Supreme Court Urges Union To Bring Law On Passive Euthanasia

The Supreme Court on Wednesday(March 11) voiced the need for legislation to govern passive euthanasia in India. It said that due to the legislative vacuum on this issue in India, the Court has to intervene, from time to time, to frame guidelines as a matter of constitutional necessity.

A bench comprising Justice JB Pardiwala and Justice KV Viswanathan said this while allowing withdrawal and withholding of life-sustaining treatment for a 32-year-old Harish Rana who has been in a persistent vegetative state for the past 13 years.

The Court said that the issue was first examined in depth by the 196th Law Commission of India(2006), which said that withholding life support or medical treatment of terminally ill patients does not attract criminal liability of attempt to suicide, provided it is done in the best interest of the patient. 

Even before this,  NGO Common Cause had approached the Supreme Court under Article 32 seeking to declare the right to die with dignity as a fundamental right and to overturn Gian Kaur v State of Punjab(1996).

The Law Commission had traced the Parliament's competence to legislate on this issue under Entry 26, List III(Concurrent List), and it had also appended a draft Bill to its report for the Union Government's consideration. However, no consideration was taken of this.

Five years later, the Supreme Court dealt with its first case of euthanasia in Aruna Shanbaug v UOI(2011). While the Court rejected the plea for active euthanasia for Shaunbaugh, who remained in a persistent vegetative state for years after being sexually assaulted by a ward boy in hospital, it laid down guidelines for passive euthanasia as an interim measure.

Then came the 241st Law Commission Report(2012), which reiterated what the 196th Law Commission had said. It appended a revised bill, which suggested some modifications in the panel of medical experts that was constituted by the guidelines laid down in the Aruna Shanbaugh matter. 

During this time, the Union Government was asked in the Rajya Sabha if it plans to enact a comprehensive law pursuant to the guidelines laid down by the Supreme Court in Aruna Shanbaug. In reply, the Minister of Health and Family Welfare had said that since the constitutional bench has laid down guidelines, it would have the effect of law and there was no proposal to enact legislation in this regard.

In 2016, the Ministry of Health and Family Welfare had published a draft Bill 'Medical Treatment of Terminally-Ill Patients(Protection of Patients and Medical Practitioners Bill'. It had invited public comments. However, following the consultative stage, no further steps were taken.

Then, finally, in the pending Common Cause petition, the Supreme Court, in 2018, recognised the right to die with dignity as a fundamental right under Article 21. It laid down comprehensive guidelines for the withdrawal and withholding of medical treatment in the absence of any legislative framework.  But the then Justice AK Sikri had expressed a "pious hope" that the legislature would intervene and enact an appropriate law. 

In yesterday's judgment, the Supreme Court reiterated that the "pious hope" has become an imminent necessity given the fact that there continues to be a legislative void even after 8 years of the Common Cause judgment.

"The prolonged absence of a comprehensive legislation on end-of-life care has compelled this Court, time and again, to step in to fill the vacuum, out of constitutional necessity rather than institutional choice. While the guidelines as laid down in Common Cause (supra) have served as an important interim safeguard to protect the right to live and die with dignity, they were never intended to operate as a permanent substitute for legislation. Therefore, we urge the Union Government to consider enacting a comprehensive legislation on the subject in consonance with the vision of the Constitution Bench in Common Cause 2018 (supra). Such a legislation would provide more clarity, coherence, and certainty to these pertinent, practical and emotionally charged issues," the Court observed.

Other reports about the judgment can be found here.