Common Cause v. Union of India

Facts

Common Cause, a registered society, filed a writ petition under Article 32 seeking a declaration that the right to die with dignity is part of the right to live with dignity under Article 21, and directions enabling terminally ill persons to execute a living will. The Union of India referred to the Law Commission's reports and a draft Bill on passive euthanasia that had not become law; some States opposed the petition. While the petition was pending, a two-Judge Bench decided Aruna Shanbaug, allowing passive euthanasia on the understanding that Gian Kaur had approved the House of Lords decision in Airedale and that euthanasia could be made lawful only by legislation. A three-Judge Bench found that reading of Gian Kaur incorrect on the Airedale point and referred the matter to a Constitution Bench to lay down exhaustive guidelines.

Questions before the Court

1. Whether Gian Kaur v. State of Punjab held that passive euthanasia can be made lawful only by legislation, and whether Aruna Shanbaug read it correctly.
2. Whether the right to life with dignity under Article 21 includes the right of a terminally ill or PVS patient to a dignified process of dying, including withdrawal or withholding of life support.
3. Whether advance medical directives (living wills) can be recognised, and with what safeguards for patients with and without such directives.

What the Court held

• Gian Kaur did not approve Airedale and gave no definite opinion on euthanasia. It is not its ratio that passive euthanasia can be introduced only by legislation, and Aruna Shanbaug erred in holding otherwise.
• Active euthanasia, a positive act to end life such as administering a lethal drug, is unlawful. Passive euthanasia, the withdrawal or withholding of treatment that only artificially prolongs life, is different in kind and is legally permissible with safeguards.
• The right to live with dignity under Article 21 includes smoothening the process of dying for a terminally ill patient or a person in PVS with no hope of recovery. A competent adult may refuse medical treatment, even if death may result.
• A competent adult may execute an Advance Directive. It must be signed before two witnesses and countersigned by the jurisdictional JMFC, and is given effect only after certification by a Hospital Medical Board, endorsement by a Collector-appointed Medical Board, and authorisation by the JMFC.
• Where there is no Advance Directive, the same Board and JMFC procedure applies with the written consent of family members. If a Board refuses, the patient's nominee, family, treating doctor or hospital may approach the High Court under Article 226, applying the best interests of the patient.
• The guidelines were issued under Article 142 of the Constitution, relying on the law stated in Vishaka, and remain in force until Parliament enacts legislation.

Why it matters

The Constitution Bench answered a reference arising from Aruna Shanbaug's reading of Gian Kaur. It recognised passive euthanasia, both voluntary and non-voluntary, and advance medical directives as part of the right to die with dignity under Article 21, while holding active euthanasia unlawful. It laid down comprehensive guidelines under Article 142, which also cover the situation dealt with in Aruna Shanbaug, for executing and implementing advance directives and for patients without them, to operate until Parliament legislates.

In the Court's words

Copied from the official judgment; each passage links to its page.

Provisions interpreted

• Article 21, Constitution
• Article 142, Constitution

Related judgments

• Explains Gian Kaur v. State of Punjab (1996)“Gian Kaur has neither given any definite opinion with regard to euthanasia nor has it stated that the same can be conceived of only by a legislation.” (page 51)
• Overrules Aruna Ramachandra Shanbaug v. Union of India (2011)“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.” (page 187)
• Follows Vishaka v. State of Rajasthan (1997)“in exercise of the power under Article 142 of the Constitution and the law stated in Vishaka” (page 191)

Case and bench

Parties

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

Case

Writ Petition (Civil) No. 215 of 2005

Decided

9 March 2018

Bench

Dipak Misra, A.K. Sikri, A.M. Khanwilkar, Dr D Y Chandrachud, Ashok Bhushan

Opinions

Unanimous in result, four opinions. Dipak Misra, CJI wrote for himself and A.M. Khanwilkar, J.; A.K. Sikri, J. concurred, expressly agreeing with the Chief Justice's conclusions and directions; Dr D.Y. Chandrachud, J. concurred, expressly agreeing with the Chief Justice's guidelines and directions; Ashok Bhushan, J. concurred separately and treated the Chief Justice's directions and safeguards as sufficient until legislation.

Questions on this case

5 questions in live Law Maker papers mention this case. A few from free papers:

1. Question 1 · Landmark Judgments Practice Set 1

   In Common Cause (A Regd. Society) v. Union of India (2018), the Constitution Bench:

   1. A. permitted active euthanasia by a doctor on the written and attested request of any terminally ill patient
   2. B. recognised a right to die with dignity under Article 21, with passive euthanasia and advance directives
   3. C. held that Article 21 includes a right to commit suicide and struck down Section 309 IPC
   4. D. held that withdrawal of life support is lawful only after an Act of Parliament expressly authorises it
   Show the answer

   B. recognised a right to die with dignity under Article 21, with passive euthanasia and advance directives

   The Bench held that the right to live with dignity under Article 21 includes the right to die with dignity, recognised passive euthanasia and advance medical directives, and laid down safeguards for giving effect to them. It drew a clear line between passive euthanasia and active euthanasia, which remains impermissible without legislation, and held that Aruna Shanbaug erred in treating euthanasia as possible only through legislation.