die with dignity, the said right cannot
be denied to those patients, who have become incompetent to take an
informed decision at the relevant time. The concept of advance medical
directive has gained ground to give effect to the rights of those patients,
G who at a particular time are not able to take an informed decision.
Another concept which has been accepted in several countries is
recognition of instrument through which a person nominates a
representative to make decision regarding their medical treatment at a
point of time when the person executing the instrument is unable to
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 307
[ASHOK BHUSHAN, J.]

make an informed decision. This is called attorney authorisation leading A
to medical treatment. In this country, there is no legislation governing
such advance medical directives. It is, however, relevant to note a recent
legislation passed by the Parliament namely “The Mental Healthcare
Act, 2017”, where as per Section 5 every person, who is not a minor has
a right to make an advance directive in writing regarding treatment to
B
his mental illness in the way a person wishes to be treated or mental
illness. The person wishes not to be treated for mental illness and
nomination of individual and individual’s as his/her representative. Section
5 is to the following effect:-
“5. (1) Every person, who is not a minor, shall have a right to
make an advance directive in writing, specifying any or all C
of the following, namely:––
(a) the way the person wishes to be cared for and treated
for a mental illness;
(b) the way the person wishes not to be cared for and treated D
for a mental illness;
(c) the individual or individuals, in order of precedence,
he wants to appoint as his nominated representative as
provided under section 14.
(2) An advance directive under sub-section (1) may be made E
by a person irrespective of his past mental illness or treatment
for the same.
(3) An advance directive made under sub-section (1), shall
be invoked only when such person ceases to have capacity
to make mental healthcare or treatment decisions and shall F
remain effective until such person regains capacity to make
mental healthcare or treatment decisions.
(4) Any decision made by a person while he has the capacity
to make mental healthcare and treatment decisions shall over-
ride any previously written advance directive by such person. G
(5) Any advance directive made contrary to any law for the
time being in force shall be ab initio void.”
89. Section 6 of the Act provides that an advance directive shall
be made in the manner as has been prescribed by the regulations made
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A by the Central Authority. In the draft Medical Healthcare Regulation
published by Ministry of Health and Family Welfare, a form is prescribed
in which advance directive may be made. Other aspects of medical
directive have also been dealt with by draft regulation. Thus, in our
country, recognition of advance directives regarding medical treatment
has started to be recognised and are in place relating to specified field
B
and purpose. Another legislation which also recognise some kind of
advance directive relating to a person’s body is Section 3 of the
Transplantation of Human Organs and Tissues Act, 1994. Section 3
sub-sections (1) and (2) which are relevant for the present purpose is as
follows:-
C “3. Authority for removal of [human organs or tissues or
both].—(1) Any donor may, in such manner and subject to
such conditions as may be prescribed, authorise the removal,
before his death, of any [human organ or tissue or both] of
his body for therapeutic purposes.
D (2) If any donor had, in writing and in the presence of two or
more witnesses (at least one of whom is a near relative of
such person), unequivocally authorised at any time before
his death, the removal of any [human organ or tissue or both]
of his body, after his death, for therapeutic purposes, the
E person lawfully in possession of the dead body of the donor
shall, unless he has any reason to believe that the donor had
subsequently revoked the authority aforesaid, grant to a
registered medical practitioner all reasonable facilities for
the removal, for therapeutic purposes, of that [human organ
or tissue or both] from the dead body of the donor.”
F
90. The rules have been framed under Section 24 of the
Transplantation of Human Organs and Tissues Act, 1994 namely
Transplantation of Human Organs and Tissues Rules, 2014 where form
of authorisation for organ or tissue pledging is Form 7, which provides
that an authorisation by donor in presence of two witnesses which is
G also required to be registered by Organ Donor Registry.
91. The statutory recognition of the above mentioned authorisation
in two statutes is clear indication of acceptance of the concept of advance
medical directive in this country.

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 309
[ASHOK BHUSHAN, J.]

92. Learned counsel for the petitioner as well as for the interveners A
and the Additional Solicitor General of India has expressed concern
regarding manner and procedure of execution of advance medical
directive. It is submitted that unless proper safeguards are not laid down,
those who are vulnerable, infirm and aged may be adversely affected
and efforts by those related to a person to expedite death of a person for
B
gaining different benefits, cannot be ruled out. We have been referred
to various legislations in different countries, which provides a detailed
procedure of execution of advance medical directive, competence of
witnesses, mode and manner of execution, authority to register and keep
such advance medical directive.
93. Shri Arvind Datar, learned senior counsel has in its written C
submissions referred to certain aspects, which may be kept in mind while
formulating guidelines for advance medical directive, which are as follows:
a) Only adult persons, above the age of eighteen years and
of sound mind at the time at which the advance directive is
executed should be deemed to be competent. This should D
include persons suffering from mental disabilities provided
they are of sound mind at the time of executing an advance
directive.
b) Only written advance directives that have been executed
properly with the notarised signature of the person executing E
the advance directive, in the presence of two adult witnesses
shall be valid and enforceable in the eyes of the law. The
form should require a reaffirmation that the person executing
such directive has made an informed decision. Only those
advance directives relating to the withdrawal or withholding F
of life-sustaining treatment should be granted legal validity.
The determination that the executor of the advance directive
is no longer capable of making the decision should be made
in accordance with relevant medical professional regulations
or standard treatment guidelines, as also the determination
that the executor’s life would terminate in the absence of life- G
sustaining treatment. The constitution of a panel of experts
may also be considered to make this determination. The use
of expert committees or ethics committees in other jurisdictions
is discussed at Para 28 of these written submissions.
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310 SUPREME COURT REPORTS [2018] 6 S.C.R.

A c) Primary responsibility for ensuring compliance with the
advance directive should be on the medical institution where
the person is receiving such treatment.
d) If a hospital refuses to recognise the validity of an advance
directive, the relatives or next friend may approach the
B jurisdictional High Court seeking a writ of mandamus against
the concerned hospital to execute the directive. The High Court
may examine whether the directive has been properly executed,
whether it is still valid (Le, whether or not circumstances have
fundamentally changed since its execution, making it invalid)
and/or applicable to the particular circumstances or treatment.
C
e) No hospital or doctor should be made liable in civil or
criminal proceedings for having obeyed a validly executed
advance directive.
f) Doctors citing conscientious objection to the enforcement
D of advance directives on the grounds of religion should be
permitted not to enforce it, taking into account their
fundamental right under Article 25 of the Constitution.
However, the hospital will still remain under this obligation.
94. The right to self-determination and bodily integrity has been
E recognised by this Court as noted above. The right to execute an advance
medical directive is nothing but a step towards protection of aforesaid
right by an individual, in event he becomes incompetent to take an informed
decision, in particular stage of life. It has to be recognised by all including
the States that a person has right to execute an advance medical directive
to be utilised to know his decision regarding manner and extent of medical
F treatment given to his body, in case he is incapacitated to take an informed
decision. Such right by an individual does not depend on any recognition
or legislation by a State and we are of the considered opinion that such
rights can be exercised by an individual in recognition and in affirmation
of his right of bodily integrity and self-determination which are duly
G protected under Article 21 of the Constitution. The procedure and manner
of such expression of such right is a question which needs to be addressed
to protect the vulnerable, infirm and old from any misuse. It is the duty
of the State to protect its subjects specially those who are infirm, old and
needs medical care. The duty of doctor to extend medical care to the
patients, who comes to them in no manner diminishes in any manner by
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 311
[ASHOK BHUSHAN, J.]

recognition of concept that an individual is entitled to execute an advance A
medical directive. The physicians and medical practitioners treating a
person, who is incompetent to express an informed decision has to act in
a manner so as to give effect to the express wishes of an individual.
95. The concept of advance medical directive has gained ground
throughout the world. Different countries have framed necessary B
legislation in this regard. Reference of few of such legislations shall give
idea of such statutory scheme formulated by different countries to achieve
the object. The Republic of Singapore has passed an enactment namely
ADVANCE MEDICAL DIRECTIVE ACT (Act 16 of 1996). Section
3 of the Act, sub-section (1) empowers a person who is not mentally
disordered and attained the age of 21 years to make an advance directive C
in the prescribed form.
Other provisions of Statute deals with duty of witness, registration
of directives, objections, revocation of directive, panel of specialists,
certification of terminal illness, duty of medical practitioner and other
related provisions. The Belgian Act on Euthanasia, 2002 also contains D
provisions regarding advance directive in Section 4. Swiss Civil Code
1907 in Articles 362 and 365 provides for advance care directive, its
execution and termination. Mental Capacity Act, 2005 (England) also
contemplates for an advance directive. The Statute further provides that
an advance directive is applicable in life sustaining treatment only. When E
the decision taken in writing, signed by the patient or by another person
in patient’s presence on his direction. Pennsylvania Act 169 of 2006 also
contains provisions with regard to execution of advance medical directive
and other related provisions, its revocation etc.
In our country, there is yet no legislation pertaining to advance F
medical directive. It is, however, relevant to note that Ministry of Health
and Family Welfare vide its order dated 06.05.2016 uploaded the Law
Commission’s 241st report and solicited opinions, comments on the same.
An explanatory note has also been uploaded by the Ministry of Health
and Family Welfare where in paragraph 6 following was stated:
G
“ Living Will has been defined as “A document in which person
states his/her desire to have or not to have extraordinary life
prolonging measures used when recovery is not possible from
his/her terminal condition”.

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312 SUPREME COURT REPORTS [2018] 6 S.C.R.

A However, as per para 11 of the said Bill the advance medical
directive (living will) or medical power of attorney executed
by the person shall be void and of no effect and shall not be
binding on any medical practitioner.”
Although in Clause 11 of the draft bill, it was contemplated that
B advance medical directives are not binding on medical practitioner but
the process of legislation had not reached at any final stage. The directions
and safeguards which have been enumerated by Hon’ble Chief Justice
in his judgment shall be sufficient to safeguard the interests of patients,
doctors and society till the appropriate legislation is framed and enforced.
C We thus conclude that a person with competent medical facility is
entitled to execute an advance medical directive subject to various
safeguards as noted above.
M. CONCLUSIONS:
From the above discussions, we arrive on following conclusions:-
D
(i) The Constitution Bench in Gian Kaur’s case held that the
“right to life: including right to live with human dignity” would mean the
existence of such right up to the end of natural life, which also includes
the right to a dignified life upto the point of death including a dignified
procedure of death. The above right was held to be part of fundamental
E right enshrined under Article 21 of the Constitution which we also
reiterate.
(ii) We agree with the observation made in the reference order of
the three-Judge Bench to the effect that the Constitution Bench in Gian
Kaur’s case did not express any binding view on the subject of
F euthanasia. We hold that no binding view was expressed by the
Constitution Bench on the subject of Euthanasia.
(iii) The Constitution Bench, however, noted a distinction between
cases in which physician decides not to provide or continue to provide
for treatment and care, which could or might prolong his life and those in
G which he decides to administer a lethal drug even though with object of
relieving the patient from pain and suffering. The later was held not to
be covered under any right flowing from Article 21.
(iv) Thus, the law of the land as existing today is that no one is
permitted to cause death of another person including a physician by
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 313
[ASHOK BHUSHAN, J.]

administering any lethal drug even if the objective is to relieve the patient A
from pain and suffering.
(v) An adult human being of conscious mind is fully entitled to
refuse medical treatment or to decide not to take medical treatment and
may decide to embrace the death in natural way.
(vi) Euthanasia as the meaning of words suggest is an act which B
leads to a good death. Some positive act is necessary to characterise the
action as Euthanasia. Euthanasia is also commonly called “assisted
suicide” due to the above reasons.
(vii) We are thus of the opinion that the right not to take a life
saving treatment by a person, who is competent to take an informed C
decision is not covered by the concept of euthanasia as it is commonly
understood but a decision to withdraw life saving treatment by a patient
who is competent to take decision as well as with regard to a patient
who is not competent to take decision can be termed as passive
euthanasia, which is lawful and legally permissible in this country. D
(viii) The right of patient who is incompetent to express his view
cannot be outside of fold of Article 21 of the Constitution of India.
(ix) We also are of the opinion that in cases of incompetent patients
who are unable to take an informed decision, “the best interests principle”
be applied and such decision be taken by specified competent medical E
experts and be implemented after providing a cooling period to enable
aggrieved person to approach the court of law.
(x) An advance medical directive is an individual’s advance
exercise of his autonomy on the subject of extent of medical intervention
that he wishes to allow upon his own body at a future date, when he may F
not be in a position to specify his wishes. The purpose and object of
advance medical directive is to express the choice of a person regarding
medical treatment in an event when he looses capacity to take a decision.
The right to execute an advance medical directive is nothing but a step
towards protection of aforesaid right by an individual.
G
(xi) Right of execution of an advance medical directive by an
individual does not depend on any recognition or legislation by a State
and we are of the considered opinion that such rights can be exercised
by an individual in recognition and in affirmation of his right of bodily
integrity and self-determination.
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314 SUPREME COURT REPORTS [2018] 6 S.C.R.

A In view of our conclusions as noted above the writ petition is
allowed in the following manner:
(a) The right to die with dignity as fundamental right has already
been declared by the Constitution Bench judgment of this Court in Gian
Kaur case (supra) which we reiterate.
B (b) We declare that an adult human being having mental capacity
to take an informed decision has right to refuse medical treatment
including withdrawal from life saving devices.
(c) A person of competent mental faculty is entitled to execute an
advance medical directive in accordance with safeguards as referred to
C above.
96. Before we conclude, we acknowledge our indebtness to all
the learned Advocates who have rendered valuable assistance with great
industry and ability which made it possible for us to resolve issues of
seminal public importance. We record our fullest appreciation for the
D assistance rendered by each and every counsel in this case.
A. K. SIKRI, J. 1. Michael Kirby, a former Judge of the
Australian High Court, while discussing about the role of judiciary in the
context of HIV law1, talks about the consciousness with which the
judiciary is supposed to perform its role. In this hue, while discussing
E about the responsibility of leadership which the society imposes upon
Judges, he remarks: “Nowhere more is that responsibility tested than
when a completely new and unexpected problem presents itself to
society. All the judges’ instincts for legality, fairness and
reasonableness must then be summoned up, to help lead society
F towards an informed, intelligent and just solution to the problem.”
The problem at hand, just solution whereof is imminently needed, is that
of Euthanasia. This Court is required to summon up instincts for legality,
fairness and reasonableness in order to find just solution to the problem.
In this process, the Court is duty bound to look into the relevant provisions
of the Constitution of India, particularly those pertaining to the
G fundamental rights, and to discharge the task of expounding those basic
human rights enshrined in the Chapter relating to Fundamental Rights.
The issue of euthanasia, with the seminal importance that is attached to
it, has thrown the challenge of exposition, development and obligation of
1
‘The Role of Judiciary and HIV Law’ – Michael Kirby, published in the book titled
‘HIV Law, Ethics and Human Rights’, edited by D.C. Jayasuriya.
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 315
[A. K. SIKRI, J.]

the constitutional morality and exhorts the Court to play its creative role A
so that a balanced approach to an otherwise thorny and highly debatable
subject matter is found.
2. The Courts, in dispensation of their judicial duties of deciding
cases, come across all types of problems which are brought before them.
These cases may be broadly classified into three categories: (i) the easy B
cases, (ii) the intermediate cases, and (iii) the hard cases. Professor
Ronald Dworkin2 has argued that each legal problem has one lawful
solution and even in the hard cases, the Judge is never free to choose
among alternatives that are all inside the bounds of law. This may not be
entirely correct inasmuch as judicial discretion does exist. This is true,
at least, in solving ‘hard cases’3. It is found that meaning of certain C
legal norms, when applied with respect to a given system of facts, is so
simple and clear that their application involves no judicial discretion. These
are termed as the ‘easy cases’. This may even apply to ‘intermediate
cases’. These would be those cases where both sides appear to have a
legitimate legal argument supporting their position and a conscious act D
of interpretation is noted, before a Judge can conclude which side is
right in law and there is only one lawful situation. However, when it
comes to the hard cases, the Court is faced with number of possibilities,
all of which appear to be lawful within the context of the system. In
these cases, judicial discretion exists as the choice is not between lawful
and unlawful, but between lawful and lawful. A number of lawful E
solutions exist. In this scenario, the Court is supposed to ultimately choose
that solution which is in larger public interest. In other words, there are
limitations that find the Court with respect to the manner in which it
choses among possibilities (procedural limitations) and with respect to
the considerations it takes into account in the choice (substantive F
limitations). Thus, discretion when applied to a cout of justice means
sound discretion guided by law. It must be govered by legal rules. To
quote Justice Cardozo:
“Given freedom of choice, how shall the choice be guided?
Complete freedom – unfettered and undirected – there never is. G
A thousand limitations – the product some of statute, some of
precedent, some of vague tradition or of an immemorial technique
– encompass and hedge us even when we think of ourselves as
2
Dworkin, “Judicial Discretion,” 6 J. of Phil. 624 (1963)
3
See Aharon Barak: Judicial Discretion, Yale University Press. H
316 SUPREME COURT REPORTS [2018] 6 S.C.R.

A ranging freely and at large. The inscrutable force of professional
opinion presses upon us like the atmosphere, though we are
heedless of its weight. Narrow at best is any freedom that is
allotted to us4
3. Thus, though the judicial discretion is with the Court, the same
B is limited and not absolute. The Court is not entitled to weigh any factor
as it likes. It has to act within the framework of the limitations, and after
they have been exhausted, there is a freedom of choice which can also
described as ‘sovereign prerogative of choice’5. Instant case falls in
the category of ‘hard cases’ and the Court has endeavoured to make a
choice, after evaluating all the pros and cons, which in its wisdom is the
C “just result” of the contentious issue.
4. Adverting to the Indian precedents in the first instance, we
have before us two direct judgments of this Court which may throw
some light on the subject and demonstrate as to how this topic has been
dealt with so far. The first judgment is that of a Constitution Bench in
D the case titled Gian Kaur v. State of Punjab6. Second case is known
as Aruna Ramachandra Shanbaug v. Union of India and Others7,
which is a Division Bench judgment that takes note of Gian Kaur and
premised thereupon goes much farther in accepting passive euthanasia
as a facet of Article 21 of the Constitution.
E 5. In the instant case, while making reference to the Constitution
Bench vide its order dated February 25, 20148, the three Judge Bench
has expressed its reservation in the manner the ratio of the Constitution
Bench in Gian Kaur is applied by the Division Bench in Aruna
Ramachandra Shanbaug. This reference order accepts that Aruna
F Ramachandra Shanbaug rightly interpreted the decision in Gian Kaur
insofar as it held that euthanasia can be allowed in India only through a
valid legislation. However, the reference order declares that Aruna
Ramachandra Shanbaug has committed a factual error in observing
that in Gian Kaur the Constitution Bench approved the decision of the
House of Lords in Airedale N.H.S. Trust v. Bland 9. As per the
G reference order, Gian Kaur merely referred to the said judgment which
4
B. Cardozo: The Growth of the Law 144 (1924), at 60-61
5
Justice O. Holmes opined this expression in ‘Collected Legal Papers’ 239 (1921)
6
(1996) 2 SCC 648
7
(2011) 4 SCC 454
8
Reported as (2014) 5 SCC 338
9
H (1993) 2 WLR 316 (HL)
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 317
[A. K. SIKRI, J.]

cannot be construed to mean that the Constitution Bench in Gian Kaur A
approved the opinion of the House of Lords rendered in Bland. The
reference order also accepts the position that in Gian Kaur the
Constitution Bench approved that ‘right to live with dignity’ under Article
21 of the Constitution will be inclusive of ‘right to die with dignity’.
However, it further notes that the decision does not arrive at a conclusion
B
for validity of euthanasia, be it active or passive. Therefore, the only
judgment that holds the field in India is Aruna Ramachandra Shanbaug,
which upholds the validity of passive euthanasia and lays down an
elaborate procedure for executing the same on ‘the wrong premise
that the Constitution Bench in Gian Kaur had upheld the same’.
6. The aforesaid discussion contained in the reference order C
prompted the reference court to refer the matter to the Constitution
Bench. No specific questions were framed for consideration by the
Constitution Bench. However, importance of the issue has been
highlighted in the reference order in the following manner:
“17. In view of the inconsistent opinions rendered in Aruna D
Shanbaug and also considering the important question of law
involved which needs to be reflected in the light of social, legal,
medical and constitutional perspectives, it becomes extremely
important to have a clear enunciation of law. Thus, in our cogent
opinion, the question of law involved requires careful consideration E
by a Constitution Bench of this Court for the benefit of humanity
as a whole.
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 F
down exhaustive guidelines in this regard. Accordingly, we refer
this matter to a Constitution Bench of this Court for an authoritative
opinion.”
7. I have given a glimpse of the narratives for the simple reason
that the Hon’ble the Chief Justice, in his elaborate opinion, has already G
discussed this aspect in detail. Likewise, it can be found in the separate
judgments authored by my esteemed brethren – Chandrachud, J. and
Bhushan, J. Those judgments discuss in detail the law laid down in
Gian Kaur as well as Aruna Ramachandra Shanbaug, including
critique thereof. To avoid repetition, I have eschewed that part of
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318 SUPREME COURT REPORTS [2018] 6 S.C.R.

A discussion. For the same reason, I have also not ventured to discuss the
law in some other countries and historic judgments rendered by the courts
of foreign jurisdiction, as this aspect is also taken care of by them.
However, my analysis of the above two judgments is limited to the extent
it is necessitated for maintaining continuum and clarity of thought.
B 8. At the outset, I say that I am in complete agreement with the
conclusion and also the directions given therein in the judgment of the
Hon’ble the Chief Justice and also with the opinions and reasoning of
my other two learned brothers. My purpose is not to add my ink to the
erudite opinion expressed in otherwise eloquent opinions penned by my
learned brothers. At the same time, having regard to the importance of
C the issue involved, I am provoked to express my own few thoughts, in
my own way, which I express hereinafter.
9. In the writ petition filed by the petitioner – Common Cause, it
has made the following prayers:
D “a) declare ‘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 of India;
b) issue direction to the Respondent, to adopt suitable procedures,
in consultation with State Governments where necessary, to ensure
E that persons of deteriorated health or terminally ill should be able
to execute a document titled “MY LIVING WILL & ATTORNEY
AUTHORISATION” which can be presented to hospital for
appropriate action in event of the executant being admitted to the
hospital with serious illness which may threaten termination of
life of the executants or in the alternative, issue appropriate
F guidelines to this effect;
c) appoint an expert committee of experts including doctors, social
scientists and lawyers to study into the aspect of issuing guidelines
as to the Living Wills;
d) pass such other and further order/s as this Hon’ble Court may
G
deem fit and proper on the facts and in the circumstances of the
case.”
10. Having regard to the aforesaid prayers, the reference order
and the arguments which were addressed by Mr. Prashant Bhushan,
learned counsel who appeared for the petitioner, and Mr. Arvind Datar,
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 319
[A. K. SIKRI, J.]

learned senior counsel who made elaborate submissions on behalf of the A
interveners – Vidhi Centre for Legal Policy, and Mr. R.R. Kishore,
Advocate, who gave an altogether new dimension to the seminal issue,
I find that following issues/questions of law of relevance need to be
discussed:
(i) Whether the Right to Live under Article 21 of the Constitution B
includes the Right to Die? {Now that attempt to commit suicide
is not a punishable offence under Section 309 of the Indian
Penal Code, 1860 (for short, ‘IPC’) vide Section 115 of the
Mental Healthcare Act, 2017 (Act No. 10 of 2017)}
(ii) Whether the ‘right to die with dignity’ as a fundamental right C
falls within the folds of the ‘right to live with dignity’ under
Article 21 of the Constitution?
(iii) Whether the observations in Aruna Ramachandra Shanbaug
that the Constitution Bench in Gian Kaur permitted passive
euthanasia stand correct? D
(iv) Whether there exists inconsistency in the observations in
Aruna Ramachandra Shanbaug with regard to what has
been held in Gian Kaur?
(v) Whether mere reference to verdict in a judgment can be
construed to mean that the verdict is approved? {with respect E
to Article 141 – What is binding?; whether the Constitution
Bench in Gian Kaur approved the decision of the House of
Lords in Bland?}
(vi) Whether the law on passive euthanasia, as held valid in Aruna
Ramachandra Shanbaug, holds true in the present times as F
well? {The Treatment of Terminally-ill Patients Bill, 2016 is
based on the aforementioned judgment}
(vii) Whether active euthanasia is legal in India?
(viii) Whether assisted suicide/physician administered suicide is
legal in India? {The 2016 bill in the current form, under Clause G
5(3) permits for physician assisted suicide}
(ix) Whether there exists a right to a Living Will/Advance
Directives? Whether there exists the fundamental right to
choose one’s own medical treatment? {With Right to Privacy
H
320 SUPREME COURT REPORTS [2018] 6 S.C.R.

A now a fundamental right under Article 21, the principle of self-
determination in India stands on a higher footing than before}
(x) Definition of ‘Terminal Illness’.
11. It is not necessary for me to answer all the aforesaid questions.
I say so for the reason that all these aspects are dealt with by the Hon’ble
B the Chief Justice in his opinion. Therefore, in this ‘addendum’, I would
be focusing myself to the core issues.
EUTHANASIA DEFINED
12. The Oxford English Dictionary defines ‘euthanasia’ as ‘the
C painless killing of a patient suffering from an incurable and painful
disease or in an irreversible coma’. The word appears to have come
into usage in the early 17th century and was used in the sense of ‘easy
death’. The term is derived from the Greek ‘euthanatos’, with ‘eu’
meaning well, and ‘thanatos’ meaning death. In ancient Greece and
Rome, citizens were entitled to a good death to end the suffering of a
D terminal illness. To that end, the City Magistrates of Athens kept a
supply of poison to help the dying ‘drink the hemlock’10.
13. The above Greek definition of euthanasia apart, it is a loaded
term. People have been grappling with it for ages. Devised for service
in a rhetoric of persuasion, the term ‘euthanasia’ has no generally
E accepted and philosophically warranted core meaning. It is also defined
as: killing at the request of the person killed. That is how the Dutch
medical personnel and civil authorities define euthanasia. In Nazi
discourse, euthanasia was any killing carried out by medical means or
medically qualified personnel, whether intended for the termination of
F suffering and/or of the burden or indignity of a life not worth living
(Lebensunwertes Leben), or for some more evidently public benefit
such as eugenics (racial purity and hygiene), Lebensraum (living space
for Germans), and/or minimizing the waste of resources on ‘useless
mouths’. Understandably, in today’s modern democracies these Nazi
ideas and practices cannot be countenanced. Racist eugenics are
G condemned, though one comes across discreet allusions to the burden
and futility of sustaining the severely mentally handicapped. The popular
conception which is widely accepted is that some sorts of life are not
worth living; life in such a state demeans the patient’s dignity, and
10
Michael Manning, Euthanasia and Physician-Assisted Suicide (Paulist Press, 1998).
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 321
[A. K. SIKRI, J.]

maintaining it (otherwise than at the patient’s express request) insults A
that dignity; proper respect for the patient and the patient’s best interests
requires that that life be brought to an end. In this thought process, the
basic Greek ideology that it signifies ‘an easy and gentle death’ still
remains valid. Recognition is to the Human Rights principle that ‘right
to life’ encompasses ‘right to die with dignity’.
B
14. In common parlance, euthanasia can be of three types, namely,
‘voluntary euthanasia’ which means killing at the request of a person
killed which is to be distinguished from ‘non-voluntary euthanasia’,
where the person killed is not capable of either making or refusing to
make such a request. Second type of euthanasia would be involuntary
euthanasia where the person killed is capable of making such a request C
but has not done so11. These terms can be described as under:
(i) Voluntary Euthanasia: People concerned to legalize the
termination of life on medical grounds have always concentrated on
Voluntary Euthanasia (this implies that the patient specifically requests
that his life be ended.) It is generally agreed that the request must come D
from someone who is either; (a) in intolerable pain or (b) who is suffering
from an illness which is agreed as being terminal. It may be prior to the
development of the illness in question or during its course. In either case
it must not result from any pressure from relatives or those who have
the patients in their care. Both active and passive euthanasia can be E
termed as forms of voluntary euthanasia.
(ii) Non-Voluntary Euthanasia: Seen by some as sub-variety of
voluntary euthanasia. This involves the death, ostensibly for his own
good, of someone who cannot express any views on the matter and who
must, therefore, use some sort of proxy request that his/her life be ended. F
This form of Euthanasia is that which most intimately concerns the
medical profession. Selective non-treatment of the new-born or the
doctor may be presented with demented and otherwise senilely
incompetent patients. In practice, non-voluntary euthanasia presents
only as an arguable alternative to non treatment.
G
(iii) Involuntary Euthanasia: It involves ending the patient’s life
in the absence of either a personal or proxy invitation to do so. The
motive ‘The relief of suffering’ may be the same as voluntary euthanasia-
11
These definitions of voluntary, non-voluntary and involuntary euthanasia correspond
to those employed by the House of Lords Select Committee on Medical Ethics (Walton
Committee) H
322 SUPREME COURT REPORTS [2018] 6 S.C.R.

A but its only justification - “a paternalistic decision as to what is best for
the victim of the disease.” In extreme cases it could be against the
patient’s wishes or could be just for social convenience. It is examples
of the latter which serve as warnings as to those who would invest the
medical professional with more or unfettered powers over life and death12.
B 15. Contrary to the above, in legal parlance, euthanasia has since
come to be recognised as of two distinct types: the first is active
euthanasia, where death is caused by the administration of a lethal injection
or drugs. Active euthanasia also includes physician-assisted suicide,
where the injection or drugs are supplied by the physician, but the act of
administration is undertaken by the patient himself. Active euthanasia is
C not permissible in most countries. The jurisdictions in which it is permissible
are Canada, the Netherlands, Switzerland and the States of Colorado,
Vermont, Montana, California, Oregon and Washington DC in the United
States of America. Passive euthanasia occurs when medical practitioners
do not provide life-sustaining treatment (i.e. treatment necessary to keep
D a patient alive) or remove patients from life sustaining treatment. This
could include disconnecting life support machines or feeding tubes or
not carrying out life saving operations or providing life extending drugs.
In such cases, the omission by the medical practitioner is not treated as
the cause of death; instead, the patient is understood to have died because
of his underlying condition.
E
16. In Aruna Ramachandra Shanbaug, the Court recognised
these two types of euthanasia i.e. active and passive. It also noted that
active euthanasia is impermissible, which was so held by the Constitution
Bench in Gian Kaur. Therefore, without going into further debate on
differential that is assigned to the term euthanasia, ethically,
F philosophically, medically etc., we would be confining ourselves to the
aforesaid legal meaning assigned to active and passive euthanasia. Thus,
insofar as active euthanasia is concerned, this has to be treated as legally
impermissible, at least for the time being. It is more so, as there is
absence of any statutory law permitting active euthanasia. If at all, legal
G provisions in the form of Sections 306 and 307 IPC etc. point towards its
criminality. The discussion henceforth, therefore, would confine to passive
euthanasia.
12
See Euthanasia and Its Legality and Legitimacy from Indian and International Human
Right Instruments Perspectives published in Human Rights & Social Justice by Muzafer
H Assadi
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 323
[A. K. SIKRI, J.]

PASSIVE EUTHANASIA AND ARUNA RAMACHANDRA A
SHANBAUG
17. In Aruna Ramachandra Shanbaug, a two Judges’ Bench
of this Court discussed in much greater detail various nuances of
euthanasia by referring to active and passive euthanasia as well as
voluntary and involuntary euthanasia; legality and permissibility thereof; B
relationship of euthanasia vis-a-vis offences concerned under the IPC
and doctor assisted death; etc.
18. The Court also took note of legislations in some countries
relating to euthanasia or physician assisted death. Thereafter, it discussed
in detail the judgment in Bland wherein the House of Lords had permitted C
the patient to die. Ratio of Bland was culled out in the following manner:
“Airedale (1993) decided by the House of Lords has been followed
in a number of cases in UK, and the law is now fairly well settled
that in the case of incompetent patients, if the doctors act on the
basis of informed medical opinion, and withdraw the artificial life D
support system if it is in the patient’s best interest, the said act
cannot be regarded as a crime.”
19. The Court was of the opinion that this should be permitted
when the patient is in a Persistent Vegitative State (PVS) and held that
it is ultimately for the Court to decide, as parens patriae, as to what is E
in the best interest of the patient. The wishes of the close relatives and
next friends and opinion of the medical practitioners should be given due
weight by the Court in coming to its decision. The Court then noted the
position of euthanasia with reference to Section 306 (abetment of suicide)
and Section 309 (attempt to commit suicide) of the IPC, inasmuch as,
even allowing passive euthanasia may come in conflict with the aforesaid F
provisions which make such an act a crime. While making a passing
observation that Section 309 should be deleted by the Parliament as it
has become anachronistic, the Court went into the vexed question as to
who can decide whether life support should be discontinued in the case
of an incompetent person, e.g. a person in coma or PVS. The Court G
pointed out that it was a vexed question, both because of its likely misuse
and also because of advancement in medical science. It noted:
“104. It may be noted that in Gian Kaur case although the
Supreme Court has quoted with approval the view of the House
of Lords in Airedale case, it has not clarified who can decide
H
324 SUPREME COURT REPORTS [2018] 6 S.C.R.

A whether life support should be discontinued in the case of an
incompetent 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 as to who should give consent
B
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 commercialisation, and the rampant corruption, and
hence, the Court has to be very cautious that unscrupulous persons
C who wish to inherit the property of someone may not get him
eliminated by some crooked method.
105. Also, since medical science is advancing fast, doctors must
not declare a patient to be a hopeless case unless there appears
to be no reasonable possibility of any improvement by some newly
D discovered medical method in the near future. In this connection
we may refer to a recent news item which we have come across
on the internet of an Arkansas man Terry Wallis, who was 19
years of age and newly married with a baby daughter when in
1984 his truck plunged through a guard rail, falling 25 feet. He
went into coma in the crash in 1984, but after 24 years he has
E regained consciousness. This was perhaps because his brain
spontaneously rewired itself by growing tiny new nerve connections
to replace the ones sheared apart in the car crash. Probably the
nerve fibres from Terry Wallis’ cells were severed but the cells
themselves remained intact, unlike Terri Schiavo, whose brain cells
F had died (see Terri Schiavo case on Google). However, we make
it clear that it is experts like medical practitioners who can decide
whether there is any reasonable possibility of a new medical
discovery which could enable such a patient to revive in the near
future.”
G 20. It held that passive euthanasia would be permissible when a
person is ‘dead’ in clinical sense. It chose to adopt the standard of
‘brain death’, i.e. when there is an ‘irreversible cessation of all
functions of the entire brain, including the brain stem’. The Court
took note of President’s Committee on Bioethics in the United States of
America which had come up with a new definition of ‘brain death’ in
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 325
[A. K. SIKRI, J.]

the year 2008, according to which a person was considered to be A
braindead when he could no longer perform the fundamental human
work of an organism. Three such situations contemplated in that definition
are the following:
“(1) openness to the world, that is receptivity to stimuli and signals
from the surrounding environment, B
(2) the ability to act upon the world to obtain selectively what it
needs, and
(3) the basic felt need that drives the organism to act ... to obtain
what it needs.”
C
21. The Court held that when the aforesaid situation is reached, a
person can be presumed to be dead. In paragraph 115 of the judgment,
the position is summed up as under:
“When this situation is reached, it is possible to assume that the
person is dead, even though he or she, through mechanical D
stimulation, may be able to breathe, his or her heart might be able
to beat, and he or she may be able to take some form of
nourishment. It is important, thus, that it be medically proved that
a situation where any human functioning would be impossible
should have been reached for there to be a declaration of brain
death—situations where a person is in a persistent vegetative state E
but can support breathing, cardiac functions, and
digestion without any mechanical aid are necessarily those that
will not come within the ambit of brain death.”
22. The Court clarified that brain death was not the same as PVS
inasmuch as in PVS the brain stem continues to work and so some F
degree of reactions may occur, though the possibility of regaining
consciousness is relatively remote.
23. The Court further opined that position in the case of euthanasia
would be slightly different and pointed out that the two circumstances in
which it would be fair to disallow resuscitation of a person who is G
incapable of expressing his or her consent to the termination of his or
her life. These are:
“(a) When a person is only kept alive mechanically i.e. when not
only consciousness is lost, but the person is only able to sustain
H
326 SUPREME COURT REPORTS [2018] 6 S.C.R.

A involuntary functioning through advanced medical technology—
such as the use of heart-lung machines, medical ventilators, etc.
(b) When there is no plausible possibility of the person ever being
able to come out of this stage. Medical “miracles” are not
unknown, but if a person has been at a stage where his life is only
B sustained through medical technology, and there has been no
significant alteration in the person’s condition for a long period of
time—at least a few years—then there can be a fair case made
out for passive euthanasia.”
24. Taking a clue from the judgment in Vishaka and Others v.
C State of Rajasthan and Others13, the Court laid down the law, while
allowing passive euthanasia, i.e. the circumstances when there could be
withdrawal of life support of a patient in PVS. This is stated in paragraph
124 of the judgment, which we reproduce below:
“124. There is no statutory provision in our country as to the legal
D procedure for withdrawing life support to a person in PVS or who
is otherwise incompetent to take a decision in this connection. We
agree with Mr Andhyarujina that passive euthanasia should be
permitted in our country in certain situations, and we disagree
with the learned Attorney General that it should never be permitted.
Hence, following the technique used in Vishaka
E case [Vishaka v. State of Rajasthan, we are laying down the
law in this connection which will continue to be the law until
Parliament makes a law on the subject:
(i) A decision has to be taken to discontinue life support either by
the parents or the spouse or other close relatives, or in the absence
F of any of them, such a decision can be taken even by a person or
a body of persons acting as a next friend. It can also be taken by
the doctors attending the patient. However, the decision should
be taken bona fide in the best interest of the patient.
In the present case, we have already noted that Aruna Shanbaug’s
G parents are dead and other close relatives are not interested in
her ever since she had the unfortunate assault on her. As already
noted above, it is the KEM Hospital staff, who have been
amazingly caring for her day and night for so many long years,
who really are her next friends, and not Ms Pinki Virani who has
13
(1997) 6 SCC 241
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 327
[A. K. SIKRI, J.]

only visited her on few occasions and written a book on her. Hence A
it is for the KEM Hospital staff to take that decision. KEM Hospital
staff have clearly expressed their wish that Aruna Shanbaug should
be allowed to live.
Mr Pallav Shishodia, learned Senior Counsel, appearing for the
Dean, KEM Hospital, Mumbai, submitted that Ms Pinki Virani B
has no locus standi in this case. In our opinion it is not necessary
for us to go into this question since we are of the opinion that it is
the KEM Hospital staff who is really the next friend of Aruna
Shanbaug.
We do not mean to decry or disparage what Ms Pinki Virani has C
done. Rather, we wish to express our appreciation of the splendid
social spirit she has shown. We have seen on the internet that she
has been espousing many social causes, and we hold her in high
esteem. All that we wish to say is that however much her interest
in Aruna Shanbaug may be it cannot match the involvement of
the KEM Hospital staff who have been taking care of Aruna day D
and night for 38 years.
However, assuming that the KEM Hospital staff at some future
time changes its mind, in our opinion in such a situation KEM
Hospital would have to apply to the Bombay High Court for
approval of the decision to withdraw life support. E

(ii) Hence, even if a decision is taken by the near relatives or
doctors or next friend to withdraw life support, such a decision
requires approval from the High Court concerned as laid down
in Airedale case.
F
In our opinion, this is even more necessary in our country as we
cannot rule out the possibility of mischief being done by relatives
or others for inheriting the property of the patient.”
25. It can be discerned from the reading of the said judgment that
court was concerned with the question as to whether one can seek right
G
to die? This question has been dealt with in the context of Article 21 of
the Constitution, namely, whether this provision gives any such right. As
is well-known, Article 21 gives ‘right to life’ and it is guaranteed to all
the citizens of India. The question was as to whether ‘right to die’ is
also an integral part of ‘right to life’. In Gian Kaur this ‘right to die’ had
H
328 SUPREME COURT REPORTS [2018] 6 S.C.R.

A not been accepted as an integral part of ‘right to life’. The Court in
Aruna Ramachandra Shanbaug maintained this position insofar as an
active euthanasia is concerned. However, passive euthanasia, under
certain circumstances, has been accepted.
26. It may be pertinent to mention that the petitioner (Aruna) in
B the said case was working as a nurse in the King Edward Memorial
Hospital (KEM), Parel, Mumbai. The tragic incident happened on the
evening of 27th November, 1973. Aruna was attacked by a sweeper in
the hospital who wrapped a dog chain around her neck and yanked her
back with it. He tried to rape her but on finding that she was menstruating,
he sodomized her. To immobilize her during this act, he twisted the chain
C around her neck. She was found unconscious by one cleaner on the next
day. Her body was on the floor and blood was all over the floor. The
incident did not allow oxygen to reach her brain as a result of which her
brain got damaged.
27. The petition was filed by Ms. Pinki Virani as next friend of
D Aruna Shanbaug. According to facts of the case, Aruna has been
surviving on mashed food as she was not able to chew or taste any food
and she could not move her hands or legs. It is alleged that there is not
the slightest possibility of any improvement in her condition and her body
lies on the bed in the KEM Hospital like a dead animal, and this has been
E the position for the last 36 years. The prayer of the petitioner was that
the respondents be directed to stop feeding Aruna, and let her die
peacefully.
28. The court appointed a team of three eminent and qualified
doctors to investigate and report on the medical condition of Aruna. The
F team included, Dr. J.V. Divatia14, Dr. Roop Gursahani15 and Dr. Nilesh
Shah16. The team of doctors studied her medical history and observed
that Aruna would get uncomfortable if the room in which she was located
was over crowded, she was calm when fewer people were around her.
In fact, the hospital staff had taken care and was willing to continue to
do so. Moreover, Aruna’s body language did not suggest that she wants
G to die. Therefore, the doctors opined that there is no need for euthanasia
in the instant case.
14
Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata
Memorial Hospital, Mumbai.
15
Consultant Neurologist at P.D. Hinduja, Mumbai.
16
Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal
H Corporation Medical College and General Hospital.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 329
[A. K. SIKRI, J.]

29. Reliance was placed on the landmark judgment of the House A
of Lords in Bland, where for the first time in the English history, the
right to die was allowed through the withdrawal of life support systems
including food and water. This case placed the authority to decide whether
a case is fit or not for euthanasia in the hands of the court. In this case,
Aruna did not have the capacity to consent for the proposed medical
B
process. Therefore, the next big question that was to be answered was
who should decide on her behalf.
30. Since, there was no relative traced directly, nor did she have
any frequent visitor who could relate to her, it was extremely crucial for
the court to declare who should decide on her behalf. As there was lack
of acquaintance, it was decided by beneficence. Beneficence is acting C
in the interest that is best for the patient, and is not influenced by personal
convictions, motives or other considerations. Public interest and the
interests of the state were also considered in the said matter.
31. On the aforesaid principle of beneficence and studying the
position in some other countries, the court in its judgment said, the right D
to take decision on behalf of Aruna was vested with the hospital and its
management and not Ms. Pinki. The court also said that allowing
euthanasia would mean reversing the efforts of the hospital and its staff.
In order to ensure that there is no misuse of this technique, the Supreme
Court has vested the power with the High Court to decide if life is to be E
terminated or not.
32. Thus, the Supreme Court allowed passive euthanasia in certain
conditions, subject to the approval by the High Court following the due
procedure. It held that when an application for passive euthanasia is
filed the Chief Justice of the High Court should forthwith constitute a F
Bench of at least two Judges who should decide to grant approval or
not. Before doing so, the Bench should seek the opinion of a committee
of three reputed doctors to be nominated by the Bench after consulting
such medical authorities/medical practitioners as it may deem fit.
Simultaneously with appointing the committee of doctors, the High Court
Bench shall also issue notice to the State and close relatives e.g. parents, G
spouse, brothers/sisters etc. of the committee to them as soon as it is
available. After hearing them, the High Court Bench should give its
verdict. The above procedure should be followed all over India until
Parliament makes legislation on this subject. I am not carrying out the
critique of this judgment at this stage and the manner in which it has H
330 SUPREME COURT REPORTS [2018] 6 S.C.R.

A been analysed by those who are the proponents of passive euthanasia
and those who are against it. It is, more so, when my Brother,
Chandrachud, J., has dealt with this aspect in detail in his discourse. In
any case, as noted above, in view of the reference order dated February
25, 2014, the validity of this aspect has to be examined, which exercise
is undertaken by me at an appropriate stage.
B
EUTHANASIA: A COMPLEX CONCEPT
33. As discussed hereinafter, issue of euthanasia is a complexed
and complicated issue over which there have been heated debates, not
only within the confines of courts, but also among elites, intelligentsia
C and academicians alike. Some of these complexities may be captured
at this stage itself.
34. The legal regime webbed by various judgments rendered by
this Court would reflect that the Indian position on the subject is somewhat
complex and even complicated to certain extend. First, let us touch the
D topic from the constitutional angle.
35. Article 21 of the Constitution mandates that no person shall be
deprived of his life or personal liberty, except according to the procedure
established by law. This Article has been interpreted by the Court in
most expansive terms, particularly when it comes to the meaning that is
E assigned to ‘right to life’. It is not necessary to take stock of various
faces of right to life defined by this Court. What is important for our
purpose is to point out that right to life has been treated as more than
‘mere animal existence’. In Kharak Singh v. State of U.P. & Ors.17 it
was held that the word ‘life’ in Article 21 means right to live with human
dignity and it does not merely connote continued drudgery. It takes
F within its fold “some of the finer graces of human civilisation, which
makes life worth living” and that the expanded concept of life would
mean the “tradition, culture and heritage” of the concerned person. This
concept has been reiterated and reinforced, time and again, in a series
of judgments. It may not be necessary to refer to those judgments.
G Suffice is to mention that a nine Judge Constitution Bench of this Court
in K.S. Puttaswamy and Another v. Union of India and Others18 has
taken stock of all important judgments which have echoed the message
enshrined in Kharak Singh’s case. We may, however, point out that in
17
(1964) 1 SCR 332
18
(2017) 10 SCC 1
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 331
[A. K. SIKRI, J.]

the case of C.E.S.E. Limited and Others v. Subhash Chandra Bose A
and Others19, Justice K. Ramaswamy observed that physical and mental
health have to be treated as integral part of right to life, because without
good health the civil and political rights assured by our Constitution cannot
be enjoyed. Though Justice Ramaswamy rendered minority opinion in
that case, on the aforesaid aspect, majority opinion was not contrary to
B
the views expressed by Justice Ramaswamy. Thus, Article 21 recognizes
right to live with human dignity20.
36. The question that arises at this juncture is as to whether right
to life enshrined in Article 21 of the Constitution includes right to die. If
such a right is recognised, that would provide immediate answer to the
issue involved, which is pertaining to voluntary or passive euthanasia. C
However, the judgments of this Court, as discussed hereinafter, would
demonstrate that no straightforward answer is discernible and, as
observed above, the position regarding euthanasia is somewhat complex
in the process.
37. It would be interesting to point out that in Rustom Cavasjee D
Cooper v. Union of India21 the Court held that what is true of one
fundamental right is also true of another fundamental right. This Court
also made a specific observation that there cannot be serious dispute
about the proposition that fundamental rights have their positive as well
as negative aspect. For example, freedom of speech and expression E
includes freedom not to speak. Likewise, freedom of association and
movement includes freedom not to join any association or move
anywhere. Freedom of business includes freedom not to do any business.
In this context, can it be said that right to life includes right to die or right
to terminate ones own life? The Constitution Bench in Gian Kaur,
however, has taken a view that right to live will not include right not to F
live.
38. We have already pointed out that Section 306 of the IPC makes
abetment to suicide as a punishable offence. Likewise, Section 309 IPC
makes attempt to commit suicide as a punishable offence. Intention to
commit suicide is an essential ingredient in order to constitute an offence G
under this provision. Thus, this provision specifically prohibits a person
from terminating his life and negates right to die. Constitutional validity
19
(1992) 1 SCC 441
20
Aspects of human dignity as right to life in the context of euthanasia shall be
discussed in greater detail at the relevant stage.
21
(1970) 1 SCC 248 H
332 SUPREME COURT REPORTS [2018] 6 S.C.R.

A of this provision, on the touchstone of Article 21, was the subject matter
of Gian Kaur’s case22. The Court held Sections 306 and 309 IPC to be
constitutionally valid. While so holding, the Court observed that when a
man commits suicide, he has to undertake certain positive overt acts and
the genesis of those acts cannot be traced to, or be included within the
protection of the ‘right to life’ under Article 21. The significant aspect
B
of ‘sanctity of life’ is also not to be overlooked. Article 21 is a provision
guaranteeing protection of life and personal liberty and by no stretch of
imagination can ‘extinction of life’ be read to be included in ‘protection
of life’. Whatever may be the philosophy of permitting a person to
extinguish his life by committing suicide, the Court found it difficult to
C construe Article 21 to include within it the ‘right to die’ as a part of the
fundamental right guaranteed therein. ‘Right to life’ is a natural right
embodied in Article 21 but suicide is an unnatural termination or extinction
of life and, therefore, incompatible and inconsistent with the concept of
‘right to life’.
D Thus, the legal position which stands as of today is that right to
life does not include right to die. It is in this background we have to
determine the legality of passive euthanasia.
39. Matter gets further complicated when it is examined in the
context of morality of medical science (Hippocratic Oath). Every doctor
E is supposed to take specific oath that he will make every attempt to safe
the life of the patient whom he/she is treating and who is under his/her
treatment. The Hippocratic Oath goes on to say:
“I swear by Apollo the Healer, by Asclepius, by Hygieia, by
Panacea, and by all the gods and goddesses, making them my
F witnesses, that I will carry out, according to my ability and
judgment, this oath and this indenture.
22
It may be noted that the Delhi High Court in State v. Sanjay Kumar, (1985) Crl.L.J.
931, and the Bombay High Court in Maruti Sharipati Dubai v. State of Maharashtra,
(1987) Crl.L.J. 743, had taken the view that Section 309 of IPC was unconstitutional,
being violative of Articles 14 and 21 of the Constitution. On the other hand, the Andhra
Pradesh High Court in C. Jagadeeswar v. State of Andhra Pradesh, (1983) Crl.L.J. 549,
G
had upheld the validity of Section 309 holding that it did not offend either Article 14 or
Article 21 of the Constitution. A Division Bench of this Court in R. Rathinam v. Union
of India and Another, (1994) 3 SCC 394, had held that Section 309 IPC deserves to be
effaced from the statute book to humanise our penal laws, terming this provision as
cruel and irrational, which results in punishing a person again who had already suffered
agony and would be undergoing ignominy because of his failure to commit suicide. It is
H in this backdrop Gian Kaur’s case was referred to and decided by the Constitution
Bench.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 333
[A. K. SIKRI, J.]

To hold my teacher in this art equal to my own parents; to make A
him partner in my livelihood; when he is in need of money to
share mine with him; to consider his family as my own brothers,
and to teach them this art, if they want to learn it, without fee or
indenture; to impart precept, oral instruction, and all other instruction
to my own sons, the sons of my teacher, and to indentured pupils
B
who have taken the physician’s oath, but to nobody else.
I will use treatment to help the sick according to my ability and
judgment, but never with a view to injury and wrong-doing. Neither
will I administer a poison to anybody when asked to do so, nor will
I suggest such a course. Similarly I will not give to a woman a
pessary to cause abortion. But I will keep pure and holy both my C
life and my art. I will not use the knife, not even, verily, on sufferers
from stone, but I will give place to such as are craftsmen therein.
Into whatsoever houses I enter, I will enter to help the sick, and I
will abstain from all intentional wrong-doing and harm, especially
from abusing the bodies of man or woman, bond or free. And D
whatsoever I shall see or hear in the course of my profession, as
well as outside my profession in my intercourse with men, if it be
what should not be published abroad, I will never divulge, holding
such things to be holy secrets.
Now if I carry out this oath, and break it not, may I gain for ever E
reputation among all men for my life and for my art; but if I break
it and forswear myself, may the opposite befall me.”
40. This oath, thus, puts a moral and professional duty upon a
doctor to do everything possible, till the last attempt, to save the life of a
patient. If that is so, would it not be against medical ethics to let a F
person die by withdrawing medical aid or, even for that matter, life
supporting instruments. Paradoxically, advancement in medical science
has compounded the issue further. There has been a significant
advancement in medical science. Medical scientists have been,
relentlessly and continuously, experimenting and researching to find out G
better tools for not only curing the disease with which human beings
suffer from time to time, noble attempt is to ensure that human life is
prolonged and in the process of enhancing the expectancy of life, ailments
and sufferings therefrom are reduced to the minimal. There is, thus, a
fervent attempt to impress the quality of life. It is this very advancement
H
334 SUPREME COURT REPORTS [2018] 6 S.C.R.

A in the medical science which creates dilemma at that juncture when, in
common perception, life of a person has virtually become unlivable but
the medical doctors, bound by their Hippocratic Oath, want to still spare
efforts in the hope that there may still be a chance, even if it is very
remote, to bring even such a person back to life. The issue, therefore,
gets compounded having counter forces of medical science, morality
B
and ethical values, the very concept of life from philosophical angle. In
this entire process, as indicated in the beginning and demonstrated in
detail at the appropriate stage, the vexed question is to be ultimately
decided taking into consideration the normative law, and in particular,
the constitutional values.
C 41. Then, there is also a possibility of misuse and it becomes a
challenging task to ensure that passive euthanasia does not become a
tool of corruption and a convenient mode to ease out the life of a person
who is considered inconvenient. This aspect would be touched upon at
some length at the appropriate stage. This point is highlighted at this
D juncture just to demonstrate the complexity of the issue.
42. I may add that the issue is not purely a legal one. It has moral
and philosophical overtones. It has even religious overtones. As
Professor Upendra Baxi rightly remarks that judges are, in fact, not
jurisprudes. At the same time, it is increasingly becoming important that
E some jurisprudential discussion ensues while deciding those cases which
have such more and philosophical overtones as well. Such an analyses
provides not only legal basis for the conclusions arrived at but it also
provides logical commonsense justification as well. Obviously, whenever
the court is entering into a new territory and is developing a new legal
norm, discussion on normative jurisprudence assumes greater significance
F as the court is called upon to decide what the legal norm should be. At
the same time, this normative jurisprudence discourse has to be preceded
by analytical jurisprudence, which is necessary for the court to underline
existing nature of law. That would facilitate knowing legal framework
of what is the current scenario and, in turn, help in finding the correct
G answers. When we discuss about the philosophical aspects of the subject
matter, it is the ‘value of life’ which becomes the foremost focus of
discussion. The discussion which follows hereinafter keeps in mind these
parameters.

H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 335
[A. K. SIKRI, J.]

THE TWO ISSUES A
43. As already stated above, as of now insofar ‘active euthanasia’
is concerned, it is legally impermissible. Our discussion centres around
‘passive euthanasia’. Another aspect which needs to be mentioned at
this stage is that in the present petition filed by the petitioner, the petitioner
wants that ‘advance directive’ or ‘living will’ should be legally recognised. B
In this backdrop, two important questions arise for considerations, viz.,
(I) whether passive euthanasia, voluntary or even, in certain
circumstances, involuntary, is legally permissible? If so under
what circumstances (this question squarely calls for answer
having regards to the reference order made in the instant C
petition)? and
(II) whether a ‘living will’ or ‘advance directive’ should be legally
recognised and can be enforced? If so, under what
circumstances and what precautions are required while
permitting it? D
44. Answers to these questions have been provided in the judgment
of Hon’ble The Chief Justice, with excellent discourse on all relevant
aspects in an inimitable and poetic style. I entirely agree with the
reasoning and outcome. In fact, with the same fervour and conclusion,
separate judgments are written by my brothers, Dhananjay Chandrachud E
and Ashok Bhushan, JJ. exhibiting expected eloquence and erudition. I
have gone through those opinions and am in complete agreement thereby.
In this scenario, in my own way, I intend to deal with the aforesaid
questions on the following hypothesis:
(i) Issue of passive euthanasia is highly debatable, controversial F
and complex (already indicated above).
(ii) It is an issue which cannot be put strictly within the legal
confines, but has social, philosophical, moral and even religious overtones.
(iii) When the issue of passive euthanasia is considered on the
aforesaid parameters, one would find equally strong views on both sides. G
That is the reason which makes it a thorny and complex issue and brings
within the category of ‘hard cases’.
(iv) In this entire scenario when the issue is considered in the
context of dignity of the person involved, one may tend to tilt in favour of
permitting passive euthanasia. H
336 SUPREME COURT REPORTS [2018] 6 S.C.R.

A (v) At the same time, in order to achieve a balance, keeping in
view the competing and conflicting interests, care can be taken to confine
permissibility of passive euthanasia only in rare cases, particularly, when
the patient is declared ‘brain dead’ or ‘clinically dead’ with virtually no
chances of revival.
B (vi) In this process, as far as ‘living will’ or ‘advance directive’ is
concerned, that needs to be permitted, along with certain safeguards. It
would not only facilitate prevention of any misuse but take care of many
apprehensions expressed about euthanasia.
With the outlining of the structured process as aforesaid, I proceed
C to discuss these aspects in detail hereinafter.
45. As pointed out above, Aruna Ramachandra Shanbaug
decides that passive euthanasia, even involuntary, in certain
circumstances would be justified. The reference order in the instant
case, however, mentions that for coming to this conclusion, the Bench
D relied upon Gian Kaur, but that case does not provide any such mandate.
In this backdrop, we take up the first question about the legality of passive
euthanasia.
FIRST ISSUE
Whether passive euthanasia, voluntary or even, in certain
E circumstances, involuntary, is legally permissible? If so under
what circumstances (this question squarely calls for answer having
regards to the reference order made in the instant petition)?
46. I intend to approach this question by discussing the following
facets thereof:
F
(a) Philosophy of euthanasia
(b) Morality of euthanasia
(c) Dignity in euthanasia
(d) Economics of euthanasia
G
(A) Philosophy of Euthanasia
“I am the master of my fate; I am the captain of my soul”
- William Ernest Henley23

23
As quoted in P. Rathinam v. Union of India & Anr., (1994) 3 SCC 394
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 337
[A. K. SIKRI, J.]

“Death is our friend … he delivers us from agony. I do not A
want to die of a creeping paralysis of my faculties – a
defeated man.”
- Mahatma Gandhi 24
“When a man’s circumstances contain a preponderance of
things in accordance with nature, it is appropriate for him B
to remain alive; when possess or sees in prospect a majority
of contrary, it is appropriate for him to depart from life.”
- Marcus Tullius Cicero
“Euthanasia, and especially physician-assisted suicide,
appears as the ultimate post-modern demand for dignity in C
an era of technologically-mediated death.”
- Dr. Jonathan Moreno
47. The afore-quoted sayings of some great persons bring out a
fundamental truth with universal applicability. Every persons wants to
lead life with good health and all kinds of happiness. At the same time,
nobody wants any pain, agony or sufferings when his or her life span D
comes to an end and that person has to meet death. The following
opening stanza from a song in a film captures this message beautifully:

E

“Every person in this world comes crying. However, that
person who leaves the world laughing/smiling will be the
luckiest of all”
(Hindi Film – Muqaddar Ka Sikandar) F
48. It became unbearable for young prince Siddharth when he,
for the first time, saw an old crippled man in agony and a dead body
being taken away. He did not want to encounter such a situation in his
old life and desired to attain Nirvana which prompted him to renounce
the world so that he could find the real purpose of life; could lead a life
G
which is worth living; and depart this world peacefully. He successfully
achieved this purpose of life and became Gautam Buddha. There are
many such similar examples.

24
Same as in 14 above.
H
338 SUPREME COURT REPORTS [2018] 6 S.C.R.

A Life is mortal. It is transitory. It is as fragile as any other object.
It is a harsh reality that no human being, or for that matter, no living
being, can live forever. Every creature who takes birth on this planet
earth has to die one day. Life has a limited shelf age. In fact, unlike the
objects and articles which are produced by human beings and may carry
almost same life span, insofar as humans themselves are concerned,
B
span of life is also uncertain. Nobody knows how long he/she will be
able to live. The gospel truth is that everybody has to die one day,
notwithstanding the pious wish of a man to live forever25. As Woody
Allen said once: ‘I do not want to achieve immortality through my
work. I want to achieve it through not dying’. At the same time,
C nobody wants to have a tragic end to life. We all want to leave the
world in a peaceful manner. In this sense, the term ‘euthanasia’ which
has its origin in Greek language signifies ‘an easy and gentle death’.
49. According to Charles I. Lugosi, the sanctity of life ethic no
longer dominates American medical philosophy. Instead, quality of life
D has become the modern approach to manage human life that is at the
margin of utility26. It is interesting to note that the issue of euthanasia
was debated in India in 1928. Probably this was the first public debate
on euthanasia to be reported. A Calf in Gandhi’s ashram was ailing
under great pain. In spite of every possible treatment and nursing…the
condition of the calf was so bad that it could not even change its side or
E even it could not be lifted about in order to prevent pressure ulcers/
sores. It could not even take nourishment and was tormented by flies.
The surgeon whose advice was sought in this matter declared the case
to be past help and past hope. After painful days of hesitation and
discussions with the managing committee of Goseva Sangh and the
F inmates of the ashram, Gandhi made up his mind to end the life of the
calf in a painless way as possible. There was a commotion in orthodox
circles and Gandhi critically examined the question through his article
which appeared in Navajivan (dated 30-9-1928) and Young India (4-10-
1928). Probably this was the first public debate on euthanasia and animal/
veterinary euthanasia and the debate also covered the issue of human
G euthanasia. It is equally interesting to note that Gandhi and his critics
25
It is well known that medical scientists are intensely busy in finding the ways to
become ageless and immortal, but till date have remained unsuccessful in achieving this
dream.
26
Charles I. Lugosi, ‘Natural Disaster, Unnatural Deaths: The Killings on the Life
Care Floors at Tenet’s Memorial Centre after Hurricane Katrina’, Issues in Law and
H Medicine, Vol. 23, Summer, 2007.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 339
[A. K. SIKRI, J.]

discussed the issue of ‘painlessly ending the life to end suffering’ A
without using the term ‘euthanasia’. But, he meant the same. Further
it is more interesting to learn that at various instances Gandhiji had
touched upon the issues of the present day debates on Voluntary
euthanasia, Non-voluntary euthanasia, Involuntary euthanasia, as well
as passive euthanasia, active euthanasia, physician-assisted euthanasia
B
and the rejection or ‘termination of treatment’. Gandhi advocated the
development of positive outlook towards life and strived for the humane
nursing and medical care even when cure was impossible. It was the
way he analysed Karma and submitted to the will of the God.
50. Mahatma Gandhi said:
C
“In these circumstances I felt that humanity demanded that the
agony should be ended by ending life itself. The matter was placed
before the whole ashram. At the discussion a worthy neighbour
vehemently opposed the idea of killing even to end pain. The ground of
his opposition was that one has no right to take away life which
one cannot create. His argument seemed to me to be pointless here. D
It would have point if the taking of life was actuated by self-interest.
Finally, in all humility but with the clearest of convictions, I got in my
presence a doctor kindly to administer the calf a quietus by means of a
position injection. The whole thing was over in less than two minutes.
But the question may very legitimately be put to me: would I E
apply the same principle to human beings? Would I like it to be applied in
my own case? My reply is ‘yes’; the same law holds good in both the
cases. The law, ‘as with one so with all’, admits of no exceptions, or the
killing of the calf was wrong and violent. In practice, however, we do
not cut short the sufferings of our ailing dear ones by death because, as F
a rule, we have always means at our disposal to help them and they
have the capacity to think and decide for themselves. But supposing
that in the case of an ailing friend, I am unable to render any aid whatever
and recovery is out of question and the patient is lying in an unconscious
state in the throes of agony, then I would not see any himsa in putting an
end to his suffering by death. G
Just as a surgeon does not commit himsa but practices the purest
ahimsa when he wields his knife, one may find it necessary, under certain
imperative circumstances, to go a step further and sever life from the
body in the interest of the sufferer. It may be objected that whereas the
surgeon performs his operation to save the life of the patient, in the other H
340 SUPREME COURT REPORTS [2018] 6 S.C.R.

A case we do just the reverse. But on a deeper analysis it will be found
that the ultimate object sought to be served in both the cases is the same,
namely, to relieve the suffering soul within from pain. In the one case
you do it by severing the diseased portion from the body, in the other you
do it by severing from the soul the body that has become an instrument
of torture to it. In either case it is the relief of the soul within from pain
B
that is aimed at, the body without the life within being incapable of feeling
either pleasure or pain.
To conclude then, to cause pain or wish ill to or to take the life of
any living being out of anger or a selfish intent, is himsa. On the other
hand, after a calm and clear judgment to kill or cause pain to a living
C being from a pure selfless intent may be the purest form of ahimsa.
Each such case must be judged individually and on its own merits. The
final test as to its violence or non-violence is after all the intent underlying
the act.”
51. Ethical Egoism propounded in modern times by Thomas
D Hobbes in “Leviathan” also operates from the general rule that if any
action increases my own good, then it is right. Ethical egoism in the
context of euthanasia would mean that if a person wants or does not
want to end his/her life using euthanasia, this desire is presumed to be
motivated by a need for self benefit, and is therefore an ethical action27.
E The perspective of the world community is gradually shifting from sanctity
of life to quality of life sustained and preserved.
52. Philosophers believe that we have to control switch that can
end it all, on request. In medical/legal parlance, it is called euthanasia:
‘an easy and gentle death’. Philosophically, this debate is about our
F right, when terminally ill, to choose how to die. It is about the right to
control how much we have to suffer and when and how we die. It is
about having some control over our dying process in a system that can
aggressively prolong life with invasive technology. Luckily, we also have
the technology that allows us to experience a gentle death on our own
terms, rather than by medically set terms. In his famous essay on Liberty,
G John Stuart Mill argues strongly for our right to self-determination. He
writes: “over himself, over his own body and mind, the individual is
sovereign...he is the person most interested in his own well being.”
These words were written over a century ago.
27
John Keown, Euthanasia, Ethics and Public Policy, (Cambridge: Cambridge University
Press, (2002) p. 37
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 341
[A. K. SIKRI, J.]

53. Philosophically, therefore, one may argue that if a person who A
is undergoing miserable and untold sufferings and does not want to
continue dreadful agony and is terminally ill, he should be free to make
his choice to terminate his life and to put an end to his life so that he dies
peacefully.
54. At the same time, Buddhism, Jainism and Hinduism are against B
euthanasia. However, their concept of ‘good death’ is extremely
interesting – specially principles of Buddhism as they are echoed in the
present day understanding of euthanasia. Without elaborating and to put
it in nutshell:
• Buddhism, Jainism, and Hinduism, in particular, embrace the C
concept of the good death as a means of achieving dignity and
spiritual fulfilment at the end of life without resorting to artificially
shortening its span.
• Buddhists believe that human existence is rare and rebirth as a
human is rarer still. Consequently it is best approached cautiously D
without attempting to exert control over the dying process. At the
point of dying, a Buddhist should ideally be conscious, rational and
alert.
• Traditional Hindu religious culture also emphasizes the good
E
death as a reflection of the quality of life that preceded it. If a
good, dignified death is attained, it is perceived as evidence of
having lived a worthy life because “the manner of one’s passing
out-weighs all previous claims and intimations of one’s moral
worth”28.
F
• “a good death certifies a good life”29.
• The good death is achieved when death occurs in full
consciousness, in a chosen place and at a chosen time; and
• As with Buddhism great significance is attached to the element G
of choice and the maintenance of control,30 so if at all possible,
28
T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine 425–
32. (
29
T N Madan, “Living and Dying” in Non-Renunciation: Themes and Interpretations
of the Hindu Culture (New Delhi, Oxford University Press, 1987).
31
J Parry, Death and the Regeneration of Life (Cambridge, Cambridge University
Press, 1982) H
342 SUPREME COURT REPORTS [2018] 6 S.C.R.

A “one must be in command and should not be overtaken by death.
To be so overtaken is the loss of dignity”.31 Thus the final moments
of life should be calm, easy and peaceful if dignity is to be
preserved.
Many of the insights of these traditional religions are echoed in
B the modern Western understanding of euthanasia, as a means of achieving
death with dignity, which focuses on avoiding dependence and loss of
control. Choosing to deliberately end one’s life allows control over the
time, place and method of one’s dying and explains why euthanasia
appears to offer death with dignity. Rather than active euthanasia these
ancient religions advocate calm, control and compassion as a means of
C achieving dignity.
(B) Morality of Euthanasia
55. At the outset, I would like to clarify that while discussing a
particular norm of law, the law per se is to be applied and, generally
D speaking, it is not the function of the Courts to look into the moral basis
of law. At the same time, some legal norms, particularly those which
are jurisprudentially expounded by the Courts or developed as common
law principles, would have moral backing behind them. In that sense
moral aspects of an issue may assume relevance. This relevancy and
rationale is quite evident in the discussion about euthanasia. In fact, the
E very concept of dignity of life is substantially backed by moral overtones.
We may remind ourselves with the following classical words uttered by
Immanuel Kant:
“We must not expect a good constitution because those who make
it are moral men. Rather it is because of a good constitution that
F we may expect a society composed of moral men.”
56. It is well known that Justice Holmes’ legal philosophy revolved
around its central theme that law and morals are to be kept apart,
maintaining a sharp distinction between them. Notwithstanding, even
he accepted that under certain circumstances distinction between law
G and morals loses much of its importance. To quote:
“I do not say say that there is not a wider point of view from
which the distinction between law and morals becomes of
31
T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine
425–32.
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 343
[A. K. SIKRI, J.]

secondary importance, as all mathematical distinctions vanish in A
the presence of the infinite”.32
57. Euthanasia is one such critical issue where the law relating to
it cannot be divorced from morality. Lon L. Fuller33 has argued with
great emphasis that it is the morality that makes the law possible. He
also points towards morality as the substantive aims of law. In fact, as B
would be noticed later, the conceptualisation of doctrine of dignity by
Ronald Dworkin is supported with moral ethos. With the aid of dignity
principle, he has argued in favour of euthanasia. Likewise, and ironically,
John Finnis, Professor of Law and Legal Philosophy Emeritus in the
University of Oxford, while opposing euthanasia, also falls back on the
morality conception thereof. It is this peculiar feature which drives us to C
discuss the issue of euthanasia from the stand point of morality.
58. Influenced primarily by the aforesaid considerations, I deem it
relevant to indulge into discussion on morality.
59. When we come to the moral aspects of ‘end of life’ issues, D
we face the situation of dilemma. On the one hand, it is an accepted
belief that every human being wants to die peacefully. Nobody wants to
undergo any kind of suffering in his last days. So much so a person who
meets his destiny by sudden death or easy death is often considered as
a person who would have lived his life by practicing moral and ethical
values. Rightly or wrongly, it is perceived that such a person who exhibited E
graceful behaviour while living his life is bestowed grace by the death
when time to depart came. However, it does not happen to most of the
people. Ageing is a natural phenomena. No doubt, as the person advances
in age, he becomes mature in his wisdom. However, old age brings,
along with it, various ailments and diseases as well. Physical health and F
physical functioning declines over the life course, particularly, in later
life. A rise in chronic disease and other conditions such as arthritis, high
blood pressure and obesity can cause loss in function and lead to generally
decreasing trajectory for health over the lifespan. Thus, ageing has both
positive and negative aspects. This ageing leads to extinction of human
life which may generally be preceded by grave sickness and disease. G
60. Horace, Roman poet in his poem on the ‘Ages of Man’ wrote
quiet scathingly of the attributes of old age:
32
Justice Holmes: The Path of the Law, 10 Harvard Law review 457-78, at p. 459
(1897)
32
Lon L. Fuller: The Morality of Law (Revised Edition), Yale University Press H
344 SUPREME COURT REPORTS [2018] 6 S.C.R.

A “Many ills encompass an old man, whether because he seeks,
gain, and then miserably holds aloof from His store and fears to
use it, because, in all that he does, he lacks fire and courage, is
dilatory and slow to form hopes, is sluggish and greedy of a longer
life, peevish, surly, given to praising the days he spent as a boy,
and to reproving and condemning the young.
B
(Ars Poetica, pp.169-74)
We find a more contemporary echo of this in William
Shakespeare’s (1564-1616) famous verse ‘All the World’s a
Stage’:
C all the word’s stage, and all the men and women merely
players;
they have their exits and their entrances,
and one man in his time plays many parts,
his acts being seven ages....Last scene of all,
that ends this strange eventful history,
D
is second childishness and mere oblivion,
sans teeth, sans eyes, sans taste, sans everything.
(As You Like It, Act II, scene VII)”
It may, however, be added (for the sake of clarification) that
advent of disease is not the confines of old age only. One may become
E terminally ill at any age. Such a disease may be acquired even at birth.
61. The moral dilemma is that it projects both the sides—protracted
as well as intractable. On the one hand, it is argued by those who are
the proponents of a liberal view that a right to life must include a
concomitant right to choose when the life becomes unbearable and not
F so worth living, when such a stage comes and the sufferer feels that that
the life has become useless, he should have right to die. Opponents, on
the other hand, project ‘Sanctity of Life’ (SOL) as the most important
factor and argue that this ‘SOL’ principle is violated by self-styled angles
of death. Protagonists on ‘SOL’ principle believe that life should be
G preserved at all costs and the least which is expected is that there should
not be a deliberate destruction of human life, though it does not demand
that life should always be prolonged as long as possible.
62. It might therefore be argued, as Emily Jackson (2008) cogently
does, that the law’s recognition that withdrawal of life-prolonging
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 345
[A. K. SIKRI, J.]

treatment is sometimes legitimate is not so much an exception to the A
SOL principle, as an embodiment of it.
63. In the most secular judicial interpretation of the SOL doctrine
yet, Denman J of the UKHL explicated thus:
“in respect a person’s death, we are also respecting their life –
giving it sanctity...A view that life must be preserved at all costs B
does not sanctify life.,..to care for the dying, to love and cherish
them, and to free them from suffering rather than simply to
postpone death is to have fundamental respect for the sanctity of
life and its end.”
64. Hence, as the process of dying is an inevitable consequence C
of life, the right to life necessarily implies the right to have nature take its
course and to die a natural death. It also encompasses a right, unless
the individual so wishes, not to have life artificially maintained by the
provision of nourishment by abnormal artificial means which have no
curative effect and which are intended merely to prolong life. D
65. A moral paradox which emerges is beautifully described by
Sushila Rao34, in the following words:
“Several commentators have justified the active/passive distinction
by averring that there is an important moral difference between
killing a patient by administering, say, a lethal injection, and E
withdrawing treatment which is currently keeping her alive. Active
euthanasia, runs the argument, interferes with nature’s dominion,
whereas withdrawal of treatment restores to nature her dominion.
Here too, an absolutist version of the SOL principle rears its
unseemly head. In a plethora of cases in the UK, a course of F
action which would lead to the patient’s action which would lead
to the patient’s death was held to be compatible with the “best
interests” test. Indeed, a majority in the House of Lords in Bland
explicitly accepted that the doctor’s intention in withdrawing
artificial nutrition and hydration was, in Lord Browne-Wilkinson’s
G
words, to “bring about the death of Anthony Bland”. Lord Lowry
said that “the intention to bring about the patient’s death is there”
and Lord Mustill admitted that “the proposed conduct has the
aim.. of terminating the life of Anthony Bland”. I each case,
34
Sushila Rao : Economic and Political Weekly, Vol. 46, No. 18 (April 30-May 6,
2011), pp. 13-16 H
346 SUPREME COURT REPORTS [2018] 6 S.C.R.

A however, life could be brought to an end only because the doctors
had recourse to a course of action which could plausibly be
described as a “failure to prolong life”.
The SOL principle thus works insidiously to ensure that only certain
types of death—namely, those achieved by suffocation,
B dehydration, starvation and infection, through the withdrawal or
withholding of, respectively, ventilation, ratification nutrition and
hydration, and antibiotics-can lawfully be brought about. More
crucially, the SOL principle prohibits doctors from acting to achieve
that end quickly, and more humanly, by the administration of a
single lethal injection.
C Lord Browne-Wilkinson lamented this paradox in Bland in the
following words:
“How can it be lawful to allow a patient to die slowly, though
painlessly, over a period of weeks from lack of food but unlawful
to produce his immediate death by a lethal injection, thereby saving
D his family from yet another ordeal to add to the tragedy that has
already struck them? I find it difficult to find a moral answer to
that question.
As Simon Blackburn (2001) puts it, differentiating between
withdrawal of treatment and killing may salve some consciences,
E but it is very doubtful whether it ought to. It often condemns the
subject to a painful, lingering death, fighting for breath or dying of
thirst, while those who could do something stand aside, withholding
a merciful death.”
66. Interestingly, Sushila Rao concludes that even the active-passive
distinction is not grounded much in morality and ethics as in ‘reasons of
F
policy’.
67. John Finnis strongly believes that moral norms rule out the
central case of euthanasia and discards the theory of terminating people’s
life on the ground that doing so would be benefecial by alleviating human
suffering or burdens. He also does not agree that euthanasia would
G benefit ‘other people’ at least by alleviating their proportionately greater
burdens35.
35
According to John Finnis, there is no real and morally relevant distinction between
active euthanasia and passive euthanasia inasmuch as one employs the method of
deliberate omissions (or forbearances or abstentions) in order to terminate life (passive
euthanasia) and other employs ‘a deliberate intervention’ for the same purpose (active
euthanasia). In this sense, in both the cases, it is an intentional act whether by omission
H
or by intervention, to put an end to somebody’s life and, therefore, morally wrong.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 347
[A. K. SIKRI, J.]

68. Moral discourse of John Finnis proceeds on the ‘intention of A
the person who is facing such a situation’. He draws distinction between
what one intends (and does) and what one accepts as foreseen side
effects is significant by giving importance to free choice. There would
be free choice, he argues, only when one is rationally motivated towards
incompatible alternative possible purposes. Therefore, there may be a
B
possibility that a person may choose euthanasia but not as a free choice
and it would be morally wrong. In a situation where that person is not in
a position to make a choice (for e.g. when he is in comma) this choice
shall be exercised by others which, according to him, violates the autonomy
of the person involved. It is significant to mention that Finnis accepts
that autonomy of the patient or prospective patient counts. It reads: C
“Is this to say that the autonomy of the patient or prospective
patient counts for nothing? By no means. Where one does not know
that the requests are suicidal in intent, one can rightly, as a healthcare
professional or as someone responsible for the care of people, give full
effect to requests to withhold specified treatments or indeed any and all D
treatments, even when one considers the requests misguided and
regrettable. For one is entitled and indeed ought to honour these people’s
autonomy, and can reasonably accept their death as a side effect of
doing so.”36
69. He, however, explains thereafter that even if such a decision E
is taken, said person would be proceeding on one or both of two
philosophically and morally erroneous judgments: (i) that human life in
certain conditions or circumstances retains no intrinsic value and dignity;
and/or (ii) that the world would be a better place if one’s life were
intentionally terminated. And each of these erroneous judgments has
very grave implications for people who are in poor shape and/or whose F
existence creates serious burdens for others.
It is, thus, clear that taking shelter of same morality principles,
jurists have reached opposing conclusions. Whereas euthanasia is
morally impermissible in the estimation of some, others treat it as perfectly
justified. As would be noted later, riding on these very moral principles, G
Dworkin developed the dignity of life argument and justified euthanasia.
The aforesaid discussion on the philosophy of euthanasia, coupled
with its morality aspect, brings out the conflicting views. Though
36
John Finnis: “Human Rights and Common Good: Collected Essays”, Volume III
H
348 SUPREME COURT REPORTS [2018] 6 S.C.R.

A philosophical as well as religious overtones may indicate that a person
does not have right to take his life, it is still recognised that a human
being is justified in his expectation to have a peaceful and dignified death.
Opposition to euthanasia, on moral grounds, proceeds primarily on the
basis that neither the concerned person has a right to take his own life,
which is God’s creation, nor anybody else has this right. However, one
B
startling feature which is to be noted in this opposition is that while
opposing euthanasia, no segregated discussion on active and passive
euthanasia is made. It also does not take into consideration permissibility
of passive euthanasia under certain specific circumstances. Clarity on
this aspect is achieved when we discus the issue of euthanasia in the
C context of dignity.
(C) Dignity in Euthanasia
70. This Court acknowledges its awareness of the sensitive and
emotional nature of euthanasia controversy, and the vigours of opposing
views, even within the medical fraternity, and seemingly absolute
D convictions that the subject inspires. This is so demonstrated above while
discussing philosophical, moral, ethical and religious overtones of the
subject involved. These valid aspects, coupled with one’s attitude towards
life and family and their values, are likely to influence and to colour
one’s thinking and conclusions about euthanasia. Notwithstanding the
E same, these aspects make the case as ‘hard case’. However, at the
end of the day, the Court is to resolve the issue by constitutional
measurements, free of emotion and of predilection. One has to bear in
mind what Justice Oliver Wendell Holmes Jr. said in his dissenting
judgment in Lochner v. New York37, which is reproduced below:

F “[The Constitution] is made for people of fundamentally differing
views, and the accident of our finding certain opinions natural and
familiar or novel and even shocking ought not to conclude our
judgment upon the question whether statutes embodying them
conflict with the Constitution of the United States.”

G 71. With these preliminary remarks we return to the doctrine of
dignity as an aspect of Article 21 of the Constitution, a brief reference to
which has already been made above.
72. Let me first discuss certain aspects of human dignity in general.
Insofar as concept of human dignity is concerned, it dates back to
37
198 US 45, 76 (1905)
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 349
[A. K. SIKRI, J.]

thousands of years. Historically, human dignity, as a concept, found its A
origin in different religions which is held to be an important component
of their theological approach. Later, it was also influenced by the views
of philosophers who developed human dignity in their contemplations38.
Jurisprudentially, three types of models for determining the content of
the constitutional value of human dignity are recognised. These are: (i)
B
Theological Model, (ii) Philosophical Model, and (iii) Constitutional Model.
Legal scholars were called upon to determine the theological basis of
human dignity as a constitutional value and as a constitutional right.
Philosophers also came out with their views justifying human dignity as
core human value. Legal understanding is influenced by theological and
philosophical views, though these two are not identical. Aquinas, Kant C
as well as Dworkin discussed the jurisprudential aspects of human
dignity. Over a period of time, human dignity has found its way through
constitutionalism, whether written or unwritten.
Theological Model of Dignity
‘Amritasya Putrah Vayam’ D

[We are all begotten of the immortal.] This is how Hinduism
introduces human beings.
‘Every individual soul is potentially divine’
– proclaimed Swami Vivekananda
E
73. Hinduism doesn’t recognize human beings as mere material
beings. Its understanding of human identity is more ethical-spiritual than
material. That is why a sense of immortality and divinity is attributed to
all human beings in Hindu classical literature.
74. Professor S.D. Sharma, sums up the position with following F
analysis39:
“Consistent with the depth of Indian metaphysics, the human
personality was given a metaphysical interpretation. This is not
unknown to the modern occidental philosophy. The concept of
human personality in Kant’s philosophy of law is metaphysical
G
entity but Kant was not able to reach the subtler unobserved
element of personality, which was the basic theme of the concept
of personality in Indian legal philosophy”
38
Though western thinking is that the concept of human dignity has 2500 years’
history, in many eastern civilizations including India human dignity as core human
value was recognised thousands of years ago
39
Prof. S.D. Sharma : “Administration of Justice in Ancient Bharat”, (1988).
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350 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 75. It is on the principle that the soul that makes the body of all
living organisms its abode is in fact an integral part of the Divine Whole
– Paramaatman – that the Vedas declare unequivocally:
Ajyesthaaso Akanisthaasa Yete; Sam Bhraataro
Vaavrudhuh Soubhagaya
B [No one is superior or inferior; all are brothers; all should strive
for the interest of all and progress collectively]
– RigVeda, Mandala-5, Sukta-60, Mantra-5
76. Even in Islam, tradition of human rights became evident in the
C medieval ages. Being inspired by the tenets of the Holy Koran, it preaches
the universal brotherhood, equality, justice and compassion. Islam believes
that man has special status before God. Because man is a creation of
God, he should not be harmed. Harm to a human being is harm to a God.
God, as an act of love, created man and he wishes to grant him
recognition, dignity and authority. Thus, in Islam, human dignity stems
D from the belief that man is a creation of God – the creation that God
loves more than any other.
77. The Bhakti and Sufi traditions too in their own unique ways
popularized the idea of universal brotherhood. It revived and regenerated
the cherished Indian values of truth, righteousness, justice and morality.
E
78. Christianity believes that the image of God is revealed in Jesus
and through him to human kind. God is rational and determines his goals
for himself. Man was created in the image of God, and he too is rational
and determines his own goals, subject to the God as a rational creation.
Man has freedom of will. This is his dignity. He is free to choose his
F goals, and he himself is a goal. His supreme goal is to know God. Thus
he is set apart from a slave and from all the creations under him. When
a man sins, he loses his human dignity. He becomes an object40.
Philosophical Model of Dignity
79. The modern conception of human dignity was affected by the
G philosophy of Kant41. Kant’s moral theory is divided into two parts:
ethics and right (jurisprudence). The discussion of human dignity took
place within his doctrine of ethics and does not appear in his
40
Based on the approach of Thomas Aquinas (1225-1274) in his work Summa Theologia
41
See Toman E. Hill, ‘Humanity as an End in itself’ (1980) 91 Ethics 84
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 351
[A. K. SIKRI, J.]

jurisprudence42. Kant’s jurisprudence features the concept of a person’s A
right to freedom as a human being.
80. According to Kant, a person acts ethically when he acts by
force of a duty that a rational agent self-legislates onto his own will. This
self-legislated duty is not accompanied by any right or coercion, and is
not correlative to the rights of others. For Kant, ethics includes duties to B
oneself (e.g. to develop one’s talents) and to others (e.g. to contribute to
their happiness). This ability is the human dignity of man. This is what
makes a person different than an object. This ability makes a person into
an end, and prevents her from being a mere means in the hands of
another.
C
81. Professor Upendra Baxi in his First Justice H.R. Khanna
Memorial Lecture43, on the topic Protection of Dignity of Individual
under the Constitution of India has very aptly remarked that dignity
notions, like the idea of human rights, are supposed to be the gifts of the
West to the Rest, though, this view is based on the prescribed ignorance
of the rich traditions of non-European countries. He, then, explains D
Eurocentric view of human dignity by pointing out that it views dignity in
terms of personhood (moral agency) and autonomy (freedom of choice).
Dignity here is to be treated as ‘empowerment’ which makes a triple
demand in the name of respect for human dignity, namely:
1. Respect for one’s capacity as an agent to make one’s own free E
choices.
2. Respect for the choices so made.
3. Respect for one’s need to have a context and conditions in
which one can operate as a source of free and informed choice. F
82. To the aforesaid, Professor Baxi adds:
“I still need to say that the idea of dignity is a metaethical one, that
is it marks and maps a difficult terrain of what it may mean to say
being ‘human’ and remaining ‘human’, or put another way the
relationship between ‘self’, ‘others’, and ‘society’. In this G
formulation the word ‘respect’ is the keyword: dignity is respect
for an individual person based on the principle of freedom and
capacity to make choices and a good or just social order is one
42
See Pfordten, ‘On the Dignity of Man in Kant’
43
Delivered on 25 th February, 2010 at Indian Institute of Public Administration, New
Delhi. H
352 SUPREME COURT REPORTS [2018] 6 S.C.R.

A which respects dignity via assuring ‘contexts’ and ‘conditions’ as
the ‘source of free and informed choice’. Respect for dignity
thus conceived is empowering overall and not just because it, even
if importantly, sets constraints state, law, and regulations.”
83. Jeremy Waldron44 opines that dignity is a sort of status-concept:
B it has to do with the standing (perhaps the formal legal standing or perhaps,
more informally, the moral presence) that a person has in a society and
in her dealings with others. He has ventured even to define this term
“dignity” in the following manner:
“Dignity is the status of a person predicated on the fact that she is
C recognized as having the ability to control and regulate her actions
in accordance with her own apprehension of norms and reasons
that apply to her; it assumes she is capable of giving and entitled
to give an account of herself (and of the way in which she is
regulating her actions and organizing her life), an account that
others are to pay attention to; and it means finally that she has the
D wherewithal to demand that her agency and her presence among
us as human being be taken seriously and accommodated in the
lives of others, in others’ attitudes and actions towards her, and in
social life generally”.
84. Kant, on the other hand, has initially used dignity as a ‘value
E idea’, though in his later work he also talks of ‘respect’ which a person
needs to accord to other person, thereby speaking of it more as a matter
of status.
Constitutional Perspective of Dignity

F 85. The most important lesson which was learnt as a result of
Second World War was the realization by the Governments of various
countries about the human dignity which needed to be cherished and
protected. It is for this reason that in the U.N. Charter, 1945, adopted
immediately after the Second World War, dignity of the individuals was
mentioned as of core value. The almost contemporaneous Universal
G Declaration of Human Rights (1948) echoed same sentiments.
86. Article 3 of the Geneva Conventions explicitly prohibits
“outrages upon personal dignity”. There are provisions to this effect in
International Covenant on Civil and Political Rights (Article 7) and the
44
See Article of Jeremy Waldron : “How Law Protects Dignity”
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 353
[A. K. SIKRI, J.]

European Convention of Human Rights (Article 3) though implicit. A
However, one can easily infer the said implicit message in these documents
about human dignity. The ICCPR begins its preamble with the
acknowledgment that the rights contained in the covenant “derive from
the inherent dignity of the human person”. And some philosophers say
the same thing. Even if this is not a connection between dignity and law
B
as such, it certainly purports to identify a wholesale connection between
dignity and the branch of law devoted to human rights. One of the key
facets of twenty-first century democracies is the primary importance
they give to the protection of human rights. From this perspective, dignity
is the expression of a basic value accepted in a broad sense by all people,
and thus constitutes the first cornerstone in the edifice of human rights. C
Therefore, there is a certain fundamental value to the notion of human
dignity, which some would consider a pivotal right deeply rooted in any
notion of justice, fairness, and a society based on basic rights.
87. Aharon Barak, former Chief Justice of the Supreme Court
of Israel, attributes two roles to the concept of human dignity as a D
constitutional value, which are:
1. Human dignity lays a foundation for all the human rights as it is
the central argument for the existance of human rights.
2. Human dignity as a constitutional value provides meaning to
the norms of the legal system. In the process, one can discern that the E
principle of purposive interpretation exhorts us to interpret all the rights
given by the Constitution, in the light of the human dignity. In this sense,
human dignity influences the purposive interpretation of the Constitution.
Not only this, it also influences the interpretation of every sub-
constitutional norm in the legal system. Moreover, human dignity as a F
constitutional value also influences the development of the common law.
88. Within two years of the adoption of the aforesaid Universal
Declaration of Human Rights that all human beings are born free and
equal in dignity and rights, India attained independence and immediately
thereafter Members of the Constituent Assembly took up the task of G
framing the Constitution of this Country. It was but natural to include a
Bill of Rights in the Indian Constitution and the Constitution Makers did
so by incorporating a Chapter on Fundamental Rights in Part III of the
Constitution. However, it would be significant to point out that there is
no mention of “dignity” specifically in this Chapter on Fundamental Rights.
H
354 SUPREME COURT REPORTS [2018] 6 S.C.R.

A So was the position in the American Constitution. In America, human
dignity as a part of human rights was brought in as a Judge-made doctrine.
Same course of action followed as the Indian Supreme Court read human
dignity into Articles 14 and 21 of the Constitution.
89. Before coming to the interpretative process that has been
B developed by this Court in evolving the aura of human dignity predicated
on Articles 14 and 21 of the Constitution, I am provoked to discuss as to
how Dworkin perceives interpretative process adopted by a Judge.
90. Dworkin, being a philosopher – jurist, was aware of the idea
of a Constitution and of a constitutional right to human dignity. In his
C book, Taking Rights Seriously, he noted that everyone who takes rights
seriously must give an answer to the question why human rights vis-a-
vis the State exist. According to him, in order to give such an answer
one must accept, as a minimum, the idea of human dignity. As he writes:
“Human dignity....associated with Kant, but defended by
D philosophers of different schgools, supposes that there are ways
of treating a man that are inconsistent with recognizing him as a
full member of the human community, and holds that such treatment
is profoundly unjust.”45
91. In his Book, “Is Democracy Possible Here?”46 Dworkin
E develops two principles about the concept of human dignity. First principle
regards the intrinsic value of every person, viz., every person has a
special objective value which value is not only important to that person
alone but success or failure of the lives of every person is important to
all of us. The second principle, according to Dworkin, is that of personal
responsibility. According to this principle, every person has the
F responsibility for success in his own life and, therefore, he must use his
discretion regarding the way of life that will be successful from his point
of view. Thus, Dworkin’s jurisprudence of human dignity is founded on
the aforesaid two principles which, together, not only define the basis
but the conditions for human dignity. Dworkin went on to develop and
G expand these principles in his book, Justice for Hedgehogs (2011)47.
92. When speaking of rights, it is impossible to envisage it without
dignity. In his pioneering and all inclusive “Justice for Hedgehogs”, he
45
Ibid., 1
46
Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate
(Princeton University Press, 2006).
H 47
Ibid 13
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 355
[A. K. SIKRI, J.]

proffered an approach where respect for human dignity, entails two A
requirements; first, self-respect, i.e., taking the objective importance of
one’s own life seriously; this represents the free will of the person, his
capacity to think for himself and to control his own life and second,
authenticity, i.e., accepting a “special, personal responsibility for identifying
what counts as success” in one’s own life and for creating that life
B
“through a coherent narrative” that one has chosen.48 According to
Dworkin, these principles form the fundamental criteria supervising what
we should do in order to live well.49 They further explicate the rights
that individuals have against their political community,50 and they provide
a rationale for the moral duties we owe to others. This notion of dignity,
which Dworkin gives utmost importance to, is indispensable to any C
civilised society. It is what is constitutionally recognised in our country
and for good reason. Living well is a moral responsibility of individuals;
it is a continuing process that is not a static condition of character but a
mode that an individual constantly endeavours to imbibe. A life lived
without dignity, is not a life lived at all for living well implies a conception
D
of human dignity which Dworkin interprets includes ideals of self-respect
and authenticity.
93. This constitutional value of human dignity, has been beautifully
illustrated by Aharon Barak, as under:
“Human dignity as a constitutional value is the factor that unites E
the human rights into one whole. It ensures the normative unity of
human rights. This normative unity is expressed in the three ways:
first, the value of human dignity serves as a normative basis for
constitutional rights set out in the constitution; second, it serves as
an interpretative principle for determining the scope of
constitutional rights, including the right to human dignity; third, the F
value of human dignity has an important role in determining the
proportionality of a statute limiting a constitutional right.”51
94. We have to keep in mind that while expounding the aforesaid
notion of dignity, Dworkin was not interpreting any Constitution. This
48
Kenneth W. Simons, Dworkin’s Two Principle of Dignity: An unsatisfactory G
Nonconsequentialist Account of Interpersonal Moral Duties, 90 Boston law Rev. 715
(2010)
49
Ibid
50
Supra 15
51
Aharon Barak, Human Dignity : The Constitutional Value and the Constitutional
Right
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356 SUPREME COURT REPORTS [2018] 6 S.C.R.

A notion of dignity, as conceptualised by Dworkin, fits like a glove in our
constitutional scheme. In a series of judgments, dignity, as an aspect of
Article 21, stands firmly recognised. Most of the important judgments
have been taken note of and discussed in K.S. Puttaswamy52.
95. In K.S. Puttaswamy, the Constitution Bench has recognised
B the dignity of existence. Liberty and autonomy are regarded as the
essential attributes of a life with dignity. In this manner, sanctity of life
also stands acknowledged, as part of Article 21 of the Constitution. That
apart, while holding the right of privacy as an intrinsic part of right to life
and liberty in Article 21, various facets thereof are discussed by the
learned Judges in their separate opinions. A common theme which flows
C in all these opinions is that that privacy recognises the autonomy of the
individual; every person has right to make essential choices which affect
the course of life; he has to be given full liberty and freedom in order to
achieve his desired goals of life; and the concept of privacy is contained
not merely in personal liberty, but also in the dignity of the individual.
D Justice Chelameshwar, in K.S. Puttaswamy, made certain specific
comments which are reflective of euthanasia, though this term is not
specifically used. He observed: “forced feeding of certain persons
by the State raises concerns of privacy and individual’s right to
refuse life prolonging medical treatment or terminate his life is
another freedom which falls within the zone of privacy.”
E
96. Liberty by itself, which is a facet of Article 21 of the
Constitution, duly recognised in K.S. Puttaswamy, ensures and guarantees
such a choice to the individual. In fact, the entire structure of civil
liberties presupposes that freedom is worth fostering. The very notion
of liberty is considered as good for the society. It is also recognised that
F there are some rights, encompassing liberty, which are needed in order
to protect freedom. David Feldman53 beautifully describes as to why
freedom (or liberty) is given:
52
Prem Shankar Shukla v. UT of Delhi, (1980) 3 SCC 526; Francis Coralie Mullin v.
UT of Delhi, (1981) 1 SCC 608; Bandhua Mukti Morcha v. Union of India, (1984) 3
G SCC 161; Khedat Mazdoor Chetna Sangath v. State of Madhya Pradesh, (1994) 6 SCC
260; M. Nagaraj v. Union of India, (2006) 8 SCC 212, Maharashtra University of
Health Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786; Selvi v. State of
Karnataka, (2010) 7 SCC 263; Mehmood Nayyar Azam v. State of Chhattisgarh, (2012)
8 SCC 1; Shabnam v. Union of India, (2015) 6 SCC 702; Jeeja Ghosh v. Union of India,
(2016) 7 SCC 761.
53
David Feldman: Civil Liberties & Human Rights in England & Wales
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 357
[A. K. SIKRI, J.]

“The guiding principle for many liberal rights theorists may be A
seen as respect for individuals’ own aspirations, as a means of
giving the fullest expression to each individual’s moral autonomy.
A fundamental principle entailed by respect for moral autonomy
is that individuals should prima facie be free to select their own
ideas of the Good, and develop a plan for life, or day-to-day
B
strategy, accordingly. Their choice of goods should be constrained
only to the extent necessary to protect society and the similar
liberties of other people. The law should protect at least the basic
liberties, that is, those necessary to the pursuit of any socially
acceptable conception of the good life. This is the approach which
John Rawls adopts in A Theory of Justice. It requires that basic C
liberties be given considerable respect, and that they should have
priority over the pursuit of social goods (such as economic
development) perhaps even to the extent of giving them the status
of entrenched, constitutional rights, in order to shield them from
challenge in the day-to-day rough and tumble of political
D
contention. This gives liberty a priority over other values, which,
whether viewed as a description of liberal society or as a
prescription for its improvement, is very controversial.
Philosophers have doubted whether there are adequate grounds
for the priority of liberty. Professor H.L.A. Hart has argued that
(at least in a society where there is limited abundance of wealth E
and resources) it is rational to prefer basic freedoms to an
improvement I material conditions only if one harbours the ideal
of ‘a public-spirited citizen who prizes political activity and service
to others as among the chief goods of life and could not
contemplate as tolerable an exchange of the opportunities of such
F
activity for mere material goods or contentment’.
A rather different thesis runs through Professor Joseph Raz’s
book, The Morality of Freedom: people are autonomous moral
actors, and autonomy is given expression primarily through making
one’s own decisions, but such freedom is valuable partly because
it advances social ends. Raz points out that the identification of G
basic liberties therefore depends, in pat at least, on governmental
notions of the public good. In respect of rights to freedom of
expression, privacy, freedom of religion, and freedom from
discrimination, for example, ‘one reason for affording special
protection to individual interests is that thereby one also protects H
358 SUPREME COURT REPORTS [2018] 6 S.C.R.

A a collective good, an aspect of a public culture’. At the same
time, certain social goods are needed if freedom is to have value.
Freedom is useful only if the social and economic structure of
society provides a sufficient range of choices to allow people’s
capacity for choice to be exercised. Accordingly, freedom is seen
as a collective rather than an individual good. This may constrain
B
the range of freedoms and the purposes to which they may morally
be put: a decision to make a freedom into a constitutional right is
an expression of the collective political culture of a community.
This thesis does not make the morality of freedom depend on
people striving for perfection: individuals may not always, or ever,
C think about the moral consequences of their decisions, or may
consciously make decisions which do not make for self-
improvement. Instead, it looks only for a social commitment to
the idea of the moral significance of individual choice. Raz marries
the idea of the individual to that of society by recognizing that
individual freedom of choice is contingent on social arrangements.”
D
97. In his Article, Life’s Dominion, Ronald Dworkin, while building
the hypothesis on dignity concept, exhorts that people must decide about
their own death, or someone else’s in three main kind of situations, namely,
(i) conscious and competent: it is a situation where a person is suffering
from some serious illness because of which he is incapacitated but he is
E still conscious and also competent to decide about his fate, he should be
given a choice to decide as to whether he wants to continue to get the
treatment; (ii) unconscious: where the patient is unconscious and dying,
doctors are often forced to decide whether to continue life support for
him or not under certain circumstances relatives have to take a decision.
F However, at times, unconscious patients are not about to die. At the
same time, they are either in coma or in PVS. In either case, they are
conscious. In such a situation, where recovery is impossible, it should
be left to the relatives to decide as to whether they want the patient to
remain on life support (ventilator, etc.); and (iii) conscious but
incompetent. These factors may support, what is known as ‘living
G will’ or ‘advance directive’, which aspect is dealt with specifically while
answering the second issue.
98. When a person is undergoing untold suffering and misery
because of the disease with which he is suffering and at times even
unable to bear the same, continuing to put him on artificial machines to
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 359
[A. K. SIKRI, J.]

prolong his vegetable life would amount to violating his dignity. These A
are the arguments which are raised by some jurists and sociologists54.
99. There is a related, but interesting, aspect of this dignity which
needs to be emphasised. Right to health is a part of Article 21 of the
Constitution. At the same time, it is also a harsh reality that everybody
is not able to enjoy that right because of poverty etc. The State is not in B
a position to translate into reality this right to health for all citizens. Thus,
when citizens are not guaranteed the right to health, can they be denied
right to die in dignity?
100. In the context of euthanasia, ‘personal autonomy’ of an
individual, as a part of human dignity, can be pressed into service. In C
National Legal Services Authority v. Union of India and Others55,
this Court observed:
“Article 21, as already indicated, guarantees the protection of
“personal autonomy” of an individual. In Anuj Garg v. Hotel Assn.
of India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this Court D
held that personal autonomy includes both the negative right of
not to be subject to interference by others and the positive right of
individuals to make decisions about their life, to express themselves
and to choose which activities to take part in. Self-determination
of gender is an integral part of personal autonomy and self-
expression and falls within the realm of personal liberty guaranteed E
under Article 21 of the Constitution of India.”
101. In addition to personal autonomy, other facets of human dignity,
namely, ‘self expression’ and ‘right to determine’ also support the
argument that it is the choice of the patient to receive or not to receive
treatment. F
102. We may again mention that talking particularly about certain
hard cases involving moral overtones, Dworkin specifically discussed
the issues pertaining to abortion and euthanasia with emphasis that both
supporters and critics accept the idea of sanctity of life. Decisions
regarding death – whether by abortion or by euthanasia – affect our G
human dignity. In Dworkin’s opinion, proper recognition of human dignity
54
(i) Morris: Voluntary Euthanasia
(ii) LW Sumner: Dignity through Thick and Thin, in Sebastian Muders, “Human Dignity
and Assisted Death (Oxford University Press, 2017).
55
(2014) 5 SCC 438
H
360 SUPREME COURT REPORTS [2018] 6 S.C.R.

A leads to the recognition of the freedom of the individual. Freedom is a
necessary condition for self worth. Dworkin adds: “Because we cherish
dignity, we insist on freedom .… Because we honour dignity, we
demand democracy.”56
103. Dignity is, thus, the core value of life and dying in dignity
B stands recognised in Gian Kaur. It becomes a part of right of self
determination.
104. The important message behind Dworkin’s concept of human
dignity can be summarised in the following manner:
(1) He describes belief in individual human dignity as the most
C important feature of Western political culture giving people the
moral right “to confront the most fundamental questions about the
meaning and value of their own lives”57.
(2) In an age when people value their independence and strive to
live independent and fulfilled lives it is important “that life ends
D appropriately, that death keeps faith with the way we want to
have lived”58.
(3) Death is “not only the start of nothing but the end of
everything”59 and, therefore, it should be accomplished in a manner
compatible with the ideals sought during life.
E
105. Taking into consideration the conceptual aspects of dignity
and the manner in which it has been judicially adopted by various
judgments, following elements of dignity can be highlighted (in the context
of death with dignity):
(i) Encompasses self-determination; implies a quality of life
F
consistent with the ability to exercise self-determined choices;
(ii) Maintains/ability to make autonomous choices; high regard
for individual autonomy that is pivotal to the perceived quality of a
person’s life;
G (iii) Self-control (retain a similar kind of control over dying as
one has exercised during life – a way of achieving death with
dignity);
56
Ibid., at 239
57
R Dworkin, Life’s Dominion (London, Harper-Collins, 1993) at 166.
58
R Dworkin, Life’s Dominion (London, HarperCollins, 1993) at 179.
59
H Ibid.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 361
[A. K. SIKRI, J.]

(iv) Law of consent: The ability to choose - orchestrate the timing A
of their own death;
(v) Dignity may be compromised if the dying process is prolonged
and involves becoming incapacitated and dependent;
(vi) Respect for human dignity means respecting the intrinsic
value of human life; B

(vii) Avoidance of dependency;
(viii) Indefinite continuation of futile physical life is regarded as
undignified;
(ix) Dignity commands emphatic respect60; C
• Reason and emotion are both significant in treatment
decisions, especially at the end of life where compassion is
a natural response to appeals made on the basis of stifled
self-determination;
D
• Compassion represents a collision of “imaginative insight”
and empathy; and
• Compassion is here distinguished from pity, which is regarded
as “inappropriate to the dignity of the autonomous person,
especially its overtones of paternalism”, 61 because E
compassion is believed to provoke an active, and by
implication positive, response.62
(x) Dignity engenders a sense of serenity and powerfulness,
fortified by “qualities of composure, calmness, restraint, reserve,
and emotions or passions subdued and securely controlled without F
being negated or dissolved”63; and
(x) Observer’s Dignity aspect:
• a person possessed of dignity at the end of life, might induce
in an observer a sense of tranquility and admiration which
60
G
A Kolnai, “Dignity”, in R S Dillon (ed.) Dignity, Character, and Self-Respect (London,
Routledge, 1995) 53–75, at 55.
61
R S Downie, K S Calman, Healthy Respect: Ethics in Health Care (Oxford, Oxford
University Press, 1994) at 51–53.
62
Ibid.
63
A Kolnai, “Dignity”, in R S Dillon (ed.) Dignity, Character, and Self-Respect (London,
Routledge, 1995) 53–75, at 56. H
362 SUPREME COURT REPORTS [2018] 6 S.C.R.

A inspires images of power and self- assertion through restraint
and poised composure; and
• dignity clearly does play a valuable role in contextualizing
people’s perceptions of death and dying, especially as it
appears to embody a spirit of self-determination that
B advocates of voluntary euthanasia crave.
106. Once we examine the matter in the aforesaid perspective,
the inevitable conclusion would be that passive euthanasia and death
with dignity are inextricably linked, which can be summed up with the
following pointers:
C (i) The opportunity to die unencumbered by the intrusion of medical
technology and before experiencing loss of independence and
control, appears to many to extend the promise of a dignified death.
When medical technology intervenes to prolong dying like this it
does not do so unobtrusively;
D (ii) Today many patients insist on more than just a right to health
care in general. They seek a right to choose specific types of
treatment, able to retain control throughout the entire span of their
lives and to exercise autonomy in all medical decisions concerning
their welfare and treatment;
E (iii) A dreadful, painful death on a rational but incapacitated
terminally ill patient are an affront to human dignity.
107. The aforesaid discussion takes care of those who oppose
euthanasia on moral and ethical principles. We feel that at least the
case for passive euthanasia is made out. Certain moral dilemma as to
F what is the exact stage when such a decision to withdraw medical support,
would still remain. At times, a physician would be filled with profound
ethical uncertainties when a person is suffering unbearable pain and
agony, the question would be as to whether such suffering has reached
the stage where it is incurable and, therefore, decision should be taken
G to allow such person to pass away in peace and dignity of hastening the
process of death or the situation may be reversible, though chances
thereof are far remote. Dr. R.R. Kishore, who possesses medical as
well as law degree at the same time, lists the following questions which
a physician will have to answer while taking such a decision:

H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 363
[A. K. SIKRI, J.]

(i) Is it professionally permissible to kill or to help in dying a A
terminally ill and incurable patient?
(ii) How does such a decision affect the person concerned and
the society in general?
(iii) What are the values that are attracted in such situations?
B
(iv) How to assess that the individual’s urge to die is based on
cool and candid considerations and is not an impulsive act reflecting
resources constraints, inadequate care or discrimination?
(v) What are the practical risks involved in case a decision is
taken to terminate the life of the patient? C
(vi) Where should the physician look for guidance in situations of
such moral dilemma?
(vii) Does the physician’s or the patient’s religion play any role in
decision making process?
D
108. What are the parameters to be kept in mind and the dangers
which may be encountered while taking decision on the aforesaid
questions, is beautifully explained by Dr. R.R. Kishore64 in the following
words:
“Contemporary world order is founded on reason, equity and
dignity. Reason envisages definition and distinctness. What is the E
distinction between ‘killing’ and ‘letting die’? or, in other words,
what is the difference between ‘causing death’ and ‘denial to
prevent death’? Also, can the prolongation of life be ever
‘unnecessary’? And, if yes, what are the criteria to determine
the life’s worth? Equity mandates equality of opportunity, balancing F
of interests and optimization of resources. This means addressing
questions such as; for how long one should live? Who should die
first? What should be the ideal method of terminating one’s life?
Dignity imposes obligation to preserve life at all costs and in the4
event of an individual’s conscious expression to end his life,
contemplates a valid purpose and truly informed consent. G
Deo0ntologically, in the context of sanctity of life, there is not
much of conflict between secular and religious concepts as both
consider life as sacred and worthy of protection. But, the
64
Dr.R.R. Kishore,MD, LLB – End of Life Issues and the Moral Certainty: A Discovery
through Hinduism H
364 SUPREME COURT REPORTS [2018] 6 S.C.R.

A differences appear in the face of application of advanced
technology which has the potential of keeping alive the terminally
ill and incurable persons who would have otherwise died. Since
the technological resources are not unlimited prioritization becomes
a functional imperative, bringing in the concepts of worth and
utility. In other words, the questions like whose life is more precious
B
and worthy of protection have to be answered. This is a formidable
task, attracting multiple and diverse perspectives, moral as well
as strategic, leading to heterogeneous approaches and despite
agreement on fundamental issue of value of life the decisions
may seem to be at variance. A fair and objective decision in such
C circumstances may be a difficult exercise and any liberalization is
fraught with following apprehensions:
• Danger of abuse
• Enhanced vulnerability to the poor
D • Slippery slope outcome
• Weakening of protection of life notions
Any ethical model governing end of life decisions should therefore
be impervious to all extraneous forces such as, the utilitarian bias,
poverty, and subjectivity i.e., inadequate appreciation of socio-
E
economic, family, cultural and religious perspectives of the
individual. The poor and resourceless are likely to face deeper
and more severe pain and agony before dying and as such may
request their physicians to terminate their lives much earlier than
those who have better access to resource. This poverty-death
F nexus makes an objective decision difficult, constituting a
formidable challenge to committed physicians and others involved
with the end of life issues. Taking a decision on case to case
basis, depending on individual’s material constraints and
inadequacies, enhances the problem rather than solving it, as it
reduces the life from an eternal bliss to a worldly award, subjecting
G
its preservation to socio-economic exigencies. For these reasons
many feel that the safer and more respectable course to improve
death is to provide good palliative care and emotional support rather
than assisting the end of life. The moral ambiguities
notwithstanding, decision to assist or not to assist the act of dying
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 365
[A. K. SIKRI, J.]

by correctly interpreting the patient’s wish and the accompanying A
circumstances, including the moral dictates, constitutes a practical
problem. Let us see how Hinduism addresses these issues.”
109. In the article, End of Life Issues and the Moral Certainty65,
the author after posing the moral dilemma, noted above, discusses the
approach to find the solutions. B
110. I had indicated at the earlier stage that Hippocratic Oath,
coupled with ethical norms of medical profession, stand in the way of
euthanasia. It brings about a situation of dilemma insofar as medical
practitioner is concerned. On the one hand his duty is to save the life of
a person till he is alive, even when the patient is terminally ill and there C
are no chances of revival. On the other hand, the concept of dignity and
right to bodily integrity, which recognises legal right of autonomy and
choice to the patient (or even to his relations in certain circumstances,
particularly when the patient is unconscious or incapacitated to take a
decision) may lead to exercising his right of euthanasia.
D
111. Dignity implies, apart from a right to life enjoyment of right to
be free of physical interference. At common law, any physical
interference with a person is, prima facie, tortious. If it interferes with
freedom of movement, it may constitute a false imprisonment. If it
involves physical touching, it may constitute a battery. If it puts a person
in fear of violence, it may amount to an assault. For any of these wrongs, E
the victim may be able to obtain damages.
112. When it comes to medical treatment, even there the general
common law principle is that any medical treatment constitutes a trespass
to the person which must be justified, by reference either to the patient’s
consent or to the necessity of saving life in circumstances where the F
patient is unable to decide whether or not to consent.
113. Rights with regard to medical treatment fall essentially into
two categories: first, rights to receive or be free of treatment as needed
or desired, and not to be subjected involuntarily to experimentation which,
irrespective of any benefit which the subjects may derive, are intended G
to advance scientific knowledge and benefit people other than the subject
in the long term; secondly, rights connected incidentally with the provision
of medical services, such as rights to be told the truth by one’s doctor.
65
See Footnote 63.
H
366 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 114. Having regard to the aforesaid right of the patients in common
law, coupled with the dignity and privacy rights, it can be said that passive
euthanasia, under those circumstances where patient is in PVS and he
is terminally ill, where the condition is irreversible or where he is braindead,
can be permitted. On the aforesaid reasoning, I am in agreement with
the opinion of the other members of this Bench in approving the judgment
B
in Aruna Ramachandra Shanbaug.
(D) Economics of Euthanasia
115. This is yet another reason for arriving at the same conclusion.
116. When we consider the matter of euthanasia in the context of
C economic principles, it becomes another reason to support the aforesaid
conclusion. This aspect can be dealt with in two ways.
117. First, because of rampant poverty where majority of the
persons are not able to afford health services, should they be forced to
spend on medical treatment beyond their means and in the process
D compelling them to sell their house property, household things and other
assets which may be means of livelihood Secondly, when there are limited
medical facilities available, should a major part thereof be consumed on
those patients who have no chances of recovery? In Economic & Political
Weekly dated February 10, 2018, it is reported:
E “India is one of the worst India is one of the worst countries to die
in, especially for those suffering from terminal illnesses. In 2015,
the Economist Intelligence Unit brought out a Quality of Death
Index, which ranked India 67th out of the 80 countries it had
surveyed. In December 2017, a joint report published by the World
F Health Organization and the World Bank revealed that 49 million
Indians are pushed into poverty every year due to out-of-pocket
expenditure on healthcare, accounting for half of the 100 million
who meet such a fate worldwide. India’s Central Bureau of Health
Intelligence data puts the figure even higher. This unconscionable
situation is the direct outcome of the sorry state of our public
G health system. India’s spending on health is among the lowest in
the world. The Economic Survey 2017–18shows that the
government spends only 1.4% of its gross domestic product (GDP)
on health. The 2017 National Health Policy, which otherwise
exudes piety in its abstractions, aims to increase government
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 367
[A. K. SIKRI, J.]

expenditure to 2.5% of GDP by 2025. By all accounts, this is too A
little too late.
The situation improves only marginally for the better-off sections.
With over 90% of intensive care units in the private healthcare
sector, it is largely this section that can access expensive
treatments. But this does not improve end-of-life situations for B
them. Awareness and training in palliative care remain grossly
inadequate. For those making profit in the private healthcare sector,
there is no incentive to provide such treatment. Instead, treatment
for the terminally ill continues to involve prolonging life with
expensive, invasive, and painful treatment with very little concern
for the patients themselves or their families.” C

118. Some of the apprehensions expressed in ethical debates about
euthanasia can be answered when the ethical debate about euthanasia
is not divorced from an economic consideration of cost and benefits of
euthanasia to society. P.R. Ward66 argues that ethics is concerned with
individuals and, therefore, does not take into account the societal D
perspective. On the other hand, economics is sought to be concerned
with relative costs and benefits to society and can help to determine if
euthanasia is of benefit to the majority in society. According to him, the
net benefit to the individual (from ethical considerations) can be compared
with the net benefit to society (from economics), and that both can be E
included in an overall decision rule for whether or not to legalise
euthanasia. Ward draws on the health economics literature (for example,
Mooney67) to suggest that a positive answer to this question ins implicit
in many health-rationing decisions and is applicable to the euthanasia
decision. He also asserts that ‘introducing an economic perspective
is not incompatible with ethical issues’. F

119. No doubt, protagonists of ethical aspects of euthanasia oppose
the aforesaid view. According to them, euthanasia also involves the
specific act of a medical professional killing a patient and the ethical
status of this act has implications both for individuals and for society.
Their counter argument, therefore, is that to be able to make an economic G
assessment of euthanasia, we would have to be able to evaluate the cost
and benefits of this act of killing. However, even they accept that if the
66
Healthcare rationing: can we afford to ignore euthanasia? Health Services Management
Research 1997; 10; 32-41
67
Mooney, G. The Valuation of Human Life. London: Macmillan Press, 1977 H
368 SUPREME COURT REPORTS [2018] 6 S.C.R.

A act of killing by euthanasia is ethically acceptable in some circumstances,
it would be appropriate to consider the net benefits of the act to the
individual patient along with the wider economic considerations68. In
the instant case, we have come to the conclusion that under certain
circumstances, i.e. when the patient is in PVS or braindead/ clinically
dead, at least passive euthanasia would even be ethically acceptable, on
B
the application of doctrine of dignity. In such a situation, the economic
considerations would strengthen the aforesaid conclusion.
120. At times, for deciding legal issues, economic analysis of law
assumes importance69. It is advocated that one of the main reasons
which should prompt philosophers of law to undertake economic analysis
C seriously is that the most basic notion in the analysis – efficiency or
Pareto optimality70 - was originally introduced to help solve a serious
objection to widely held moral theory, utilitarian. Utilitarians hold that
the principle of utility is the criterion of the right conduct. If one has to
evaluate policies in virtue of their effect on individual welfare or utility,
D one norm of utility has to be compared with that of another. We may
clarify that this economic principle has been applied in a limited sense
only as a supporting consideration with the aim to promote efficiency.
121. If we understand correctly the logic behind opposition to
euthanasia, particularly, passive euthanasia, it proceeds on the basis that
E third person should not have right to take a decision about one’s life and,
more importantly, it is difficult to ascertain, at a particular stage, as to
whether time has come to take such a decision, namely, withdraw the
medical support. Insofar as latter aspect is concerned, we feel that in
Aruna Ramachandra Shanbaug, this Court has taken due care in
prescribing the circumstances, namely, when the person is in a Permanent
F Vegetative State (PVS) with no reversible chance or when he is ‘brain
dead’ or ‘clinically dead’. Insofar as first aspect is concerned, the subject
matter of the present writ petition takes care of that.

68
See – Economics and Euthanasia by Stephen Heasell, Department of Economics
G
and Politics, Nottingham Trent University, and David Paton, Nottingham University
Business School.
69
This aspect is discussed in some detail by this Court in Shivashakti Sugars Ltd. v.
Shree Renuka Sugar Limited and Other, (2017) 7 SCC 729
70
Jeffrie G. Murphy & Jules L. Coleman: Philosophy of Law (An introduction to
Jurisprudence)
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 369
[A. K. SIKRI, J.]

THE SECOND ISSUE A
122. With this, we advert to the second question formulated above,
which is as under:
Whether a ‘living will’ or ‘advance directive’ should be
legally recognised and can be enforced? If so, under what
circumstances and what precautions are required while B
permitting it?
123. In this writ petition, the petitioner has sought a direction to
the respondents to adopt suitable procedures to ensure that persons of
deteriorated health or terminally ill should be able to execute a document
titled ‘living will and/or advance authorisation’ which can be presented C
to the hospital for 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. In nutshell, the petitioner wants that citizens
should have right to decide in advance not to accept any kind of treatment
at a stage when they are terminally ill. Expressing this in advance in a D
document is known as ‘living will’ or ‘advance directive’, whereby the
aforesaid self-determination of the person is to be acted upon when he
reaches PVS or his brain dead/clinically dead.
124. It is an undisputed that Doctors’ primary duty is to provide
treatment and save life but not in the case when a person has already E
expressed his desire of not being subjected to any kind of treatment. It
is a common law right of people, of any civilized country, to refuse
unwanted medical treatment and no person can force him/her to take
any medical treatment which the person does not desire to continue
with. The foundation of the aforesaid right has already been laid down
by this Court in Aruna Ramachandra Shanbaug while dealing with F
the issue of ‘involuntary passive euthanasia’. To quote:
“66. Passive euthanasia is usually defined as withdrawing medical
treatment with a deliberate intention of causing the patient’s death.
For example, if a patient requires kidney dialysis to survive, not
giving dialysis although the machine is available, is passive G
euthanasia. Similarly, if a patient is in coma or on a heart-lung
machine, withdrawing of the machine will ordinarily result in passive
euthanasia. Similarly not giving life-saving medicines like antibiotics
in certain situations may result in passive euthanasia. Denying
H
370 SUPREME COURT REPORTS [2018] 6 S.C.R.

A food to a person in coma or PVS may also amount to passive
euthanasia.
67. As already stated above, euthanasia can be both voluntary or
non-voluntary. In voluntary passive euthanasia a person who is
capable of deciding for himself decides that he would prefer to
B die (which may be for various reasons e.g. that he is in great pain
or that the money being spent on his treatment should instead be
given to his family who are in greater need, etc.), and for this
purpose he consciously and of his own free will refuses to take
life-saving medicines. In India, if a person consciously and
voluntarily refuses to take life-saving medical treatment it is not a
C crime...
xxx xxx xxx
78. ... First, it is established that the principle of self-determination
requires that respect must be given to the wishes of the patient, so that
D if an adult patient of sound mind refuses, however unreasonably, to
consent to treatment or care by which his life would or might be prolonged,
the doctors responsible for his care must give effect to his wishes, even
though they do not consider it to be in his best interests to do so [see
Schloendorff v. Society of New York Hospital [211 NY 125 : 105 NE
92 (1914)] , NE at p. 93, per Cardozo, J.; S. v. McC. (Orse S.) and M
E (D.S. Intervener) [1972 AC 24 (HL)], W v. W; AC at p. 43, per Lord
Reid; and Sidaway v. Board of Governors of the Bethlem Royal
Hospital [1985 AC 871 : (1985) 2 WLR 480 : (1985) 1 All ER 643
(HL)] AC at p. 882, per Lord Scarman]. To this extent, the principle of
the sanctity of human life must yield to the principle of self-determination
F [see (Court of Appeal transcript in the present case, at p. 38 F per
Hoffmann, L.J.)], and, for present purposes perhaps more important,
the doctor’s duty to act in the best interests of his patient must likewise
be qualified. On this basis, it has been held that a patient of sound mind
may, if properly informed, require that life support should be discontinued:
see Nancy B. v. Hotel Dieu de Quebec [(1992) 86 DLR (4th) 385
G (Que SC)] . Moreover the same principle applies where the patient’s
refusal to give his consent has been expressed at an earlier date, before
he became unconscious or otherwise incapable of communicating it;
though in such circumstances especial care may be necessary to ensure
that the prior refusal of consent is still properly to be regarded as
H applicable in the circumstances which have subsequently occurred [see
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 371
[A. K. SIKRI, J.]

e.g. T. (Adult: Refusal of Treatment), In re [1993 Fam 95 : (1992) 3 A
WLR 782 : (1992) 4 All ER 649 (CA)] ]. I wish to add that, in cases of
this kind, there is no question of the patient having committed suicide,
nor therefore of the doctor having aided or abetted him in doing
so. It is simply that the patient has, as he is entitled to do, declined to
consent to treatment which might or would have the effect of prolonging
B
his life, and the doctor has, in accordance with his duty, complied with
his patient’s wishes...”
125. The aforesaid principle has also been recognised by this Court
in its Constitution Bench judgment passed in Gian Kaur wherein it was
held that although ‘Right to Life’ under Article 21 does not include ‘Right
to Die’, but ‘Right to live with dignity’ includes ‘Right to die with C
dignity’. To quote:
“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 D
determine the scope of Article 21 for 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 E
death including 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. But 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.
F
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 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 G
imminent and the process of natural death has commenced. These
are not cases of extinguishing life but only of accelerating
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 H
372 SUPREME COURT REPORTS [2018] 6 S.C.R.

A that the argument to support the view of permitting termination of
life in such cases to 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.”
126. In fact, the Law Commission of India was asked to consider
B on the feasibility of making legislation on euthanasia, taking into account
the earlier 196th Report of the Law Commission as well as the judgment
of this Court in Aruna Ramachandra Shanbaug. In August, 2012,
Law Commission came out with a detailed 241st Report on the issue of
passive euthanasia, wherein it approved the concept of Right to Self
Determination also. The Law Commission made some important
C observations in its report such as:
“2.4 The following pertinent observations made by the then
Chairman of the Law Commission in the forwarding letter dated
28 August 2006 addressed to the Hon’ble Minister are extracted
below:
D
“A hundred years ago, when medicine and medical technology
had not invented the artificial methods of keeping a terminally
ill patient alive by medical treatment, including by means of
ventilators and artificial feeding, such patients were meeting
their death on account of natural causes. Today, it is accepted,
E a terminally ill person has a common law right to refuse modern
medical procedures and allow nature to take its own course,
as was done in good old times. It is well-settled law in all
countries that a terminally ill patient who is conscious and is
competent, can take an ‘informed decision’ to die a natural
F death and direct that he or she be not given medical treatment
which may merely prolong life. There are currently a large
number of such patients who have reached a stage in their
illness when according to well-informed body of medical
opinion, there are no chances of recovery. But modern medicine
and technology may yet enable such patients to prolong life to
G no purpose and during such prolongation, patients could go
through extreme pain and suffering. Several such patients prefer
palliative care for reducing pain and suffering and do not want
medical treatment which will merely prolong life or postpone
death.”
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 373
[A. K. SIKRI, J.]

xxx xxx xxx A
5.2 The 196th Report of the Law Commission stated the
fundamental principle that a terminally ill but competent patient
has a right to refuse treatment including discontinuance of life
sustaining measures and the same is binding on the doctor,
“provided that the decision of the patient is an ‘informed decision’ B
“. ‘Patient’ has been defined as a person suffering from terminal
illness. “Terminal illness” has also been defined under Section 2
(m). The definition of a ‘competent patient’ has to be understood
by the definition of ‘incompetent patient’. ‘Incompetent patient’
means a patient who is a minor or a person of unsound mind or a
patient who is unable to weigh, understand or retain the relevant C
information about his or her medical treatment or unable to make
an ‘informed decision’ because of impairment of or a disturbance
in the functioning of the mind or brain or a person who is unable to
communicate the informed decision regarding medical treatment
through speech, sign or language or any other mode (vide Section D
2(d) of the Bill, 2006). “Medical Treatment” has been defined in
Section 2(i) as treatment intended to sustain, restore or replace
vital functions which, when applied to a patient suffering from
terminal illness, would serve only to prolong the process of dying
and includes life sustaining treatment by way of surgical operation
or the administration of medicine etc. and use of mechanical or E
artificial means such as ventilation, artificial nutrition and cardio
resuscitation. The expressions “best interests” and “informed
decision” have also been defined in the proposed Bill. “Best
Interests”, according to Section 2(b), includes the best interests
of both on incompetent patient and competent patient who has F
not taken an informed decision and it ought not to be limited to
medical interests of the patient but includes ethical, social,
emotional and other welfare considerations. The term ‘informed
decision’ means, as per Section 2 (e) “the decision as to
continuance or withholding or withdrawing medical treatment taken
by a patient who is competent and who is, or has been informed G
about – (i) the nature of his or her illness, (ii) any alternative form
of treatment that may be available, (iii) the consequences of those
forms of treatment, and (iv) the consequences of remaining
untreated.
H
374 SUPREME COURT REPORTS [2018] 6 S.C.R.

A xxx xxx xxx
5.8 The Law Commission of India clarified that where a competent
patient takes an ‘informed decision’ to allow nature to have its
course, the patient is, under common law, not guilty of attempt to
commit suicide (u/s 309 IPC) nor is the doctor who omits to give
B treatment, guilty of abetting suicide (u/s 306 IPC) or of culpable
homicide (u/s 299 read with Section 304 of IPC).
xxx xxx xxx
7.2 In this context, two cardinal principles of medical ethics are
stated to be patient autonomy and beneficence (vide P. 482 of
C SCC in Aruna’s case):

1. “Autonomy means the right to self-determination, where the
informed patient has a right to choose the manner of his treatment.
D To be autonomous, the patient should be competent to make
decision and choices. In the event that he is incompetent to make
choices, his wishes expressed in advance in the form of a living
will, OR the wishes of surrogates acting on his behalf (substituted
judgment) are to be respected. The surrogate is expected to
represent what the patient may have decided had she/she been
E competent, or to act in the patient’s best interest.

2. Beneficence is acting in what (or judged to be) in the patient’s
best interest. Acting in the patient’s best interest means following
a course of action that is best for the patient, and is not in influenced
F
by personal convictions, motives or other considerations……..

xxx xxx xxx

G
11.2 The discussion in the foregoing paras and the weighty opinions
of the Judges of highest courts as well as the considered views of
Law Commission (in 196th report) would furnish an answer to
the above question in clearest terms to the effect that legally and
constitutionally, the patient (competent) has a right to refuse
H
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 375
[A. K. SIKRI, J.]

medical treatment resulting in temporary prolongation of life. The A
patient’s life is at the brink of extinction. There is no slightest
hope of recovery. The patient undergoing terrible suffering and
worst mental agony does not want his life to be prolonged by
artificial means. She/he would not like to spend for his treatment
which is practically worthless. She/he cares for his bodily integrity
B
rather than bodily suffering. She/he would not like to live like a
‘cabbage’ in an intensive care unit for some days or months till
the inevitable death occurs. He would like to have the right of
privacy protected which implies protection from interference and
bodily invasion. As observed in Gian Kaur’s case, the natural
process of his death has already commenced and he would like to C
die with peace and dignity. No law can inhibit him from opting
such course. This is not a situation comparable to suicide, keeping
aside the view point in favour of decriminalizing the attempt to
suicide. The doctor or relatives cannot compel him to have invasive
medical treatment by artificial means or treatment. If there is
D
forced medical intervention on his body, according to the decisions
cited supra (especially the remarks of Lord Brown Wilkinson in
Airdale’s case), the doctor / surgeon is guilty of ‘assault’ or
‘battery’. In the words of Justice Cardozo, “every human being
of adult years and sound mind has a right to determine what shall
be done with his own body and a surgeon who performs an E
operation without his patient’s consent commits an assault for
which he is liable in damages.” Lord Goff in Airedale’s case places
the right to self determination on a high pedestal. He observed
that “in the circumstances such as this, the principle of sanctity of
human life must yield to the principle of self determination and the
F
doctor’s duty to act in the best interests of the patient must likewise
be qualified by the wish of the patient.” The following observations
of Lord Goff deserve particular notice:
“I wish to add that, in cases of this kind, there is no question of
the patient having committed suicide, nor therefore of the doctor
having aided or abetted him in doing so. It is simply that the G
patient has, as he is entitled to do, declined to consent to
treatment which might or would have the effect of prolonging
his life, and the doctor has, in accordance with his duty, complied
with his patient’s wishes.”
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376 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 127. And finally, the Law Commission in its 241st Report gave
Summary of Recommendations as under:
“14. Summary of Recommendations
14.1 Passive euthanasia, which is allowed in many countries, shall
have legal recognition in our country too subject to certain
B safeguards, as suggested by the 17th Law Commission of India
and as held by the Supreme Court in Aruna Ramachandra’s case
[(2011) 4 SCC 454)]. It is not objectionable from legal and
constitutional point of view.
14.2 A competent adult patient has the right to insist that there
C should be no invasive medical treatment by way of artificial life
sustaining measures / treatment and such decision is binding on
the doctors / hospital attending on such patient provided that the
doctor is satisfied that the patient has taken an ‘informed decision’
based on free exercise of his or her will. The same rule will apply
D to a minor above 16 years of age who has expressed his or her
wish not to have such treatment provided the consent has been
given by the major spouse and one of the parents of such minor
patient.
14.3 As regards an incompetent patient such as a person in
E irreversible coma or in Persistent Vegetative State and a competent
patient who has not taken an ‘informed decision’, the doctor’s or
relatives’ decision to withhold or withdraw the medical treatment
is not final. The relatives, next friend, or the doctors concerned /
hospital management shall get the clearance from the High Court
for withdrawing or withholding the life sustaining treatment. In
F this respect, the recommendations of Law Commission in 196th
report is somewhat different. The Law Commission proposed an
enabling provision to move the High Court.
14.4 The High Court shall take a decision after obtaining the opinion
of a panel of three medical experts and after ascertaining the
G wishes of the relatives of the patient. The High Court, as parens
patriae will take an appropriate decision having regard to the best
interests of the patient.
14.5 Provisions are introduced for protection of medical
practitioners and others who act according to the wishes of the
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 377
[A. K. SIKRI, J.]

competent patient or the order of the High Court from criminal or A
civil action. Further, a competent patient (who is terminally ill)
refusing medical treatment shall not be deemed to be guilty of any
offence under any law.
14.6 The procedure for preparation of panels has been set out
broadly in conformity with the recommendations of 17th Law B
Commission. Advance medical directive given by the patient before
his illness is not valid.
14.7 Notwithstanding that medical treatment has been withheld
or withdrawn in accordance with the provisions referred to above,
palliative care can be extended to the competent and incompetent C
patients. The Governments have to devise schemes for palliative
care at affordable cost to terminally ill patients undergoing
intractable suffering.
14.8 The Medical Council of India is required issue guidelines in
the matter of withholding or withdrawing of medical treatment to D
competent or incompetent patients suffering from terminal illness.
14.9 Accordingly, the Medical Treatment of Terminally Ill Patients
(Protection of Patients and Medical Practitioners) Bill, 2006,
drafted by the 17th Law Commission in the 196th Report has
been modified and the revised Bill is practically an amalgam of E
the earlier recommendations of the Law Commission and the views
/ directions of the Supreme Court in Aruna Ramachandra case.
The revised Bill is at Annexure I.”
128. I am also of the view that such an advance authority is akin
to well recognised common law right to refuse medical treatment (See: F
Re T (Adult: Refusal of Medical Treatment 71), Re B (Adult: Refusal
of Medical Treatment 72), Crazan v. Director, Missouri Department
of Health 73, Malette v. Shulam 74.
129. In a recent landmark judgment of the nine Judge Constitution
Bench in the case of K.S. Puttaswamy authoritatively held that right to
G
life enshrined in Article 21 includes right to privacy. One of the facet of
this right acknowledged is an individual’s decision to refuse life prolonging
71
(1992) 4 All ER 649
72
(2002) 2 All ER 449
73
497 U.S. 261 (1990)
74
67 DLR (4th) 321
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378 SUPREME COURT REPORTS [2018] 6 S.C.R.

A medical treatment or terminate his life. Justice Chelameswar in his
separate opinion has described the same in the following manner:
“373. Concerns of privacy arise when the State seeks to intrude
into the body of subjects. [Skinner v. Oklahoma, 1942 SCC
OnLine US SC 125 : 86 L Ed 1655 : 316 US 535 (1942)”20.
B There are limits to the extent to which a legislatively represented
majority may conduct biological experiments at the expense of
the dignity and personality and natural powers of a minority—
even those who have been guilty of what the majority defines as
crimes.” (SCC OnLine US SC para 20)—Jackson, J.] Corporeal
punishments were not unknown to India, their abolition is of a
C recent vintage. Forced feeding of certain persons by the State
raises concerns of privacy. An individual’s rights to refuse life
prolonging medical treatment or terminate his life is another freedom
which falls within the zone of the right to privacy. I am conscious
of the fact that the issue is pending before this Court. But in various
D other jurisdictions, there is a huge debate on those issues though it
is still a grey area. [ For the legal debate in this area in US, See
Chapter 15.11 of American Constitutional Law by Laurence H.
Tribe, 2nd Edn.] A woman’s freedom of choice whether to bear a
child or abort her pregnancy are areas which fall in the realm of
privacy. Similarly, the freedom to choose either to work or not
E and the freedom to choose the nature of the work are areas of
private decision-making process. The right to travel freely within
the country or go abroad is an area falling within the right to privacy.
The text of our Constitution recognised the freedom to travel
throughout the country under Article 19(1)(d). This Court has
F already recognised that such a right takes within its sweep the
right to travel abroad. [Maneka Gandhi v. Union of India, (1978)
1 SCC 248] A person’s freedom to choose the place of his
residence once again is a part of his right to privacy
[Williams v. Fears, 1900 SCC OnLine US SC 211 : 45 L Ed 186
: 179 US 270 (1900)—”8. Undoubtedly the right of locomotion,
G the right to remove from one place to another according to
inclination, is an attribute of personal liberty….” (SCC OnLine
US SC para 8)] recognised by the Constitution of India under
Article 19(1)(e) though the predominant purpose of enumerating
the above-mentioned two freedoms in Article 19(1) is to disable
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 379
[A. K. SIKRI, J.]

both the federal and State Governments from creating barriers A
which are incompatible with the federal nature of our country and
its Constitution. The choice of appearance and apparel are also
aspects of the right to privacy. The freedom of certain groups of
subjects to determine their appearance and apparel (such as
keeping long hair and wearing a turban) are protected not as a
B
part of the right to privacy but as a part of their religious belief.
Such a freedom need not necessarily be based on religious beliefs
falling under Article 25. Informational traces are also an area
which is the subject-matter of huge debate in various jurisdictions
falling within the realm of the right to privacy, such data is as
personal as that of the choice of appearance and apparel. Telephone C
tappings and internet hacking by State, of personal data is another
area which falls within the realm of privacy. The instant reference
arises out of such an attempt by the Union of India to collect
biometric data regarding all the residents of this country. The
above-mentioned are some of the areas where some interest of
D
privacy exists. The examples given above indicate to some extent
the nature and scope of the right to privacy.”
NATURE OF LIVING WILL OR ADVANCE DIRECTIVE
130. Advance directives are instruments through which persons
express their wishes at a prior point in time, when they are capable of E
making an informed decision, regarding their medical treatment in the
future, when they are not in a position to make an informed decision, by
reason of being unconscious or in a PVS or in a coma. A medical power
of attorney is an instrument through which persons nominate
representatives to make decisions regarding their medical treatment at a
point in time when the persons executing the instrument are unable to F
make informed decisions themselves. Clause 11 of the draft Treatment
of Terminally-III Patients (Protection of Patients and Medical
Practitioners) Bill, 2016 states that advance directives or medical power
of attorney shall be void and of no effect and shall not be binding on any
medical practitioner. This blanket ban, including the failure even to give G
some weight to advance directives while making a decision about the
withholding or withdrawal of life-sustaining treatment is disproportionate.
It does not constitute a fair, just or reasonable procedure, which is a
requirement for the imposition of a restriction on the right to life (in this
case, expressed as the right to die with dignity) under Article 21.
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380 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 131. At this juncture, we may again reiterate that on the one hand
autonomy of an individual gives him right to choose his destiny and,
therefore, he may decide before hand, in the form of advance directive,
at what stage of his physical condition he would not like to have medical
treatment, and on the other hand, there are dangers of misuse thereof as
well. David Feldman explained the same in the following manner:
B
“...However, while it is undoubtedly a criminal act to do anything
intending to hasten another person’s death, there is no absolute
duty on a doctor to try to save the life of a patient, for two reasons.
The first is that any treatment is prima facie a trespass to the
C person, and if the patient is adult and competent to consent it will
be unlawful without that consent. A doctor therefore acts lawfully
– indeed, could not lawfully act otherwise – when he withholds
treatment at the request of a terminally ill patient. This has been
called passive, as distinct from active, euthanasia. To ensure that
medical staff know of their wishes, some people have executed
D what are sometimes called ‘living wills’, giving directions to medical
staff to withhold treatment in specified circumstances, and making
their wishes known to anyone who might be appointed as their
representative in the event that they become in capable for any
reason. The efficacy of such prior indications was accepted,
E obiter, by Lord Goff in Airedale NHS Trust v. Bland, above. In
such circumstances, the patient voluntarily accepts non-treatment
while in a state to do so rationally. However, where there is the
slightest doubt about the wishes of a patient, that patient should
be treated, because the paternalism which decides for someone
else when it is best to die is effectively denying them the
F opportunity to make the most of their lives as autonomous
individuals. Furthermore, it would seem to be wrong in principle
to put pressure to bear on a patient to elect to die. In those states
of the USA where voluntary euthanasia is lawful, the ethical
problems for patients, doctors, next of kin, and nursing staff are
G immense. Where the patient is not mentally competent to confirm
the choice to die at the time when the choice is about to be given
effect, it will also be impossible to know whether the choice
expressed earlier was truly voluntary, whether the consent was
informed, and whether or not the patients would want to reconsider

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 381
[A. K. SIKRI, J.]

were he able to do so. In the Netherlands, where it is lawful to A
practice voluntary euthanasia, it seems that the procedural
safeguards designed to protect people against involuntary
euthanasia are very hard to enforce and are regularly flouted.
Secondly, the doctrine of double effect allows the doctor to take
steps which carry a substantial risk to life in order to treat, in good B
faith and with the patient’s consent, some disease or symptom.
This is essential, because virtually any treatment carries some
risk to the patient. It is particularly relevant to the euthanasia
issue in cases where the primary object (e.g. pain control in terminal
cancer treatment) can only be achieved by administering drugs at
a level which is likely to shorten life, but enhances the quality of C
life while it lasts. A trade-off between length of life and quality of
life is permissible.”
132. At the same time, possibility of misuse cannot be held to be a
valid ground for rejecting advance directive, as opined by the Law
Commission of India as well in its 196th and 241st Report. Instead, attempt D
can be made to provide safeguards for exercise of such advance directive.
For example, Section 5 of the Mental Healthcare Act, 2017 recognises
the validity of advance directives for the treatment of mental illness
under the Mental Healthcare Act, 2017. The draft Mental Healthcare
Regulations have recently been made available for public comment by E
the Ministry of Health and Family Welfare. These prescribe the form in
which advance directives may be made. Part II, Chapter 1 of the
Regulations allow a Nominated Representative to be named in the
Advance Directive. An advance directive is to be in writing and signed
by two witnesses attesting to the fact that the Directive was executed in
their presence. A Directive to be registered with the Mental Health F
Review Board. It may be changed as many times as desired by the
person executing it and the treating mental health professional must be
informed of such change. Similarly, Section 3 of the Transplantation of
Human Organs and Tissues Act, 1994 allows persons to authorise the
removal of human organs and tissues from their body before death. The G
form in which this authorisation is to be made is prescribed in Form 7 of
the Transplantation of Human Organs and Tissues Rules, 2014. This is
also to be in writing and in the presence of two witnesses. A copy of the
pledge is to be retained at the institution where the pledge is made and

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382 SUPREME COURT REPORTS [2018] 6 S.C.R.

A the person making the pledge has the option to withdraw the pledge at
any time. Where such authorisation had been made, the person lawfully
in charge of the donor’s body after his death is required to grant the
concerned medical practitioner all reasonable facilities for the removal
of human organs or tissues, unless such person has reason to believe
that the donor had substantially revoked his authority.
B
133. Mr. Datar, learned counsel appearing for the intervenor, has
also brought to our notice various safeguards for advance directive
provided in other jurisdiction in many ways i.e. by prescribing the form
that the directive must take, by specifying who may act as witnesses, by
allowing the possibility of amendment and by allowing the validity of the
C directive to be challenged. Some of these examples are as follows:
(a) In U.K., under Section 24 of the Mental Capacity Act, 2005, a
person above the age of 18 years who has capacity may execute
an advance directive. A person is said to lack capacity if in relation
to a matter at the material time, he is unable to make a decision
D for himself because of an impairment of or disturbance in the
functioning of the mind or brain. In Netherlands, under Article 2
of the Termination of Life on Request and Assisted Suicide
(Review Procedures) Act, patients aged 16 or above may make
advance directives. In Germany, the authorisation of the court is
E required for the termination of treatment in the case of minors. In
Switzerland, persons with mental illnesses are considered
exceptions and cannot discontinue medical treatment if it is an
expression or symptom of their mental illness. In Hungary,
pregnant women may not refuse treatment if it is seen that they
are able to carry the pregnancy.
F
(b) Section 25 of the Mental Capacity Act, an advance decision
to refuse life-sustaining treatment must be in writing. It must be
signed by the patient or someone on his behalf and signed by a
witness. It must also include a written statement by the patient
that the decision will apply to the specific treatment even if the
G patient’s life is at risk. Under Article 7: 450 of the Dutch Civil
Code, an advance directive should be in written form, dated and
signed to be valid. Section 110Q of the Western Australia
Guardianship and Administration Act, 1990 requires advance
directives to be signed in the presence of two witnesses, who
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 383
[A. K. SIKRI, J.]

must both be at least 18 years of age and one of whom must be a A
person authorised to witness legal documents under the relevant
law. Section 15 of the South Australia Advance Directives Act,
2013 sets out requirements for ‘suitable’ witnesses under the Act.
A person may not be a witness if she is appointed as a substitute
decision-maker under the advance directive, has a direct or indirect
B
interest in the estate of the person executing the advance directive
or is a health practitioner responsible for the health care of the
person executing the advance directive. Similar disqualifications
for witnesses are prescribed in the Oregon Death with Dignity
Act, 2002 when a person makes a written request for medication
for the purpose of ending her life in a humane and dignified manner. C
(c) Under Section 24(3) of the UK Mental Capacity Act, 2005, a
person may alter or withdraw an advance decision at any time he
has the capacity to do so. Under Section 25(2)(c), an advance
decision will not be applicable if a person has done anything else
clearly inconsistent with the advance decision. Under Section D
3.06 of the Oregon Death with Dignity Act, 2005, a person may
rescind her written request for medicating at any time regardless
of her mental state. To allow for a change of mind, Section 3.08
also requires at least 15 days to lapse between the patient’s initial
oral request and the writing of a prescription, while a minimum of
48 hours must elapse between the patient’s written request and E
the writing of a prescription. Under Section 110S of the Western
Australia Guardianship and Administration Act, 1990, a treatment
decision in an advance directive does not operate if circumstances
exist or have arisen that the maker of that directive could not
reasonably have anticipated at the time of making the directive F
and that would have caused a reasonable person in the maker’s
position to have changed her mind about the directive. While
determining whether such circumstances have arisen, the age of
the maker and the period that has elapsed between the time at
which the directive was made and the circumstances that have
arisen are factors that must be taken into account while determining G
the validity of the directive.
(d) Section 26(4) of the UK Mental Capacity Act permits courts
to make a declaration as to whether the advance decision exists,

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384 SUPREME COURT REPORTS [2018] 6 S.C.R.

A is valid, and applicable to a treatment. Under Article 373 of the
Swiss Civil Code, ‘any person closely related to the patient can
contact the adult protection authority in writing and claim that...
the patient decree is not based on the patient’s free will.’ Under
Section 110V, 110W, 110X, 110Y and 110Z of the Western Australia
Guardianship and Administration Act, 1990, any person who has
B
a ‘proper interest’ in the matter, in the view of the State
Administrative Tribunal, may apply to it for a declaration with
respect to the validity of an advance directive. It can also interpret
the terms of the directive, give directions to give effect to it or
revoke a treatment decision in the directive.
C 134. Mr. Datar has suggested that this Court should frame the
guidelines to cover the following aspects:
(a) Who will be competent to execute an advance directive?
(b) In what form will an advance directive have to be issued in
D order to be valid?
(c) Who is to ensure that an advance directive is properly obeyed?
(d) What legal consequences follow from the non-obedience to
an advance directive?
(e) In what circumstances can a doctor refuse to enforce an
E
advance directive?
135. He has given the following suggestions on the aforesaid
aspects:
(a) Only adult persons, above the age of eighteen years and of
F sound mind at the time at which the advance directive is executed
should be deemed to be competent. This should include persons
suffering from mental disabilities provided they are of sound mind
at the time of executing an advance directive.
(b) Only written advance directives that have been executed
G properly with the notarised signature of the person executing the
advance directive, in the presence of two adult witnesses shall be
valid and enforceable in the eyes of the law. The form should
require a reaffirmation that the person executing such directives
has made an informed decision. Only those advance directives
relating to the withdrawal or withholding of life-sustaining treatment
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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 385
[A. K. SIKRI, J.]

should be granted legal validity. The determination that the A
executor of the advance directive is no longer capable of making
the decision should be made in accordance with relevant medical
professional regulations or standard treatment guidelines, as also
the determination that the executor’s life would terminate in the
absence of life-sustaining treatment. The constitution of a panel
B
of experts may also be considered to make this determination.
The use of expert committees or ethics committees in other
jurisdictions is discussed at Para 28 of these written submissions.
(c) Primary responsibility for ensuring compliance with the advance
directive should be on the medical institution where the person is
receiving such treatment. C

(d) If a hospital refuses to recognise the validity of an advance
directive, the relatives or next friend may approach the
jurisdictional High Court seeking a writ or mandamus against the
concerned hospital to execute the directive. The High Court may
examine whether the directive has been properly executed, D
whether it is still valid (i.e. whether or not circumstances have
fundamentally changed since its execution, making it invalid) and/
or applicable to the particular circumstances or treatment.
(e) No hospital or doctor should be made liable in civil or criminal
proceedings for having obeyed a validly executed advance E
directive.
(f) Doctors citing conscientious objection to the enforcement of
advance directives on the grounds of religion should be permitted
not to enforce it, taking into account their fundamental right under
Article 25 of the Constitution. However, the hospital will still F
remain under this obligation.
136. All these suggestions and various aspects of advance
directives have been elaborately considered and detailed directions are
given by the Hon’ble the Chief Justice in his judgment, with which I duly
concur. In summation, I say that this Court has, with utmost sincerity, G
summoned all its instincts for legality, fairness and reasonableness in
giving a suitable answer to the vexed issue that confronts the people on
daily basis, keeping in mind the competing interests and balancing those
interests. It will help lead society towards an informed, intelligent and
just solution to the problem.
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386 SUPREME COURT REPORTS [2018] 6 S.C.R.

A 137. My last remarks are a pious hope that the Legislature would
step in at the earliest and enact a comprehensive law on ‘living will/
advance directive’ so that there is a proper statutory regime to govern
various aspects and nuances thereof which also take care of the
apprehensions that are expressed against euthanasia.
B
Devika Gujral Writ Petition disposed of.

C

D

E

F

G

H