The Supreme Court (SC) of India, on December 26, 2023, passed a judgment on significantly easing the procedure for passive euthanasia in the country. The five-judge bench of the SC, comprising justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar headed by K.M. Joseph, passed this order by altering the existing guidelines for ‘living wills’ as was previously laid in its 2018 judgment in the Common Cause vs Union of India & Anr case, which allowed passive euthanasia.
Understanding Euthanasia and Living Will
The practice of a patient’s wilfully deciding to end his/her life to limit his/her suffering due to an incurable condition of ailment or an intolerable pain or suffering is called euthanasia. Euthanasia can either be ‘active’ or ‘passive’ and can be administered only by a physician to end a patient’s life. Active euthanasia refers to the use of lethal substances or forces such as administration of an injection of one or more drugs to a person for causing rapid death. Passive euthanasia refers to withdrawal or withholding of the treatment that is necessary to keep a terminally ill person alive.
The SC, in 2018, had legalised passive euthanasia in India if there was a ‘living will’ from the person. A living will is a statement given in writing by the terminally ill person specifying on the actions to be taken in case he/she is unable to make his/her own medical decisions in the future. In case a person does not have a living will, then the family members of the patient could make a plea before the high court and seek permission for passive euthanasia.
Supreme Court Ruling on Euthanasia in 2018
In 2011, activist and author, Pinki Virani, had filed a petition in the SC and sought permission to stop administering life-supporting drugs to Aruna Shanbaug as her mere existence was a ‘violation of her right to live in dignity’. Aruna Shanbaug was a nurse at the King Edwards Memorial (KEM) Hospital in Bombay who had been sexually assaulted and raped in 1973, at the age of 25. She was strangled with a chain, leading to the deprivation of oxygen that left her in a vegetative state. She was treated at the KEM hospital following the incident and was kept alive by a feeding tube for more than four decades. This petition was then dismissed by the SC because the hospital staff who treated her did not support euthanising her. Ultimately, Shanbaug died of pneumonia in 2015.
Despite rejecting Pinki Virani’s petition on passive euthanasia for Aruna Shanbaug, the SC legalised passive euthanasia which did not include the withdrawal of treatment or food that would allow the patient to be alive. However, the 2011 petition on euthanasia helped the SC to come out with the 2018 landmark verdict on euthanasia.
A five-judge constitution bench headed by the then Chief Justice of India (CJI), Dipak Misra, allowed passive euthanasia while recognising the living wills of the terminally-ill patients who would go into a permanent vegetative state. The CJI issued guidelines regulating the procedure and stated that they would come into force once Parliament passed a legislation on them. As the legislation was not passed in Parliament, the absence of a law on this subject rendered the 2018 judgment the last conclusive set of directions on euthanasia.
The SC ruling on Euthanasia in 2018 states that
- the living will has to be attested or countersigned by a judicial magistrate.
- the living will has to be kept in the custody of the concerned district court.
- the primary board of doctors should comprise at least four experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology, with an overall standing in the profession for at least 20 years.
- if the primary medical board has certified that the treatment should be withdrawn in terms of the instructions contained in the living will, the concerned district collector has to constitute the second board of medical experts. However, there was no specific timeline set for the secondary medical board.
The 2018 verdict, however, did not lay down any other time limit for the primary board on the execution of the living will. There was no specification on any other limit on the withdrawal of the treatment.
State of Affairs before the 2018 Verdict on Passive Euthanasia
In 1994, the constitutional validity of the Indian Penal Code (IPC) Section 309 was challenged in a case. Section 309 of the IPC mandates up to one year of imprisonment in case of a person’s attempt to commit suicide. The SC deemed the section to be a ‘cruel and irrational provision’ which deserved to be removed from the statute book to ‘humanise our penal laws’. In the P. Rathinam vs Union of India case, the court ruled that an act of suicide could not be against any religion, morality or public policy. Further, an act of attempted suicide has no harmful effect on the society.
However, in 1996, a five-judge bench of the court overturned the decision in the P. Rathinam vs Union of India case. In its verdict in the Gian Kaur vs The State of Punjab case, the Court stated that the right to life under Article 21 did not include the right to die, and only legislation could permit euthanasia.
In 2006, the Law Commission of India in its 196th Report, titled, ‘Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners)’ had stated that “a doctor who obeys the instructions of a competent patient to withhold or withdraw medical treatment does not commit a breach of professional duty and the omission to treat would not be an offence.” The SC also stated that a patient not wanting to receive medical treatment does not mean an attempt to commit suicide under Section 309 IPC.
In 2008, the Law Commission’s 241st Report On Passive Euthanasia: A Relook’, had proposed a legislation on ‘passive euthanasia’, and further prepared a draft bill.
In 2011, the SC allowed passive euthanasia for Aruna Shanbaug in the Aruna Ramachandra Shanbaug vs Union of India & ORS case. The SC also made a clear distinction between ‘active’ and ‘passive’ euthanasia and allowed passive euthanasia in certain conditions.
New Ruling of SC on Norms for Passive Euthanasia
In December 2023, the SC was considering a plea, argued by senior counsel Arvind Datar and advocate Prashant Bhushan. They were arguing on behalf of the petitioners, who stated that the three-step process surrounding difficult conditions has made the entire judgment worthless. Further, there has not been a single case where someone desirous of exercising the right to passive euthanasia could finally comply with the procedural requirements. New norms say:
- An attestation by a notary or a Gazetted officer would be sufficient for a living will instead of the sign of a judicial magistrate.
- The bench stated that the living will would be a part of the national health digital record which could be accessed by the hospitals and doctors from any part of the country.
- The bench also brought about a significant change in the constitution of primary and secondary board of doctors for examining the condition of the patient. The new ruling stated that the primary board would constitute a team of three doctors which would include the treating physician and two other doctors with five years of experience in the speciality.
- The SC set the timeframe of 48 hours for the primary board to decide on the withdrawal of further treatment to the patient and executing the living will.
- Furthermore, if the primary medical board has certified that the treatment of the patient has to be withdrawn according to the instructions of the living will, then the hospital would, at once, constitute a secondary medical board. The secondary medical board would comprise a doctor nominated by the chief medical officer (CMO) of the district concerned and two subject experts of the relevant speciality. The expert doctors should have minimum five years of experience and they should not be a part of the primary board. If the board needs to review the case or consult with others then the secondary board would decide within 48 hours on the execution of the living will. Once both the boards approve the execution of the living will, the jurisdictional magistrate would be immediately intimated about the decision.
- In case the medical boards set up by the hospital refuses permission, it would now be open to the kin to approach the high court which would form a fresh medical team. The high court would then form a fresh board of medical experts in order to take a final call on the execution of the living will.
- The board members who are the executors of the living will on behalf of the terminally ill patient could take a decision on the final call. The same way, the family members of the terminally ill patient could also make a decision on the withdrawal of the treatment subject to the safeguards and the procedure mentioned.
Way forward
The bench, further in its order, stated that the new guidelines should be sent to all the high courts. The high courts must frame appropriate rules in accordance with the ruling regarding the storage of digital records of the living wills. Additionally, all the high courts must inform the health secretaries of the states and the union territories to communicate the same to the CMOs of all the districts.
The central government has informed the bench that it would not enact a law on passive euthanasia as the anxiety to take someone’s life must not outweigh the requirement of essential safeguards. It further stated that the SC ruling of 2018 on allowing passive euthanasia after complying with certain safeguards is sufficient, hence, there is no need for a specific law on the subject matter.
Euthanasia Rules in Other Countries
- Netherlands, Luxembourg, and Belgium allow euthanasia and assisted suicide for patients facing ‘unbearable suffering’ with no chance of improvement.
- Switzerland allows assisted dying in the presence of a doctor.
- Canada allows euthanasia and assisted dying for mentally ill patients since March 2023.
- In the US, euthanasia is allowed in some states like Washington, Oregon, and Montana.
- The UK considers euthanasia illegal.
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