REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.

215 OF 2005

Common Cause (A Regd. Society) Versus Union of India

.... Petitioner (s)

.... Respondent(s)

ORDER
P.Sat a!"#a$% CJI. 1) This rit petition! under Artic"e #$ of the Constitution of

India! has %een fi"ed %y Common Cause&a Society registered under the Societies Registration Act! 1'() engaged in ta*ing up +arious common pro%"ems of the peop"e for securing redressa"! praying for dec"aring ,right to die fundamenta" right ith dignity- as a ith dignity-

ithin the fo"d of ,right to "i+e

guaranteed under Artic"e $1 of the Constitution and to issue direction to the respondent! to adopt suita%"e procedures! in consu"tation ith the State .o+ernments here+er
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necessary! to ensure that the persons

ith deteriorated

hea"th or termina""y i"" shou"d %e a%"e to e/ecute a document! +i0.! ,my "i+ing i"" 1 Attorney authori0ationhich can %e

presented to hospita" for appropriate action in the e+ent of the e/ecutant %eing admitted to the hospita" i""ness ith serious

hich may threaten termination of "ife of the

e/ecutant or in the a"ternati+e! issue appropriate guide"ines to this effect and to appoint an 2/pert Committee consisting of doctors! socia" scientists and "a yers to study into the aspect of issuing guide"ines regarding e/ecution of ,3i+ing 4i""s-. $) had 5n 16.)(.$))$ and $7.)(.$))$! the petitioner&Society ritten "etters to the 8inistry of 3a ! 9ustice and

Company Affairs and the 8inistry of :ea"th and ;ami"y 4e"fare ith a simi"ar prayer as in this rit petition.

Concurrent"y! the petitioner a"so

rote "etters to the State ithin the

.o+ernments in this regard! as hospita"s come

<urisdiction of %oth the State .o+ernments and the Union of India.

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#)

In the a%o+e said communication! the petitioner had to %e passed hich ou"d

emphasi0ed the need for a "a

authori0e the e/ecution of the ,3i+ing 4i"" 1 Attorney Authori0ation-. ;urther! in the second "etter! the petitioner& Society particu"ar"y re"ied on the decision of this Court in Gian Kaur +s. State of Punjab (166() $ SCC (=' to support its re>uest. Since no rep"y has %een recei+ed! the petitioner& Society has preferred this =) rit petition.

:eard 8r. Prashant ?hushan! "earned counse" for the

petitioner&Society! 8r. Sidharth 3uthra! "earned Additiona" So"icitor .enera" for the Union of India and 8r. V.A. 8ohta! "earned Senior Counse" and 8r. Pra+een @hattar! "earned counse" for the inter+enors. C&'t('t"&'!) 7) According to the petitioner&Society! the citi0ens ho are

suffering from chronic diseases andAor are at the end of their natura" "ife span and are "i*e"y to go into a state of termina" i""ness or permanent +egetati+e state are depri+ed of their rights to refuse crue" and un anted medica" treatment "i*e
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feeding through hydration tu%es! %eing *ept on +enti"ator and other "ife supporting machines! in order to artificia""y pro"ong their natura" "ife span. Thus! the denia" of this right "eads to e/tension of pain and agony %oth physica" as menta" e"" as

hich the petitioner&Society see*s to end %y ma*ing ay of c"ear"y e/pressing their ishes

an informed choice %y

in ad+ance ca""ed Ba 3i+ing 4i""C in the e+ent of their going into a state their () ishes. 5n the other hand! 8r. Sidharth 3uthra! "earned hen it i"" not %e possi%"e for them to e/press

Additiona" So"icitor .enera" su%mitted on %eha"f of the Union of India that as per the :ippocratic 5ath! the primary duty of e+ery doctor is to sa+e "i+es of patients. A reference as

made to Regu"ation (.D of the Indian 8edica" Counci" (Professiona" Conduct! 2ti>uette and 2thics) Regu"ations $))$! hich e/p"icit"y prohi%its doctors from practicing

2uthanasia. Regu"ation (.D reads as fo""o sE&

BPracticing euthanasia sha"" constitute unethica" conduct. :o e+er! on specific occasion! the >uestion of ithdra ing supporting de+ices to sustain cardiopu"monary function e+en after %rain death! sha"" %e decided on"y %y a team of doctors and not 4
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mere"y %y the treating physician a"one. A team of doctors sha"" dec"are ithdra a" of support system. Such team sha"" consist of the doctor in charge of the patient! Chief 8edica" 5fficerA8edica" 5fficer in charge of the hospita" and a doctor nominated %y the in&charge of the hospita" from the hospita" staff or in accordance ith the pro+isions of the Transp"antation of :uman 5rgan Act! 166=.C

In addition! the respondent re"ied on the findings of this Court in Parmanand Katara +s. Union of India (16'6) = SCC $'( to emphasise that primary duty of a doctor is to pro+ide treatment and to sa+e the "ife hene+er an in<ured

person is %rought to the hospita" or c"inic and not other ise. D) The petitioner&Society responded to the

a%o+ementioned contention %y asserting that a"" these princip"es or* on a %e"ief that the %asic desire of a person is as further su%mitted that hen

to get treated and to "i+e. It

there is e/press desire of not ha+ing any treatment! then the said person cannot %e su%<ected to un anted treatment against hisAher a person! ishes. It as a"so su%mitted that su%<ecting

ho is termina""y i"" and in a permanent"y ith no hope of reco+ery! to a "ife support

+egetati+e state

treatment against hisAher e/press desire and *eeping him

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under tremendous pain is in +io"ation of his right to die dignity. ')

ith

?esides! the petitioner&Society a"so high"ighted that the

doctors cannot! %y some acti+e means "i*e gi+ing "etha" in<ections! put any person to death! as it Bacti+e euthanasiaC ou"d amount to

hich is i""ega" in India as o%ser+ed in

Aruna Ramchandra Shanbaug +s. Union of India ($)11) = SCC =7=. Therefore! the petitioner&Society p"eads for reading the aforesaid regu"ation on"y to prohi%it the acti+e euthanasia and the said regu"ation shou"d not %e interpreted in a manner hich casts o%"igation on doctors to *eep ho has a"ready e/pressed a

pro+iding treatment to a person

desire not to ha+e any "ife pro"onging measure. Thus! it is the stand of the petitioner&Society that any such practice %e in consonance ith the "a i"" not

"aid do n %y this Court in

Gian Kaur (supra) as D"!*+!!"&') 6)

e"" as in Aruna Shanbaug (supra).

In the "ight of the contentions raised! it is re>uisite to hat as said in Gian Kaur (supra) and
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comprehend

Aruna Shanbaug (supra) to arri+e at a decision in the gi+en case! as the prayer sought for in this rit petition

direct"y p"aces re"iance on the reasoning of the aforesaid +erdicts. 1)) In G"a' ,a+- (supra)! the su%<ect matter of reference %efore the Constitution ?ench as as to the interpretation of

Artic"e $1 re"ating to the constitutiona" +a"idity of Sections #)( and #)6 of the Indian Pena" Code! 1'()! herein! it as

he"d that ,right to "ife- under Artic"e $1 does not inc"ude ,right to die-. 4hi"e affirming the a%o+e +ie ! the Constitution ?ench a"so o%ser+ed that ,right to "i+e ,right to die ith dignity- inc"udes

ith dignity-. It is on the %asis of this

o%ser+ation! the Petitioner&Society see*s for a remedy under Artic"e #$ of the Constitution in the gi+en petition. 11) Therefore! a"though the discussion on euthanasia as

not re"e+ant for deciding the >uestion of Constitutiona" +a"idity of the said pro+isions! the Constitution ?ench on to concise"y de"i%erate on this issue as mannerE& ent

e"" in the ensuing

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B$=. Protagonism of euthanasia on the +ie that e/istence in persistent +egetati+e state (PVS) is not a %enefit to the patient of a termina" i""ness %eing unre"ated to the princip"e of Sanctity of "ifeF or the Fright to "i+e ith dignityF is of no assistance to determine the scope of Artic"e $1 for deciding hether the guarantee of Fright to "ifeF therein inc"udes the Fright to dieF. The Fright to "ifeF inc"uding the right to "i+e ith human dignity ou"d mean the e/istence of such a right up to the end of natura" "ife. This a"so inc"udes the right to a dignified "ife up to the point of death inc"uding a dignified procedure of death. In other ords! this may inc"ude the right of a dying man to a"so die ith dignity hen his "ife is e%%ing out. ?ut the Fright to dieF ith dignity at the end of "ife is not to %e confused or e>uated ith the Fright to dieF an unnatura" death curtai"ing the natura" span of "ife. $7. A >uestion may arise! in the conte/t of a dying man! ho is! termina""y i"" or in a persistent +egetati+e state that he may %e permitted to terminate it %y a premature e/tinction of his "ife in those circumstances. This category of cases may fa"" ithin the am%it of the Fright to dieF ith dignity as a part of right to "i+e ith dignity! hen death due to termination of natura" "ife is certain and imminent and the process of natura" death has commenced. These are not cases of e/tinguishing "ife %ut on"y of acce"erating conc"usion of the process of natura" death hich has a"ready commenced. T ( .(/at( (#(' "' !+* *a!(! t& 0(-$"t 0 1!"*"a' a!!"!t(. t(-$"'at"&' &2 3"2( "! "'*&'*3+!"#(. It "! !+22"*"('t t& -("t(-at( t at t ( a-4+$('t t& !+00&-t t ( #"(5 &2 0(-$"tt"'4 t(-$"'at"&' &2 3"2( "' !+* *a!(! t& -(.+*( t ( 0(-"&. &2 !+22(-"'4 .+-"'4 t ( 0-&*(!! &2 *(-ta"' 'at+-a3 .(at "! '&t a#a"3a/3( t& "'t(-0-(t A-t"*3( 21 t& "'*3+.( t (-("' t ( -"4 t t& *+-ta"3 t ( 'at+-a3 !0a' &2 3"2(.C

In succinct! the Constitution ?ench did not e/press any %inding +ie on the su%<ect of euthanasia rather reiterated ou"d %e the appropriate authority to %ring

that "egis"ature the change.

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1$) In Aruna Shanbaug (supra), this Court! after ha+ing referred to the aforesaid Para Gos. $= and $7 of Gian Kaur (supra), stated as fo""o sE&
B$1. 4e ha+e carefu""y considered paragraphs $= and $7 in .ian @aurFs case (supra) and e are of the opinion that a"" that has %een said therein is that the +ie in RathinamFs case (supra) that the right to "ife inc"udes the right to die is not correct. 4e cannot construe .ian @aurFs case (supra) to mean anything %eyond that. I' 2a*t% "t a! /((' !0(*"2"*a331 $('t"&'(. "' 0a-a4-a0 25 &2 t ( a2&-(!a". .(*"!"&' t at 6t ( .(/at( (#(' "' !+* *a!(! t& 0(-$"t 0 1!"*"a' a!!"!t(. t(-$"'at"&' &2 3"2( "! "'*&'*3+!"#(H. T +! "t "! &/#"&+! t at '& 2"'a3 #"(5 5a! (70-(!!(. "' t ( .(*"!"&' "' G"a' ,a+-8! *a!( /(1&'. 5 at 5( a#( $('t"&'(. a/&#(.9

It

as further he"d thatE&

1)1. The Constitution ?ench of the Indian Supreme Court in .ian @aur +s. State of Pun<a% 166( ($) SCC (=' he"d that %oth euthanasia and assisted suicide are not "a fu" in India. That decision o+erru"ed the ear"ier t o 9udge ?ench decision of the Supreme Court in P. Rathinam +s. Union of India 166=(#) SCC #6=. The Court he"d that the right to "ife under Artic"e $1 of the Constitution does not inc"ude the right to die (+ide para ##). I' G"a' ,a+-8! *a!( (!+0-a) t ( S+0-($( C&+-t a00-&#(. &2 t ( .(*"!"&' &2 t ( H&+!( &2 L&-.! "' A"-(.a3(8! *a!( (!+0-a)% a'. &/!(-#(. t at (+t a'a!"a *&+3. /( $a.( 3a52+3 &'31 /1 3(4"!3at"&'.

1#) Insofar as the a%o+e paragraphs are concerned! Aruna Shanbaug (supra) apt"y interpreted the decision of the Constitution ?ench in Gian Kaur (supra) and came to the
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conc"usion that euthanasia can %e a""o ed in India on"y through a +a"id "egis"ation. :o e+er! it is factua""y rong to

o%ser+e that in Gian Kaur (supra)% the Constitution ?ench appro+ed the decision of the :ouse of 3ords in Airedale +s. land (166#) $ 4.3.R. #1( (:.3.). Para =) of Gian Kaur (supra)% c"ear"y states that even though it is not necessary to deal with physician assisted suicide or euthanasia cases, a brief reference to this decision cited at the Bar may be made Thus! it as a mere reference in the +erdict and it

cannot %e construed to mean that the Constitution ?ench in Gian Kaur (supra) appro+ed the opinion of the :ouse of 3ords rendered in Airedale (supra)! To this e/tent! the o%ser+ation in Para 1)1 is incorrect. 1=) Ge+erthe"ess! a +i+id reading of Para 1)= of Aruna Shanbaug (supra) demonstrates that the reasoning in Para 1)= is direct"y inconsistent ith its o n o%ser+ation in Para

1)1. Para 1)= reads as underE&

:10;. It $a1 /( '&t(. t at "' G"a' ,a+-8! *a!( (!+0-a) a3t &+4 t ( S+0-($( C&+-t a! <+&t(. 5"t a00-&#a3 t ( #"(5 &2 t ( H&+!( &2 L&-.! "' A"-(.a3(8! *a!( (!+0-a)% "t a! '&t *3a-"2"(. 5 & *a' .(*".( 5 (t (- 3"2( !+00&-t

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! &+3. /( ."!*&'t"'+(. "' t ( *a!( &2 a' "'*&$0(t('t 0(-!&' (.4. a 0(-!&' "' *&$a &PVS. This +e/ed >uestion has %een arising often in India %ecause there are a "arge num%er of cases here persons go into coma (due to an accident or some other reason) or for some other reason are una%"e to gi+e consent! and then the >uestion arises as to ho shou"d gi+e consent for ithdra a" of "ife support. This is an e/treme"y important >uestion in India %ecause of the unfortunate "o "e+e" of ethica" standards to hich our society has descended! its ra and idespread commercia"i0ation! and the rampant corruption! and hence! the Court has to %e +ery cautious that unscrupu"ous persons ho ish to inherit the property of someone may not get him e"iminated %y some croo*ed method.C

17) In Paras $1 1 1)1! the ?ench

as of the +ie

that in

Gian Kaur (supra), the Constitution ?ench he"d that euthanasia cou"d %e made "a fu" on"y %y a "egis"ation. 4hereas in Para 1)=! the ?ench contradicts its o n interpretation of Gian Kaur (supra) in Para 1)1 and states that a"though this court appro+ed the +ie (supra), it has not c"arified support shou"d %e ta*en in Airedale hether "ife case of an

ho can decide in the

discontinued

incompetent person e.g.! a person in coma or PVS. 4hen! at the outset! it is interpreted to ho"d that euthanasia cou"d %e made "a fu" on"y %y "egis"ation deciding here is the >uestion of

hether the "ife support shou"d %e discontinued in

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the case of an incompetent person e.g.! a person in coma or PVS. 1() In the "ight of the a%o+e discussion! it is c"ear that a"though the Constitution ?ench in Gian Kaur (supra) uphe"d that the ,right to "i+e %e inc"usi+e of ,right to die ith dignity- under Artic"e $1 i""

ith dignity-! the decision does

not arri+e at a conc"usion for +a"idity of euthanasia %e it acti+e or passi+e. So! the on"y <udgment that ho"ds the fie"d in regard to euthanasia in India is Aruna Shanbaug (supra), hich upho"ds the +a"idity of passi+e euthanasia

and "ays do n an e"a%orate procedure for e/ecuting the same on the rong premise that the Constitution ?ench in

Gian Kaur (supra) had uphe"d the same. 1D) In +ie of the inconsistent opinions rendered in Aruna

Shanbaug (supra) and a"so considering the important >uestion of "a in+o"+ed hich needs to %e ref"ected in the

"ight of socia"! "ega"! medica" and constitutiona" perspecti+e! it %ecomes e/treme"y important to ha+e a c"ear enunciation of "a . Thus! in our cogent opinion! the >uestion of "a

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in+o"+ed re>uires carefu" consideration %y a Constitution ?ench of this Court for the %enefit of humanity as a 1') ho"e.

4e refrain from framing any specific >uestions for e in+ite the

consideration %y the Constitution ?ench as

Constitution ?ench to go into a"" the aspects of the matter and "ay do n e/hausti+e guide"ines in this regard. 16) According"y! e refer this matter to a Constitution

?ench of this Court for an authoritati+e opinion.

III.IIIIIIIIIIC9I. (P. SATHASIVAM)

IIII.IIIIIIIIII9. (RANJAN GOGOI)

IIII.IIIIIIIIII9. (SHIVA ,IRTI SINGH) G24 J23:IK ;2?RUARL $7! $)1=.

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