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Common Cause A Regd Society Vs Union of India UOI SC20181203181014291COM970755
Common Cause A Regd Society Vs Union of India UOI SC20181203181014291COM970755
Equivalent Citation: AIR2018SC 1665, 122(1)C WN1, (2018)3MLJ503, 2018(4)SC ALE1, (2018)5SC C 1, 2018 (4) SC J 1
A.K. Sikri, J.
Constitution - Living Will - Determination of Legal Status - Article 21 of
Constitution of India - Present petition filed seeking declaration that right to
die with dignity be declared fundamental right within right to live with dignity
under Article 21 of Constitution - Whether passive euthanasia, voluntary or
Ashok Bhushan, J.
Constitution - Sanctity of Life - Determination of Legal Status - Article 21 of
Constitution of India - Present petition filed seeking declaration that right to
die with dignity be declared fundamental right within right to live with dignity
under Article 21 of Constitution - Whether advance directive be legalized -
Whether to withdraw treatment for incompetent terminally ill patient, rational
or irrational
Facts:
The Petitioner was a registered society engaged in taking of the common
problems of the people. The present petition was filed to bring to the notice of
this Court the serious problem of violation of fundamental right to life, liberty,
privacy and the right to die with dignity of the people of this country,
guaranteed to them under Article 21 of the Constitution. It was submitted that
the people who are suffering from chronic diseases and are at the end of their
natural life span are deprived of their rights to refuse cruel and unwanted
medical treatment, like feeding through hydration tubes, being kept on
ventilator and other life supporting machines in order to artificially prolong
their natural life span. It was further pleaded that it was a common law right
of the people, of any civilized country, to refuse unwanted medical treatment
and no person could force him/her to take any medical treatment which the
person did not desire to continue with.
Held, while allowing petition:
A. Prologue
D. 4 T he Reference
H. 1 U.K. Decisions:
H. 5 Other Jurisdictions
Q. Conclusions in seriatim
A. Prologue:
1 . Life and death as concepts have invited many a thinker, philosopher, writer and
physician to define or describe them. Sometimes attempts have been made or efforts
have been undertaken to gloriously paint the pictures of both in many a colour and
shade. Swami Vivekananda expects one to understand that life is the lamp that is
constantly burning out and further suggests that if one wants to have life, one has to die
every moment for it. John Dryden, an illustrious English author, considers life a cheat
and says that men favour the deceit. No one considers that the goal of life is the grave.
Léon Montenaeken would like to describe life as short, a little hoping, a little dreaming
and then good night. The famous poet Dylan Thomas would state "do not go gentle into
Every person in this world comes crying. However, that person who leaves the
world laughing/smiling will be the luckiest of all
(Hindi Film-Muqaddar Ka Sikandar)
245. It became unbearable for young prince Siddharth when he, for the first time, saw
an old crippled man in agony and a dead body being taken away. He did not want to
encounter such a situation in his old life and desired to attain Nirvana which prompted
him to renounce the world so that he could find the real purpose of life; could lead a life
which is worth living; and depart this world peacefully. He successfully achieved this
purpose of life and became Gautam Buddha. There are many such similar examples.
Life is mortal. It is transitory. It is as fragile as any other object. It is a harsh reality that
no human being, or for that matter, no living being, can live forever. Every creature who
takes birth on this planet earth has to die one day. Life has a limited shelf age. In fact,
unlike the objects and articles which are produced by human beings and may carry
almost same life span, insofar as humans themselves are concerned, span of life is also
uncertain. Nobody knows how long he/she will be able to live. The gospel truth is that
everybody has to die one day, notwithstanding the pious wish of a man to live forever 18.
As Woody Allen said once: 'I do not want to achieve immortality through my work. I want
to achieve it through not dying'. At the same time, nobody wants to have a tragic end to
life. We all want to leave the world in a peaceful manner. In this sense, the term
'euthanasia' which has its origin in Greek language signifies 'an easy and gentle death'.
1 Rawls, John, Political Liberalism 32, 33, New York: Columbia University Press, 1993. 2
'The Role of Judiciary and HIV Law' - Michael Kirby, published in the book titled 'HIV
Law, Ethics and Human Rights', edited by D.C. Jayasuriya. 3 Dworkin, "Judicial
Discretion," 6 J. of Phil. 624 (1963) 4 See Aharon Barak: Judicial Discretion, Yale
University Press. 5 B. Cardozo: The Growth of the Law 144 (1924), at 60-61 6 Justice O.
Holmes opined this expression in 'Collected Legal Papers' 239 (1921) 7 Reported as
MANU/SC/0140/2014 : (2014) 5 SCC 3388 Michael Manning, Euthanasia and Physician-
Assisted Suicide (Paulist Press, 1998). 9 These definitions of voluntary, non-voluntary
and involuntary euthanasia correspond to those employed by the House of Lords Select
Committee on Medical Ethics (Walton Committee) 10 See Euthanasia and Its Legality and
Legitimacy from Indian and International Human Right Instruments Perspectives
published in Human Rights & Social Justice by Muzafer Assadi 11 Professor and Head,
Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai. 12
Consultant Neurologist at P.D. Hinduja, Mumbai. 13 Professor and Head, Department of
Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General
Hospital. 14 Aspects of human dignity as right to life in the context of euthanasia shall be
discussed in greater detail at the relevant stage. 15 It may be noted that the Delhi High
Court in State v. Sanjay Kumar, (1985) Crl. L.J. 931, and the Bombay High Court in
Maruti Sharipati Dubai v. State of Maharashtra, MANU/MH/0022/1986 : (1987) Crl. L.J.
743, had taken the view that Section 309 of Indian Penal Code was unconstitutional,
being violative of Articles 14 and 21 of the Constitution. On the other hand, the Andhra
Pradesh High Court in C. Jagadeeswar v. State of Andhra Pradesh, (1983) Crl. L.J. 549,
had upheld the validity of Section 309 holding that it did not offend either Article 14 or
Article 21 of the Constitution. A Division Bench of this Court in P. Rathinam v. Union of
India and Anr. MANU/SC/0433/1994 : (1994) 3 SCC 394, had held that Section 309
Indian Penal Code deserves to be effaced from the statute book to humanise our penal
laws, terming this provision as cruel and irrational, which results in punishing a person
again who had already suffered agony and would be undergoing ignominy because of his
failure to commit suicide. It is in this backdrop Gian Kaur's case was referred to and
decided by the Constitution Bench. 16 As quoted in P. Rathinam v. Union of India and
Anr., MANU/SC/0433/1994 : (1994) 3 SCC 39417 Same as in 14 above. 18 It is well
known that medical scientists are intensely busy in finding the ways to become ageless
and immortal, but till date have remained unsuccessful in achieving this dream. 19
Charles I. Lugosi, 'Natural Disaster, Unnatural Deaths: The Killings on the Life Care
Floors at Tenet's Memorial Centre after Hurricane Katrina', Issues in Law and Medicine,
Vol. 23, Summer, 2007. 20 John Keown, Euthanasia, Ethics and Public Policy,
(Cambridge: Cambridge University Press, (2002) p. 37 21 T N Madan, "Dying with
Dignity" (1992) 35 (4) Social Science and Medicine 425-32. 22 T N Madan, "Living and
Dying" in Non-Renunciation: Themes and Interpretations of the Hindu Culture (New
Delhi, Oxford University Press, 1987). 23 J Parry, Death and the Regeneration of Life
(Cambridge, Cambridge University Press, 1982) 24 T N Madan, "Dying with Dignity"
(1992) 35 (4) Social Science and Medicine 425-32. 25 Justice Holmes: The Path of the