W.P. (C) 215/2005
Living Will, Right to Life

Summary :

In a landmark order, the Supreme Court on March 9, 2018 has allowed living will and passive euthanasia. It has held that the right to die with dignity is an inextricable facet of Article 21. It further said that an adult human having mental capacity to take an informed decision has the right to refuse medical treatment including withdrawal from life saving devices.

Right of execution of an advance medical directiveby an individual does not depend on any recognition or legislation by a State. Such rights can be exercised by an individual in recognition and in affirmation of his right of bodily integrity and self determination. The Bench said that it will  lay down norms governing how the guidelines can be drawn up, executed and given effect to.

The order was passed by a five judge Constitution bench of Chief Justice (CJI) Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.

Our petition had sought the enactment of a law on the lines of the Patient Autonomy and Self-determination Act of the USA, which sanctions the practice of executing a ‘living will’ in the nature of an advance directive for refusal of life-prolonging medical procedures in the event of the testator’s incapacitation. We had approached the Court with the prayer that the autonomy of an individual should be respected. And one should be allowed while one is in full possession of one’s faculties to  lay down a binding directive applicable to the next of kin as well as to the medical care providers not to put that person under life support, not to undertake any intrusive and extraordinary  measure to artificially  prolong one’s  life in the case of incompetency developing and the patient reaching a state of irreversible vegetative condition or a terminal illness and losing the capacity to determine what is good for him.

The matter was disposed of on February 25, 2014. Without pronouncing any order on the specific prayer made in our petition, the Court invited a Constitution Bench to resolve the inconsistencies involved in the issue and the matter was taken up on July 16, 2014. After notices were issued to all States and UTs, the matter came up on January 15 and February 15, 2016.  The ASG submitted that the government was considering a legislation on the subject. It came up with a draft Bill called “Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2016”, which ironically makes no mention of the word “Living Will.” Common Cause, subsequently, submitted its detailed comments on the Bill in response to a statutory notice. On October 11, 2017, hearing was concluded and judgment was reserved by the Court on the petition.

On legalizing euthanasia or on the issue if doctor assisted suicide can lead to abuse the slippery slope argument comes into play and the potential for abuse is very significant. Even on philosophical grounds Common Cause does not support active euthanasia or assisted suicide, but what is of significance is the respect for the autonomy of the competent adult.

Download :

Order_11 Oct 2017
WP 215 of 2005
Living Will Judgment