COMMON CAUSE V UNION OF INDIA AIR (2018) SC 1665

Citation AIR 2018 SC 1665

Date of Judgment 9th march 2018
Court Supreme Court of India
Case Type Civil Writ Petition No.215 of 2005
Referred Article 21 Of Constitution
Petitioner Common Cause –Non Profit Organisation In
Delhi
Respondent Ministry Of Health And Family Welfare
(Union Of India)
Bench of 5 Judges CJI Deepak Mishra,
Justice A.K.Sikri, Justice A.M. Khanwilkar,
Justice D.Y.Chandrachud and
Justice Ashok Bhushan

INTRODUCTION

Euthanasia always remains a point of discussion over the world. The term “euthanasia” is
derived from two Greek words “eu”, which means “good” and “Thanatos”, which means death.
Euthanasia is the practice of ending a patient’s life in order to relieve their suffering. Normally,
the patient in concern would have a serious illness or be in excruciating pain. All over the world
some of the countries have legalized the euthanasia both active and passive and some partially
legalized and some have totally banned.

Types of Euthanasia

 Active Euthanasia It can be defined as when a person directly and deliberately does
something which results in the death of patient. Here specific steps/procedures are

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 undertaken (by the third party) like the administration of a lethal drug. This is a crime
(also in most parts of the world) under Section 302 and 309 0f the Indian Penal Code,
1860.

 Passive Euthanasia It involves withholding of medical treatment or withdrawal from

life support system for continuance of life (like removing the heart– lung machine from a
patient in coma). Hence in passive euthanasia death is brought about by an act of
omission.

 Voluntary Euthanasia Where euthanasia is carried out at the request of the patient.
Legally speaking voluntary euthanasia is illegal as it can be interpreted as attempt to
commit suicide which is punishable under Section 309 of the Indian Penal Code, 1860.

 Non-voluntary Euthanasia Where the person is unable to ask for euthanasia (perhaps
because he is unconscious or otherwise unable to communicate), or to make a meaningful
choice between living and dying and a surrogate person takes the decision on his behalf.

Before moving to our case we have to know what happen in the past related to euthanasia for
that we have to gone through this three cases:-

1. P.Rathinam v. union of India,1994

2. Smt. Gian Kuar V. state of Punjab, 1996

3. Aruna ramachandra shaunbaug v. union of India,2011

P. Rathinam V. Union of India, 1994 3 SCC 394

In this particular case, the Section 309 of the Indian Penal Code, 1860 was scraped off
and assisted suicide was made legal. In that particular time this was considered to be
prudent and according to the time.

Smt. Gian Kaur V. State Of Punjab 1996 AIR 946

The five bench judge, headed by Justice J.S. Vermo, brought the Section 309 of the
Indian Penal Code 1860 back and the judgement that was passed stated that, under the

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 ambit of Article 21 of the Indian Constitution, the part of Right To Live only includes the
aspect of life and thereof and nowhere includes the aspect of right to die. It was because
of this particular case that passive Euthanasia and Assisted Suicide were made unlawful.

Aruna Ramachandra Shaunbaug V. Union of India AIR 2011 SC 1290

This was the last turning law point case, till date, in the aspect of Euthanasia. The
decisions made in the Smt. Gian Kaur case were completely overturned and passive
Euthanasia was made legal. This can be considered as a compliment case to what our
case is, the main difference is that in this case, passive Euthanasia was made legal and in
our case, the aspect of right to die with dignity was sort of included under the umbrella of
right to live with dignity.

In Aruna Shaunbaug judgement as it allowed Passive Euthanasia under certain conditions. The
bench in the Aruna Shaunbaug case did not explicitly discuss the right to life and right to die
part, but as they declared Passive Euthanasia legal, it sort of comes under its ambit. Now why I
say sort of but not totally is because that in Passive Euthanasia, the patient’s will is not
considered rather his/her condition is, hence it does not give the patient the liberty to decide
whether to die or whether to live, but gives the one executing the life will of the patient. Hence
the part of right to die with dignity does not come under the ambit of right to live with dignity.

FACTS OF THE CASE

In 2002, Common Cause, a registered society had written to the Ministries of Law & Justice,
Health & Family Welfare, and Company Affairs as well as State Governments, on the issue of
the right to die with dignity. A Civil Writ Petition was filed in the Supreme Court in 2005 under
Article 32 of the Indian Constitution with regards to the unconstitutionality of Section 309 and
Section 306 of the Indian Penal Code, 1860 with reference to the Aruna Ramachandra
Shaunbaug V. Union of India AIR 2011 SC 1290 and the Smt. Gian Kaur V. The State Of
Punjab 1996 AIR 946. The question of passive and active euthanasia was raised in the same with
special emphasis on the Article 21 of the Indian Constitution, which gives the citizens of our
country Right To Live and under the Right To Life ambit also comes the aspect of Right To Die.

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The European Court of Human Rights decisions and the 241st Indian Law Commission report on
Passive Euthanasia in the context of Article 21 of the Indian Constitution was also referred with
several other acts, sections and submissions.

ISSUES

1) Whether the constitutional guarantee of the right to life includes the right to die.
2) Whether Euthanasia can be made lawful only by legislation.
3) Whether there is a difference between passive and active euthanasia.
4) Whether individual can give ‘advance directives’ on medical treatment for if they lose the
ability to communicate in future.

ARGUMENTS

Arguments as presented by the petitioner

The petitioner made the contention that the idea of preserving individual autonomy was
embedded in the right to privacy and that it also played an important part in the definition of
liberty. The argument made in support of this perspective was that using advanced medical
techniques to keep a patient alive in a persistent vegetative state prolonged their pain and
suffering and allowed for an infringement on their autonomy and dignity. The petitioner
additionally asserted that the rights to live and die with dignity were interlinked. Moreover, it
argued that a person could not be compelled to accept medical treatment against their will and
that it was their right under common law to decline any undesired medical treatment. The denial
of right to die leads to extension of pain and agony both physical as well as mental which the
petitioner Society seeks to end by making an informed choice by way of clearly expressing their
wishes in advance called "a living will" in the event of their going into a state when it will not be
possible for them to express their wishes.

Arguments as presented by the respondent

The respondent, i.e., the Ministry of Health and Family Affairs, submitted a counter affidavit in
the Court and stated that the ministry found it highly unfavorable to regulate euthanasia as the

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need for euthanasia entirely depends on a case-to-case basis where uniform laws or regulations
cannot be made. It was further argued by the respondent that under Article 21 of the Constitution
of India, the right to live with dignity is included, but the right only includes the proper
availability of food, shelter, and means for treatment for any health ailment. Hence, they asserted
that the right to die with dignity does not form a component of the right to live with dignity.

JUDGEMENT

In this case, the Supreme Court delivered its judgment on 8 March 2018. The judgment by the
Apex Court included two opinions of the judges, namely –

 Majority opinion

 Concurring opinion
The majority opinion was provided by the then Chief Justice of India – Justice Deepak Misra.
The majority opinion was also cited on behalf of Supreme Court Judge Ajay Manikrao
Khanwilkar.

On the other hand, a concurring opinion was provided by Justice Dhananjaya Yeshwant
Chandrachud.

The majority view on the right to deny treatment or medication

Expressing the view of the majority Justice Deepak Misra acknowledges the right of individuals
(above the age of 18 years) to make their own choices. Individuals even have the freedom to
choose whether to opt for medical treatment or not. He stated that an individual’s freedom to
make choices and their self-determination constitute the fundamentals of life. Therefore, the
choice to forgo medical care belongs to every adult who is of sound mind. Besides this, the
decision may be void if the individual was not legally qualified to make a decision if it was made
under pressure, if the terms were unclear or confusing, or if it was based on false information.

In contrast to euthanasia, physician-assisted suicide, and suicide, Chief Justice Misra places the
right to make choices on a higher pedestal. He makes it clear that refusing medical assistance is
neither euthanasia nor suicide, as they are both self-initiated positive actions taken with the

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express purpose of causing one’s own death. The majority opinion also referred to the principle
of necessity. This principle refers to the cases of emergency when taking consent of the patient is
not possible. In these situations, the doctor is required to act in the best interest of the patient.
Given the inability to interact with the patient, such a measure would be essential. It would have
to be one that a prudent person would adopt in the patient’s best interests. The majority view on
the concept of passive euthanasia and Article 21 of the Constitution of India. Expressing the
majority view on passive euthanasia and Article 21, it was stated that –

“It is critical that the Court come to the conclusion that Article 21 permits passive euthanasia so
that it can establish the rules for its regulation. The authority to establish the rules is known as
‘Judicial Legislation,’ which is the applicability of legislation to new or unexpected demands and
circumstances.”

Chief Justice Deepak Misra stated that the application of fundamental rights must be flexible, as
stated in numerous judgments. K.S. Puttaswamy v. Union of India (2017) clarified that Article
21 includes the concept of individual dignity. According to Chief Justice Misra, it ‘corrodes the
essence of dignity’ to let a sufferer wait for death while not knowing whether or not they are still
alive. Death does not indicate the disappearance of dignity because dignity does not require any
connection to a person’s condition. Thus, under Article 21, a terminally sick individual or one
who is in a permanent vegetative condition might choose to have his life end prematurely. This is
a fundamental human right. Hence, there is no need for legislation on this subject. Also, it is
specifically stated that Article 21 permits only passive euthanasia.

REFERENCES

1. https://blog.ipleaders.in/common-cause-v-union-of-india-case-analysis/
2. https://www.scobserver.in/cases/common-cause-euthanasia-and-the-right-to-die-
with-dignity-case-background/
3. https://indiankanoon.org/doc/184449972/
4. https://lawandotherthings.com/constitutional-bench-explainer-series-common-
cause-v-union-of-india

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