THE RIGHT TO DIE
(MID TERM PAPER TOWARDS FULFILLMENT OF ASSESSMENT IN THE SUBJECT OF
CONSTITUTIONAL GOVERNANCE)
Submitted By: Submitted To:
Shuktiz Sinha Ms. Sayantani Bagchi
Roll No.- 1826 Faculty of Law
B.A. LL.B.
Semester 1
NATIONAL LAW UNIVERSITY, JODHPUR
SUMMER SESSION
(July 2019- November 2019)
Table of Contents
Table Of Cases.................................................................................................................................3
Introduction......................................................................................................................................4
Right to Die and the Indian SC........................................................................................................6
The Right to Die with Dignity: Common Cause v. Union of India.................................................9
Creation of Rights by Courts.........................................................................................................11
Conclusion.....................................................................................................................................13
2
Table Of Cases
XAruna Ramchandra Shaunbaug v. Union of India, (2011) 4 SCC 454.......................................................7
Common Cause v. Union of India, 2018 5 SCC 1.......................................................................................4
Gian Kaur v. State of Punjab, (1996) 2 SCC 648.........................................................................................6
Maneka Gandhi v. Union ofIndia, (1978) 1 SCC 248..................................................................................6
P Rathinam v. Union of India, (1994) 3 SCC 394........................................................................................6
3
Introduction
Nothing lives forever. But an important aspect linked closely to this unavoidable natural
phenomenon is the plight in which a living being approaches its end. The same plight applies to
human life too, but in a far more complex way. It is so because human beings have reached a
higher pedestal of evolution in comparison to other forms of life on the planet enabling
themselves to lead a 'life beyond animal existence', and thereby, made way for the proposition
that human life has higher intrinsic value than other life forms.'
Moreover, advancements in medical science and technology, aimed at improving the quality of
human life, have not merely upgraded the general human health by completely sweeping out
certain deadliest epidemics and finding treatment for others. They have also interfered with the
natural span of human life by finding ways to prolong it. Such reliance on scientific medical
procedures and treatments for artificial prolongation of life is generally painful, (sic) undignified,
and against individual autonomy as the suffering individual fails to inhibit the physical as well as
mental capacity to make a decision for or against the medical aid.
This has, in turn, led to the practice of euthanasia, which, in Dworkin's words means,
'deliberately killing a person out of kindness', 1 and it is a form of this practice 2 that was in
question before the Indian Supreme Court [hereinafter SC] in Common Cause v Union of India.'
Deciding the issue, a Constitution Bench of the SC unanimously held that, firstly, Article 21 of
the Constitution guaranteed the right to a dignified life unto the point of death including a
dignified procedure of death. Secondly, an adult human having the mental capacity to take an
informed decision has the right to refuse medical treatment including the withdrawal from life
saving devices.
1 Ronald Dworkin, Life Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom, (Alfred A.
Knopf Publications 1993) 3.
2 Euthanasia is generally of two kinds, i.e. active and passive. Active euthanasia is an intentional premature
termination of another person's life by direct intervention, whereas passive euthanasia is withholding life prolonging
measures and resources. See Common Cause (A Regd Society) v Union of India and Anr, 2018 5 SCC 1: 2018 SCC
OnLine SC 208 [46].
4
And finally, any person of competent mental faculty is entitled to execute an advanced medical
directive in accordance with the safeguards mentioned in the judgment. In light of this judgment,
we begin this short piece by briefly tracing the SC's activism vis-a-vis Article 21, emphasising
particularly on the cases that specifically dealt with right to die and euthanasia. Thereafter, we
provide a brief summary of the SC's approach in the instant case by referring to the primary
issues involved therein.
5
Right to Die and the Indian SC
Only a handful of provisions in the Indian Constitution have experienced the same degree of
judicial activism as Article 21, which embodies the fundamental right to life and personal liberty.
Such activism since the Maneka Gandhi3 case has continuously broadened the scope and content
of the article.' Inclusion of right to die with of dignity is addition of yet another feather in the cap
of Article 21, and therefore, a depiction of such judicial activism. However, before rushing into
the analysis of the judgment that recognises this right, it is only logical to trace its evolution in
the SC's jurisprudence. The issue of euthanasia did not come up directly before the Court, and, at
first, was indirectly referred to while dealing with the proposition of whether the right to die was
part and parcel of right to life guaranteed by Article 21.
In P Rathinam v Union of India4, the first case on this issue that came before the SC, the
petitioners challenged the constitutional validity of Section 309 of the Indian Penal Code, 1860,
which made attempt to suicide a penal offence, contending that it was in violation of Articles 14
and 21. The SC partially overruled the Bombay High Court's view in Maruti Shripati Dubal, and
held that Section 309 of IPC was not in violation of Article 14,10 but it did violate Article 21,"
and thus struck down the said section. The precedent set forth by R Rathinam did not hold good
for long.
Consequently, in Gian Kaur v State of Punjab,5 a Constitution Bench of the SC expressly
overruled R Rathinam. In Gian Kaur, a challenge was made against the constitutional validity of
Section 306 of IPC, which penalised abetment of suicide. The challenge was made on the ground
that since the R Rathinam verdict has invalidated Section 309, therefore, Section 306 which
penalises abetment of suicide becomes invalid ipso facto.
The Court, however, rejected this line of argument and held that both, Section 309 and 306 of
IPC, were constitutional. In doing so, the Constitution Bench made two observations which
clarify as to why the right to life cannot be construed as including right to die, as well as why the
3 Maneka Gandhi v Union of India, (1978) 1 SCC 248.
4 (1994) 3 SCC 394.
5 (1996) 2 SCC 648.
6
argument applicable in cases of euthanasia cannot be applied to right to die, and, on the other
hand, set the stage for recognition of right to die with dignity.
The first observation is: 'Right to life' is a natural right embodied in Article 21 but suicide is an
unnatural termination or extinction of life and, therefore, incompatible and inconsistent with ...
right to life. When a man commits suicide he has to undertake certain positive overt acts and the
genesis of those acts cannot be traced to, or included within ... right to life. 6 The other
observation that paves the way for recognition of right to die with dignity and differentiates
euthanasia from suicide runs as follows: Protagonism of euthanasia on the view that existence in
persistent vegetative state is not a benefit to the patient of terminal illness being unrelated to the
principle of sanctity of life or the right to live with dignity is of no assistance to determine the
scope of Article 21 for deciding whether the guarantee of 'right to life' therein includes the 'right
to die'. The 'right to life' including the right to live with human dignity would mean the existence
of such a right up to the end of natural life ... including the right to a dignified life up to the point
of death, [and] including a dignified procedure of death.'
The case wherein the SC directly engaged with the issue of euthanasia was Aruna Ramchandra
Shaunbaug v Union of India.7 Aruna Ramachandra Shanbaug was a nurse who was raped by a
sweeper of the hospital. In committing the act, he strangulated her by a dog chain which stopped
the supply of oxygen to the brain and her brain got damaged.
As a result, she fell into a persistent vegetative state (PVS), and had remained in the same state
for thirty-six years. Therefore, it was requested before the Court that the hospital doctors be
directed to stop feeding Aruna, and let her die peacefully. Responding to the prayer and in
absence of any statutory provision in the country as to the legal procedure for withdrawing life
support to a person in PVS or who is otherwise incompetent to take such a decision, the Court
laid down certain guidelines for the process," and also suggested that High Courts could be a
competent authority to take decision in this regard for an incompetent person.'"
6 Gian Kaur v State of Punjab (1996) 2 SCC 648 [22]
7 (2011) 4 SCC 454 - The writ petition, under Article 32 of the Constitution, was filed on behalf of the petitioner
Aruna Ramachandra Shanbaug by one Ms Pinki Virani of Mumbai, who claimed to be her next friend.
7
However, they refrained from granting euthanasia to the petitioner. In addition to the later, the
Court also mentioned that, by referring to Gian Kaur case, euthanasia could be made lawful only
by legislation."
8
The Right to Die with Dignity: Common Cause v. Union of India
The instant case reached the Constitution Bench of the SC as a reference. It was referred to the
larger bench because while hearing the petition, the three-judge bench was of the opinion that the
Aruna Shaunbaug case, which held the authority on passive euthanasia in the country and lays
down an elaborate procedure for executing the same, had done so on the basis of faulty reading
of the Gian Kaur case.8 Therefore, considering that the case involved an important question of
law that needed to be reflected in the light of social, legal, medical and constitutional
perspectives, and for the sake of a clear enunciation of law on this issue, the threejudge bench
referred the matter for consideration by the Constitution Bench of the SC.
While deciding the issue at hand, the Constitution Bench gave a unanimous decision that
comprised of four separate orders. The two most important issues which can be culled out from
the analysis of the case and which have been dealt by the Justices from their personal viewpoints
were, first, 'whether passive euthanasia, voluntary or even, in certain circumstances, involuntary,
is legally permissible? If so, under what circumstances', and second, 'whether a 'living will' or
'advance directive' should be legally recognised and can be enforced? If so, under what
circumstances, and what [are the] precautions [that must be taken] while permitting it' So far as
the first question was concerned, the Court unanimously held, by referring to the Gian Kaur case,
that right to die with dignity is a necessary corollary of right to life and personal liberty
contained under Article 21 of the Constitution.
In holding so, the Court placed special reliance on the constitutional recognition of the human
values of individual liberty, autonomy, dignity, and observed: The sanctity of human life is the
arterial vein which animates the values, spirit and cellular structure of the [Indian]
Constitution ... The survival of the sanctity principle is founded upon the guarantees of dignity,
autonomy, and liberty ... [which] ... necessarily [extends] throughout the life of the individual.
[Therefore], every individual has a constitutionally protected expectation that the dignity which
[is] attached to life must subsist even in the culminating phase of human existence, [and thus],
dignity in the process of dying is as much a part of the right to life under Article 21.9
8 Common Cause (n 3) [41].
9 Common Cause (n 3) [515 & 518].
9
As regards the second question relating to legal recognition and mechanism of an advance
medical directive in cases of passive euthanasia, the Court held that a person of competent
mental faculty is entitled to execute an advance medical directive in accordance with guidelines
and safeguards laid down in the judgment.
In doing this exercise, the Court laid down exhaustive guidelines while dealing with questions as
to who can execute such advanced medical directive, how it should be executed, what should be
the content of such advanced directive, how the same should be recorded and preserved, when
and by whom can it be made effective, what will be the solution in cases where medical board
refuses to withdraw medical treatment, and how can such advanced medical directive be revoked
or made inapplicable.10
In addition to this, the Court also took note that there could be cases where there would be no
advanced directive, and thus, laid down certain additional procedures for such cases. Another
important point worth noting in regard of giving legal sanctity to the elaborate procedure to be
followed in cases of passive euthanasia was the Court's reliance on the power conferred to it by
Article 142 of the Constitution.
So far as the issue of diversity of views on the procedure for passive euthanasia is concerned, all
the judges, in their separate orders, gave explicit support to the procedure enumerated by CJI.
Rather, interestingly, J. Bhushan, in regard to the advance medical directive, goes to the extent of
observing: 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 a considered opinion that such rights-
can be exercised by an individual in recognition and in affirmation of his right of bodily integrity
and self-determination.
10 For the detailed content of the safeguards and guidelines laid down by the Court with regard to advance medical
directive
10
Creation of Rights by Courts
The Courts across the world in general and Indian Supreme Court in particular has been very
proactive in recognition and creation of new rights. The reason why the Courts are able to create
rights is because of the general character of the constitutional language.
Observing on similar lines, Tushnet says:
“Constitutions contain two kinds of provisions: precise ones and the abstract ones. The abstract
provisions can be specified - that is, given meaning in real world circumstances - in different
ways, all compatible with the provisions' language and purposes. In addition, even precise
constitutional provisions interact with each other. Specification and interaction mean that, more
often one might initially think, the constitution's meaning is undetermined.”11
It is rare that legislators violate the precise terms of the constitution. Generally, they tend to
violate only the abstract terms of the constitution. But, in such cases, the real issue is not why the
legislature violated the constitution, but whether it did. 12 Moreover, a constitutional culture
consists of the beliefs of members of the political community about what their constitution
means.13
Such constitutional culture involves a balance of competing forces, which if sufficiently
disturbed by social movement activism and day-to-day politics, may produce a new equilibrium
featuring a new constitutional common sense.14
Therefore, it is important that the words of the constitution should be given their ordinary current
meaning, even in preference to the meaning in which the framers understood them. 15 Stressing on
the point of interpretation, Dworkin argues that, 'in conceptual interpretation the distinction
11 Mark Tushnet, Weak Courts, Strong Rights (Princeton University Press 2008) 86
12 ibid
13 Mark Tushnet, Weak Courts, Strong Rights (Princeton University Press 2008) 86
14 ibid
15 David A. Strauss, The Living Constitution (OUP 2010) 106.
11
between the author and interpreter vanishes: we have together created what we each and together
interpret'.16 Therefore, the demarcating line between legislature and courts becomes less
important in the cases of conceptual interpretation; in the immediate context the conceptual
interpretation of 'dignity'.
As a general observation, it must be said that, it is no one's case today to argue that Judges
shouldn't make law. Perhaps, in today's context, the only argument can be regarding the nature
and extent of judge made law. In the Indian context, this question becomes much wider in scope
in light of proposition that even the considered obiter of Supreme Court is binding on other
courts.
16 Ronald Dworkin, Justice for Hedgehogs (Harvard University Press 2011) 157.
12
Conclusion
Common Cause17 recognises a constitutional right to die with dignity. But, the territories it
traverses are much wider.
Firstly, it clearly suggests right to live with dignity includes right to not live under certain
circumstances. Secondly, it also tries to address the issues of dignity attached with right not to
live or right to die. Thirdly, the court appears to have gone through a tour deforce of comparisons
with international standards (euphemism for global north), despite being aware of the fact that
the idea has to be ultimately situated in socio-economic milieu of India. It must also be noted
here that, unlike R Rathinam, in Common Cause the court was well aware of narrow confines of
discourse in other jurisdictions. But, at the same time, it is still a discourse that hinges upon
available medical care in India in contradistinction to the west. Willy-nilly, it will result into
putting fewer premiums on human lives in India.
The Court has observed that in cases of 'acceptable euthanasia', the individual necessity will
trumps the state necessity. But, in the context of totality of the circumstances it doesn't give any
deathblow to the legal paternalism. It has only pushed for some changes. However, as the idea of
autonomy is a circumcised and a circumspect one, it is only a necessary condition but not a
sufficient one.
Therefore, this autonomy should not be confused with the self-harm autonomy of Mill or a
Hobbesian liberty. In short, the State will still have an interest in an individual life in all other
areas, except for the situations hitherto excluded. Furthermore, the Court has expressed the hope
that the legislature will come up with a statutory regime in this regard at the earliest. But, given
the past experience of Vishakha case,18 it appears to be highly unlikely that we will see some
legislative action in this regard in the immediate future.
Further, there is a settled jurisprudence that no mandamus can be issued against legislature to
enact a particular legislation.19 Under these circumstances, there is a great possibility that we will
hear more on the issue from Supreme Court.
17 2018 5 SCC 1: 2018 SCC OnLine SC 208.
18 (1997) 6 SCC 241
13
19 See, State of J&K vs. AR Zakki, AIR 1992 SC 1546 [10]; State of Himachal Pradesh vs. Satpal Saini, (2017) 11
SCC 42 [9]. See also, Gopal Subramanium, 'Writs and Remedies', in Sujit Choudhry and others (eds), The Oxford
Handbook of the Indian Constitution (Oxford University Press 2016) 620.
14
