Living Will- “Under The Scheme Of Separation Of Powers, This Is Squarely A Matter That You Should Have Taken Up”: SC Constitution Bench Tells Centre

A Constitution Bench of the Supreme Court, on Thursday, continued with the hearing of the Miscellaneous Application seeking modification of the guidelines for Living Will/Advance Medical Directive that was issued by way of its judgment recognising 'passive euthanasia' in Common Cause v. Union of India And Anr.For the past two days, a Bench comprising Justice K.M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice C.T. Ravikumar has engaged in an exercise to make the directions passed in Common Cause with respect to Advance Medical Directives workable. In its application, the Indian Council for Critical Care Medicine had pointed out how it has become difficult to enforce the Court’s directions, given the cumbersome process involved in implementation of the Advance Directive.On Thursday, during the course of the hearing, Justice Joseph raised a concern that the issue at hand pertains to an area wherein the Legislature is enjoined to exercise power and enact a law. He was of the opinion that by not doing so; and merely agreeing to the directions issued by the Court, the Legislature had passed the buck to the judiciary. “What really strikes us. Govt of India please listen. Areas which are meant for the legislature to exercise its power, by not exercising power and by agreeing to all this issued by the Court you are actually passing the buck. You are abdicating your…”He added that, under the scheme of separation of powers the issue of Advance Medical Directive ought to have been taken up and deliberated upon by the elected representatives. Unlike the Court, the Legislature would have expert bodies who can come up with more effective solutions to the issue. “Under the scheme of separation of powers, this is squarely a matter that you should have taken up...This is a matter where chosen representatives should debate... that would have greater amount of wisdom.We do not have the expertise other than what you are providing us.”Additional Solicitor General, Mr. K.M. Nataraj informed the Bench that the issue was deliberated upon and referred to expert bodies, but, ultimately the Union Government decided to not introduce a Bill in this regard. “This was actually deliberated upon. We have filed an affidavit to that effect...It was referred 3-4 times to expert bodies. The Government thereafter took a conscious decision that we need not go for legislation.”Senior Advocate, Mr. Arvind Datar, appearing on behalf of the applicant, submitted that they had multiple meetings with the Union Government, representatives of AIIMS, and other stakeholders. Justice Joseph observed that it would be in the interest of all, if the applicant and the Union Government came up with a joint proposal for modifications. All the Judges agreed that it is not adversarial litigation and the whole idea behind the present hearing is to make the directions of the Court workable. Justice Joseph advised the Counsels to sit together over the weekend and prepare the proposal, which can subsequently be filed before the Court by Monday.The matter will tentatively be taken up on 24.01.2023 (Tuesday). [Case Status: Common Cause v. UoI MA 1699/2019 in WP(C) No. 215/2005]Click Here To Read/Download Order

Living Will- “Under The Scheme Of Separation Of Powers, This Is Squarely A Matter That You Should Have Taken Up”: SC Constitution Bench Tells Centre

Sohini Chowdhury

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