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Judgment
Shrikant D. Kulkarni, J
The petitioner is making extraordinary prayer seeking permission for active euthanasia ( ) through registered medical practitioner by
invoking Article 226 of the Constitution of India.
Shorn of unnecessary details, the facts relevant for deciding the matter are as under :-
(i) The petitioner is aged about 81 years old and permanent resident of Aurangabad. The wife of the petitioner left for heavenly abode on
07.09.2019.
(ii) The petitioner has four sons and one daughter.
According to the petitioner, he has decided to donate his body to respondent No. 2/Government Medical College and Hospital, Aurangabad for the
purpose of research.
(iii) According to the petitioner, he is suffering from -
(1) E/O sacralisation of the L5 vertebra,
(2) E/O Dessication with posterocentrolateral protrusions of the L4-L5, L3-L4, L2-L3, L1-L2 Discs causing thecal sac compression and bilateral
neural foramina stenosis with compression of the bilateral exiting nerve roots at that levels and,
(3) Spinal cord shows normal signal intensities.
He was admitted in Kamalnayan Bajaj Hospital, Aurangabad for the treatment due to enormous pain. He is not in a position to bear with severe pains.
The MRI Lumber Spine of the petitioner was conducted on 14.06.2018 and doctor opined that operation is necessary. However, it was also opined by
the doctor that considering the age of the petitioner, there are remote chances of successful surgery.
(iv) The petitioner is suffering from enormous pain since June, 2018 and it is neither operational nor curable. Due to said back disc problem, he is
bed-ridden and requires assistance for moving from one place to another place. After the sad demise of spouse, there is no one to assist the petitioner.
The sons, daughter in laws are not looking after the petitioner. Even the petitioner is not in a position to go for natural call and he needs assistance
every time. For second time, he was admitted in a private hospital on 03.02.2020 due to severe pain, but doctor again opined that pain and back disc
problems of the petitioner are not curable in view of the age of the petitioner. There is no hope to come out of severe pains.
(v) The petitioner is not mentally and physically able to face severe pain. In the above premise, the petitioner is seeking permission from this Court
to allow him to have active euthanasia in view of the Judgment of the Hon’ble Supreme Court of India in the case ofC ommon Cause(A Regd.
Society) Vs. Union of India and another reported in (2018) 5 SCC 1.
(vi) According to the petitioner, medical treatment is neither reducing his pain nor recovering from back disc problem. It is the stand of the petitioner
that every human being who is an adult and sound mind has a right to determine about his further journey of life. An adult person is entitled to refuse
medical treatment. It is the final word of the patient whether to continue with medical treatment or to refuse it. It is contended by the petitioner that
though Article 21 of the Constitution of India gives guarantee of protection of life and personal liberty and provides that no person shall be deprived of
his life or personal liberty except according to procedure established by law. According to the petitioner, 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. Life does not
intend to live sans liberty as it would be, in all possibility, a meaningless survival. It is further stand of the petitioner that the right to life includes the
right to live with human dignity and all that goes along with bear necessaries of life such as nutrition, clothing, shelter, right of expression, freely
moving etc.
(vii) According to the petitioner, he is not in a position to survive with enormous pain. As such, he is seeking permission/direction to have with the
active euthanasia at the behest of respondent No. 2/registered medical practitioner in the light of law laid down by the Hon’ble Supreme Court of
India in the case of Aruna Shanbaugh and Common Cause (Supra).
(viii) The State/Respondent has strongly opposed to allow such prayer by filing reply-affidavit. It is the stand of the State that active euthanasia is
not permissible in law and if such exercise is made, it would amount to an offence. The Hon’ble Supreme Court in case of Common Cause
(Supra) has only given approval to passive euthanasia. It is further stand of the State Government that Indian Medical Council (Professional Conduct,
antiquate and ethics) Regulation 2002 does not permit such unethical medical practice.
Heard Mr A.B. Girase, the learned Counsel for the petitioner and Mr S.G. Karlekar, learned Assistant Government Pleader for respondent Nos. 1
and 2/State.
SUBMISSIONS OF LEARNED ADVOCATE FOR THE PETITIONER
Mr Girase, learned Counsel for the petitioner invited our attention to the medical certificate of the petitioner and by taking help of the medical
certificate, he has submitted that the petitioner is suffering from -
(1) E/O sacralisation of the L5 vertebra and
(2) E/O Dessication with posterocentrolateral protrusions of the L4-L5, L3-L4, L2-L3, L1-L2 Discs causing thecal sac compression and bilateral
neural foramina stenosis with compression of the bilateral exiting nerve roots at that levels and,
(3) Spinal cord shows normal signal intensities.
The petitioner is suffering from severe pains and due to advanced age, surgery is not possible. The petitioner is an adult and having sound mind. He
has decided to donate his body to the Government Medical College and Hospital at Aurangabad for research purpose. The petitioner has lost his better
half in the mid-way and as such, it has become difficult for the petitioner to live alone though there are members in the family. Mr Girase, learned
Counsel invited our attention that though Article 21 of the Constitution of India provides protection of life and personal liberty, equally speaks life with
dignity. The petitioner is unable to live with dignity with enormous pain which he is undergoing. Mr Girase submitted that petitioner has taken
conscious decision by taking into consideration his prolonged illness and pains to end his life which needs to be respected. Mr Girase pressed the need
to accord permission for active euthanasia in the background of old age and severe medical problems of the petitioner.
To buttress argument, Mr Girase, learned Counsel has placed reliance on following stock of citations.
(I) P. Rathinam Vs. Union fo India (1994) 3 SCC 394
(II) Gian Kaur Vs. The State of Punjab (1996) 2 SCC 648
(III) Aruna Ramchandra Shanbaugh Vs. Union of India and others (2011) 4 SCC 454
(IV) Common Cause (Registered Society) Vs. Union of India and Anr. (2018) 5 SCC 1.
SUBMISSIONS OF ASSISTANT GOVERNMENT PLEADER
Mr S.G. Karlekar, learned Assistant Government Pleader while giving reply also heavily placed reliance on the Judgment of the Hon’ble
Supreme Court of India in case of Aruna Ramchandra
Shanbaugh Vs. Union of India and others (2011) 4 SCC 454 and Common Cause (Registered Society) Vs. Union of India and Anr. (2018) 5 SCC 1.
By placing reliance on the above said decisions of the Hon’ble Supreme Court of India, Mr Karlekar submitted that active euthanasia is not
permissible in India. The prayer for active euthanasia made by the petitioner needs to be turned down. Mr Karlekar, learned Assistant Government
pleader further invited our attention to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. He submitted that
practicing euthanasia may amount to unethical conduct.
We have considered arguments canvassed by Mr Girase, learned Counsel for the petitioner and Mr Karlekar, learned Assistant Government
Pleader for the State. We have also perused the medical certificate of the petitioner.
DISCUSSION
It is undisputed that the petitioner is 81 years old and suffering from -
(1) E/O sacralisation of the L5 vertebra
(2) E/O Dessication with posterocentrolateral protrusions of the L4-L5, L3-L4, L2-L3, L1-L2 Discs causing thecal sac compression and bilateral
neural foramina stenosis with compression of the bilateral exiting nerve roots at that levels and (3) Spinal cord shows normal signal intensities.
Let us see what is euthanasia. Euthanasia means intentional premature termination of life of another person as per his request to have a “good
deathâ€. There are types of euthanasias. They are as under :-
(I) Active euthanasia (II) Passive euthanasia (III) Voluntary euthanasia
(IV) Non voluntary euthanasia
(V) Involuntary euthanasia.
The Hon’ble Supreme Court in case of Common Cause Vs. Union of India (supra) has elaborated above types of euthanasia in following
words :-
(I) Active euthanasiaâ€" Causing death of a person with his/her consent by direct medical intervention â€" Some positive act on part of person
causing death necessary.
(II) Passive euthanasiaâ€" Withholding or withdrawing life prolonging medical treatment in accordance with express or implied will of terminally ill,
permanent vegetative state (PVS) brain dead patient resulting in his/her death.
(III) Voluntary euthanasia- Terminating life at request of patientâ€"Request may be made prior to development of illness or during course of illness.
(IV) Non-voluntary euthanasiaâ€" Terminating life without patient’s consent â€" It may be for patient’s good on proxy request when not in
position to express own views; an alternative to non-treatment.
(V) Involuntary euthanasiaâ€" Terminating life against patienty’s will â€" Human and Civil Rights â€" Right to Die/Euthanasia.
Much water has flown under the bridge since the year 1994. In case of P. Rathinam Vs. Union of India (supra), the Hon’ble Supreme Court
has declared section 309 of Indian Penal Code as ultra vires. In the year 1996, while rendering decision in Gian Kaur Vs. The State of Punjab (supra),
the Constitution Bench of the Hon’ble Supreme Court upheld the Constitutional validity of section 306 and 309 of Indian Penal Code overruling
decision in P. Rathinam’s case.
In case of Gian Kaur Vs. The State of Punjab (supra), the Constitution Bench of the Hon’ble Supreme Court held that Article 21 guarantees
protection of life and personal liberty. Extinction of life cannot be included in phraseology protection of life. Article 21 of the Constitution cannot be
construed to include within it right to die as part of fundamental right. Suicide is unnatural termination or extinction of life and inconsistent with concept
of right of life.
The same view is percolated in the case of Aruna Ramchandra Shanbaugh Vs. Union of India and others (supra).
It is once again held by the Supreme Court of India in Aruna Shanbaugh case that right to life guaranteed by Article 21 of the Constitution of India
does not include the right to die. As such, the petition under Article 32 of the Constitution of India came to be dismissed.
The Hon’ble Supreme Court has highlighted various terms with meaningâ€
“Brain deathâ€â€" Means complete absence of voluntary movements â€" This patient can only be maintained alive by advanced life support
machine-- These patients can be legally declared dead to allow their organs to be taken for donation.
“Coma†Patientsâ€" These patients are unconsciousâ€" They can not be awakened even by application of a painful stimulesâ€"They have
normal heart beat and breathing and do not require advanced life support.
“Permanent vegetative stageâ€-- In PVS complete absence of behavioral evidence for self or environmental awareness--â€They can not
voluntarily control passing of urine and stoolsâ€"They have normal heart beating and breathingâ€"There is no threat to life and can survive for many
years.
“Lifeâ€"Scope ofâ€"Held-- Life is not mere living in health and health is not the absence of illness but a glowing vitaility.
“Withdrawal of life supportâ€-- Means and scopeâ€"Held-- Withdrawal of life support by “Doctor is in law, considered as an omission and
not a positive steps to terminate lifeâ€" Later would be euthanasia and a criminal offence.
“Active and Passive Euthanasiaâ€-- Held--Active euthanasia entails use of lethal substances or forces to kill a person while passive euthanasia
entails with holding of medical treatment for discontinuance of life.
“Permanent Vegetative Stageâ€-- Characteristicâ€"Held-Distinguishing characteristic of PVS is that the brain stem remain alive and
functioning while the cortex has lost its functionsâ€"So PVS patient continues to breath unaided and his digestion continues to functionâ€"Though his
eye are open but unable to see and hear.
Indian Penal Code, 1860-Section 309â€"Attempt to suicide-Legalityâ€"Held--Although Section 309 I.P.C. has been held to be constitutional valid
but time has come when it should be deleted by parliament as it has become anachronisticâ€"A person attempt to suicide in a depression and needs
help.
“Withdrawal of Life Support†of PVS Patient-- Requisite â€"Held--A decision has to be taken to discontinue life support either by the parents
or 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 persons acting as a
next friendâ€"It can also be taken by doctor attending the patientâ€"Decision should be taken bona fide in the best interest of the patient.
Constitution of India, 1950â€"Article 226--Withdrawal of life supportâ€"Competent courtâ€"Held--It is the High Court under Article 226 of
Constitution which can grant approval for withdrawal of life support to a competent personâ€"High Court under Article 226 of Constitution is not only
entitled to issue writ but i9s also entitled to issue directions and orders.
Application for “withdrawal of life supportâ€--Procedure to be adoptedâ€"Held--When application for withdrawal of life support is filed than
the Chief Justice of High Court should forth with constitute a Bench of two Judges who should decide to grant approval or notâ€"Before doing so
Bench should seek opinion of expertsâ€"For this purpose a panel of Doctors in every city be prepared.
As on today, we have recent landmark decision of the Constitution Bench of the Hon’ble Supreme Court known as Common Cause
(Registered Society) Vs. Union of India (supra).
The Constitution Bench of the Hon’ble Supreme Court after analyzing the decision in case of Gian Kaur Vs. The State of Punjab (supra)
elaborated the term passive euthanasia along with Article 21 of the Constitution of India. The Apex Court held that passive euthanasia is a complex
issue and it requires consideration of morale, ethical, religious, philosophical, social, economic, penal and constitutional aspects.
The Constitution Bench of the Hon’ble Supreme Court in para Nos. 607 to 611 has held as under :-
The two-Judge Bench in Aruna Ramchandra Shanbaug v. Union of India 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, 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 “Noâ€. 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 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 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.
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 tasks of this
Court is not to weigh or evaluate or reflect different beliefs 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.
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.
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. 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 be taken.
The rights of bodily integrity and self-determination are the 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 in a persistent vegetative state (PVS). The question is 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 stakeholders; 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 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 an 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 Shanbaug, 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
paras 130 to 131 following has been held (SCC p. 521)
“130. In our opinion, in the case of an incompetent person 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.
Under which provision of law can the Court grant approval for withdrawing life support to an incompetent person.
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 the Constitution states:
‘226. Power of High Courts to issue certain writs
â€" (1) Notwithstanding anything in Article 32, every High Court shall have power, through the territories in relation 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 III and for any other purpose.’
A bare perusal of the above provisions shows that the High Court under Article 226 of the Constitution is not only entitled to issue writs, but is also
entitled to issue directions or orders.â€
The Constitution Bench of the Hon’ble Supreme Court has issued advanced medical directive by observing that in our country there is yet no
legislation pertaining to advanced medical directive. The Constitution Bench of the Supreme Court arrived at following conclusions :-
629.1. 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 life up to the point of death including a dignified procedure of
death. The above right was held to be part of fundamental right enshrined under Article 21 of the Constitution which we also reiterate.
629.2. 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
case did not express any binding view on the subject of euthanasia. We hold that no binding view was expressed by the Constitution Bench on the
subject of euthanasia.
629.3. 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 though with object of relieving
the patient from pain and suffering. The latter was held not to be covered under any right flowing from Article-21.
629.4. 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 administering
any lethal drug even if the objective is to relieve the patient from pain and suffering.
629.5. 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.
629.6. Euthanasia as the meaning of word suggests 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 the above reasons.
629.7. 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 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.
629.8. The right of patient who is incompetent to express his view cannot be outside the fold of Article 21 of the Constitution of India.
629.9. We are also of the opinion that in cases of incompetent patients who are unable to take an informed decision,â€the best interests principle†be
applied and such decision be taken by specified competent medical experts and be implemented after providing a cooling period to enable aggrieved
person to approach the court of law.
629.10. 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
Medical Directive is to express the choice of a person regarding medical treatment in an event when he loses capacity to take a decision. The right to
execute an Advance Medical Directive is nothing but a step towards protection of the aforesaid right by an individual.
629.11. Right of execution of an Advanced 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 exercises by an individual in recognition and in affirmation of his right of bodily integrity and self-
determination.
In view of our conclusions as noted above the writ petition is allowed in the following manner:
630.1. 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
which we reiterate.
630.2. 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.
630.3. A person of competent mental faculty is entitled to execute an Advance Medical Directive in accordance with safeguards as referred to above.
In exercise of the powers conferred under Section 20A read with Section 33(m) of the Indian Medical Council Act, 1956 (102 of 1956), the
Medical Council of India with the previous approval of the Central Government has made regulations relating to the Professional Conduct, Etiquette
and Ethics for registered medical practitioners. These regulations are known as the Indian Medical Council (Professional Conduct, Etiquette and
Ethics), Regulations, 2002 and they shall come into force w.e.f. 11th March, 2002. The Regulation 6.7 governs the subject of euthanasia. It reads thus
:-
6.7. Euthanasia : Practicing euthanasia shall constitute unethical conduct. However, on specific 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. A team of doctors shall declare withdrawal of support system. Such team shall consist of the doctor in charge of the patient, Chief
Medical Officer/Medical Officer in charge of the hospital and a doctor nominated by the in-charge of the hospital from the hospital staff or in
accordance with the provisions of the Transplantation of Human Organ Act, 1994.
In view of the regulation 6.7, active euthanasia through registered medical practitioner is also not permissible in India.
Now, turning back to the facts of the case in hand and the law stands as on today. It is true that petitioner is 81 years and suffering from various
diseases. He is facing enormous pain and agony day to day, it becomes difficult for him to face such medical problems. It is his wish to have a
“good death†by means of active euthanasia by taking help of registered medical practitioner. In view of landmark decision in case of Common
Cause (supra), active euthanasia is not permissible in India. Article 21 of the Constitution gives guarantee to life which does not include right to die. In
exceptional circumstances, the Hon’ble Supreme Court has prescribed the procedure for passive euthanasia.
The Apex Court in a landmark decision in the case of Aruna Ramchandra Shanbaugh (supra) has allowed passive euthanasia. Refusing mercy
killing of Aruna Shaunbagh, lying in a vegetative state in a Mumbai Hospital for 37 years, laid down a set of guidelines under which passive euthanasia
can be legalized through a High Court monitored mechanism. It is stated that parents, spouses, or close relatives of the patient can make such a plea
to the High Court. The Chief Justice of the High Courts, on receipt of such a plea, would constitute a bench to decide it. The bench in turn, would
appoint a Committee of at least 3 renowned doctors to advise the Court on the prayer made in the matter.
Adverting to the concept of euthanasia, it is observed by the Hon’ble Supreme Court in case of Gain Kaur (supra) that protagonism of
euthanasia on the view that existence in persistence 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 dieâ€. The “right to life†includes the right to live with human dignity would
mean the existence of such a right up to the end of natural life. It has 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 reducing the natural span of life.
The case of the petitioner is not governed by passive euthanasia. The petitioner is not restricted to bed, he is discharging his daily pursuits though
taking assistance of family members. We can understand pains of the petitioner which he is facing and lonely life when his better half has left him
alone in the mid-way. By this petition, the petitioner is seeking intervention to curtail his natural span of life through registered medical practitioner.
Certainly, it is not lawful for the doctor to administer any drug to his patient to bring about his death. Active euthanasia falls in the definition of crime.
The difference between “active†and “passive†euthanasia is that in active euthanasia, something is done to end the patient’s life while in
passive euthanasia, something is not done that would have preserved the patient’s life. We have all the sympathy with the petitioner, but we are
unable to accede to the request made by the petitioner for termination of life by way of active euthanasia.
With these reasons, we conclude and proceed to pass the following order :-
ORDER
(I) The writ petition stands dismissed.
(II) No order as to costs.