India: Supreme Court Upholds Passive Euthanasia, Issues Guidelines On Advance Directives In Landmark Judgement

Last Updated: 14 March 2018
Article by Ajay Bhargava, Rony Oommen John and Chandni Anand

Most Read Contributor in India, July 2019

 A Constitution Bench of the Hon'ble Supreme Court of India, comprising of the Hon'ble Chief Justice of India, Hon'ble Mr Justice A M Khanwilkar, Hon'ble Mr Justice A K Sikri, Hon'ble Dr Justice  D Y Chandrachud and Hon'ble Mr Justice Ashok Bhushan on 9 March 2018 while deciding a Writ Petition under Article 32 of the Constitution of India, which was referred to it by a three judge bench vide Reference Order dated 24 February 2014, legalised Passive Euthanasia by giving legal sanction to 'Advance Directive' or 'Living Wills'.

The issues broadly addressed by the Hon'ble Supreme Court of India while deciding the reference:

  1. Whether the Right to Live as envisioned as a fundamental right by Article 21 of the Constitution of India (the Constitution) would include within its ambit the Right to Die?
  2. Whether there exists any inconsistency in the observations of the Hon'ble Supreme Court of India (Court) in Aruna Ramachandra Shanbaug v Union of India1 (Aruna Shanbaug), with respect to what was held by it in Gian Kaur v State of Punjab2 (Gian Kaur)?
  3. Whether there exists a right to Living Wills or Advance Directives?

Principles underlying the decision:

  1. The Court has in great detail considered the international position on euthanasia inter alia the position in the United Kingdom (UK), the United States of America (USA), Australia and Canada. While referring to the position in the UK, specific reference in detail has been made to the case of Airedale NHS Trust v Bland3 (Airedale), which related to the withdrawal of artificial life support measures when the patient is in a Persistent Vegetative State (PVS). In this case discontinuation of medical treatment by doctors, if the patient refused such treatment was declared as lawful by the House of Lords. Further, it was held that that if the patient was not in a situation permitting him to convey his wishes then it would be the duty of the doctors to act in the 'best interest' of the patient. The Court also discussed decisions of the European Court of Human Rights (ECHR) upholding the legality of passive euthanasia as the same would be within the scope and ambit of the rights contained in the International Covenant on Civil and Political Rights (ICCPR).
  2. The judgement has detailed discussions on passive euthanasia in the context of Article 21 of the Constitution.  All members of the Bench unanimously concurred that that Article 21 comprehends dignity as its essential foundation and further, as an essential aspect of dignity and the preservation of autonomy of choice, each individual must have the right on whether or not to accept medical intervention and treatment. It has been made clear by the Court that as part of the right to die with dignity in case of a dying man who is terminally ill or in a PVS, passive euthanasia would come within the ambit of Article 21. While recognising the need for dynamism in interpretation of the Constitution, it has been held that the Right to Die with Dignity is one of the intrinsic facets of Article 21, the same however not being absolute and subject to regulatory measures prescribed by legislation.
  3. The difference between 'active euthanasia' and 'passive euthanasia' has also been emphasised in detail by the Court. In active euthanasia, a specific overt act (such as administration of lethal drugs and/or injections) is done being a positive contribution to accelerate death, whereas in passive euthanasia, something is not done which is necessary for preserving a patient's life. The Court has unequivocally held that active euthanasia is legally impermissible.
  4. The Court also explained in detail the concept of 'Advance Medical Directive' which as per the Black's Law Dictionary is "a legal document explaining one's wishes about medical treatment if one becomes incompetent or unable to communicate." The Court, in wake of the lawful recognition given to Advance Directives in various jurisdictions either by legislation or by judicial pronouncements, acknowledged that the same would be a means to facilitate the fructification of the Right to Live with Dignity.

Historical background of euthanasia in India:

The decisions of the Court in Gian Kaur and Aruna Shanbaug were prior to this judgement, and held the fort on the position of legality of euthanasia in India. The Court in this judgement opined/clarified that-

  • Aruna Shanbaug upholds the authority of passive euthanasia on the incorrect premise that the Constitution Bench in Gian Kaur's case upheld the view as taken in the Airedale case of removal of life support by a medical practitioner on the patient's wishes, being legal.
  • The Court in Gian Kaur has not expressed any opinion on the ratio in Airedale, it has simply made a reference to it and the view expressed therein regarding legislation. Therefore, the perception in Aruna Shanbaug that the Constitution Bench has approved the decision in Airedale is incorrect.
  • Gian Kaur has neither given any definite opinion on euthanasia nor has it stated that the same can be conceived of only by a legislation (as was held in Airedale).

Guidelines on execution and enforcement of advance directives:

The Court noticed that there is no legal framework regarding Advance Medical Directives in India and therefore in order to protect the rights of citizens as enshrined in Article 21 of the Constitution, in exercise of the power under Article 142 of the Constitution and the law stated in Vishaka v State of Rajasthan and Others4 it issued comprehensive guidelines and safeguards pertaining to Advance Directives. The said guidelines are to remain in force till the Parliament introduces legislation in this regard.

The guidelines are as enlisted below:

  1. Who can  execute the  Advance Directive  and how?
  • 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.
  • It must be voluntarily executed and without any coercion or inducement
  • 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.
  1. What should it contain?
  • It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.
  • It should mention that the executor may revoke the instructions/authority at any time.
  • It should disclose that the executor has understood the consequences of executing such a document.
  • 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.
  1. How should it be recorded and preserved?
  • 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 concerned District Judge.
  • 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.
  • The JMFC shall 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.
  • The JMFC shall handover copy of the Advance Directive to the family physician, if any.
  1. When and by whom can it be given effect to?
  • 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 of the same from the jurisdictional JMFC before acting upon it.
  • 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.
  • If the physician treating the patient (executor) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/close relative, 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 believes on reasonable grounds that the person in question understands the information provided and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.
  • 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 different fields, with experience of at least twenty years. This Medical Board shall visit the patient in the presence of his guardian/close relative and form an opinion on whether or not to certify carrying out the instructions of withdrawal / refusal of further medical treatment. This decision shall be regarded as a preliminary opinion.
  • 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 inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then constitute a second Medical Board comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert doctors with experience of at least twenty years. They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the first Medical Board of the hospital, they may endorse the certificate to carry out the instructions given in the Advance Directive.
  • The Board constituted by the Collector must 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.
  • 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. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board.
  • It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.
  1. What if permission is refused by the Medical Board?
  • If permission to withdraw medical treatment is refused by the Medical Board, the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff can 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 with experience of at least twenty years.
  • The High Court shall hear the application expeditiously after affording opportunity to the State counsel.
  1. Revocation of Advance Directive
  • An individual may withdraw or alter the Advance Directive at any time 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.
  1. Where there is no Advance Directive
  • The Court has held that the same procedure and safeguards that apply in cases where an Advance Directive exists, will be followed when there is no Advance Directive. However, the Court has prescribed an additional procedure to be followed in such cases.
  • 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. This 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. 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.
  • The rest of the procedure will remain the same as is followed in case there is an Advance Directive.


  • The judgment is a significant and historic one as it has conclusively clarified the purport of euthanasia and its legality in different circumstances. Moreover, this verdict has clarified the position in the earlier cases of Gian Kaur and Aruna Shanbaug, thereby avoiding any conflict/ambiguity on the issue.
  • Though there were four separate opinions of the bench, all the judges were of the unanimous opinion that the 'living will' should be permitted since a person cannot be allowed to continue suffering in a comatose/PVS when he or she doesn't wish to live. There being a unanimous decision now, this judgment is expected to be the final word on the issue.
  • Till a new legislation is enacted by the Parliament, the directions and guidelines as provided in the judgment are actionable and confer the requisite jurisdiction upon the judicial magistrates in cases of such nature.

The previous apprehension of medical professions of being convicted of culpable homicide under Section 299 of the Indian Penal Code, in case they withdrew the life support of terminally ill patients, stands addressed and resolved by this verdict of the Supreme Court of India.


1 (2011) 4 SCC 454

2 (1996) 2 SCC 648

3 (1993) 2 WLR 316

4 (1997) 6 SCC 241

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions