India: Supreme Court Decides On The Issue Of Euthanasia ‘Once Again'

Contrary to popular belief, the recent judgment of the Supreme Court in the case of Common Cause (registered society) v Union of India & Anr1 (Common Cause), is not the first time that the Supreme Court has grappled with the issue of Euthanasia or has declared in its favour albeit partly. The Division Bench of the Supreme Court in the case of Aruna Ramachandra Shanbaug v Union of India and Ors.2 had recognised passive euthanasia in 2011 and had even laid down elaborate procedures to execute the same. However, the judgment was far from satisfactory for the three judge Bench of the Supreme Court, who referred the matter to the Constitutional Bench, stating "considering the important question of law involved which needs to be reflected in the light of social, legal, medical and constitutional perspectives, it becomes extremely important to have a clear enunciation of law" and which in the words of the reference order was for the benefit of humanity as a whole.   


The present judgment was delivered by a Constitutional Bench comprising of 5 Judges of which, the Chief Justice rendered the leading decision along with A M Khanwilkar, J. The other three judges concurred with the findings of the Chief Justice but passed three separate judgments on the issue. The present article discusses the views expressed by the Chief Justice in the leading judgment.

The Chief Justice opens the judgement by taking us through a philosophical journey with quotes on life and death ranging from those by Lord Alfred Tennyson to Dylan Thomas and the ancient Greek philosopher, Epicurus who understood death when he said,

"Why should I fear death?
If I am, then death is not.
If death is, then I am not.
Why should I fear that which
can only exist when I do not?"

The philosophical prologue given by the Chief Justice highlights the entire underlying theme of the judgment and the issue of Euthanasia which revolves around the fight to have the "right to die with dignity" included as a fundamental right within the fold of "right to live with dignity" guaranteed under Article 21 of the Constitution of India. The issue first started with the case of P Rathinam v Union of India & Anr.3, wherein, a two judge bench of the Supreme Court while dealing with the challenge to section 309 of the Indian Penal Code, 1860 (IPC) (attempt to commit suicide) as being violative of Article 14 and 19 of the Constitution, held that fundamental rights have positive and negative aspects. Accordingly, right to live must include the right to die, hence, it concluded by saying that the right to live, which Article 21 speaks of can be said to bring in its trail the right not to live a forced life.

However, this decision did not stay a precedent for long and a constitutional bench in Gian Kaur v State of Punjab4 overturned the decision in the P. Raithnam case to hold that the right to life did not include the right to die as understood under Article 21. The constitutional bench in that case was faced with the challenge to section 306 of the IPC relating to abetment of suicide which sought to rely on the earlier ruling in P. Raithnam case which had held section 309 of the IPC as being unconstitutional. The constitutional bench held that the "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 the concept of right to life. The constitutional bench further stated that the earlier decision had failed to make a distinction between negative aspect of the right that was involved for which no positive or overt act was to be done. While dwelling into this debate, the constitutional bench tried to explain that 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 and was thus, invariably drawn into the discussion of Euthanasia though it tried hard to distance itself from the same. The bench tried to clarify that the right to die with dignity at the end of life is not to be confused or equated with the right to die an unnatural death curtailing the natural span of life. While dealing with this issue the Court cited the English case of Airedale NHS Trust v Bland5, wherein, it was held that Euthanasia can be made lawful through legislation.

Relying on the Gian Kaur case, a two judge bench of the Supreme Court in the Aruna Shanbaug case upheld the validity of passive euthanasia which entails withdrawing of life support measures or withholding of medical treatment for continuance of life and for which no positive act is required as opposed to active euthanasia entailing the use of lethal substances or forces to cause the intentional death of a person by direct intervention, which as per the three Judge bench which referred the matter to the present constitutional bench was based on 'the wrong premise that the Constitution Bench in Gian Kaur had upheld the same'.


The Supreme Court analysed in length the various decisions of the Supreme Court in Gian Kaur and Aruna Shanbaug case and the international position in various jurisdictions relating to Euthanasia. The Supreme Court has clarified that the judgement in Gian Kaur case cannot be understood to have stated that passive euthanasia can only be introduced through legislation. It further held that in Gian Kaur, the word "life" in Article 21 has been construed as life with human dignity and it takes within its ambit the "right to die with dignity" being part of the "right to live with dignity". The sequitur of this exposition is that a dying man who is terminally ill or in a persistent vegetative state can make a choice of premature extinction of his life as being a facet of Article 21 of the Constitution. If that choice is guaranteed being part of Article 21, there is no necessity of any legislation for effectuating that fundamental right and more so his natural human right. Indeed, that right cannot be an absolute right but subject to regulatory measures to be prescribed by a suitable legislation which, however, must be reasonable restrictions and in the interest of the general public. The Court thus, clarified that Article 21 covers within its ambit only passive euthanasia and not active euthanasia.

Finally, the Court goes on to say that the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in permanent vegetative state with no hope of recovery and that is why it also recognises Advance Directives akin to a 'living Will' through which persons of sound mind and in a position to communicate can indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to. Elaborate procedure and safeguards for executing such Advance Directives have been provided in the judgment with the essential ingredients being that the treating physician of a terminally ill or patient undergoing prolonged medical treatment shall refer the matter to 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. The decision of the Medical Board shall be communicated to the jurisdictional Collector who shall then constitute a Medical Board comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert doctors in the same field mentioned above. The Chairman of the Medical Board shall after taking consent of the executor of the Advance Directive or the guardian named therein, shall communicate his decision to the jurisdictional Judicial Magistrate First Class who shall then authorise the implementation of the decision of the Medical Board. The Court has also laid down the procedure for altering the Advance Directive and for cases where there is no Advance Directive. Thus, the Supreme Court has finally ruled that the interest of the patient shall override the interest of the State in protecting the life of its citizens and that right to live with dignity attaches throughout the life of the individual.


The clamor for Euthanasia has fallen short again with the Supreme Court holding that Article 21 embodies within itself only the right to 'Passive Euthanasia' and not 'Active Euthanasia'. Despite all the rhetoric of individual freedom of choice and the right to life being akin to right to die with dignity, the Supreme Court could not escape from the prejudice that Euthanasia can be used as a tool by unscrupulous relatives and subject to abuse. The Supreme Court noted that society has fallen to such levels of depredation that these rights cannot be made absolute and must be subject to regulatory mechanisms. In the end it is stated that it is the duty of the Courts to prevent the abuse of the process of law but the Courts would have fared better if individual freedom was not sacrificed at the altar of past bias. Nevertheless, it is a step in the right direction and one must embrace it with the hope that the Courts and law makers would one day realise that the word "Euthanasia" when translated from Greek means "good death".


1. W.P. (Civil) 215 of 2005

2. (2011)4 SCC 454

3. (1994) 3 SCC 394

4. (1996) 2 SCC 648

5. (1993) 1 All ER 821

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

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