dipak Misra, C.J.I. and A.M. Khanwilkar, J.

Constitution - Right to Self Determination - Article 21 of

Constitution of India - Present petition filed seeking declaration that right to die with dignity be declared
fundamental right within right to live with dignity under Article 21 of Constitution - Whether person be
allowed to remain in stage of incurable passivity suffering or treating utterance of death as rhetoric -
Whether law permits accelerating process of dying sans suffering when life is on inevitable decay -
Whether right to life under Article 21 of Constitution includes right to die A.K. Sikri, J. Constitution -
Living Will - Determination of Legal Status - Article 21 of Constitution of India - Present petition filed
seeking declaration that right to die with dignity be declared fundamental right within right to live with
dignity under Article 21 of Constitution - Whether passive euthanasia, voluntary or involuntary legally
permissible - Whether living will or advance directive be legally recognized and enforced Dr. D.Y.
Chandrachud, J. Constitution - Sanctity of Life - Determination of Legal Status - Article 21 of Constitution
of India - Present petition filed seeking declaration that right to die with dignity be declared
fundamental right within right to live with dignity under Article 21 of Constitution - Whether individual
Constitutionally recognized right to refuse medical treatment - Whether right to life under Article 21 of
Constitution includes right to die Ashok Bhushan, J. Constitution - Sanctity of Life - Determination of
Legal Status - Article 21 of Constitution of India - Present petition filed seeking declaration that right to
die with dignity be declared fundamental right within right to live with dignity under Article 21 of
Constitution - Whether advance directive be legalized - Whether to withdraw treatment for
incompetent terminally ill patient, rational or irrational Facts: The Petitioner was a registered society
engaged in taking of the common problems of the people. The present petition was filed to bring to the
notice of this Court the serious problem of violation of fundamental right to life, liberty, privacy and the
right to die with dignity of the people of this country, guaranteed to them under Article 21 of the
Constitution. It was submitted that the people who are suffering from chronic diseases and are at the
end of their natural life span are deprived of their rights to refuse cruel and unwanted medical
treatment, like feeding through hydration tubes, being kept on ventilator and other life supporting
machines in order to artificially prolong their natural life span. It was further pleaded that it was a
common law right of the people, of any civilized country, to refuse unwanted medical treatment and no
person could force him/her to take any medical treatment which the person did not desire to continue
with. Held, while allowing petition: Dipak Misra, C.J.I. and A.M. Khanwilkar, J. (i) The present Court noted
that a careful and precise perusal of the judgment in Gian Kaur v. State of Punjab reflects the right of a
dying man to die with dignity when life is ebbing out, and in the case of a terminally ill patient, where
there is no hope of recovery, accelerating the process of death for reducing the period of suffering
constitutes a right to live with dignity. Common law jurisdictions reveal that all adults with capacity to
consent have the right of self-determination and autonomy. The said rights pave the way for the right to
refuse medical treatment which had acclaimed universal recognition. A competent person who had
come of age has the right to refuse specific treatment or all treatment or opt for an alternative
treatment, even if such decision entails a risk of death. The 'Emergency Principle' or the 'Principle of
Necessity' has to be given effect to only when it is not practicable to obtain the patient's consent for
treatment and his/her life is in danger. But where a patient has already made a valid Advance Directive
which is free from reasonable doubt and specifying that he/she does not wish to be treated, then such
directive had to be given effect to. Right to life and liberty as envisaged under Article 21 of the
Constitution is meaningless unless it encompasses within its sphere individual dignity. The present Court
noted that with the passage of time, this Court has expanded the spectrum of Article 21 to include
within it the right to live with dignity as component of right to life and liberty. [195 ] A.K. Sikri, J.
:Concurring View (ii) We do not cut short the sufferings of our ailing dear ones by death because, as a
rule, we have always means at our disposal to help them and they have the capacity to think and decide
for themselves. But supposing that in the case of an ailing friend, any aid whatever and recovery is out
of question and the patient is lying in an unconscious state in the throes of agony, then there would be
no hinsa in putting an end to his suffering by death. Just as a surgeon did not commit hinsa but practices
the purest ahinsa when he wields his knife, one may find it necessary, under certain imperative
circumstances, to go a step further and sever life from the body in the interest of the sufferer. It may be
objected that whereas the surgeon performs his operation to save the life of the patient, in the other
case we did just the reverse. But on a deeper analysis it would be found that the ultimate object sought
to be served in both the cases is the same, namely, to relieve the suffering soul within from pain. The
present Court concluded that to cause pain or wish ill to or to take the life of any living being out of
anger or a selfish intent, is hinsa. On the other hand, after a calm and clear judgment to kill or cause pain
to a living being from a pure selfless intent may be the purest form of ahinsa. [247 ] (iii) 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
persistent vegetative state (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.
The one hand 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.
The possibility of misuse could not 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 could be made to
provide safeguards for exercise of such advance directive. [327],[328] and[329] Dr. D.Y. Chandrachud,
J. :Concurring View (iv) The reason which had impelled the Court to recognize passive euthanasia and
advance directives is that both bear a close association to the human urge to live with dignity. Age
brings isolation. Physical and mental debility bring a loss of self worth. Pain and suffering are
accompanied by a sense of being helpless. The loss of control is compounded when medical intervention
takes over life. Human values are then lost to technology. More significant than the affliction of ageing
and disease is the fear of our human persona being lost in the anonymity of an intensive care ward. It is
hence necessary for this Court to recognize that our dignity as citizens continues to be safeguarded by
the Constitution even when life is seemingly lost and questions about our own mortality confront us in
the twilight of existence. The sanctity of human life is the arterial vein which animates the values, spirit
and cellular structure of the Constitution. The Constitution recognizes the value of life as its
indestructible component. The survival of the sanctity principle is founded upon the guarantees of
dignity, autonomy and liberty. Constitutional recognition of the dignity of existence as an inseparable
element of the right to life necessarily means that dignity attaches throughout the life of the individual.
Dignity of life must encompass dignity in the stages of living which lead up to the end of life. Dignity in
the process of dying is as much a part of the right to life under Article 21 of the Constitution. To deprive
an individual of dignity towards the end of life is to deprive the individual of a meaningful existence.
Hence, the Constitution protects the legitimate expectation of every person to lead a life of dignity until
death occurs. The constitutionally recognized right to life is subject to the procedure established by law.
The procedure for Regulation or deprivation must, it is well-settled, be fair, just and reasonable. [477 ]
Ashok Bhushan, J. :Concurring View (v) The rights of bodily integrity and self-determination are the
rights which belong to every human being. 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 could
not be negated for a person who is not able to take an informed decision due to terminal illness or being
a PVS. In case of a person who is suffering from a disease and is taking medical treatment, there are
three stake holders; the person himself, his family members and doctor treating the patient. No person
could take decision regarding life of another unless he is entitled to take such decision authorized under
any law. The English Courts had applied the "best interests" test in case of a incompetent person. The
best interests of the patient had to be found out not by doctor treating the patient alone but a team of
doctors specifically nominated by the State Authority. The present Court was of the opinion that in cases
of incompetent patients who are unable to take an informed decision, it was in the best interests of the
patient that the decision be taken by competent medical experts. The medical team while taking
decision shall also take into consideration the opinion of the blood relations of the patient and other
relevant facts and circumstances. [563] and[564] (vi) The concept of advance medical directive is also
called living will is of recent origin, which gained recognition in latter part of 20th century. Many people
living depending on machines cause great financial distress to the family with the cost of long term
medical treatment. Advance medical directive was developed as a means to restrict the kinds of medical
intervention in event when one become incapacitated. The foundation for seeking direction regarding
advance medical directive is extension of the right to refuse medical treatment and the right to die with
dignity. When a competent patient has right to take a decision regarding medical treatment, with regard
to medical procedure entailing right to die with dignity, the said right cannot be denied to those
patients, who have become incompetent to take an informed decision at the relevant time. [566]
and[567]