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Shruti Desai

December 5, 2024

RIGHT TO DIE WITH DIGNITY A FUNDAMENTAL RIGHT IN INDIA?

 It is easy to live but difficult to die.

 Life is lived on hope …

  Than why we are studying Living Will and Euthenesia?

 What is Euthanasia? It’s a the practice (most countries have not legalized) of killing somebody without pain who wants to die because he/she is suffering from a disease that cannot be cured. We will see this in detail hereinafter discussing Supreme Court Judgments.

In India euthanasia was not permitted. Though practice of SATI was prevalent in India, A widow would jump in pyre of her husband as in Hindu religion marriage is not contract but a relationship for 7 births. So, marriage ceremony is also called saptapadi. The SATI practice was banned The Bengal Sati Regulation or Regulation XVII, A. D. 1829 of the Bengal Code was a legal act promulgated in British India under East India Company rule, by the then Governor-General Lord William Bentinck. The act made the practice of sati—or the immolation of a Hindu widow on the funeral pyre of her deceased husband—declared illegal in all jurisdictions of British India and subject to legal prosecution by Britishers.

Subsequently Raja Rammohan Roy in played remarkable role in transformation in the social ideas in the History of India. Age old ‘Sati system’, i.e., burning of Widow in her dead husband’s funeral pyre which existed in India was abolished due to the effort of Raja Ram Mohan Roy He was the founder of Brahmo samaj and he also played a vital role in the abolition of Polygamy and Child marriage in India.

Another practice in India was of Johar. Sati and Johar are not the same. Johar was self-immolation practiced in Rajasthan to save chastity by women from Mughals and attackers.

Well, these are not in stricto sensu can be called euthanasia but a living death for dignity of woman which was part of religious practice.

The last documented case of sati in India was in the year 2008, when Lalmati Verma, a 75-year-old woman, jumped into her husband’s funeral pyre after mourners had left the cremation site.

Here are some other recent cases of sati:

2006 : Vidyawati, a 35-year-old woman, allegedly jumped into her husband’s funeral pyre in Rari-Bujurg Village, Uttar Pradesh

2006 : Janakrani, a 40-year-old woman, burned to death on her husband’s funeral pyre in Sagar district

2002 : Kuttu, a 65-year-old woman, died after sitting on her husband’s funeral pyre in Panna district of Madhya Pradesh

1987 : case of Roop Kanwar,

India passed additional legislation against sati was passed namely The Commission of Sati (Prevention) Act, 1987 is a law in India that aims to prevent the practice of sati and the glorification of it:

Purpose

The act prevents the voluntary or forced burning or burying alive of a widow. It also prohibits actions that glorify sati, such as ceremonies, processions, financial trusts, temples, or other actions that honour the memory of a widow who committed sati.

Punishment

The act punishes anyone who glorifies sati with imprisonment of at least one year and up to seven years, and a fine of at least five thousand rupees and up to thirty thousand rupees

Another voluntary death is Santharo in Jainism

Purpose: Jains believe that Santhara is a way to destroy karma that influences rebirth, and to liberate the soul from the cycle of birth, death, and rebirth.

View on suicide: Jains don’t consider Santhara to be suicide because it’s not an act of passion, and it doesn’t involve weapons or poisons.

Rare : Santhara is rare, and only performed when death is imminent. It’s estimated that around 200 Jains fast to death each year.

A REAL CASE OF VEGITATIVE LIFE FOR 41 YEARS

A Rare Case in KEM Hospital Mumbai from where a nurse who was to get married to a Doctor of KEM was raped by sweeper of the same hospital. Aruna Ramchandra Shanbaug (1 June 1948 – 18 May 2015), was an Indian nurse who was at the Centre of attention in a court case on euthanasia after spending over 41 years in a vegetative state because of a sexual assault.

A PIL was filed in Supreme Court Common Cause Society vs Union of India on dignity of living. The question was raised in the Petition was whether a person should be allowed to remain in such a stage of incurable passivity

suffering from pain and anguish in the name of Hippocratic oath or, for that matter, regarding the suffering as only a state of mind and a relative perception or treating the utterance of death as a ―word infinitely terrible‖ to be a rhetoric without any meaning. In contradistinction to the same, the question that arises is should he not be allowed to cross the doors of life and enter, painlessly and with dignity, into the dark tunnel of death whereafter it is said that there is resplendence.

Law doesn’t know emotions. But relatives do. It is said that walls of hospital hear more prayers than temples or mosques. Family of such vegetative patient wants that he becomes normal and lives. It’s sheer chance of hope for love.

The instant Writ Petition preferred under Article 32 of the Constitution of India by the petitioner, a registered society, seeks to declare ―right to die with dignity  as a fundamental right within the fold of ―right to live with dignity guaranteed under Article 21 of the Constitution; to issue directions to the respondents to adopt suitable procedure in consultation with the State Governments, where necessary; to ensure that persons of deteriorated health or terminally ill patients should be able to execute a document titled ―My Living Will and Attorney Authorization‖ which can be presented to the hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness which may threaten termination of the life of the executant; to appoint a committee of experts including doctors, social scientists and lawyers to study into the aspect of issuing guidelines as to the ―Living Wills ; and to issue such further appropriate directions and guidelines as may be necessary.

Prior to this there are two more judgments .

Gian Kaur vs State of Punjab The Constitution Bench in Gian Kaur’s case held that the “right to life: including right to live with human dignity” would mean the existence of such right up to the end of natural life, which also includes the right to a dignified life upto the point of death including a dignified procedure of death.

Abetting suicide is not a crime. This was decided by the Supreme Court of India in P. Rathinam Vs. Union of India , where this Court declared Section 309 IPC to be unconstitutional as violative of Article 21 of the Constitution. Therefore, if a patient’s life support system is withdrawn it doesn’t amount to abetment to suicide or murder.

Now let us see other countries across the globe.

USA: Involuntary euthanasia is illegal in all 50 states of the United States. i)  Assisted suicide is legal in 10 jurisdictions in the US: Washington, D.C. ii) and the states of California, Colorado, Oregon, Vermont, New Mexico, Maine, iii)  New Jersey, iv  Hawaii, and Washington. vi The status of assisted suicide is disputed in Montana, though currently authorized per the Montana Supreme Court’s ruling in Baxter v. Montana that “nothing in Montana Supreme Court precedent or Montana statutes [indicates] that physician aid in dying is against public policy

Britain: Assisted suicide is the ending of one’s own life with the assistance of another. It is currently illegal under the law of the United Kingdom. In England and Wales, the Suicide Act 1961 prohibits “aiding, abetting, counselling or procuring the suicide of another” with a penalty of up to 14 years’ imprisonment.[

Europe: Luxembourg decriminalised euthanasia or assisted suicide in 2009 while Spain passed a law allowing both in 2021 for those with unbearable suffering. Portugal’s parliament passed a bill allowing euthanasia in 2023 after a long debate and following a veto from the country’s president.

Canada:  In Cananda life is more important and it is duty of the state to take care of each life and hence euthanasia is not allowed.

Switzerland: A person is liable to be imprisoned for assisted suicide for selfish reason.

Netherlands: The Netherlands has the most experience with physician hastened death. Both euthanasia and assisted suicide remain crimes there but doctors who end their patients’ lives will not be prosecuted if legal guidelines are followed. Among the guidelines are:

  • The request must be made entirely of the patient’s own free will.
  • The patient must have a long lasting desire for death.
  • The patient must be experiencing unbearable suffering.
  • There must be no reasonable alternatives to relative suffering other than euthanasia.
  • The euthanasia or assisted suicide must be reported to the coroner.

Death by injecting lethal drug is crime.

In Gian Kaur it was held that Right to Die is not a fundamental right. Although, right to die was held not to be a fundamental right enshrined under Article 21 but it was laid down that the right to life includes right to live with human dignity, i.e., right of a dying man to also die with dignity when his life is ebbing out

Supreme Court in Petition filed by Common Cause Society concluded with following directions and observations:

(i) The Constitution Bench in Gian Kaur’s case held that the “right to life: including right to live with human dignity” would mean the existence of such right up to the end of natural life, which also includes the right to a dignified life upto the point of death including right was held to be part of fundamental right enshrined under Article 21 of the Constitution which we also reiterate.

(ii) We agree with the observation made in the reference order of the three Judge Bench to the effect that the Constitution Bench in Gian Kaur’s case did not express any binding view on the subject of euthanasia. We hold that no binding view was expressed by the Constitution Bench on the subject of Euthanasia.

(iii) The Constitution Bench, however, noted a distinction between cases in which physician decides not to provide or continue to provide for treatment and care, which could or might prolong his life and those in which he decides to administer a lethal drug even though with object of relieving the patient from pain and suffering. The later was held not to be covered under any right flowing from Article 21.

(iv) Thus, the law of the land as existing today is that no one is permitted to cause death of another person including drug even if the objective is to relieve the patient from pain and suffering.

(v) An adult human being of conscious mind is fully entitled to refuse medical treatment or to decide not to take medical treatment and may decide to embrace the death in natural way.

(vi) Euthanasia as the meaning of words suggest is an act which leads to a good death. Some positive act is necessary to characterise the action as Euthanasia. Euthanasia is also commonly called “assisted suicide” due to the above reasons.

(vii) We are thus of the opinion that the right not to take a lifesaving treatment by a person, who is competent to take an informed decision is not covered by the concept of euthanasia as it is commonly understood but a decision to withdraw lifesaving treatment by a patient who is competent to take decision as well as with regard to a patient who is not competent to take decision can be termed as passive euthanasia, which is lawful

(viii) The right of patient who is incompetent to express his view cannot be outside of fold of Article 21of the Constitution of India.

(ix) We also are of the opinion that in cases of incompetent patients who are unable to take an informed decision, “the best interests principle” be applied and such decision be taken by specified competent medical experts and be implemented after providing a cooling period to enable aggrieved person to approach the court of law.

(x) An advance medical directive is an individual’s advance exercise of his autonomy on the subject of extent of medical intervention that he wishes to allow upon his own body at a future date, when he may not be in a position to specify his wishes. The purpose and object of advance medical directive is to express the choice of a person regarding medical treatment in an event when he looses capacity to take a decision. The right but a step towards protection of aforesaid right by an individual.

(xi) Right of execution of an advance medical directive by an individual does not depend on any recognition or legislation by a State and we are of the considered opinion that such rights can be exercised by an individual in recognition and in affirmation of his right of bodily integrity and selfdetermination.

THIS IS ALL ABOUT EUTHANASIA BUT WHAT IS LIVING WILL?

In the same matter in 2023 an Interim Application was moved and following directions were passed by 5 judges bench and issued following guidelines and inserted the same in original Judgment of 2018 how to execute Living Will:

198.1. Who can execute the Advance Directive and how?

198.1.1. The Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.

198.1.2. It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.

198.1.3. It should have characteristics of an informed consent given without any undue influence or constraint.

198.1.4. It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.

198.2. What should it contain?

198.2.1. It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.

198.2.2. It should be in specific terms and the instructions must be absolutely clear and unambiguous.

198.2.3. It should mention that the executor may revoke the instructions/authority at any time.

198.2.4. It should disclose that the executor has understood the consequences of executing such a document.

198.2.5. It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.

198.2.6. In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient’s wishes and will be given effect to.

198.3. How should it be recorded and preserved?

198.3.1. The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the District Judge concerned.

198.3.2. The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences.

198.3.3. The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format.

198.3.4. The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format.

198.3.5. The JMFC shall cause to inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document.

198.3.6. A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document.

198.3.7. The JMFC shall cause to hand over copy of the Advance Directive to the family physician, if any.

198.4. When and by whom can it be given effect to?

198.4.1. In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional JMFC before acting upon the same.

198.4.2. The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.

198.4.3. If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/close relative, as the case may be, about the nature of illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he beliefs on reasonable grounds that the person in question understands the information provided, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.

198.4.4. The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Medical Board consisting of the Head of the treating department and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion

whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion.

198.4.5. In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/hospital shall forthwith inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then immediately constitute a Medical Board comprising the Chief District Medical Officer of the district concerned as the Chairman and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years (who were not members of the previous Medical Board of the hospital). They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive.

198.4.6. The Board constituted by the Collector must beforehand ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. In the event the executor is incapable of taking decision or develops impaired decision-making capacity, then the consent of the guardian nominated by the executor in the Advance Directive should be obtained regarding refusal or withdrawal of medical treatment to the executor to the extent of and consistent with the clear instructions given in the Advance Directive.

198.4.7. The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment administered to the executor. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board.

198.4.8. It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.

198.5. What if permission is refused by the Medical Board?

198.5.1. If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution. If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the same. The High Court will be free to constitute an independent committee consisting of three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years.

198.5.2. The High Court shall hear the application expeditiously after affording opportunity to the State counsel. It would be open to the High Court to constitute Medical Board in terms of its order to examine the patient and submit report about the feasibility of acting upon the instructions contained in the Advance Directive.

198.5.3. Needless to say that the High Court shall render its decision at the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of “best interests of the patient”.

198.6. Revocation or inapplicability of Advance Directive

198.6.1. An individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.

198.6.2. An Advance Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.

198.6.3. If the Advance Directive is not clear and ambiguous, the Medical Boards concerned shall not give effect to the same and, in that event, the guidelines meant for patients without Advance Directive shall be made applicable.

198.6.4. Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction on the Advance Directive.

199. It is necessary to make it clear that there will be cases where there is no Advance Directive. The said class of persons cannot be alienated. In cases where there is no Advance Directive, the procedure and safeguards are to be same as applied to cases where Advance Directives are in existence and in addition there to, the following procedure shall be followed:

199.1. In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board in the manner indicated earlier. The Hospital Medical Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion.

199.2. In the event the Hospital Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall immediately inform the jurisdictional Collector. The jurisdictional Collector shall then constitute a Medical Board comprising the Chief District Medical Officer as the Chairman and three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years. The Medical Board constituted by the Collector shall visit the hospital for physical examination of the patient and, after studying the medical papers, may concur with the opinion of the Hospital Medical Board. In that event, intimation shall be given by the Chairman of the Collector nominated Medical Board to the JMFC and the family members of the patient.

199.3. The JMFC shall visit the patient at the earliest and verify the medical reports, examine the condition of the patient, discuss  with the family members of the patient and, if satisfied in all respects, may endorse the decision of the Collector nominated Medical Board to withdraw or refuse further medical treatment to the terminally-ill patient.

199.4. There may be cases where the Board may not take a decision to the effect of withdrawing medical treatment of the patient or the Collector nominated Medical Board may not concur with the opinion of the hospital Medical Board. In such a situation, the nominee of the patient or the family member or the treating doctor or the hospital staff can seek permission from the High Court to withdraw life support by way of writ petition under Article

226 of the Constitution in which case the Chief Justice of the said High Court shall constitute a Division Bench which shall decide to grant approval or not. The High Court may constitute an independent committee to depute three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years after consulting the competent medical practitioners. It shall also afford an opportunity to the State counsel. The High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay. Needless to say, the High Court shall ascribe reasons specifically keeping in mind the principle of “best interests of the patient”.

Conclusion:

A living will, also known as an advance medical directive (AMD) in India, is a legal document that outlines a person’s preferences for medical care and end-of-life care. It’s used when a person is unable to communicate their wishes due to a terminal illness or permanent unconsciousness.

It is not the WILL which is executed for inheritance.

The Last Will and Testament pertains to detailing the distribution of assets and property after the testator’s passing. It operates after death of maker of the Will.

In contrast, the Living Will is created while the individual is alive, establishing their medical care preferences in the event they are incapacitated and unable to communicate

First Living Will:

Justice MS Sonak of the Bombay High Court at Goa has become the first person in the state to register a ‘living will’. He registered his living will at an event organized by the Indian Medical Association (IMA), Goa branch.

So just not your property but also prepare your exit from this world …

Shruti Desai

5th December 2024

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Comments(2)

  1. Reply
    comment Kishor mehta says

    Excellent,Educative,Informative with procedural explanation and guideline with implication effect.

    • Reply
      comment Shruti Desai says

      Mr.Kishor Mehta
      Thank you for your kind words and appreciation.
      Stay connected.

      Team Shruti

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