‘ right to die’
where there are none.
“The directive and guidelines shall remain in force till Parliament brings a legislation in the field,” CJI Misra said.
The bench, which also included Justices A. K. Sikri, A. M. Kanwilkar, D. Y. Chandrachud and Ashok Bhushan, gave the decision on a petition filed by NGO Common Cause in 2005 seeking a declaration that “right to die” is part of right to life under Article 21 of the Constitution.
Justices Sikri, Chandrachud and Ashok Bhushan gave concurring judgments with different reasons.
Quoting the recent nine- judge bench verdict holding right to privacy as a fundamental right, the court said the right to privacy resides in the right to liberty and in the respect of autonomy.
“The right of a dying man to die with dignity when life is ebbing out, and in the case of a terminallyill patient or a person in PVS, 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,” the court said.
In a “living will” a person can express his/ her desire in advance in writing to have or not to have extraordinary life prolonging measures to keep him/ her alive even though there is no chance of recovery from his/ her terminal condition. Under passive euthanasia medical treatment is denied to a person who cannot be cured. The court has recognised both the concepts.
The CJI, writing the judgment for himself and Justice Kanwilkar, said, “Dignity in death has a sense of realism that permeates the right to life. It has a basic connect with the autonomy of the individual and the right to self- determination. Loss of control over the body and the mind are portents of the deprivation of liberty.”
“As the end of life approaches, a loss of control over human faculties denudes life of its meaning. Terminal illness hastens the loss of faculties. Control over essential decisions about how an individual should be treated at the end of life is, hence, an essential attribute of the right to life.” The court said that a person’s advance directive or “living will” to withdraw medical care to allow him to die with dignity will take effect only when a medical board affirms that his/ her condition is beyond cure and irreversible.
The CJI said the person can make an advance directive before a magistrate, who will examine whether the person executing the “living will” is of sound mind. There should be two independent witnesses at the time of execution of the “living will”.
The CJI pointed out that a certificate from a statutory medical board that a patient’s condition was beyond cure and irreversible would take care of apprehensions of relatives and doctors about withdrawing life support and when it should be done.