Chief Justice of India Dipak Misra and Justice AM Khanwilkar

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 which has acclaimed universal recognition.

A competent person who has 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 has 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. 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 a component of the right to life and liberty.

It has to be stated without any trace of doubt that the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS (permanently vegetative state) with no hope of recovery.

A failure to legally recognise advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity. Further, 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 hereinbefore shall be applicable.

When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest.

The directive and guidelines shall remain in force till the Parliament brings a legislation in the field.

RIGHT TO LIVE WITH DIGNITY ALSO INCLUDES THE SMOOTHENING OF THE PROCESS OF DYING IN CASE OF A TERMINALLY ILL PATIENT