Common Cause v. Union of India

Common Cause, an N.G.O., filed a writ petition in the Supreme Court under Article 32. It argued that the right to life with dignity under Article 21 must include the right to die with dignity. A person who is terminally ill (the illness is incurable and death is certain) and is on life support should be able to write down their wishes in advance. This document is called a living will or advance medical directive. It states how treatment should proceed if the person can no longer express their wishes.

The matter went to a Constitution Bench because earlier decisions conflicted. In P. Rathinam v. Union of India (1994), the Court held Section 309 IPC (attempt to commit suicide) unconstitutional and said the right to die was part of Article 21. In Gian Kaur v. State of Punjab (1996), a five-judge bench overruled Rathinam. It held that the right to life does not include the right to die and upheld Section 309. But it also said that for a person already close to death in a permanent condition, the right to die with dignity at the end of life could be part of the right to life.

In Aruna Ramchandra Shanbaug v. Union of India (2011), Aruna, a nurse at K.E.M. Hospital in Mumbai, had been attacked by a fellow hospital employee in 1973. She remained in a persistent vegetative state for about 42 years, until her death in 2015. On 7 March 2011, a bench of Justice Markandey Katju and Justice Gyan Sudha Misra allowed passive euthanasia with the approval of the High Court, but not active euthanasia, and laid down guidelines. Permission was not granted in her own case because of the wishes of the hospital staff. To resolve these conflicting decisions, the matter was referred to a five-judge Constitution Bench.

1. Is the right to die with dignity part of Article 21?

2. Is passive euthanasia legal, and if so, under what conditions?

3. Can a living will or advance directive be treated as legal, and how would it be implemented?

Petitioner (Common Cause): Once the process of death has begun, every human being should have the right to decide whether to be kept alive artificially. Staying alive is a right, but once dignity is lost, dying with dignity should be part of the same right to dignity. Modern technology keeps patients alive with no chance of recovery, which is torture for both patient and family. The petitioner made clear it was not asking for a right to die, but for a right to die with dignity. A living will was also needed so that doctors would not face legal trouble when a patient's condition was hopeless.

States and Union of India: Several States said in their affidavits that the right to life under Article 21 is connected to food, shelter and health, not death. They argued that the State's first duty is to save life, so the right to die with dignity cannot be part of Article 21. The Union pointed out that the Law Commission's 2006 report on the treatment of terminally ill patients had proposed a draft Bill, but the Health Ministry did not favour making it law. The Union wanted the Aruna Shanbaug guidelines to simply continue. During the hearing, the Centre also opposed the living will on the ground that it could be misused.

On 9 March 2018, the five-judge Constitution Bench led by Chief Justice Dipak Misra unanimously held the following.

1. Right to die with dignity: Article 21 does not mean only the right to live; a dignified death is part of the same right. A patient whose disease is incurable, who is near the end of life and has no chance of recovery, has the right to have unnecessary life support removed. This rests on self-determination and individual autonomy. Every adult has the complete right to make decisions about their own body, including the right to refuse treatment.

2. Suicide v. passive euthanasia: Suicide is an active, deliberate attempt to kill oneself. In passive euthanasia, the patient only refuses unnecessary treatment. This does not cause death; it refuses to artificially delay a natural death.

3. Active v. passive euthanasia: Passive euthanasia means removing life support so that death occurs naturally, and it is legal subject to safeguards. Active euthanasia means an external act, such as an injection or poison, that causes death, and it remains illegal in India. The Court noted that many countries allow passive euthanasia, either by legislation or by court decisions. Passive euthanasia covers both withdrawal (removing life support already running) and withholding (not starting treatment that would only artificially delay death).

4. Living will (2018 guidelines):
- Who can make it: only an adult of sound mind who understands what they are signing and is under no pressure.
- What it must contain: it must clearly state when life support should be removed, leave no ambiguity, and name a guardian to take the decision.
- Revocation: the executor can cancel it at any time.
- Recording: it must be signed before two witnesses and countersigned by a Judicial Magistrate First Class, who verifies it and keeps a copy. Copies go to the District Court, the local government officer and the family physician.

5. Implementation (2018 guidelines):
- The treating doctor confirms that the patient is terminally ill.
- The hospital sets up a medical board of the head of the treating department and at least three senior experts.
- If that board agrees, the District Collector sets up a second board of new doctors.
- If the second board agrees, it informs the Judicial Magistrate, after whose approval the living will is implemented.
- If a board refuses, the executor, a relative or a doctor may approach the High Court under Article 226. The High Court sets up an independent medical committee and decides on the best interest of the patient.

The Court said that when death is certain, the process of dying should be smooth, not painful, and dignity must be protected up to the last moment. Denying legal recognition to advance directives would deny the person's dignity. In such a condition, the person's own interest should be given priority over the State's interest in preserving life, provided the medical boards and legal safeguards are followed.

Later development: On 24 January 2023, a five-judge bench led by Justice K. M. Joseph simplified the guidelines because the 2018 process was too long and difficult. A living will can now be attested by a notary or a gazetted officer instead of being countersigned by a Judicial Magistrate. Both medical boards are constituted by the hospital itself and must generally decide within 48 hours. The Magistrate is simply informed of the decision.

Article 21, Constitution of India; Article 14, Constitution of India; Article 32, Constitution of India; Article 226, Constitution of India; Section 306, Indian Penal Code (abetment of suicide), now Section 108 B.N.S.; Section 309, Indian Penal Code (attempt to commit suicide); Section 115, Mental Healthcare Act, 2017; Section 226, B.N.S.

This is the leading case on euthanasia and living wills in India. It shows how far Article 21 has expanded since A. K. Gopalan, now covering dignity even in dying.

Students must know:
- the chain of cases from P. Rathinam (1994) to Gian Kaur (1996), Aruna Shanbaug (2011) and Common Cause (2018);
- the difference between active and passive euthanasia, and between withdrawal and withholding;
- the safeguards for a living will;
- the best interest of the patient test;
- the 2023 simplification of the guidelines.

It also connects to the current position on attempt to suicide. Gian Kaur upheld Section 309 IPC as valid, so it is wrong to call it unconstitutional. However, Section 115 of the Mental Healthcare Act, 2017 presumes that a person who attempts suicide was under severe stress, unless proved otherwise; such a person is not prosecuted under Section 309 IPC but is given care. Under the B.N.S., an ordinary attempt to commit suicide is no longer a crime. Punishment survives only under Section 226 B.N.S., where the attempt is made to compel or prevent a public servant from performing their duty.

Hypothetical: Prince, a healthy 45-year-old adult of sound mind, signs a living will before two witnesses. It is attested by a notary, as the simplified 2023 guidelines allow. It states that if he is ever terminally ill with no hope of recovery, he does not want to be kept alive on a ventilator, and it names his sister Zoya as his guardian.

Years later, Prince is in an incurable terminal condition. The hospital's medical boards, constituted under the guidelines, confirm his condition and approve the directive, and the Magistrate is informed. Life support can then lawfully be withdrawn, which is passive euthanasia.

However, if Dr. Farhan gave Prince a lethal injection to end his life, that would be active euthanasia, which remains illegal in India. If the boards had refused, Zoya could approach the High Court under Article 226, which would decide on Prince's best interest.