Common Cause (A Regd. Society) v. Union of India – (2014) 5 SCC 338 [Euthanasia reference to Constitution Bench]

                         IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION


                      WRIT PETITION (CIVIL) NO. 215 OF 2005

Common Cause (A Regd. Society)               .... Petitioner (s)

            Versus

Union of India                                          ....   Respondent(s)
                                      
                                  O R D E R

P.Sathasivam, CJI.

1)    This writ petition, under Article 32 of  the  Constitution  of  India,
has been filed by Common Cause-a  Society  registered  under  the  Societies
Registration Act, 1860 engaged in taking up various common problems  of  the
people for securing redressal, praying for  declaring  ‘right  to  die  with
dignity’ as a fundamental right within the  fold  of  ‘right  to  live  with
dignity’ guaranteed under Article  21  of  the  Constitution  and  to  issue
direction to the respondent, to adopt suitable procedures,  in  consultation
with the State Governments wherever necessary, to ensure  that  the  persons
with deteriorated health or terminally ill  should  be  able  to  execute  a
document, viz., ‘my living will  &  Attorney  authorization’  which  can  be
presented to 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  or  in  the  alternative,   issue
appropriate guidelines to this effect and to  appoint  an  Expert  Committee
consisting of doctors, social scientists  and  lawyers  to  study  into  the
aspect of issuing guidelines regarding execution of ‘Living Wills’.

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

3)    In the above said communication, the  petitioner  had  emphasized  the
need for a law to be passed which  would  authorize  the  execution  of  the
‘Living Will & Attorney Authorization’. Further, in the second  letter,  the
petitioner-Society particularly relied on the  decision  of  this  Court  in
Gian Kaur vs. State of Punjab (1996) 2  SCC  648  to  support  its  request.
Since no reply has been received, the petitioner-Society has preferred  this
writ petition.

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

Contentions:

5)    According to the petitioner-Society, 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 artificially  prolong  their
natural life span.  Thus, the denial of this right  leads  to  extension  of
pain and agony both physical as well as mental which the  petitioner-Society
seeks to end by making an informed  choice  by  way  of  clearly  expressing
their wishes in advance called “a Living Will” in the event of  their  going
into a state when it will not be possible for them to express their  wishes.


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

           “Practicing  euthanasia  shall  constitute  unethical   conduct.
           However, on  specific  occasion,  the  question  of  withdrawing
           supporting devices  to  sustain  cardiopulmonary  function  even
           after brain death, shall be decided only by a  team  of  doctors
           and not merely by  the  treating  physician  alone.  A  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 addition, the  respondent  relied  on  the  findings  of  this  Court  in
Parmanand Katara vs. Union of India (1989)  4  SCC  286  to  emphasise  that
primary duty of a doctor is to  provide  treatment  and  to  save  the  life
whenever an injured person is brought to the  hospital  or  clinic  and  not
otherwise.

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

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

Discussion:

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

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

11)   Therefore, although the discussion on euthanasia was not relevant  for
deciding the question of Constitutional validity  of  the  said  provisions,
the Constitution Bench went on to concisely  deliberate  on  this  issue  as
well in the ensuing manner:-

           “24. Protagonism of euthanasia on the  view  that  existence  in
           persistent vegetative state  (PVS)  is  not  a  benefit  to  the
           patient of a terminal illness being unrelated to  the  principle
           of Sanctity of life' or the 'right to live with dignity'  is  of
           no assistance to determine the scope of Article 21 for  deciding
           whether the guarantee of 'right to life'  therein  includes  the
           'right to die'. The 'right to life' including the right to  live
           with human dignity would mean the existence of such a  right  up
           to the end of natural life. This also includes the  right  to  a
           dignified life up to the point of death  including  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.

           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 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 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.”

In succinct, the Constitution 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.

12) In Aruna Shanbaug (supra), this Court,  after  having  referred  to  the
aforesaid Para Nos. 24 and 25 of Gian Kaur (supra), stated as follows:-

          “21. We have carefully considered paragraphs 24  and  25  in  Gian
          Kaur's case (supra) and we are of the opinion that  all  that  has
          been said therein is that the view in Rathinam's case (supra) that
          the right to life includes the right to die  is  not  correct.  We
          cannot construe Gian Kaur's case (supra) to mean  anything  beyond
          that. In fact, it has been specifically mentioned in paragraph  25
          of the aforesaid decision that "the debate even in such  cases  to
          permit physician assisted termination of  life  is  inconclusive".
          Thus it is obvious  that  no  final  view  was  expressed  in  the
          decision in Gian Kaur's case beyond what we have mentioned above.”

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


13)   Insofar as the above paragraphs are concerned, Aruna Shanbaug  (supra)
aptly interpreted the decision  of  the  Constitution  Bench  in  Gian  Kaur
(supra) and came to the conclusion that euthanasia can be allowed  in  India
only through a valid legislation. However, it is factually wrong to  observe
that in Gian Kaur (supra), the Constitution Bench approved the  decision  of
the House of Lords in Airedale vs. 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 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.

14)   Nevertheless, a vivid reading of Para 104 of  Aruna  Shanbaug  (supra)
demonstrates that the reasoning in Para 104 is  directly  inconsistent  with
its own observation in Para 101. Para 104 reads as under:-
           “104. It may be noted that in Gian Kaur's case (supra)  although
           the Supreme Court has quoted with approval the view of the House
           of Lords in Airedale's case (supra), it has  not  clarified  who
           can decide whether life support should be  discontinued  in  the
           case of an incompetent 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 for withdrawal of life support. This  is  an
           extremely important question in India because of the unfortunate
           low  level  of  ethical  standards  to  which  our  society  has
           descended, its raw and  widespread  commercialization,  and  the
           rampant corruption, and hence, the Court has to be very cautious
           that unscrupulous persons who wish to inherit  the  property  of
           someone may not get him eliminated by some crooked method.”


15)   In Paras 21 & 101, the Bench  was  of  the  view  that  in  Gian  Kaur
(supra), the Constitution Bench held that euthanasia could  be  made  lawful
only by a legislation. Whereas in Para 104, the Bench  contradicts  its  own
interpretation of Gian Kaur (supra) in Para 101  and  states  that  although
this court  approved  the  view  taken  in  Airedale  (supra),  it  has  not
clarified who can 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 whether  the  life  support
should be discontinued in the case of an incompetent person e.g.,  a  person
in coma or PVS.

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

17)   In view of  the  inconsistent  opinions  rendered  in  Aruna  Shanbaug
(supra) and also considering the important question of  law  involved  which
needs  to  be  reflected  in  the  light  of  social,  legal,  medical   and
constitutional perspective, it becomes extremely important to have  a  clear
enunciation of law. Thus,  in  our  cogent  opinion,  the  question  of  law
involved requires careful consideration by  a  Constitution  Bench  of  this
Court for the benefit of humanity as a whole.

18)    We refrain from framing any specific questions for  consideration  by
the Constitution Bench as we invite the Constitution Bench to  go  into  all
the aspects of the  matter  and  lay  down  exhaustive  guidelines  in  this
regard.

19)   Accordingly, we refer this matter to  a  Constitution  Bench  of  this
Court for an authoritative opinion.


                                  ……….…………………………CJI.
                                     (P. SATHASIVAM)

                                    ………….…………………………J.
                                      (RANJAN GOGOI)

                                  ………….…………………………J.
                                      (SHIVA KIRTI SINGH)



NEW DELHI;
FEBRUARY 25, 2014.

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