Constitution of India – Art.21 – Passive Euthanasia – Right to die with dignity – Held: The right to life with dignity includes 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 – Such a right should come within the ambit of Art.21 of the Constitution – As part of right to die with dignity in case of dying man who is terminally ill or in a persistent vegetative state only passive euthanasia would come within the ambit of Art.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. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Constitution of India – Art.21 – Right to refuse treatment – A patient (terminally ill or in a persistent vegetative state) exercising the right to refuse treatment may ardently wish to live but, at the same time, he may wish to be free from any medical surgery, drugs or treatment of any kind so as to avoid protracted physical suffering– Any such person who has come of age and is 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 – 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 – All adults with capacity to consent have the right of self-determination and autonomy – 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 has to be given effect to. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Constitution of India – Art.21 – Right to refuse treatment – 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 – 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. (Per Dr. D.Y. Chandrachud, J.)

Constitution of India – Art.21 – 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 Art.21 – 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. (Per Dr. D.Y. Chandrachud, J.)

Constitution of India – Art.21 – Right to refuse treatment – An adult human being of conscious mind is fully entitled to refuse medical treatment or to decide not to take medical treatment and may decide to embrace the death in natural way. (Per Ashok Bhushan, J.)

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 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 – Incases 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.)

Constitution of India – Art.21 – Right to live with dignity – Dignity implies, apart from a right to life enjoyment of right to befree 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 apart 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, shoulda major part thereof be consumed on those patients who have no chances of recovery – Judicial notice. (Per A.K. Sikri, J.)

Constitution of India – Arts.14, 21 – Human dignity – How philosopher-jurist Dworkin perceived interpretative process adopted by a Judge – Discussed – Interpretation of statute. (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” underArt.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 theview 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 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 inheredin the right of an individual pertaining to life and liberty and the reis 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, isnot 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 – Ina 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 bonafide 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 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.)

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 the 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 196th 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 lifespan of the individual is curtailed by a specific act designed to 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 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 hand, the concept of dignity and right to bodily integrity, which recognises legal right of autonomy and choice to the patient (oreven 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.])

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 tomake 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 – 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 and preference of the patient in question”. (Per Dr. D.Y. Chandrachud, J.)

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 loses capacity to take a decision – Use and operation of advance medical directive is toconfine only to a case when person becomes incapacitated to take an informed decision regarding his medical treatment – So long as 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 beforehand, 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.]) 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.)

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 – Differencebetween, 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.)