COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA v. UNION OF INDIA & Anr.

Judgment

) to embrace the death Constitution of India – Art.21 – Decision for withdrawal of life saving treatment in case of a person who is incompetent to take an informed decision – Held: Right of patient who is incompetent to express his view cannot be outside of fold of Art.21 of the Constitution – 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 2 A B C D E F G H COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 3 person who is not able to take an informed decision due to terminal illness or being a Persistent Vegetative State (PVS) – When the right of an adult person who expresses his view regarding medical treatment can be regarded as right flowing from Art.21 of the Constitution, the right of patient who is incompetent to express his view cannot be outside the fold of Art.21 of the Constitution – In cases of incompetent patients who are unable to take an informed decision, it is in the best interests of the patient that the decision be taken by competent medical experts and that such decision be implemented after providing a cooling period at least of one month to enable aggrieved person to approach the Court of Law – The best interest of the patient as determined by medical experts shall meet the ends of justice – The medical team by taking decision shall also take into consideration the opinion of the blood relations of the patient and other relevant facts and circumstances. (Per Ashok Bhushan, J.) Constitution of India – Art.21 – Right to life – As the process of dying is an inevitable consequence of life, the right to life necessarily implies the right to have nature take its course and to die a natural death – It also encompasses a right, unless the individual so wishes, not to have life artificially maintained by the provision of nourishment by abnormal artificial means which have no curative effect and which are intended merely to prolong life. (Per A.K. Sikri, J.) Constitution of India – Art.21 – Concept of human dignity – Ideology of different religions – Hinduism doesn’t recognize human beings as mere material beings – Its understanding of human identity is more ethical-spiritual than material – That is why a sense of immortality and divinity is attributed to all human beings in Hindu classical literature – Even in Islam, tradition of human rights became evident in the medieval ages – Being inspired by the tenets of the Holy Koran, it preaches the universal brotherhood, equality, justice and compassion – Islam believes that man has special status before God – Because man is a creation of God, he should not be harmed – The Bhakti and Sufi traditions too in their own unique ways popularized the idea of universal brotherhood – It revived and regenerated the cherished Indian values of truth, righteousness, justice and morality. (Per A.K. Sikri, J.) A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. Constitution of India – Art.21 – Right to live with dignity – Dignity implies, apart from a right to life enjoyment of right to be free of physical interference – At common law, any physical interference with a person is, prima facie, tortious – When it comes to medical treatment, even there the general common law principle is that any medical treatment constitutes a trespass to the person which must be justified, by reference either to the patient’s consent or to the necessity of saving life in circumstances where the patient is unable to decide whether or not to consent. (Per A.K. Sikri, J.) Constitution of India – Art.21 – Right to receive or deny medical treatment and euthanasia – Rights with regard to medical treatment fall essentially into two categories: first, rights to receive or be free of treatment as needed or desired, and not to be subjected involuntarily to experimentation which, irrespective of any benefit which the subjects may derive, are intended to advance scientific knowledge and benefit people other than the subject in the long term; secondly, rights connected incidentally with the provision of medical services, such as rights to be told the truth by one’s doctor – Having regard to this right of the patients in common law, coupled with the dignity and privacy rights, it can be said that passive euthanasia, under those circumstances where patient is in PVS and he is terminally ill, where the condition is irreversible or where he is brain dead, can be permitted. (Per A.K. Sikri, J.) Constitution of India – Art.21 – Right to health – Held: It is a part of Art.21 of the Constitution – At the same time, it is also a harsh reality that everybody is not able to enjoy that right because of poverty etc. – The State is not in a position to translate into reality this right to health for all citizens – Thus, when citizens are not guaranteed the right to health, the questions that arise are can they be denied right to die in dignity - because of rampant poverty where majority of the persons are not able to afford health services, should they be forced to spend on medical treatment beyond their means and in the process compelling them to sell their house property, household things and other assets which may be means of livelihood – Secondly, when there are limited medical facilities available, should a major part thereof be consumed on those patients who have no chances of recovery – Judicial notice. (Per A.K. Sikri, J.) 4 A B C D E F G H COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 5 Constitution of India – Arts.14, 21 – Human dignity – How philosopher-jurist Dworkin perceived interpretative process adopted by a Judge – Discussed – Interpretation of statutue. (Per A.K. Sikri, J.) Constitution of India – Art.21 – Gian Kaur case, analysis of – Reference to Airedale’s case – In Gian Kaur, validity of s.306 was challenged – The Constitution Bench in Gian Kaur clearly held that when a man commits suicide, he has to undertake certain positive overt acts and the genesis of those acts cannot be tested to or be included within the protection of the expression “right to life” under Art.21 of the Constitution – It was also observed that a dignified procedure of death may include the right of a dying man to also die with dignity when the life is ebbing out – This is how the pronouncement in Gian Kaur has to be understood – It was also not the ratio of the authority in Gian Kaur that euthanasia has to be introduced only by a legislation – What was stated in paragraph 41 of Gian Kaur is what has been understood to have been held in Airedale’s case – The Court has neither expressed any independent opinion nor has it approved the said part or the ratio as stated in Airedale – There was only a reference to Airedale’s case and the view expressed therein as regards legislation – Therefore, the perception in Aruna Shanbaug that the Constitution Bench has approved the decision in Airedale was not correct – Thus, Gian Kaur has neither given any definite opinion with regard to euthanasia nor has it stated that the same can be conceived of only by a legislation – Euthanasia.(Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Constitution of India – Art.21 – Aruna Shanbaug case, analysis of – The two-Judge Bench in Aruna Shanbaug noted that Gian Kaur has approved the decision of the House of Lords in Airedale and observed that euthanasia could be made lawful only by legislation – This perception is not correct as Gian Kaur does not lay down that passive euthanasia could be made lawful only by legislation. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Euthanasia – Passive euthanasia – Social Morality, medical ethicality and State Interest – Withdrawal of treatment in an irreversible situation is different from not treating or attending to a patient – Once passive euthanasia is recognized in law regard being had to the right to die with dignity when life is ebbing out and when A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. the prolongation is done sans purpose, neither the social morality nor the doctors’ dilemma or fear will have any place – It is because the sustenance of dignity and self-respect of an individual is inhered in the right of an individual pertaining to life and liberty and there is necessity for this protection – And once the said right comes within the shelter of Art.21 of the Constitution, the social perception and the apprehension of the physician or treating doctor regarding facing litigation should be treated as secondary because the primacy of the right of an individual in this regard has to be kept on a high pedestal – Constitution of India – Art.21. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Euthanasia – Intention to cause death – Distinction between active euthanasia and passive euthanasia – A distinction arises between active and passive euthanasia from the provisions of the Penal Code – Active euthanasia involves an intention on the part of the doctor to cause the death of the patient – Such cases fall under the first clause of s.300 – Mens rea requires a guilty mind; essentially an intent to cause harm or injury – Passive euthanasia does not embody an intent to cause death – A doctor may withhold life support to ensure that the life of a patient who is in the terminal stage of an incurable illness or in a permanent vegetative state, is not prolonged artificially – The decision to do so is not founded upon an intent to cause death but to allow the life of the patient to cease at the end of its natural term – A decision not to prolong life by artificial means does not carry an intention to cause death – In a case involving passive euthanasia, the affliction of the patient is not brought about either by an act or omission of the doctor – The creation of the condition of the patient is outside the volition of the doctor and has come about without a covert or overt act by the doctor – The decision to withhold medical intervention is to prevent pain, suffering and indignity to a human being who is in the end stage of a terminal illness or of a vegetative state with no reasonable prospect of cure – Thus, both in a case of a withdrawal of life supporting intervention and withholding it, the law protects a bona fide assessment of a medical professional – There being no intent to cause death, the act does not constitute either culpable homicide or murder – Moreover, the doctor does not inflict a bodily injury – Death emanates from the pre-existing medical condition of the patient 6 A B C D E F G H COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 7 which enables life to chart a natural course to its inexorable end – The law protects a decision which has been made in good faith by a medical professional not to prolong the indignity of a life placed on artificial support in a situation where medical knowledge indicates a point of no return – Neither the act nor the omission is done with the knowledge that it is likely to cause death – Penal Code, 1860 – ss.299, 300. (Per Dr. D.Y. Chandrachud, J.) Euthanasia – Active and passive Euthanasia – Distinction between – Legality of passive euthanasia – Held: There is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life – In active euthanasia, a specific overt act is done to end the patient’s life whereas in passive euthanasia, something is not done which is necessary for preserving a patient’s life – It is due to this difference that most of the countries across the world have legalised passive euthanasia either by legislation or by judicial interpretation with certain conditions and safeguards – Post Aruna Shanbaug, the 241st report of the Law Commission of India on Passive Euthanasia has also recognized passive euthanasia, however, no law as such has been enacted. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Euthanasia –Protection under s.92 IPC – Withdrawing life support to a person in a permanently vegetative state or in a terminal stage of illness is not ‘prohibited by law’ – Such an act would also not fall outside the purview of s.92 for the reason that there is no intentional causing of death or attempt to cause death – In a situation where passive euthanasia is non-voluntary, there is an additional protection which is also available in circumstances which give rise to the application of s.92 – Where an act is done for the benefit of another in good faith, the law protects the individual – Penal Code, 1860 – s.92. (Per Dr. D.Y. Chandrachud, J.) Euthanasia – Active euthanasia in India, Legality of – The intentional taking away of the life of another is made culpable by the Penal Code – Active euthanasia falls within the express prohibitions of the law and is unlawful. (Per Dr. D.Y. Chandrachud, J.) A B C D E F G H 8 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. Euthanasia – Passive euthanasia – The decision by a treating doctor to withhold or withdraw medical intervention in the case of a patient in the terminal stage of illness or in a persistently vegetative state or the like where artificial intervention will merely prolong the suffering and agony of the patient is protected by the law – Where the doctor has acted in such a case in the best interest of the patient and in bona fide discharge of the duty of care, the law will protect reasonable exercise of a professional decision. (Per Dr. D.Y. Chandrachud, J.) Euthanasia – Passive euthanasia – Legal principles governing criminal law on passive euthanasia – Report by Justice M Jagannadha Rao as Chairperson of 196 th Report of Law Commission of India, elucidated. (Per Dr. D.Y. Chandrachud, J.) Euthanasia – In Gian Kaur case, the Constitution Bench held, while affirming the constitutional validity of s.306 of the Penal Code (abetment of suicide), that the right to life does not include the right to die – Gian Kaur case does not conclusively rule on the validity of passive euthanasia – The two Judge Bench decision in Aruna Shanbaug proceeds on an incorrect perception of Gian Kaur – Moreover, Aruna Shanbaug has proceeded on the basis of the act- omission distinction which suffers from incongruities of a jurisprudential nature – Aruna Shanbaug has also not dwelt on the intersection between criminal law and passive euthanasia, beyond adverting to ss.306 and 309 of the Penal Code – Aruna Shanbaug has subordinated the interest of the patient to the interest of others including the treating doctors and supporting caregivers – The underlying basis of the decision in Aruna Shanbaug is flawed – Hence, it is necessary for this Court in the present reference to revisit the issues raised and to independently arrive at a conclusion based on the constitutional position – Penal Code, 1860 – ss.306,309. (Per Dr. D.Y. Chandrachud, J.) Euthanasia – Restraints on judicial power – Active/Passive euthanasia - whether in the form of withholding or withdrawing treatment - has the effect of removing, or as the case may be, not providing supportive treatment – Its effect is to allow the individual to continue to exist until the end of the natural span of life – On the other hand, active euthanasia involves hastening of death: the life span of the individual is curtailed by a specific act designed to COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 9 bring an end to life – Active euthanasia would in the light of penal law as it stands constitute an offence – It is only Parliament which can in its legislative wisdom decide whether active euthanasia should be permitted – Passive euthanasia on the other hand would not implicate a criminal offence since the decision to withhold/withdraw artificial life support after taking into account the best interest of the patient would not constitute an illegal omission prohibited by law. (Per Dr. D.Y. Chandrachud, J.) Euthanasia – Voluntary passive euthanasia, where death results from selective non-treatment because consent is withheld, is legally permissible while voluntary active euthanasia is prohibited. (Per Dr. D.Y. Chandrachud, J.) Euthanasia – Impact of, at the institutional, governmental and societal level – Discussed. (Per Dr. D.Y. Chandrachud, J.) Euthanasia – Distinction between legality of active and passive euthanasia – Discussed. (Per Dr. D.Y. Chandrachud, J.) Euthanasia – Passive euthanasia – Direction to set up committees to exercise a supervisory role and function – Besides lending assurance to the decision of the treating doctors, the setting up of committees and the processing of a proposed decision through the committees would protect the ultimate decision that is taken from an imputation of a lack of bona fides – Committees. (Per Dr. D.Y. Chandrachud, J.) Euthanasia – Law on Euthanasia in other countries – Discussed. (Per Ashok Bhushan, J.) Euthanasia – Passive euthanasia – Legality of – 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, 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 – The act of withdrawal from live-saving devices is an independent A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. right which can lawfully be exercised by informed decision. (Per Ashok Bhushan, J.) Euthanasia – Active Euthanasia – Legality of – 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. (Per Ashok Bhushan, J.) Euthanasia – Gian Kaur case – 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 upto the point of death including a dignified procedure of death – Gian Kaur case did not express any binding view on the subject of euthanasia – 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 Art.21 – Constitution of India – Art.21. (Per Ashok Bhushan, J.) Euthanasia – Passive euthanasia and death with dignity are inextricably linked – The opportunity to die unencumbered by the intrusion of medical technology and before experiencing loss of independence and control, appears to many to extend the promise of a dignified death – When medical technology intervenes to prolong dying like this it does not do so unobtrusively – Nowadays patients insist on more than just a right to health care in general – They seek a right to choose specific types of treatment, able to retain control throughout the entire span of their lives and to exercise autonomy in all medical decisions concerning their welfare and treatment.(Per A.K. Sikri, J.) Euthanasia – Morality of medical science – Hippocratic Oath, coupled with ethical norms of medical profession, stand in the way of euthanasia – It brings about a situation of dilemma insofar as medical practitioner is concerned – On the one hand his duty is to save the life of a person till he is alive, even when the patient is terminally ill and there are no chances of revival – On the other 10 A B C D E F G H COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 11 hand, the concept of dignity and right to bodily integrity, which recognises legal right of autonomy and choice to the patient (or even to his relations in certain circumstances, particularly when the patient is unconscious or incapacitated to take a decision) may lead to exercising his right of euthanasia – Medical science. (Per A.K. Sikri, J.) Advance Directives – Safeguards to be followed as to who can execute the advance directive and how; what should it contain; how should it be recorded and preserved; when and by whom can it be given effect to; what if permission is refused by the medical board; revocation or inapplicability of advance directive – Principles relating to the procedure for execution of Advance Directive and the guidelines to give effect to passive euthanasia in both circumstances, namely, where there are advance directives and where there are none laid down in exercise of the power under Art.142 of the Constitution and the law stated in Vishaka case – The directive and guidelines to remain in force till the Parliament brings a legislation in the field – Constitution of India – Art.142 – Legislation, need for. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Advance Directives – Principles in vogue across the globe governing Advance Health Directives – Various jurisdictions, discussed. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Advance Directives – A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity – A study of the position in other jurisdictions shows that Advance Directives have gained lawful recognition in several jurisdictions by way of legislation and in certain countries through judicial pronouncements – Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination – In the absence of Advance Directive, the procedure provided for the said category shall be applicable. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) A B C D E F G H 12 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. Advance Directives – If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Art.226 of the Constitution.(Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Advance Directives – Meaning of – Held: Advance directives are documents a person completes while still in possession of decisional capacity about how treatment decisions should be made in the event she or he loses decision making capacity in future – Mental Healthcare Act 2017. (Per Dr. D.Y. Chandrachud, J.) Advance Directives – Recognition of advance directives as part of a regime of constitutional jurisprudence is an essential attribute of the right to life and personal liberty under Art.21 – That right comprehends dignity as its essential foundation – Quality of life is integral to dignity – As an essential aspect of dignity and the preservation of autonomy of choice and decision-making, each individual must have the right on whether or not to accept medical intervention – Such a choice expressed at a point in time when the individual is in a sound and competent state of mind should have sanctity in the future if the individual were to cease to have the mental capability to take decisions and make choices – Yet, a balance between the application of the substituted judgment standard and the best interest standard is necessary as a matter of public interest – This can be achieved by allowing a supervisory role to an expert body with whom shall rest oversight in regard to whether a patient in the terminal stage of an illness or in a permanent vegetative state should be withheld or withdrawn from artificial life support – The directions in regard to the regime of advance directives have been issued in exercise of the power conferred by Art.142 and shall continue to hold the field until a suitable legislation is enacted by Parliament to govern the area – Constitution of India – Art.142. (Per Dr. D.Y. Chandrachud, J.) Advance Directives – Forms of advance directive – A Living Will which indicates a person’s views and wishes regarding medical treatment and a Durable Power of Attorney for Health Care or Health care Proxy which authorises a surrogate decision maker to make medical care decisions for the patient in the event she or he is incapacitated – Although there can be an overlap between these COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 13 two forms of advance directives, the focus of a durable power is on who makes the decision while the focus of a living will is on what the decision should be – A “living will” has also been referred as “a declaration determining the termination of life,” “testament permitting death,” “declaration for bodily autonomy,” “declaration for ending treatment,” “body trust,” or other similar reference. (Per Dr. D.Y. Chandrachud, J.) Advance Directives – When a patient is brought for medical treatment in a state of mind in which he or she is deprived of the mental capacity to make informed choices, the medical professional needs to determine the line of treatment – One line of enquiry, which seeks to protect patient autonomy is how the individual would have made a decision if he or she had decision-making capacity – This is called the substituted judgment standard – An advance medical directive is construed as a facilitative mechanism in the application of the substituted judgment standard, if it provides to the physician a communication by the patient (when she or he was in a fit state of mind) of the desire for or restraint on being provided medical treatment in future – Conceptually, there is a second standard, which is the caregiver standard – This is founded on the principle of beneficence – The second standard seeks to apply an objective notion of a line of treatment which a reasonable individual would desire in the circumstances – The difference between these two standards is that the first seeks to reconstruct the subjective point of view of the patient – The second allows for “a more generic view of interests”, without having to rely on the “idiosyncratic values question”. (Per Dr. D.Y. Chandrachud, J.) preference patient Advance Directives – Meaning and purpose – 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 looses capacity to take a decision – Use and operation of advance medical directive is to confine only to a case when person becomes incapacitated to take an informed decision regarding his medical treatment – So long as A B C D E F G H 14 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. an individual can take an informed decision regarding his medical treatment, there is no occasion to look into advance medical directives. (Per Ashok Bhushan, J.) Advance Directives – Revocation of – A person has unfettered right to change or cancel his advance medical directives looking to the need of time and advancement in medical science – Hence, a person cannot be tied up or bound by his instructions given at an earlier point of time. (Per Ashok Bhushan, J.) Advance Directives – Possibility of misuse – Autonomy of an individual gives him right to choose his destiny and, therefore, he may decide before hand, in the form of advance directive, at what stage of his physical condition he would not like to have medical treatment, and on the other hand, there are dangers of misuse thereof as well – At the same time, possibility of misuse cannot be held to be a valid ground for rejecting advance directive, as opined by the Law Commission of India as well in its 196th and 241st Report – Instead, attempt can be made to provide safeguards for exercise of such advance directive – Mental Healthcare Act, 2017 – s.5 – Transplantation of Human Organs and Tissues Act, 1994 – s.3. (Per A.K. Sikri, J.) Doctrines/Principles – Sanctity principle – “life should not always be maintained at any and all cost” – Euthanasia. (Per Dr. D.Y. Chandrachud, J.) Interpretation of Statutes – Liberal construction – The language employed in the constitutional provision should be liberally construed, for such provision can never remain static – It is because fixity would mar the core which is not the intent. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Jurisprudence – Liberty impels an individual to change and life welcomes the change and the movement – Life does not intend to live sans liberty as it would be, in all possibility, a meaningless survival – There is no doubt that no fundamental right is absolute, but any restraint imposed on liberty has to be reasonable – Individual liberty aids in developing one’s growth of mind and assert individuality – She/he may not be in a position to rule others but individually, she/he has the authority over the body and mind. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 15 Jurisprudence – Dignity – If a man is allowed to or, for that matter, forced to undergo pain, suffering and state of indignity because of unwarranted medical support, the meaning of dignity is lost and the search for meaning of life is in vain. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Living Will – Specific guidelines laid down to test the validity of a living will, by whom it should be certified, when and how it should come into effect, etc. – The guidelines also cover a situation where there is no living will and how to approach a plea for passive euthanasia – Guidelines. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Living Will – Whether a ‘living will’ or ‘advance directive’ should be legally recognised and can be enforced – Held: It is undisputed that Doctors’ primary duty is to provide treatment and save life but not in the case when a person has already expressed his desire of not being subjected to any kind of treatment – It is a common law right of people, of any civilized country, to refuse unwanted medical treatment and no person can force him/her to take any medical treatment which the person does not desire to continue with – Advance directives are instruments through which persons express their wishes at a prior point in time, when they are capable of making an informed decision, regarding their medical treatment in the future, when they are not in a position to make an informed decision, by reason of being unconscious or in a PVS or in a coma – A medical power of attorney is an instrument through which persons nominate representatives to make decisions regarding their medical treatment at a point in time when the persons executing the instrument are unable to make informed decisions themselves – Clause 11 of the draft Treatment of Terminally-III Patients (Protection of Patients and Medical Practitioners) Bill, 2016 states that advance directives or medical power of attorney shall be void and of no effect and shall not be binding on any medical practitioner – This blanket ban, including the failure even to give some weight to advance directives while making a decision about the withholding or withdrawal of life-sustaining treatment is disproportionate – It does not constitute a fair, just or reasonable procedure, which is a requirement for the imposition of a restriction on the right to life (in this case, expressed as the right to die with dignity) under Art.21.(Per A.K. Sikri, J.) A B C D E F G H 16 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. Mental Healthcare Act 2017 – Advance directives for persons with mental illness – Held: The Act recognises an advance directive – The Act provides that while making an advance directive, the maker should be major and indicate the manner in which he or she wishes or does not wish to be cared for and treated for a mental illness; and the person he or she appoints as a nominated representative – An advance directive is to be invoked only when the person who made it ceases to have the capacity to make mental healthcare treatment decisions – It remains effective until the maker regains the capacity to do so. (Per Dr. D.Y. Chandrachud, J.) Medical profession – Medical ethics – History of ethical principles – Discussed. (Per Ashok Bhushan, J.) Words and Phrases – Advance medical, living will, advance medical power of attorney – Meaning of – Advance medical directive is, “a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate” – A living will, on the other hand, is a document prescribing a person’s wishes regarding the medical treatment the person would want if he was unable to share his wishes with the health care provider – Another type of advance medical directive is medical power of attorney – It is a document which allows an individual (principal) to appoint a trusted person (agent) to take health care decisions when the principal is not able to take such decisions. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Words and Phrases – Killing and letting die – Difference between, discussed. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Words and Phrases – Involuntary euthanasia, non-voluntary euthanasia, voluntary euthanasia, active euthanasia and passive euthanasia – Meaning of – Discussed. (Per Dr. D.Y. Chandrachud, J.) Disposing of the Writ petition, the Court HELD: Per Dipak Misra, CJI [for himself and Khanwilkar, J.]

1.1 The Constitution Bench in Gian Kaur’s case has referred to the decision in Airedale that has been recapitulated COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 17 in Aruna Shanbaug case which was a case relating to withdrawal of artificial measures of continuance of life by the physician. The Constitution Bench noted that Airedale held that in the context of existence in the persistent vegetative state of no benefit to the patient, the principle of sanctity of life, which is the concern of the State, was not an absolute one. The bench further noticed that in Airedale, it had been stated that in such cases also, the existing crucial distinction between cases in which a physician decides not to provide or to continue to provide, for his patient, treatment or care which could or might prolong his life, and those in which he decides, for example, by administering a lethal drug actively to bring his patient’s life to an end, was indicated. Thereafter, while again referring to Airedale case, the bench observed that it was a case relating to withdrawal of artificial measures for continuance of life by the physician. [Para 40][96- C-F]

1.2 A careful reading of Gian Kaur shows narration, reference and notice of the view taken in Airedale case. The Court was concerned with the constitutional validity of Section 309 IPC that deals with attempt to commit suicide and Section 306 IPC that provides for abetment to commit suicide. The Constitution Bench, while distinguishing the case of a dying man who is terminally ill or in a persistent vegetative state and his termination or premature extinction of life, observed that the said category of cases may fall within the ambit of right to die with dignity as a part of right to life with dignity when death due to termination of natural life is inevitable and imminent and the process of natural death has commenced. The Constitution Bench further opined that the said cases do not amount to extinguishing the life but only amount to accelerating the process of natural death which has already commenced and, thereafter, the Bench stated that the debate with regard to physician assisted suicide remains inconclusive. The Bench has reiterated that the cases pertaining to premature extinction of life during the process of certain natural death of patients who are terminally ill or in persistent vegetative state were of assistance to interpret Article 21 of the Constitution to include therein the right to curtail the natural span of life. Gian Kaur has not decried euthanasia as a concept. On the contrary, it gives an indication that in such situations, it is the acceleration of A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. the process of dying which may constitute a part of right to life with dignity so that the period of suffering is reduced. There is a distinction between a positive or overt act to put an end to life by the person living his life and termination of life so that an individual does not remain in a vegetative state or, for that matter, when the death is certain because of terminal illness and he remains alive with the artificially assisted medical system. In Gian Kaur, while dealing with the attempt to commit suicide, the Court clearly held that when a man commits suicide, he has to undertake certain positive overt acts and the genesis of those acts cannot be tested to or be included within the protection of the expression “right to life” under Article 21 of the Constitution. It was also observed that a dignified procedure of death may include the right of a dying man to also die with dignity when the life is ebbing out. This is how the pronouncement in Gian Kaur has to be understood. It is also not the ratio of the authority in Gian Kaur that euthanasia has to be introduced only by a legislation. The Court has neither expressed any independent opinion nor has it approved the said part or the ratio as stated in Airedale. There has been only a reference to Airedale’s case and the view expressed therein as regards legislation. Therefore, the perception in Aruna Shanbaug that the Constitution Bench has approved the decision in Airedale is not correct.[Para 42][97-D- H; 98-A-E] Gian Kaur v. State of Punjab (1996) 2 SCC 648 : [1996] 3 SCR 697 – analysed.

1.3 The two-Judge Bench in Aruna Shanbaug. noted that Gian Kaur has approved the decision of the House of Lords in Airedale and observed that euthanasia could be made lawful only by legislation. This perception is not correct. [Para 43][98-G-H] Aruna Ramachandra Shanbaug v. Union of India and others (2011) 4 SCC 454 : [2011] 4 SCR 1057 – Partly incorrect. Kharak Singh v. State of U.P. and others [1964] 1 SCR 332 : AIR 1963 SC 1295; Gobind v. State of Madhya Pradesh and another (1975) 2 SCC 148 : [1975] 3 SCR 946; People’s Union for Civil Liberties v. Union of India 18 A B C D E F G H COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 19 and another (1997) 1 SCC 301 : [1996] 10 Suppl. SCR 321; P. Rathinam v. Union of India and another (1994) 3 SCC 394 – referred to. Airedale N.H.S. Trust v. Bland (1993) 2 WLR 316 : (1993) 1 All ER 821, HL – referred to

2.1 Right to refuse treatment: Any adult person of sound mind has a right to refuse medical treatment. This right stands on a different pedestal as compared to suicide, physician assisted suicide or even euthanasia. When a terminally ill patient refuses to take medical treatment, it can neither be termed as euthanasia nor as suicide. Albeit, both suicide and refusal to take treatment in case of terminal ailment shall result in the same consequences, that is, death, yet refusal to take treatment by itself cannot amount to suicide. In case of suicide, there has to be a self initiated positive action with a specific intention to cause one’s own death. On the other hand, a patient’s right to refuse treatment lacks his specific intention to die, rather it protects the patient from unwanted medical treatment. A patient refusing medical treatment merely allows the disease to take its natural course and if, in this process, death occurs, the cause for it would primarily be the underlying disease and not any self initiated act. [Para 131][134- F-H; 135-A] Cruzan v. Director, Missouri Department of Health 111 L Ed 2d 224 : 497 US 261 (1990) : 110 S.Ct. 2841 (1990); Rodriguez v. British Columbia (Attorney General) 85 C.C.C. (3d) 15 : (1993) 3 S.C.R. 519; Re J (A Minor) (Wardship: Medical Treatment) [1991] 2 WLR 140: [1990] 3 All ER 930 : [1991] Fam 33; Washington v. Glucksberg 138 L Ed 2d 772 : 521 US 702 (1997); Vacco v. Quill 138 L Ed 2d 834 : 521 US 793 (1997); In the matter of Claire C. Conroy 98 N.J. 321 (1985) : (1985) 486 A.2d 1209 (N.J.); F v. West Berkshire Health Authority [1989] 2 All ER 545 : [1990] 2 AC 1; Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 : [1957] 2 All ER 118; 355 A. 2d 647 : (1976) 70 NJ 10; Re Quinlan Superintendent of Belchertown State School v. Saikewicz (1977) 373 Mass 728: 370 N.E. 2d 417 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. (1977); In re F (Mental Patient : Sterilisation) [1990] 2 AC 1 : [1989] 2 WLR 1025 : [1989] 2 All ER 545; In re B (A Minor) (Wardship : Medical Treatment)[1981] 1 WLR 1424 : [1990] 3 All ER 927; In re J (A Minor) (Wardship : Medical Treatment) [1991] Fam 33 : [1990] 3 All ER 930 : [1991] 2 WLR 140; R (on the application of Pretty) v. Director of Public Prosecutions [2002] 1 All ER 1 : [2001] UKHL 61; In re B (Consent to Treatment – Capacity) [2002] 1 FLR 1090 : [2002] 2 All ER 449; R (on the application of Nicklinson and another) v. Ministry of Justice [2014] UKSC 38; Hunter and New England Area Health Service v. A [2009] NSWSC 761; Brightwater Care Group (Inc.) v. Rossiter [2009] WASC 229 : 40 WAR 84; Australian Capital Territory v. JT [2009] ACTSC 105; Auckland Area Health Board v. Attorney-General [1993] NZLR 235; Messiha v. South East Health [2004] NSWSC 1061; Carter v. Canada (Attorney General) (2015) SCC 5; Schloendorff v. Society of New York Hospital (1914) 105 NE 92 : (1914) 211 NY 125; F v. R (1983) 33 SASR 189 at 193; Rogers v. Whitaker [1992] HCA 58 : (1992) 175 CLR 479 at 487; Malette v. Shulman 67 DLR (4th) 321 (1990) : 72 OR (2d) 417; Secretary, Department of Health and Community Services (NT) v. JWB and SMB (1992) 66 AJLR 300 : (1992) 175 CLR 218; Re MB (Medical Treatment) [1997] EWCA Civ 3093 : [1997] 2 FLR 426; Pretty v. United Kingdom (application no. 2346/02) [2002] ECHR 423 (29 April, 2002); Hass v. Switzerland (application no. 31322/07) [2011] ECHR 2422 : (2011) 53 EHRR 33; Lambert and others v. France (application no. 46043/14) [2015] ECHR 185 – referred to.

3.2 There is a presumption of capacity whereby an adult is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted. The consent may be vitiated if the individual concerned may not have been competent in law to give or refuse that consent; or even if the individual was competent in law, the decision has been obtained 20 A B C D E F G H COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 21 by undue influence or some other vitiating means; or the apparent consent or refusal does not extend to the particular situation; or the terms of the consent or refusal are ambiguous or uncertain; or if the consent or refusal is based on incorrect information or incorrect assumption. In circumstances where it is practicable for a medical practitioner to obtain consent to treatment, then, for the consent to be valid, it must be based on full information, including as to its risks and benefits. Where it is not practicable for a medical practitioner to obtain consent for treatment and where the patient’s life is in danger if appropriate treatment is not given, then the treatment may be administered without consent. This is justified by what is sometimes called the “emergency principle” or “principle of necessity”. Usually, the medical practitioner treats the patient in accordance with his clinical judgment of what is in the patient’s best interests. [Paras 134, 135][135-E-G; 136-A-B]

4.1 Passive Euthanasia in the context of Art.21 of the Constitution: 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. The two are intrinsically interlinked. Liberty impels an individual to change and life welcomes the change and the movement. Life does not intend to live sans liberty as it would be, in all possibility, a meaningless survival. No fundamental right is absolute, but any restraint imposed on liberty has to be reasonable. Individual liberty aids in developing one’s growth of mind and assert individuality. She/he may not be in a position to rule others but individually, she/he has the authority over the body and mind. The liberty of personal sovereignty over body and mind strengthens the faculties in a person. [Para 138][136- G-H; 137-A-B] Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and others (1983) 1 SCC 124 : [1983] 1 SCR 828; Maneka Gandhi v. Union of India and another (1978) 1 SCC 248 : [1978] 2 SCR 621; State of Andhra Pradesh v. Challa Ramkrishna Reddy and others AIR 2000 SC 2083 : (2000) 5 SCC 712 : [2000] 3 SCR 644 – relied on. A B C D E F G H 22 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. Adkins v. Children’s Hospital 261 US 525, 568(1923) – referred to.

4.2 The interpretation of the Constitution, especially fundamental rights, has to be dynamic and it is only such interpretative dynamism that breathes life into the written words. As far as Article 21 is concerned, it is imperative to mention that dynamism can, of course, infuse life into life and liberty as used in the said Article. The language employed in the constitutional provision should be liberally construed, for such provision can never remain static. [Paras 145, 149][139-C-D; 141-F] Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly and another (1986) 3 SCC 156 : [1986] 2 SCR 278; M. Nagaraj and others v. Union of India and others (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336; V.C. Rangadurai v. D. Gopalan and others (1979) 1 SCC 308 : [1979] 1 SCR 1054 – relied on.

5.1 Individual Dignity as a facet of Article 21: Dignity of an individual has been internationally recognized as an important facet of human rights in the year 1948 itself with the enactment of the Universal Declaration of Human Rights. Human dignity not only finds place in the Preamble of this important document but also in Article 1 of the same. Law gladly takes cognizance of the fact that dignity is the most sacred possession of a man. And the said possession neither loses its sanctity in the process of dying nor evaporates when death occurs. As part of the right to die with dignity in case of a dying man who is terminally ill or in a persistent vegetative state, only passive euthanasia would come within the ambit of Article 21 and not the one which would fall within the description of active euthanasia in which positive steps are taken either by the treating physician or some other person. [Paras 150, 155, 159][141-G-H; 142-A; 144-G; 147-D-E] K.S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1 : [2017] 10 SCR 569 – followed. Mehmood Nayyar Azam v. State of Chhattisgarh and others (2012) 8 SCC 1 : [2012] 8 SCR 651; Vikas Yadav v. State of Uttar Pradesh and others (2016) 9 SCC 541 COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 23 : [2016] 8 SCR 872; Francis Coralie Mullin v. The Administrator, Union Territory of Delhi (1981) 1 SCC 608 : [1981] 2 SCR 516; National Legal Services Authority v. Union of India and others (2014) 5 SCC 438; Shabnam v. Union of India and another (2015) 6 SCC 702 : [2015] 8 SCR 289 – relied on. Christine Goodwin v. the United Kingdom [2002] ECHR 588; S v. Makwanyane 1995 (3) SA 391 – referred to.

5.2 The law must take cognizance of the changing society and march in consonance with the developing concepts. The immediate needs are required to be addressed through the process of interpretation by the Court unless the same totally falls outside the constitutional framework or the constitutional interpretation fails to recognize such dynamism. The right to life with dignity has to include the smoothening of the process of dying when the person is in a vegetative state or is living exclusively by the administration of artificial aid that prolongs the life by arresting the dignified and inevitable process of dying. Here, the issue of choice also comes in. Thus analysed, such a right should come within the ambit of Article 21 of the Constitution. [Para 160][147-F-H; 148-G-H]

#6. Right of self-determination and individual autonomy: As far as the United Kingdom is concerned, it is generally clear that whenever there is a conflict between a capable adult’s exercise of the right of self-determination and the State’s interest in preserving human life by treating it as sanctimonious, the right of the individual must prevail. In the United States, the aspect of self-determination and individual autonomy is concretised in law as all fifty States along with the District of Columbia, the capital, which is commonly referred as Washington D.C., have passed legislations upholding different forms of Advance Directives. The Canadian Criminal Code asserts and protects the sanctity of life in a number of ways which directly confront the autonomy of the terminally ill in their medical decision making. However, the Supreme Court of Canada in Reibl v. Hughes approved an oft- quoted statement of Cardozo J. in Scholoendorf that “every human being of adult years and sound mind has a right to determine A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. what shall be done with his own body” and Chief Justice Laskin in Reibl has further added that battery would lie where surgery or treatment was performed without consent or where apart from emergency situations, surgery or medical treatment was given beyond that to which there was consent. Thus, the Supreme Court of Canada suggested that competent adults have the right to make their own medical decisions even if such decisions are unwise. Enquiring into common law and statutory rights of terminally ill persons in other jurisdictions would indicate that all adults with the capacity to consent have the common law right to refuse medical treatment and the right of self determination. However, doctors would be bound by the choice of self-determination made by the patient who is terminally ill and undergoing a prolonged medical treatment or is surviving on life support, subject to being satisfied that the illness of the patient is incurable and there is no hope of his being cured. Any other consideration cannot pass off as being in the best interests of the patient. [Paras 164, 165, 166, 168, 169][150-A-B, F-G; 151-C-E] Reeves v. Commissioner of Police of the Metropolis [2000] 1 AC 360, 379; Re Jobes (1987) 108 N.J. 394; Reibl v. Hughes [1980] 2 SCR 880 – referred to.

7.1 Social Morality, medical ethicality and State Interest: The society at large may feel that a patient should be treated till he breathes his last breath and the treating physicians may feel that they are bound by their Hippocratic oath which requires them to provide treatment and save life and not to put an end to life by not treating the patient. The members of the family may remain in a constant state of hesitation being apprehensive of many a social factor which include immediate claim of inheritance, social stigma and, sometimes, the individual guilt. The Hippocratic oath taken by a doctor may make him feel that there has been a failure on his part and sometimes also make him feel scared of various laws. There can be allegations against him for negligence or criminal culpability. In this regard, two aspects are to be borne in mind. First, withdrawal of treatment in an irreversible situation is different from not treating or attending to a patient and second, once passive euthanasia is recognized in law regard being had to the right to die with dignity when life is ebbing out and when the 24 A B C D E F G H COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 25 prolongation is done sans purpose, neither the social morality nor the doctors’ dilemma or fear will have any place. It is because the sustenance of dignity and self-respect of an individual is inhered in the right of an individual pertaining to life and liberty and there is necessity for this protection. And once the said right comes within the shelter of Article 21 of the Constitution, the social perception and the apprehension of the physician or treating doctor regarding facing litigation should be treated as secondary because the primacy of the right of an individual in this regard has to be kept on a high pedestal.[Paras 170, 171][151-F-H; 152- A-C]

7.2 Passive euthanasia fundamentally connotes absence of any overt act either by the patient or by the doctors. It also does not involve any kind of overt act on the part of the family members. It is avoidance of unnecessary intrusion in the physical frame of a person, for the inaction is meant for smooth exit from life. It is paramount for an individual to protect his dignity as an inseparable part of the right to life which engulfs the dignified process of dying sans pain, sans suffering and, most importantly, sans indignity. There are philosophers, thinkers and also scientists who feel that life is not confined to the physical frame and biological characteristics. But there is no denial of the fact that life in its connotative expanse intends to search for its meaning and find the solution of the riddle of existence for which some lean on atheism and some vouchsafe for faith and yet some stand by the ideas of an agnostic. However, the legal fulcrum has to be how Article 21 of the Constitution is understood. If a man is allowed to or, for that matter, forced to undergo pain, suffering and state of indignity because of unwarranted medical support, the meaning of dignity is lost and the search for meaning of life is in vain. [Paras 172, 173][152-C-F]

#8. Advance Directive/Advance Care Directive/Advance Medical Directive: In order to overcome the difficulty faced in case of patients who are unable to express their wishes at the time of taking the decision, the concept of Advance Medical Directives emerged in various countries. Advance Directives for health care go by various names in different countries though the objective by and large is the same, that is, to specify an A B C D E F G H 26 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. individual’s health care decisions and to identify persons who will take those decisions for the said individual in the event he is unable to communicate his wishes to the doctor. The agent appointed to deal with such issues can interpret the principal’s decisions based on their mutual knowledge and understanding. [Paras 177, 178, 180][154-B, D-E, G]

#9. Advance medical directive ideal in our country

9.1 Advance Medical Directive cannot operate in abstraction. There are certain safeguards for operating it. It can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document. It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information. It should have characteristics of an informed consent given without any undue influence or constraint. It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity. It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to. It should be in specific terms and the instructions must be absolutely clear and unambiguous. It should mention that the executor may revoke the instructions/authority at any time. It should disclose that the executor has understood the consequences of executing such a document. It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorized to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive. In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient’s wishes and will be given effect to. [Para 191][158-D-H; 159-A-E]

9.2 The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 27 countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge. The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and with full understanding of all the relevant information and consequences. The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format. The JMFC shall cause to inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document. A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The JMFC shall cause to handover copy of the Advance Directive to the family physician, if any. In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional JMFC before acting upon the same. The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured. If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/close relative, as the case may be, about the nature of illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he believes on reasonable grounds that the person in question understands the information provided, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice. The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Medical Board consisting of the Head of the treating Department and at A B C D E F G H 28 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion. In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/hospital shall forthwith inform the jurisdictional Collector about the proposal who shall then immediately constitute a Medical Board comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert doctors. They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive. The Board constituted by the Collector must beforehand ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. In the event the executor is incapable of taking decision or develops impaired decision making capacity, then the consent of the guardian nominated by the executor in the Advance Directive should be obtained regarding refusal or withdrawal of medical treatment to the executor to the extent of and consistent with the clear instructions given in the Advance Directive. The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment administered to the executor. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board. It will be open to the executor to revoke the document at any stage before it is acted upon and implemented. [Para 191][159-E-G; 160-A-H; 161-A-G; 162-C- D]

9.3 If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 29 doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution. The High Court will be free to constitute an independent Committee consisting of three doctors. [Para 191][162-E-F]

9.4 Revocation or inapplicability of Advance Directive: An individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing. An Advance Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them. If the Advance Directive is not clear and ambiguous, the concerned Medical Boards shall not give effect to the same and, in that event, the guidelines meant for patients without Advance Directive shall be made applicable. Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction. [Para 191][163-B-F]

#10. There will be cases where there is no Advance Directive. The said class of persons cannot be alienated. In cases where there is no Advance Directive, the procedure and safeguards are to be same as applied to cases where Advance Directives are in existence and in addition there to, the following procedure shall be followed:- (i) In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board. In the event the Hospital Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall immediately inform the jurisdictional Collector. The jurisdictional Collector shall then constitute a Medical Board who shall visit the hospital for physical examination of the patient and, after studying the medical papers, may concur with the opinion of the Hospital Medical Board. In that event, intimation shall be A B C D E F G H 30 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. given by the Chairman of the Collector nominated Medical Board to the JMFC and the family members of the patient. The JMFC shall visit the patient at the earliest and verify the medical reports, examine the condition of the patient, discuss with the family members of the patient and, if satisfied in all respects, may endorse the decision of the Collector nominated Medical Board to withdraw or refuse further medical treatment to the terminally ill patient. There may be cases where the Board may not take a decision to the effect of withdrawing medical treatment of the patient on the Collector nominated Medical Board may not concur with the opinion of the hospital Medical Board. In such a situation, the nominee of the patient or the family member or the treating doctor or the hospital staff can seek permission from the High Court to withdraw life support by way of writ petition under Article 226 of the Constitution. The directions with regard to the Advance Directives and these safeguards shall remain in force till the Parliament makes legislation on this subject. [Paras 193, 194][163-G-H; 164-A-E; 165-A, E] Vishaka and Others v. State of Rajasthan and Others (1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404 – relied on. State of Himachal Pradesh and another v. Umed Ram Sharma and others (1986) 2 SCC 68 : AIR 1986 SC 847 : [1986] 1 SCR 251; Maruti Shripati Dubal v. State of Maharashtra 1987 Cri LJ 473 : (1986) 88 Bom LR 589; R.C. Cooper v. Union of India (1970) 2 SCC 298 : AIR 1970 SC 1318 : [1971] 1 SCR 512; Vikram Deo Singh Tomar v. State of Bihar (1988) Supp. SCC 734 : AIR 1988 SC 1782 : [1988] Suppl. SCR 755; Charan Lal Sahu v. Union of India (1990) 1 SCC 613 : [1989] 2 Suppl. SCR 597; State of Kerala and another v. N.M. Thomas and others (1976) 2 SCC 310 : [1976] 1 SCR 906 – referred to. Per Dr. D.Y. Chandrachud, J. - 1. Patient’s consent – Consent gives an individual the ability to choose whether or not to accept the treatment that is offered. But consent does not confer on a patient the right to demand that a particular form of treatment be administered, even in the quest for death with COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 31 dignity. Voluntary passive euthanasia, where death results from selective non-treatment because consent is withheld, is therefore legally permissible while voluntary active euthanasia is prohibited. Moreover, passive euthanasia is conceived with a purpose of not prolonging the life of the patient by artificial medical intervention. Both in the case of a withdrawal of artificial support as well as in non-intervention, passive euthanasia allows for life to ebb away and to end in the natural course. In contrast, active euthanasia results in the consequence of shortening life by a positive act of medical intervention. It is perhaps this distinction which necessitates legislative authorisation for active euthanasia, as differentiated from the passive. [Para 45][196-E-G] Sushila Rao, “India and Euthanasia: The Poignant Case of Aruna Shanbaug”, Oxford Medical Law Review, Volume 19, Issue 4 (1 December 2011), at pages 646–656; “Humanization and Decriminalization of Attempt to Suicide”, Law Commission of India (Report No. 210, 2008); Rajeev Ranjan, et al, “(De-) Criminalization of Attempted Suicide in India: A Review”, Industrial Psychiatry Journal (2014), Vol. 23, issue 1, at page 4–9; D Benatar, “Should there be a legal right to die?” Current Oncology (2010), Vol. 17, Issue 5, at pages 2-3; Richard Delgado, “Euthanasia Reconsidered-The Choice of Death as an Aspect of the Right of Privacy”, Arizona Law Review (1975), Vol. 17, at page 474; Ratna Kapur, “The Spectre of Aruna Shanbaug”, The Wire (18 May 2015), available at ht tps :// t hew ire .in/2005/ the -spect re- of- arun a- shanbaug/; Hazel Biggs, “Euthanasia, Death with Dignity and the Law”, Hart Publishing (2001), at page 12; James Rachels, “Active and Passive Euthanasia”, New England Journal of Medicine (January 9, 1975), at page 78-80; James Rachels, End of Life: Euthanasia and Morality (Oxford University Press, 1986); Bruce R. Reichenbach, “Euthanasia and the Active-Passive Distinction”, Bioethics (January 1987), Volume 1, at pages 51–73; Len Doyal and Lesley Doyal, “Why Active Euthanasia and Physician Assisted Suicide A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. 13, 2011), Should Be Legalised/ If Death Is in a Patient’s Best Interest Then Death Constitutes a Moral Good”, British Medical Journal (2001), at pages 1079–1080; Rohini Shukla, “Passive Euthanasia in India: a critique”, Indian Journal of Medical Ethics (Jan-Mar 2016), at pages 35-38; Aparna Chandra and Mrinal Satish, “Misadventures of the Supreme Court in Aruna Shanbaug v Union of India”, Law and other Things (Mar http:// lawandotherthings.com/2011/03/misadventures-of- supreme-court- in-aruna/; Roop Gurusahani and Raj Kumar Mani, “India: Not a country to die in”, Indian Journal of Medical Ethics (Jan- Mar 2016), at pages 30-35; Anne J. Davis, “Dilemmas in Practice: To Make Live or Let Die”, The American Journal of Nursing (March 1981), Vol. 81, No. 3, at page 582; Heike Baranzke, “Sanctity-of-Life”—A Bioethical Principle for a Right to Life?”, Ethic Theory Moral Practice (2012), Vol. 15, Issue 3, page 295 – referred to. available

#2. Though the sanctity principle prohibits “the deliberate destruction of human life, it does not demand that life should always be prolonged for as long as possible”. While providing for an intrinsic sacred value to life “irrespective of the person’s capacity to enjoy life and notwithstanding that a person may feel their life to be a great burden”, the principle holds that “life should not always be maintained at any and all cost”. Ethical proponents of the sanctity of life tend to agree that when “medical treatment, such as ventilator and probably also antibiotics, can do nothing to restore those in permanent vegetative state to a state of health and well-functioning, it is futile and need not be provided”. [Para 60][203-C-E]

#3. Life and natural death: The defenders of the sanctity principle place sacred value to human life from “conception to natural death”. The word “natural” implies that “the only acceptable death is one that occurs from natural causes”. Life is only “sacred insofar as it ends by natural means”. Medical advancements, however, have brought uncertainty about the definition of death? “what constitutes death, in particular a 32 A B C D E F G H COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 33 “natural” death”. Medical advances have “complicated the question of when life ends”. There exists no natural death where artificial technology is concerned. Technology by artificial means can prolong life. In doing so, technology has re-shaped both human experience as well as our values about life in a natural state and its end by natural causes. Modern medicine has found ways to prolong life and to delay death. But, it does not imply that modern medicine “necessarily prolongs our living a full and robust life because in some cases it serves only to prolong mere biological existence during the act of dying”. This may, in certain situations result in a mere “prolongation of a heart-beat that activates the husk of a mindless, degenerating body that sustains an unknowing and pitiable life-one without vitality, health or any opportunity for normal existence-an inevitable stage in the process of dying”. [Paras 66, 67, 68][209-B-C, D, F-G; 210-A]

4.1 The sanctity of human life lies in its intrinsic value. It inheres in nature and is recognised by natural law. But human lives also have instrumental functions. Our lives enable us to fulfil our needs and aspirations. The intrinsic worth of life is not conditional on what it seeks to or is capable to achieve. Life is valuable because it is. The Indian Constitution protects the right to life as the supreme right, which is inalienable and inviolable even in times of Emergency. It clearly recognises that every human being has the inherent right to life, which is protected by law, and that “No person shall be deprived of his life… except according to procedure established by law”. It, thus, envisages only very limited circumstances where a person can be deprived of life. [Para 73][212-D-F] Pt. Parmanand Katara v. Union of India AIR 1989 SC 2039 – relied on. Great Ormond Street Hospital v. Constance Yates, Christopher Gard, Charlie Gard (by his guardian), [2017] EWHC 1909 (Fam) – referred to. John Keown, The Law and Ethics of Medicine: Essays on the Inviolability of Human Life (Oxford University Press, 2012), at page 3; John Locke, Two Treatises of Government (ed. P. Laslett) (Cambridge University A B C D E F G H 34 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. Press, 1988); Ronald Dworkin, Life’s Dominion: An Argument about Abortion and Euthanasia (Harper Collins, 1993), at pages 73-74; John Finnis, Human Rights and Common Good (Oxford University Press, 2011), at page 221; Alexandra Mullock, End-Of-Life Law And Assisted Dying In The 21st Century: Time For Cautious Revolution? (PhD Thesis, University of Manchester, 2011), at page 24; Luis Kutner, “Euthanasia: Due Process for Death with Dignity; The Living Will”, Indiana Law Journal (Winter 1979), Vol. 54, Issue, 2, at page 225; Sushila Rao, “The Moral Basis for a Right to Die”, Economic & Political Weekly (April 30, 2011), at page 14; Alexandra Mullock, End- Of-Life Law And Assisted Dying In The 21st Century: Time For Cautious Revolution? (PhD Thesis, University of Manchester, 2011), at page 25; John Keown, “The Legal Revolution: From “Sanctity of Life” to “Quality of Life” and “Autonomy”, Journal of Contemporary Health Law & Policy (1995) Vo. 14, Issue 2, at page 281; Margaret A. Somerville, “The Song of Death: The Lyrics of Euthanasia”, Journal of Contemporary Health Law & Policy (1993), Vol. 9, Issue 1, at page 67; Jessica Stern, Euthanasia and the Terminally Ill (2013), retrieved from Florida State University Libraries; Roger S. Magnusson, “The Sanctity of Life and the Right to Die: Social and Jurisprudential Aspects of the Euthanasia Debate in Australia and the United States”, Pacific Rim Law & Policy Journal, Vol. 6, No. I, at page 40; Peter Singer, “Sanctity of Life or Quality of Life”, Pediatrics (1983), Vo. 72, Issue 1, at pages 128-129; Sanctity of life vs. quality of life”, Los Angeles Times (June 7, 2015), available a http://www.latimes.com/opinion/ readersreact /la-le-0607-sunday-assisted-suicide- 20150607-story.html; Jessica Stern, Euthanasia and the Terminally Ill (2013), available at https:// fsu.digital.flvc.org/islandora/object/fsu:209909/ datastream/PDF; John Breck, “Euthanasia and the Quality of Life Debate”, Christian Bioethics (1995), COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 35 Vol. 1, No.3, at pages 322-337; Michael A Weingarten, “On the sanctity of life”, British Journal of General Practice (April 2007), Vol. 57(537), at page 333; Alecia Pasdera, The Rhetoric of the Physician-Assisted Suicide Movement: Choosing Death Over Life (2014), available at https://ou.monmouthcollege.edu/_resources/pdf/ academics/mjur/ 2014/Rhetoric-of-the-Physician- Assisted-Suicide-Movement-Choosing-Death-Over- Life.pdf, at page 68; Arval A. Morris, “Voluntary Euthanasia”, Washington Law Review (1970), Vol. 45, at page 240; Lady Justice Arden, Law of medicine and the individual: current issues, What does patient autonomy mean for the courts?, (Justice KT Desai Memorial Lecture 2017) – referred to.

4.2 Human dignity has been “considered the unique universal value that inspires the major common bioethical principles, and it is therefore considered the noyau dur of both international bio law and international human rights law”. The first idea considers dignity as the foundation of human rights? “that dignity relates to the intrinsic value of persons (such that it is wrong to treat persons as mere things rather than as autonomous ends or agents)”. According to this premise, every person, from conception to natural death, possesses inherent dignity. The other interpretation of dignity is by the supporters of euthanasia. For them, right to lead a healthy life also includes leaving the world in a peaceful and dignified manner. Living with dignity, in this view, means the right to live a meaningful life having certain quality. This interpretation endorses the “quality of life” proposition. [Paras 74, 75][213-A-C, E] Stefania Negri, “Universal Human Rights and End-of- Life Care” in S. Negri et al. (eds.), Advance Care Decision Making in Germany and Italy: A Comparative, European and International Law Perspective, Springer (2013), at page 18; Ronald Dworkin, Life’s Dominion (London: HarperCollins, 1993) as quoted in Deryck Beyleveld and Roger Brownsword, “Human Dignity, Human Rights, and Human Genetics”, Modern Law Review (1998), Vol. 61, at pages 665-666; Deryck A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. Beyleveld and Roger Brownsword, “Human Dignity, Human Rights, and Human Genetics”, Modern Law Review (1998), Vol. 61, at page 666; Stefania Negri, “Ending Life and Death” in A. den Exter (eds.), European Health Law, MAKLU Press (2017), at page 241; Sebastian Muders, Autonomy and the Value of Life as Elements of Human Dignity (Oxford University Press, 2017); LW Sumner, “Dignity through Thick and Thin”, in Sebastian Muders, Human Dignity and Assisted Death (Oxford University Press, 2017); Aneeta A Minocha, Arima Mishra and Vivek R Minocha, “Euthanasia: A Social Science Perspective”, Economic & Political Weekly (December 3, 2011), at pages 25-28 – referred to.

5.1 Under our Constitution, the inherent value which sanctifies life is the dignity of existence. Recognising human dignity is intrinsic to preserving the sanctity of life. Life is truly sanctified when it is lived with dignity. There exists a close relationship between dignity and the quality of life. For, it is only when life can be lived with a true sense of quality that the dignity of human existence is fully realized. Hence, there should be no antagonism between the sanctity of human life on the one hand and the dignity and quality of life on the other hand. Quality of life ensures dignity of living and dignity is but a process in realizing the sanctity of life. [Para 80][216-F; 217-A]

5.2 Human dignity is an essential element of a meaningful existence. A life of dignity comprehends all stages of living including the final stage which leads to the end of life. Liberty and autonomy are essential attributes of a life of substance. It is liberty which enables an individual to decide upon those matters which are central to the pursuit of a meaningful existence. The expectation that the individual should not be deprived of his or her dignity in the final stage of life gives expression to the central expectation of a fading life: control over pain and suffering and the ability to determine the treatment which the individual should receive. When society assures to each individual a protection against being subjected to degrading treatment in the process of dying, it seeks to assure basic human dignity. [Para 81][217-B-D] 36 A B C D E F G H COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 37

5.3 Dignity in the process of dying as well as dignity in death reflects a long yearning through the ages that the passage away from life should be bereft of suffering. These individual yearnings are enhanced by the experiences of sharing, observing and feeling with others: the loss of a parent, spouse, friend or an acquaintance to the cycle of life. Dignity in death has a sense of realism that permeates the right to life. It has a basic connect with the autonomy of the individual and the right to self- determination. Loss of control over the body and the mind are portents of the deprivation of liberty. As the end of life approaches, a loss of control over human faculties denudes life of its meaning. Terminal illness hastens the loss of faculties. Control over essential decisions about how an individual should be treated at the end of life is hence an essential attribute of the right to life. Corresponding to the right is a legitimate expectation that the State must protect it and provide a just legal order in which the right is not denied. In matters as fundamental as death and the process of dying, each individual is entitled to a reasonable expectation of the protection of his or her autonomy by a legal order founded on the rule of law. A constitutional expectation of providing dignity in death is protected by Article 21 and is enforceable against the State. [Para 82][218-B-E]

6.1 The nine-judge Bench decision of this Court in Justice K.S. Puttuswamy case held privacy to be the constitutional core of human dignity. The right to privacy was held to be an intrinsic part of the right to life and liberty under Article 21 and protected under Part III of the Constitution. [Para 83][218-F] Justice KS Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1 – followed. Maneka Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR 621; Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608 : [1981] 2 SCR 516 – relied on. 6.2 The protective mantle of privacy covers certain decisions that fundamentally affect the human life cycle. It protects the most personal and intimate decisions of individuals that affect their life and development. Thus, choices and decisions on matters such as procreation, contraception and marriage have been held A B C D E F G H 38 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. to be protected. While death is an inevitable end in the trajectory of the cycle of human life, individuals are often faced with choices and decisions relating to death. Decisions relating to death, like those relating to birth, sex, and marriage, are protected by the Constitution by virtue of the right of privacy. The right to privacy resides in the right to liberty and in the respect of autonomy. The right to privacy protects autonomy in making decisions related to the intimate domain of death as well as bodily integrity. Continuing treatment against the wishes of a patient is not only a violation of the principle of informed consent, but also of bodily privacy and bodily integrity that have been recognised as a facet of privacy by this Court. Just as people value having control over decisions during their lives such as where to live, which occupation to pursue, whom to marry, and whether to have children, so people value having control over whether to continue living when the quality of life deteriorates. [Paras 84, 85][220-B-D] Richard Delgado, “Euthanasia Reconsidered-The Choice of Death as an Aspect of the Right of Privacy”, Arizona Law Review (1975), Vol. 17, at page 474; TL Beauchamp, “The Right to Privacy and the Right to Die”, Social Philosophy and Policy (2000), Vol. 17, at page 276; 70 N.J. 10; 355 A.2d 647 (1976); Peter J. Riga, “Privacy and the Right to Die,” The Catholic Lawyer (2017) Vol. 26: No. 2 , Article 2 – referred to. 7. Privacy recognises that the body and mind are inviolable. An essential attribute of this inviolability is the ability of the individual to refuse medical treatment. [Para 90][223-B]

#8. Socio-Economic Concerns – One of the limitations of contemporary debates on euthanasia is that they do not take into consideration “certain socio-economic concerns that must necessarily be factored into any discourse”. This has been criticised as making the debate around ending life “incomplete” as well as “elitist”. The inadequacies of the range and reach of Indian healthcare may lead to a situation where euthanasia/active euthanasia may become “an instrument of cost containment”. [Paras 91, 92][223-C; 224-E] S Nagral, “Euthanasia: Cost Factor is a Worry”, The Times of India (June 19, 2011), available at http:// www.timesofindia.com/home/sunday/Euthanasia-cost- COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 39 factor-is-a-worry/articleshow/7690155.cms – referred to. 9. Restraints on judicial power: It is only Parliament which can in its legislative wisdom decide whether active euthanasia should be permitted. Passive euthanasia on the other hand would not implicate a criminal offence since the decision to withhold or withdraw artificial life support after taking into account the best interest of the patient would not constitute an illegal omission prohibited by law. [Para 93][225-C] Noel Douglas Conway v. The Secretary of State for Justice (2017) EWHC 2447 (Admin) – referred to. S Balakrishnan and RK Mani, “The constitutional and legal provisions in Indian law for limiting life support”, Indian Journal of Critical Care Medicine (2005), Vol. 9, Issue 2, at page 108 – referred to.

10.1 Penal provisions: The legality of and constitutional protection which is afforded to passive euthanasia cannot be read in isolation from the provisions of the Penal Code. Physicians are apprehensive about their civil or criminal liability when called upon to decide whether to limit life-supporting treatment. A decision on the constitutional question cannot be rendered without analyzing the statutory context and the impact of penal provisions. The decision in Aruna Shanbaug did not dwell on the provisions of the Penal Code (apart from Sections 306 and 309) which have a vital bearing on the issue of euthanasia. Undoubtedly, constitutional positions are not controlled by statutory provisions, because the Constitution rises above and controls legislative mandates. But, in the present reference where no statutory provision is called into question, it is necessary for the court to analyse the relationship between what the statute penalizes and what the Constitution protects. The task of interpretation is to allow for their co-existence while interpreting the statute to give effect to constitutional principle. This is particularly so in an area such as the present where criminal law may bear a significant relationship to the fundamental constitutional principles of liberty, dignity and autonomy. [Para 95][226-H; 227-A-C]

10.2 Our law of crimes deals with acts and omissions. Section 32 of the Penal Code places acts and omissions on the same plane. A B C D E F G H 40 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. An illegal omission (unless a contrary intent appears in the Code) is proscribed when the act is unlawful. The language of the statute which refers to acts applies, unless a contrary intent appears in the text, to omissions. The next aspect is about when an act or omission is illegal. Section 43 explains the concept of illegality. Here again, being legally bound to do something is the mirror image of what is illegal to omit doing. Section 43 comprehends within the meaning of illegality, that (i) which is an offence; or (ii) which is prohibited by law; or (iii) which furnishes a ground for a civil action. Section 81 protects acts which are done without a criminal intent to cause harm, in good faith, to prevent or avoid other harm to person or property. The law protects the action though it was done with the knowledge that it was likely to cause harm if a three-fold requirement is fulfilled.[Para 95][227-D, F; 228-A, C]

10.3 Section 92 protects an individual from a consequence which arises from the doing of an act for the benefit of another in good faith, though a harm is caused to the other. What was done is protected because it was done in good faith. Good faith is distinguished from an evil design. When a person does something to protect another from a harm or injury, the law protects what was done in good faith, treating the harm that may result as a consequence unintended by the doer of the act. This protection is afforded by the law even in the absence of consent when the circumstances are such that it is impossible for the person for whose benefit the act was done to consent to it. This may arise where the imminence of the apprehended danger makes it impossible to obtain consent. Another eventuality is where the individual is incapable of consenting (by being incapacitated in mind) and there is no person in the position of a guardian or person in lawful charge from whom consent can be obtained in time to perform the act for the benefit of that person. However, the first proviso to Section 92 makes it clear that the exception does not extend to the intentional causing of death or attempt to cause death to the individual, howsoever it may be for the benefit of the other. Abetment embodies a three-fold requirement: first an intentional aiding, second the aiding of an act or illegal omission and third, that this must be toward the doing of that thing. It presupposes a course of conduct or action which facilitates another COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 41 to end life. Hence abetment of suicide is an offence expressly punishable under Sections 305 and 306 of the IPC. [Paras 95, 96][229-A-E, F; 230-A-B]

10.5 Active euthanasia involves an intention on the part of the doctor to cause the death of the patient. Such cases fall under the first clause of Section 300. There also exists a distinction between active and passive euthanasia. This is brought out in the application of the doctrine of ‘double effect’. Active euthanasia involves an intention to cause the death of the patient. Passive euthanasia does not embody an intent to cause death. A doctor may withhold life support to ensure that the life of a patient who is in the terminal stage of an incurable illness or in a permanent vegetative state, is not prolonged artificially. The decision to do so is not founded upon an intent to cause death but to allow the life of the patient to continue till and cease at the end of its natural term. Placing such a person on life support would have been an intervention in the natural process of death. The crucial element in Section 299 is provided by the expression “causes death”. In a case involving passive euthanasia, the affliction of the patient is not brought about either by an act or omission of the doctor. Hence, a decision by the doctor based on what is in the best interest of the patient precludes an intent to cause death. Similarly, withdrawal of artificial life support is not motivated by an intent to cause death. What a withdrawal of life support does is not to artificially prolong life. The end of life is brought about by the inherent condition of the patient. [Paras 97, 98][230-G; 231-D, G; 232-A-C, E] “Doctrine of Double Effect”, Stanford Encyclopedia of Philosophy (July 28, 2004), available at https:// plato.stanford.edu/entries/double-effect/ - referred to.

10.6 Section 43 of the Penal Code defines the expression illegal to mean “…everything which is an offence or which is prohibited by law, or which furnishes ground in a civil action”. Withdrawing life support to a person in a permanently vegetative state or in a terminal stage of illness is not ‘prohibited by law’. Such an act would also not fall outside the purview of Section 92 for the reason that there is no intentional causing of death or attempt to cause death. Where a decision to withdraw artificial A B C D E F G H 42 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. life support is made in the caregiver of the patient, it fulfils the duty of care required from a doctor towards the patient. Where a doctor has acted in fulfilment of a duty of care owed to the patient, the medical judgment underlying the decision protects it from a charge of illegality. Such a decision is not founded on an intention to cause death or on the knowledge that it is likely to cause death. An act done in pursuance of the duty of care owed by the doctor to a patient is not prohibited by law. The intent in passive euthanasia is not to cause death. A decision not to prolong life beyond its natural span by withholding or withdrawing artificial life support or medical intervention cannot be equated with an intent to cause death. [Paras 99, 100][233-B-D, G]

#11. In 2006, the Law Commission of India submitted its 196th Report titled “Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners)”. The report by Justice M Jagannadha Rao as Chairperson contains a succinct elucidation of legal principles governing criminal law on the subject. Some of them are explained as follows: An informed decision of a patient to refuse medical treatment is accepted at common law and is binding on a treating doctor. While a doctor has a duty of care, 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 will not be an offence; The decision of a patient to allow nature to take its course over the human body and, in consequence, not to be subjected to medical intervention, does not amount to a deliberate termination of physical existence. Allowing nature to take its course and a decision to not receive medical treatment does not constitute an attempt to commit suicide within the meaning of Section 309 of the Penal Code; Once a competent patient has decided not to accept medical intervention, and to allow nature to take its course, the action of the treating doctor in abiding by those wishes is not an offence, nor would it amount to an abetment under Section 306. Under Section 107, an omission has to be illegal to constitute an abetment. A doctor bound by the instructions of a patient to withhold or withdraw medical treatment is not guilty of an illegal act or an abetment. The doctor is bound by the decision of the patient to refuse medical intervention; A doctor who withholds COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 43 or withdraws medical treatment in the best interest of a patient, such as when a patient is in a permanent vegetative state or in a terminal state of an incurable illness, is not guilty under Section 299 because there is no intention to cause death or bodily injury which is likely to cause death. The act of withholding or withdrawing a life support system in the case of a competent patient who has refused medical treatment and, in the case of an incompetent person where the action is in the best interest of the patient would be protected by good faith protections available under Sections 76, 79, 81 or, as the case may be, by Section 88, even if it is construed that the doctor had knowledge of the likelihood of death; and The decision of the doctor, who is under a duty at common law to obey the refusal of a competent patient to take medical treatment, would not constitute a culpable act of negligence under Section 304A. When the doctor has taken such a decision to withhold or withdraw treatment in the best interest of the patient, the decision would not constitute an act of gross negligence punishable under Section 304A. Introducing a structural safeguard, in the form of a Medical Board of experts can be contemplated to further such an objective. The Transplantation of Human Organs and Tissues Act 1994 provides for the constitution of Authorisation Committees under Section 9(4). Authorisation Committees are contemplated at the state and district levels and a hospital board. Once the process of decision making has been arrived at by fulfilling a mandated safeguard (the prior approval of a committee), the decision to withdraw life support should not constitute an illegal act or omission. The setting up of a broad-based board is precisely with a view to lend assurance that the duty of care owed by the doctor to the patient has been fulfilled. Once due safeguards have been fulfilled, the doctor is protected against the attribution of a culpable intent or knowledge. It will hence fall outside the definition of culpable homicide (Section 299), murder (Section 300) or causing death by a rash or negligent act (Section 304A). [Paras 101, 102][234-A-H; 235-A-E]

12.1 Advance Directives: A patient, in a sound state of mind, possesses the ability to make decisions and choices and can legitimately refuse medical intervention. However, a patient may not always have the opportunity to grant or withhold consent A B C D E F G H 44 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. to medical treatment. An unforeseen event may deprive the individual of the ability to indicate a desire to either receive or not to have medical treatment. An occasion necessitating treatment in sudden cases where a person suffers an accident, a stroke or coronary episode may provide no time for reflection. In anticipation of such situations, “where an individual patient has no desire to be kept in a state of complete and indefinite vegetated animation with no possibility of recovering his mental and physical faculties, that individual, while still in control of all his/her faculties and his ability to express himself/herself”, could still retain the right to refuse medical treatment by way of “advance directives”. [Paras 103, 104][235-F; 236-F-G; 237-A- B] Schloendorff v. Society of NY Hospital 105 N.E. 92, 93 (N.Y. 1914) – referred to.

12.2 There are two forms of advance directives: (i) A Living Will which indicates a person’s views and wishes regarding medical treatment. (ii) A Durable Power of Attorney for Health Care or Health care Proxy which authorises a surrogate decision maker to make medical care decisions for the patient in the event she or he is incapacitated. Although there can be an overlap between these two forms of advance directives, the focus of a durable power is on who makes the decision while the focus of a living will is on what the decision should be.[Para 105][237-B-D]

12.3 The principles of patient autonomy and consent are the foundation of advance medical directives. A competent and consenting adult is entitled to refuse medical treatment. By the same postulate, a decision by a competent adult will be valid in respect of medical treatment in future. Advance directives are thus documents a person completes while still in possession of decisional capacity about how treatment decisions should be made in the event she or he loses decision making capacity in future. They cover three conditions: (i) a terminal condition; (ii) a persistently unconscious condition; and (iii) an end-stage condition. A terminal condition is an incurable or irreversible condition which even with the administration of life-sustaining treatment will result in death in the foreseeable future. A persistently unconscious condition is an irreversible condition, COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 45 in which thought and awareness of self and environment are absent. An end-stage condition is a condition caused by injury, disease or illness which results in severe and permanent deterioration indicated by incompetency and complete physical dependency for which treatment of the irreversible condition would be medically ineffective. [Paras 107-109][239-A, D-F] Luis Kutner, “Due Process of Euthanasia: The Living Will, a proposal”, Indian Law Journal (1969), Vol. 44, Issue 4, at page 539; “Advance Directives and Substitute Decision-Making”, Stanford Encyclopaedia of Philosophy (24 March 2009), available at https:// plato.standford.edu/entries/advance-directives/; James C Turner, “Living Wills – Need for legal recognition”, West Virginia Law Review (1976), Vol. 78, Issue 3, at page 370 – referred to.

12.4 The reasons which may lead a person in a sound state of mind to refuse medical treatment are inscrutable. Those decisions are not subject to scrutiny and have to be respected by the law as an essential attribute of the right of the individual to have control over the body. The state cannot compel an unwilling individual to receive medical treatment. While an individual cannot compel a medical professional to provide a particular treatment (this being in the realm of professional medical judgment), it is equally true that the individual cannot be compelled to undergo medical intervention. The principle of sanctity of life thus recognises the fundamental liberty of every person to control his or her body and as its incident, to decline medical treatment. The ability to take such a decision is an essential element of the privacy of the being. Privacy also ensures that a decision as personal as whether or not to accept medical treatment lies exclusively with the individual as an autonomous being. The reasons which impel an individual to do so are part of the privacy of the individual. The mental processes which lead to decision making are equally part of the constitutionally protected right to privacy. Advance directives are founded on the principle that an individual whose state of mind is not clouded by an affliction which prevents him or her from taking decisions is entitled to decide whether to accept or not accept medical intervention. If a decision can be made for the present, when the individual is in a sound A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. state of mind, such a person should be allowed to decide the course of action which should be followed in the future if he or she were to be in a situation which affects the ability to take decisions. If a decision on whether or not to receive medical treatment is valid for the present such a decision must be equally valid when it is intended to operate in the future. [Paras 110, 111][239-H; 240-A-E]

12.5 When a patient is brought for medical treatment in a state of mind in which he or she is deprived of the mental capacity to make informed choices, the medical professional needs to determine the line of treatment. One line of enquiry, which seeks to protect patient autonomy is how the individual would have made a decision if he or she had decision-making capacity. This is called the substituted judgment standard. An advance medical directive is construed as a facilitative mechanism in the application of the substituted judgment standard, if it provides to the physician a communication by the patient (when she or he was in a fit state of mind) of the desire for or restraint on being provided medical treatment in future. Conceptually, there is a second standard, which is the caregiver standard founded on the principle of beneficence. The second standard seeks to apply an objective notion of a line of treatment which a reasonable individual would desire in the circumstances. The difference between these two standards is that the first seeks to reconstruct the subjective point of view of the patient. The second allows for “a more generic view of interests”, without having to rely on the “idiosyncratic values and preference of the patient in question”. [Paras 112, 113][240-G-H; 241-A-B; 242-B]

13.1 The sanctity of an advance directive is founded upon the expression of the will of an individual who is in a sound state of mind when the directive is executed. Underlying the consensual character of the declaration is the notion of the consent being informed. Undoubtedly, the reasons which have weighed with an individual in executing the advance directive cannot be scrutinized (in the absence of situations such as fraud or coercion which implicate the very basis of the consent). However, an individual who expresses the desire not to be subjected to a particular line of treatment in the future, should she or he be 46 A B C D E F G H COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 47 ailing in the future, does so on an assessment of treatment options available when the directive is executed. For instance, a decision not to accept chemotherapy in the event that the individual is detected with cancer in the future, is based on today’s perception of the trauma that may be suffered by the patient through that treatment. Advances in medical knowledge between the date of the execution of the document and an uncertain future date when the individual may possibly confront treatment for the disease may have led to a re-evaluation by the person of the basis on which a desire was expressed several years earlier. Another fundamental issue is whether the individual can by means of an advance directive compel the withholding of basic care such as hydration and nourishment in the future. Protecting the individual from pain and suffering as well as the indignity of debility may similarly raise important issues. Advance directives may hence conceivably raise ethical issues of the extent to which the perception of the individual who executes it must prevail in priority to the best interest of the patient.[Para 117][244-D-H; 245-A]

13.2 Advance directives provide moral authority for the family of the patient that the decision which has been taken to withdraw or withhold artificial life support is in accord with the stated desire of the patient expressed earlier. But the ethical concerns may warrant a nuanced application of the principle. The decision on whether to withhold or withdraw medical treatment should be left to a competent body comprising of, but not restricted to medical professionals. Assigning a supervisory role to such a body is also necessary in order to protect against the possibility of abuse and the dangers surrounding the misuse of an advance directive. An advance directive should not be utilized as a subterfuge to fulfil unlawful or unethical purposes such as facilitating a succession to property. [Para 119][245-E-H; 246-A]

13.3 The recognition of advance directives as part of a regime of constitutional jurisprudence is an essential attribute of the right to life and personal liberty under Article 21. That right comprehends dignity as its essential foundation. Quality of life is integral to dignity. As an essential aspect of dignity and the preservation of autonomy of choice and decision-making, each A B C D E F G H 48 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. individual must have the right on whether or not to accept medical intervention. Such a choice expressed at a point in time when the individual is in a sound and competent state of mind should have sanctity in the future if the individual were to cease to have the mental capability to take decisions and make choices. Yet, a balance between the application of the substituted judgment standard and the best interest standard is necessary as a matter of public interest. This can be achieved by allowing a supervisory role to an expert body with whom shall rest oversight in regard to whether a patient in the terminal stage of an illness or in a permanent vegetative state should be withheld or withdrawn from artificial life support. [Para 120][246-A-D] Re AK (Adult Patient) (Medical Treatment: Consent) [2001] 1 FLR 129; HE v. A Hospital NHS Trust [2003] 2 FLR 408; Re T (Adult: Refusal of Treatment) [1942] 4 All ER 649; Re C (Adult: Refusal of Medical Treatment)[1994] 1 All ER 819; St George’s Healthcare NHS Trust v S [1998] 3 WLR 936; Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449 – referred to. Alexander Ruck Keene, “Advance Decisions : getting it right?”, available at http://www.39essex.com/ docs /articles/advance_decisions_paper_ark_december_2012.pd; Elizabeth Wicks, The State and the Body : Legal Regulation of Bodily Autonomy, Hart Publishing (2016); A S Kessel and J Meran, “Advance directives in the UK: legal, ethical, and practical considerations for doctors”, British Journal of General Practice (1998), at page 1263; Are advance directives legally binding or simply the starting point for discussion on patients’ best interests?”, BMJ (28 November 2009), Volume 339, page 1231 – referred to.

14.1 The Mental Healthcare Act 2017, which was assented to by the President of India on 7 April 2017, enacts specific provisions for recognising and enforcing advance directives for persons with mental illness. The Act recognises an advance directive. An advance directive has to be in writing. The person subscribing to it must be a major. While making an advance COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA 49 directive, the maker indicates the manner in which he or she wishes or does not wish to be cared for and treated for a mental illness; and the person he or she appoints as a nominated representative. An advance directive is to be invoked only when the person who made it ceases to have the capacity to make mental healthcare treatment decisions. It remains effective until the maker regains the capacity to do so. [Para 130][252-G; 253- C-D] Aintree University Hospitals NHS Foundation Trust v. James and Others [2013] UK SC 6 – referred to.

14.2 Advance directives are capable of being revoked, amended or modified by the maker at any time. The Act specifies that an advance directive will not apply to emergency treatment administered to the maker. Otherwise, a duty has been cast upon every medical officer in charge of a mental health establishment and a psychiatrist in charge of treatment to propose or give treatment to a person with a mental illness, in accordance with a valid advance directive, subject to Section 11. Section 11 elucidates a procedure which is to be followed where a mental health professional, relative or care-giver does not desire to follow the advance directive. In such a case, an application has to be made to the Board to review, alter, cancel or modify the advance directive. In deciding whether to allow such an application the Board must consider whether the advance directive is truly voluntary and made without force, undue influence or coercion; The advance directive should apply in circumstances which are materially different; The maker had made a sufficiently well informed decision; The maker possessed the capacity to make decisions relating to mental health care or treatment at the time when it was made; and The directive is contrary to law or to constitutional provisions. A duty has been cast to provide access to the advance directive to a medical practitioner or mental health professional, as the case may be. In the case of a minor, an advance directive can be made by a legal guardian. The Act has specifically granted protection to medical practitioners and to mental health professionals against being held liable for unforeseen consequences upon following an advance directive. [Paras 133, 134][253-F-G; 254-A-E] A B C D E F G H 50 A B C D E F G H SUPREME COURT REPORTS [2018] 6 S.C.R. Vishaka v. State of Rajasthan (1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404 – relied on.