BY : Vidhi Kela
The present submission deliberates upon the historical judgement of Common Cause v. Union of India and Anr. Further into the submission, the writer shall delve into stating the material facts, legal issues, judgement of the case along with its analysis. In addition to that, the submission will conclude with the writer’s stance on how justified the reasoning of the judges behind the present judgement was.
Common Cause (A Regd. Society) vs. Union of India and Anr.
The beginning of the present case dates back to 2002, when a registered NGO operating under the name ‘Common Cause’ approached the Ministries of Law and Justice, Health and Family Welfare and the State governments in order to seek clarification on the Right to die with dignity (passive euthanasia). The petitioner in this case, however received no response from the government on this regard and hence decided to re-raise the issue in 2005 by filing a PIL before the Apex Court under the ambit of Article 32, pleading for the announcement that the Right to die with dignity (passive euthanasia) is a fundamental right guaranteed under Article 21. The petitioner not just prayed before the court to issue guidelines to the Union government that would permit terminally ill patients to implement living wills but rather also sought directions from the court for the appointment of an open expert committee, which consisted of lawyers, doctors and social scientists to analyse and legalize the aspect of living wills.
Under this PIL, the petitioners argued that every person has a Right to live with dignity and this is applicable until his death. Therefore, it also meant that every person could exercise his right to have a dignified death as well. The registered society, Common Cause put forward the argument that the modern technology was prolonging the life of the patient unnecessarily, causing chronic pain, stress and suffering to the patient as well as his family members. Hence, under the light of these issues, the petitioner contended for the legalisation of living wills and a mechanism where a patient could write and authorise his family to stop any treatment of such kind in future circumstances.
Like every other case, the present case also deals with a certain number of issues and it is these issues based on which the judgment is pronounced. The first and foremost issue of this case is whether the provision of Article 21 of the constitution also guarantees the right to die. Whether euthanasia should be made lawful and and the difference between active and passive euthanasia are the second and third issues of this case, respectively. The last yet most important issue that this case deals with, is whether or not a person shall have the right to give advance directives.
The present case, which ended in a 538 page long judgment was pronounced by a five-judge constitution bench which was constituted by the then Chief Justice of India, Justice Dipak Misra accompanied by Justice A. K. Sikri, Justice A. M. Khanwilkar, Justice D.Y. Chandrachud and Justice Ashok Bhushan. With a bench strength of five, the case had four different opinions in total. While Chief Justice Dipak Misra and Justice A. M. Khanwilkar had a concurring opinion, the other 3 judges gave a separate opinion on the same issue. However, in the end it was Chief Justice Dipak Mishra and Justice A. M. Khanwilkar who rendered the leading decision.
The right to die with dignity was derived by the bench from the ‘privacy-autonomy-dignity’ matrix under the ambit of Article 21 as explained by the nine-judge bench of the Apex Court in the historical judgement of Puttaswamy case. It maintained an individual’s right to issue and pass “advance directives and attorney authorizations” so as to enable the removal of unnecessary treatment or life support equipment in the case that the patient is terminally sick or in a Persistent Vegetative State (PVS), provided he or she is capable of assent. In order to establish a balance between law and bioethics, the bench has also set rules to prevent any potential misuse of such directives, as well as the way in which such directives may be carried out.
All of the judges thoroughly examined the moral, ethical, and jurisprudential difficulties surrounding the notion of euthanasia and advance directives in order to provide a foundational base for the right to carry out such directives and get attorney authorisations. For example, Chief Justice Dipak Misra’s opinion for himself and Justice Khanwilkar begins with a philosophical discussion on the worth of life and the futility of a life which is devoid of essence and dignity. He went on to quote a number of authors, poets, and philosophers, who argued that death is not an adversary, and that a dignified death, instead of an undignified prolongation of life, is a reason for celebration.
He also considered the cultural implications of this problem, such as the shame that may be attached to doctors who withdraw life support and the potential for exploitation of such a provision by unscrupulous relatives. In addition, Justice Chandrachud looked at euthanasia in the context of the interplay between science, medicine, ethics, and constitutional values of individual dignity and autonomy. He emphasised on the need for evaluating this right not just from an individual standpoint, but also from institutional, governmental, and social viewpoints with a forward-looking vision. Justice Bhushan took a similar approach and traced the origins of religious beliefs on life and death.
Furthermore, all members of the bench also reviewed the Apex Court’s precedents from P. Rathinam’s and Aruna Shanbaug’s case in order to defend the right to die with dignity. To give an example, Chief Justice Dipak Misra stated that the Supreme Court has distinguished between the “right to die” and “the right to die with dignity” in prior decisions. While the former could not be regarded a component of Article 21’s right to life and personal liberty, the latter might be drawn from it in a very restricted way, namely, in the form of passive euthanasia for terminally ill and/or people in a Persistent Vegetative State (PVS). They also drew parallels with the Transplantation of Human Organs and Tissues Rules, 2014, which allow advance directives for organ transplantation, and the Mental Healthcare Act, 2017, which recognises advance directives for people with mental illnesses and specifies how such directives should be recorded and implemented.
According to John Locke’s theory of Social Contract, individuals step forward and surrender a part of their rights to the state in exchange for the protection of their natural rights like the right to life, liberty and property. Based on natural law, even the Indian Constitution under the umbrella of Article 21 guarantees the right to life to all its citizens. As correctly stated by Chief Justice Dipak Mishra in his judgement, the right to life extends till death, which further implies a right to die with dignity as well. Moreover, birth and death are all a part of life. Although death does bring sorrow and pain, it is an indication that one survived and passed the test of life hence making it cherishable. We are all destined to die at the very moment we step into this world and this is how nature works. Death is a component and beauty of nature. Quoting Chief Justice Dipak Mishra, one should definitely celebrate a dignified death rather than a meaningless life that is prolonged on the support of machines without any essence of reverence.
In contradiction to facing death as a reality of life, individuals in the present day rely on modern technology and artificial techniques to extend the span of life despite being aware of the fact that as soon as the machines are withdrawn the life of the patient would cease to function. Such technology of using machines and medicines only prolong life but never give an assurance of cure or remedy. Ironically to the very purpose this technology exists for, they only prolong the misery and suffering of the ill instead of letting them live a dignified life. The writer finds herself in a position where she totally accords herself with the judgement of the present case and thus concludes that this decision is in the right direction.