Social Morality, Medical Ethicality & State Interest

Having dwelt upon the issue of self-determination, we may presently delve into three aspects, namely, social morality, medical ethicality and the State interest. The aforesaid concepts have to be addressed in the constitutional backdrop.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 215 OF 2005

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

Versus

Union of India and Another …Respondent(s)

J U D G M E N T

Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]

I N D E X

S. No. Heading A. Prologue B. Contentions in the Writ Petition C. Stand in the counter affidavit and the applications for intervention D. Background of the Writ Petition D.1 P. Rathinam’s case – The question of unconstitutionality of Section 309 of the Indian Penal Code D.2 Gian Kaur’s case – The question of unconstitutionality of Section 306 of the Indian Penal Code D.3 The approach in Aruna Shanbaug qua Passive Euthanasia vis-à-vis India D.4 The Reference E. Our analysis of Gian Kaur F. Our analysis of Aruna Shanbaug qua legislation G. The Distinction between Active and Passive Euthanasia H. Euthanasia : International Position H.1 U.K. Decisions: H.1.1 Airedale Case H.1.2 Later Cases H.2 The Legal position in the United States H.3 Australian Jurisdiction H.4 Legal position in Canada H.5 Other Jurisdictions H.6 International considerations and decisions of the European Court of Human Rights (ECHR) I The 241st Report of The Law Commission of India on Passive Euthanasia J. Right to refuse treatment K. Passive Euthanasia in the context of Article 21 of the Constitution. K.1 Individual Dignity as a facet of Article 21 L Right of self-determination and individual autonomy M. Social morality, medical ethicality and State interest N. Submissions of the States O. Submissions of the Intervenor (Society for the Right to Die with Diginity) P. Advance Directive/Advance Care Directive/ Advance Medical Directive (a) Who can execute the Advance Directive and how (b) What should it contain? (c) How should it be recorded and preserved (d) When and by whom can it be given effect to (e) What if permission is refused by the Medical Board (f) Revocation or inapplicability of Advance Directive Q. Conclusions in seriatim

M. Social morality, medical ethicality and State interest:

170. Having dwelt upon the issue of self-determination, we may presently delve into three aspects, namely, social morality, medical ethicality and the State interest. The aforesaid concepts have to be addressed in the constitutional backdrop. We may clearly note that 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.

171. 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 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 selfrespect 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.

172. It is to be borne in mind that 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.

173. 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.