In a landmark judgment, a Constitution Bench of the Supreme Court of India, on 9 March, confirmed that the right to die with dignity is a fundamental right. The bench upheld the legal validity of passive euthanasia, and allowed the preparation of living wills or advance directives for passive euthanasia.
The five judges – CJI Dipak Misra and Justices DY Chandrachud, AM Khanwilkar, AK SIkri and Ashok Bhushan – have written four separate but concurring judgments, but are unanimous on the main points.
Here’s what we know so far:
1. Right to Die With Dignity Does Not Include Active Euthanasia
The Supreme Court has previously held that there is a fundamental right to die with dignity, but there has been some confusion as to what this includes. This case was meant to address the confusion, so there should be some clarity now.
The right to die with dignity will not include active euthanasia, that is, actively terminating the life of a terminally ill person by using drugs or other means, where they are not at the time dependent on life support. It is also expected that the right will not include assisted suicide for people, who are not terminally ill.
2. Passive Euthanasia Upheld
The Aruna Shanbaug judgment had allowed passive euthanasia for a terminally-ill patient who was in a vegetative state, but it was argued that this judgment had come about based on a wrong interpretation of the law, and that passive euthanasia wasn’t actually legal in India.
The Constitution Bench has now conclusively held that passive euthanasia – allowing a person in a vegetative state or otherwise completely dependent on life support to die by not continuing medical treatment/support – is legal.
3. Living Will Allowed but Regulated
The SC has also held that living wills are valid in India. A living will or advance directive is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill, or no longer able to express informed consent. The person can use this to say that they don’t want to be kept on life support if they become dependent on it, allowing them to die.
The Supreme Court has, according to Bar & Bench, set out guidelines on who can execute a living will, what the document can contain, and how it can be enforced (ie, how it should be presented to a hospital, and the procedure the hospital then needs to follow).
4. Passive Euthanasia When There is No Living Will
Not every patient will have prepared their own living will, so the SC has also set out a procedure for how passive euthanasia can be allowed in such situations. In the absence of a living will by the patient, their family members or ‘next friend’ can approach an applicable High Court to ask for passive euthanasia.
The Court has included detailed guidelines in the judgment on when this will be allowed, and how the High Courts will need to deal with such requests.