LIVING WILL

Dr. Manoj Malik
Principal
S.D.B.Law College, Sikandrabad (BSR)

The Supreme Court upheld passive euthanasia and the right to give advance medical directives or “Living Wills to smoothen the dying process as part of the fundamendtal right to live with dignity.”1 A five judge Constitution Bench, led by Chief Justice of India Dipak Misra and Justices A.K.  Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, in four separate and concurring opinions, ruled on 09th March 2018 that the fundamental right to life and dignity under Article 21 of the Constitution includes the “right to die with dignity.” Dignity is lost if a man is alllowed or forced to undergo pain and suffering because of “unwarranted medical support.” 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 permanent vegetative state, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity,” Chief justice Misra held in his opinion, shared by Justice A.M. Khanwilkar.  In his separate opinion, Justice D.Y. Chandrachud observed that “to deprive a person dignity at the end of life is to deprive him  of a meaningful existence.” Meaningful existence includes a person’s right to self determination and autonomy to decide his medical treatment, the court held. Justice Ashok Bhushan agreed that right to a dignified life includes “a dignified procedure of death.” Justice A.K. Sikri in his separate opinion, said though religion, morality, philosophy, law and society have conflicting opinions about whether right to life includes the right to die, they all agree that a person should die with dignity. The court described the exact state at which suffering robs a dying person of his dignity. A state where the treating physicians and the family members know fully well that the tratement is administered only to procrastinate the continum of breath and the patient is not even aware that he is breathing chief justice Misra wrote. Justice Chandrachud said modern medical science should balance its quest to prolong life with the task of ensuring qualify of life. One is meaningless without the other, he added.  The court distinguished passive euthanasia from suicide and active euthanasia. It called passive euthanasia as a mere acceleration of the inevitable conclusion. Active euthanasia, the court concluded is unlawful. Suicide involves overt acts which culminates in an unnatural death.  A valid Living Will facilitates passive euthanasia. A failure to legally recognise an advance medical directive inconveniences the right to smoothen the dying process, the court reasoned. In cases of terminally ill or permanently vegetative state patients, where there is no hope for revival, priority should be given to the Living WEills and the right of self determination.  The Court referred to how societal pressure and fear of cirminal liability by relatives and medical doctors had led to suffering and undignified deaths. Relatives also fear being accused of prematurely letting loved ones die.  Doctors dither, apprehending criminal liablity and of being sucked into a vortex of litigation, it said. Chief Justice Misra said this judgement clears the maze. By removing the social stigma against passive euthanasia and legalising it, the court has put humaneness on a high pedestal, he observed. The verdict includes specific guidelines to test the validity of a Living Will by whom it should be certified, when and how it should come into effect. The guidelines also cover a situation where there is no Living Will. These guidelines would stand fast till a legislation on passive euthanasia and Living Wills is passed. Justice Chandrachud said the sanctity of life, a meaningful existence and the pursuit of happiness include the exercise of free will.  Free will includes the right of a person to refuse medical treatment, he wrote. The Constitution Bench dismissed an earlier view by a two judge Bench of the Supreme Court in the Aruna Shanbaug case that passive eudhanasia can be legalised only through a parliamentary statute.  Chief Justice Misra held that a dying man’s choice to end his life is a fundamental right,  and more so, his natural human right. He does not require a ligislation to exercise this right.  “The court has laid down a much needed legal framework for enforcing living wills. The core philosphy underlying the Supreme Court’s verdict allowing passive eudhanasia and giving legal status to advance directives is that the right to adignified life extends up to the point of having a dignified death.”2 “In assertinhg” the right to die with dignity and givein legal sanction to passive eudhanasia and living wills, Supreme Court has reiterated the individual’s sovereignty over the body.”3  In a “milestone verdict expanding the right to life to incorporate the right to die with dignity, the Supreme Court legalised passive eudhanasia and approved living will to provide terminally ill patients or those in persistent and incurable vegetative state (PVS) a dignified exit by refusing medical treatment or life support.”4 Giving a philosophical tinge to his legal view on decriminalisig suicide in his 134 pages judgement, Justice D Y Chandrachud said, “It may also be argued that the right to life and the right to die are not two separate rigths but two sides of the same coin.”5  In writing “such a living will, we can state the conditions under which we do not wish to have life support instituted or prolonged. By doing so, we spare ourselves the indignity of being traumatised by unhelpful medical interventions that doctors resort to from compulsion rather than conviction when dealing with terminally ill person in vetative state. Equallly important , we can spare our loved ones the agony of helplessly watching us painfully waste away while being plagued by doubts on what they should do for us in that situation. Perhaps that is the best parting gift we can give them, even as we ease ourselves out of a life that is not worth being stretched further at the cost of prolonged suffering. A graceful exit is now possible, thanks to the Supreme Court. I salute the judgement – as a doctor, caring family person and one who is about to write a living will.”6 While recognising passive euthanasia, the SC has allowed advance directive, or living will, by which patients can spell out whether treatment can be withdrawn if they fall terminally ill or are incompetent to express their opinion. – Adult with a sound and healthy mind can make a living will- It should be voluntarily executed, based on informed consent. – It should be expressed in clear and unambiguous terms. – Circumstances in which treatment should be withheld or withdrawn – Specify that the will can be revoked any time – Name of the guardian or close relative who will give the go – ahead for starting passive euthanasia.- The will shall be attested by two witnesses and preferably counter-signed by a first class judicial migistrate- The magistrate shall preserve one had copy and one soft copy each and forward to the district court registry- Copy will be given to a local govt. official who shall nominate a custodian for the will. Two important events that took place in Mumbai have played a key role in pushing the cause of passive euthanasia and giving it a country wide momentum. Late Mumbai based social activist and politician Minoo Masani was among the first to openly talk about the sensitive topic and also form the society for the right to die with dignity (SRDD) way back in 1981. An then, in 2009, journalist Pinki Virani’s mercy killing petition in the Supreme court of KEM Hospital nurse Aruna Shanbaug who was in a vegetative state since she was sexually assaulted on 27th Nov. 1973, triggered further debates.  Talking about taking away someone’s life even if there is terminal illness was not considered right. There are apprehensions even now. To talk about this back in the 1980s was very bold of Mr. Masani, says Dr. Surendra Dhelia, Joint secretary of SRDD that currently has 500 odd members, mostly from Mumbai. SRDD has been for long crusading about a living will or iccha maran. We are all exteremly dilighted witht he SC order. We have been talking about it for a very long time now, said Dr.Dhelia , a family physician from Girgaon. Thus, In its path breaking verdict linking right to life with right to die with dignity, the Supreme Court gave a historical judgement.
References :1. SC upholds passive euthanasia “The Hindu” New Delhi, March 10, 20182. Death with dignity ” Editorial : The Hindu” New Delhi, March 10, 2018.3. Patient’s chice: Living will elevates passive euthanasia, Editorial : The Time of India”,New Delhi,March10, 20184. Terminally ill Can execute Living Will, “The Time of India”, New Delhi, March 10, 20185. Soon,suicide bid may not be an offence, “The Time of India”,New Delhi,March10, 20186. K Srinath Reddy, Writing our own exit lines, The Indian Express, March 09, 2018