No order on euthanasia, SC leaves it open for government to take call

New Delhi: The Supreme Court on Monday refrained from passing an order on a plea to legalise passive euthanasia and the right of terminally-ill persons to execute 'Living Will' not to prolong their lives by putting them on life support systems and kept it open for the government to take a call on both the issues.

"The issues of passive euthanasia and Living Will is being considered by the government. However, we may clarify that the pendency of the petition should not come in the way of the authority to take a decision," a five-judge Constitution Bench headed by Justice A R Dave said.

"We are not passing any order at this stage," the bench, also comprising Justices Kurian Joseph, Shiva Kirti Singh, A K Goel and R F Nariman, said while agreeing with the view of the Centre that the court should post the next hearing in July and till then allow a public debate to take place in the peoples' court, that is Parliament.

Additional Solicitor General P S Patwalia opposed the plea of NGO Common Cause and its advocate Prashant Bhushan that the court should consider and pass an order at least on the limited issue of Living Will, till a legislation is enacted.

He submitted that since the Health Ministry was examining the Law Commission report after which a Bill would be drafted by the Law Ministry, the apex court should defer the hearing and wait till July for the debate to take place.

When the bench asked Bhushan, "do you want court's verdict or the people's verdict on it," he said the issue of Living Will is not the subject of parliamentary debate as it concerns the fundamental right to life guaranteed under the Constitution which also covers the right to die with dignity.

However, the bench was of the view that "it is something which should be debated in peoples' court, i.e Parliament." As Bhushan argued for consideration of the limited issue of Living Will saying that it is given by the terminally-ill persons of sound mind, the bench asked, "would it not be a case where you are permitting a miracle to happen?"

During the hearing, the ASG gave an example of former Formula One world champion Michael Schumacher, who is in coma for over two years, saying that his family members are hoping that medical science has developed and he will return to normalcy and are against withdrawing life support system.

A doctor-turned-advocate, who has sought intervention in the matter, said the issue concerning euthanasia is very sensitive and has to be deliberated in a careful manner. Dr Kishore submitted that persistent vegetative state does not mean that a person is dead, so the life support system should not be withdrawn.

He elaborated that during his career as a doctor for 40 years, he had come across three cases from across the globe that after being in coma for 19 years, they have returned to lead a normal life.

Putting the onus on the authority to take a decision on the issue assumes significance as the Centre in its latest affidavit has said it has framed a draft legislation on the issue but would await the apex court's verdict on it.

"Based on recommendations of the expert committee, the Directorate General of Health Services (DGHS) has proposed formulation of legislation on passive euthanasia. The expert committee has further suggested certain changes in the draft bill.”

"The committee has not agreed to active euthanasia since it has more potential for misuse and, as on date, it is prevalent in very few countries worldwide," the ASG had said in the last hearing.

He had also submitted that the Law Commission's report favouring legalising of passive euthanasia with certain safeguards is being examined and a bill will be drafted thereafter.

The court is awaiting the government's stand in its endeavour to examine a plea to legalise passive euthanasia by means of withdrawal of life support system to terminally-ill patients.

The apex court on January 15 had asked the government to make its stand clear in a reasonable time.

The law officer apprised the bench about the 241st report of the Law Commission which has stated that passive euthanasia should be allowed with certain safeguards and there was a proposed law -- Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practioners) Bill, 2006.

He had said his contention will also be based on 6.7 regulation of 2002 in Medical Council of India Act which says that practicing euthanasia shall constitute unethical conduct.

However on specific occasions, the question of withdrawing supporting devices to sustain cardio-pulmonary function even after brain death, shall be decided only by a doctors' team and not the treating physician alone.

The bench was hearing a PIL filed in 2005 by NGO Common Cause which said when a medical expert opines that the person afflicted with a terminal disease has reached a point of no return, then he should be given the right to refuse being put on life support system, as otherwise it would only prolong his agony.

The apex court had two years ago issued notices to states and Union Territories on the issue, even as the Centre had strongly opposed the petition saying it was a form of suicide which cannot be allowed.

Another five-judge bench had then said that states must also be heard as the issue pertained not only to the Constitution, but to morality, religion and medical science.

The NGO had prayed for declaring the right to die with dignity as a fundamental right and sought a direction to the government to adopt suitable procedures to ensure that those with deteriorating health or the terminally ill should be able to execute a Living Will and attorney authorisation for termination of life.

It had explained that there were three types of euthanasia -- positive, passive and Living Will. It said the emphasis was on the category of Living Will in which a person makes an advance declaration that if during his treatment, it becomes clear that there is no chance of revival, he should not be put on life support system or ventilator.

While referring to 6.7 regulation of 2002 under Medical Council of India, the bench wanted to know about implication of the regulation if the four words 'even after brain death' is deleted from it.

Attorney General Mukul Rohatgi had submitted that the issue should be debated and decided by the legislature and it was not a matter to be adjudicated by the court.

The bench had appointed senior lawyer and former Solicitor General T R Andhyarujina as amicus curiae to assist it in the case relating to legalising euthanasia.

The present PIL has contended that a person whose life was ebbing out should be allowed to die as the continuance of the life with the support system was an unnatural extension of the natural life span.

A Constitution Bench was set up after a three-judge bench had on February 25, 2014 referred the matter to a larger bench saying it was extremely important to have a clear enunciation of law in view of inconsistent opinions in its previous judgement. It had said that its verdict of 2011 allowing passive euthanasia was delivered on a "wrong premise".

"In view of the inconsistent opinions rendered in Aruna Shanbaug case and considering the important question of law involved which needs to be reflected in the light of social, legal, medical and constitutional perspective, it becomes extremely important to have a clear enunciation of the law.

"Thus, in our cogent opinion, the question of law involved requires careful consideration by a Constitution Bench of this court for the benefit of humanity as a whole," the court had said.

It had said that its earlier Constitution Bench verdict, which was wrongly relied in Aruna Shanbaug case, had held that the right to live with dignity will be inclusive of the right to die with dignity, but the judgement did not arrive at a conclusion on validity of euthanasia.