Common Cause (A Regd. Society) v. Union of India (2018)

Before this case, Indian law on passive euthanasia rested on Aruna Shanbaug (2011), a two-judge decision that had read Gian Kaur (1996, Constitution Bench) as having approved the House of Lords decision in Airedale NHS Trust v. Bland. A three-judge Bench doubted that reading and referred the question to a Constitution Bench.

This judgment clears the confusion. It holds that Gian Kaur had done no more than refer to Airedale, and had expressed no binding opinion approving passive euthanasia; that Aruna Shanbaug erred on that point; and — most importantly — it then itself recognises passive euthanasia and advance directives as part of the right to live with dignity under Article 21, and lays down guidelines under Article 142 until Parliament legislates.

For a Legal Language paper, the case is also a lesson in reading precedent: what a court refers to is not the same as what it decides.

Common Cause, a registered society, filed a writ petition under Article 32. It asked the Court to declare the "right to die with dignity" a fundamental right within the right to live with dignity under Article 21, and to direct that terminally ill persons be able to execute a document — a "living will" — to be acted on if they were admitted to hospital with an illness threatening their life. The petitioner contended that each individual has an inherent right to die with dignity, and that it was not claiming that the right to die was part of the right to life.

The Union of India opposed. Its counter affidavit referred to the 241st Report of the Law Commission and explained that the Ministry of Health and Family Welfare had not favoured the draft Bill, giving reasons including that the Hippocratic oath is against intentional killing of patients.

A three-judge Bench, by a reference order of 25 February 2014, held that Aruna Shanbaug had wrongly treated Gian Kaur as approving Airedale, and referred the matter to a Constitution Bench without framing specific questions.

1. Did the Constitution Bench in Gian Kaur approve Airedale and hold that passive euthanasia could be introduced only by legislation?
2. Was Aruna Shanbaug right on that point?
3. Does the right to live with dignity under Article 21 include a right to die with dignity — covering passive euthanasia and the withdrawal of life support?
4. Can a competent adult make an advance directive refusing future medical treatment, and if so, with what safeguards?

The writ petition was disposed of with a declaration of law and detailed guidelines. All five judges agreed on the result.

What Gian Kaur decided — and did not

The Chief Justice examined Gian Kaur closely. Gian Kaur had upheld Sections 306 and 309 IPC and said that Article 21 does not include the right to die; in doing so it quoted Lord Goff's "Rubicon" passage from Airedale and observed that a change in the law was for the legislature. The Constitution Bench held that this was narration and reference, not a ruling on euthanasia. Its conclusions:

• "The Constitution Bench in Gian Kaur (supra) has not approved the decision in Airedale (supra) inasmuch as the Court has only made a brief reference to the Airedale case."
• "It is not the ratio of Gian Kaur (supra) that passive euthanasia can be introduced only by legislation."
• "The two-Judge bench in Aruna Shanbaug (supra) has erred in holding that this Court in Gian Kaur (supra) has approved the decision in Airedale case and that euthanasia could be made lawful only by legislation."

Earlier, the Chief Justice put it in the plainest terms: "We unequivocally express the opinion that Gian Kaur is not a binding precedent for the purpose of laying down the principle that passive euthanasia can be made lawful" only by legislation.

At the same time, the Court read Gian Kaur as supporting the right to die with dignity: "A careful and precise perusal of the judgment in Gian Kaur (supra) case reflects the right of a dying man to die with dignity when life is ebbing out".

Active versus passive euthanasia

"There is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life." Active euthanasia remains unlawful; as Chandrachud J put it, "Active euthanasia falls within the express prohibitions of the law and is unlawful".

Dignity in dying is part of Article 21

"It has to be stated without any trace of doubt 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 PVS with no hope of recovery." The Chief Justice added that "Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination." And: "When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest."

Advance directives and the guidelines

A competent adult may refuse treatment, even if refusal risks death, and may make an advance directive for the future. The Chief Justice laid down detailed safeguards for executing and giving effect to advance directives, and a procedure (through hospital and Collector-nominated medical boards, with a right to approach the High Court under Article 226) for cases with and without an advance directive. These were issued "in exercise of the power under Article 142 of the Constitution and the law stated in Vishaka". The Court stated: "The directive and guidelines shall remain in force till the Parliament brings a legislation in the field."

The concurring opinions

• Sikri J said of the Chief Justice's judgment: "I entirely agree with the reasoning and outcome."
• Chandrachud J held that Gian Kaur "does not conclusively rule on the validity of passive euthanasia", and went further in criticising Aruna Shanbaug, which he said had proceeded on an act–omission distinction with jurisprudential incongruities: "The underlying basis of the decision in Aruna Shanbaug is flawed." He agreed with the Chief Justice's directions.
• Ashok Bhushan J declared that "an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life saving devices", and that a competent person may execute an advance medical directive with safeguards.

1. Gian Kaur only referred to Airedale; it did not approve it and is not authority that passive euthanasia can be made lawful only by legislation. Aruna Shanbaug erred in reading it otherwise.
2. The right to live with dignity under Article 21 includes dignity in the process of dying. Passive euthanasia — withdrawing or withholding life-prolonging treatment for a terminally ill or PVS patient with no hope of recovery — is permissible; active euthanasia is not.
3. A competent adult may refuse medical treatment, including by a valid advance directive, which must be given effect subject to the safeguards laid down. The guidelines issued under Article 142 hold the field until Parliament legislates.

• Direct question: Is there a right to die with dignity in India? Trace the development of the law on euthanasia. Go P. Rathinam → Gian Kaur (no right to die; Airedale merely referred to) → Aruna Shanbaug (passive euthanasia allowed, but on the mistaken premise that Gian Kaur approved Airedale) → Common Cause (passive euthanasia and advance directives recognised under Article 21; guidelines under Article 142).
• Legal language point — reading precedent: the heart of this case is the difference between a court referring to a foreign decision and approving it. Use the Court's own words: the Constitution Bench in Gian Kaur "has only made a brief reference to the Airedale case". A good answer on ratio decidendi versus obiter dicta can use this case as its example.
• Short note: Advance directives. Who may make one (a competent adult), what it does (refuses future treatment), and that the Supreme Court's guidelines govern until Parliament legislates.