In 2006, the Law Commission, in its 196th report, had for the first time explored the legal position on euthanasia in India and the world over. The result — The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill — is still a work in progress.
That’s why on Friday, when the Supreme Court allowed advance directives (“living will”) in healthcare, it was with the proviso that the “directives have been issued in exercise of the power conferred by Article 142 of the Constitution and shall continue to hold the field until a suitable legislation is enacted by Parliament to govern the area”.
The verdict quoted at length the Law Commission report. Another report — number 241 — of the Commission recommended legislation on passive euthanasia and drew up the draft Bill.
The Bill defines advance directive as a directive given by a person that s/he shall/not be given medical treatment when s/he becomes terminally ill. Any person above 16 years who is capable of taking an informed decision (has no impairment of speech, brain) can make an advance directive.
Like Friday’s judgment, the Bill requires the Medical Council of India to formulate guidelines for medical practitioners on withdrawal/withholding of support to terminally ill patients. The government also told the Supreme Court that an expert committee had recommended legislation on passive euthanasia and several meetings were held on the matter.
The distinction between active and passive euthanasia was made by Supreme Court in the Aruna Ramchandra Shanbaug vs Union Of India & Ors (March 7, 2011) judgment where it said: “Active euthanasia entails the use of lethal substances or forces to kill a person, e.g. a lethal injection… Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it, a patient is likely to die…”
Shanbaug, a nurse at the King Edward Memorial Hospital in Mumbai, spent 42 years in a vegetative state before she died of natural causes in 2015. In 2011, a petition to stop nutrition to Aruna was dismissed by Supreme Court but in effect laid the foundation for Friday’s verdict.
In its 2011 verdict on the petition to allow euthanasia for Aruna, the Supreme Court had said: “If the doctor acts on such consent (expressed at an earlier date before he/she became unconscious or otherwise incapable of communicating it, as by a living will or by giving written authority to doctors in anticipation of his/her incompetent situation) there is no question of the patient committing suicide… “It is simply that the patient, as he is entitled to do, declines to consent to treatment which might or would have the effect of prolonging his life and the doctor has in accordance with his duties complied with the patient’s wishes,” stated the order.
Since then, another judgment has bolstered the concept of right to life with dignity. Last year, on August 24, when the SC delivered the Right to Privacy judgment, it said: “To live is to live with dignity.” The word “dignity” appears in the latest verdict 473 times.
“The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among others, freedoms, liberty and dignity. Dignity is the core which unites fundamental rights because fundamental rights seek to achieve for each individual the dignity of existence,” the order stated. India has already incorporated the concept of advance directive in the Mental Health Act.