Common Cause (A Registered Society) v. Union of India: A Critical Analysis

THIS ARTICLE WAS WRITTEN BY RAJ KRISHNA, A STUDENT OF CHANAKYA NATIONAL LAW UNIVERSITY.

INTRODUCTION

On 9^th March, 2018 a five- judge bench of the Supreme Court recognized and gave sanction to passive euthanasia and living will/ advance directive. This implies that from now Right to Die with Dignity is a Fundamental Right. The judgment has been delivered by a Bench comprising of Chief Justice of India Dipak Misra, Justice A.K. Sikri, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Ashok Bhushan. The matter was referred to it by a three -Judge bench, which held that the Constitution Bench in the case of Gian Kaur v State of Punjab, had not ruled upon the validity of active or passive Euthanasia, even though the bench had ruled that Right to Live with Dignity under Article 21 of the Constitution of India was inclusive of the right to die with dignity. [1]

The Three – Judge Bench then noted that the judgment pronounced in Aruna Shanbaug v Union of India is based upon a wrong preposition that the Constitution Bench in the case of Gian Kaur v State of Punjab had upheld passive euthanasia. However, the Five-Judge Bench in the case of Common Cause (A Regd. Society) v. Union of India and Another has now unanimously held that the Two-Judge Bench in the case of Aruna Shanbaug had wrongly ruled that passive euthanasia can be made lawful only by legislation through an erroneous interpretation of the judgment in Gian Kaur case. The Judges in their judgment have also laid down the procedure for a “Living Will” or an “Advance Directive” through which terminally ill people or those with deteriorating health can choose not to remain in a vegetative state with life support system if they go into a state when it will not be possible for them to express their wishes.

Over the years the issue of euthanasia has been a complicated issue upon which there have been heated debates, not only within the confines of courts, but also among elites, intelligentsia and academicians alike. The Supreme Court of India however, through its judgment in the case of Common Cause (A Regd. Society) v. Union of India and Another has now settled the position of Passive Euthanasia in India. Thus the cloud upon right to live with dignity and right to die with dignity has now been cleared by the Apex Court for once and for all.[2]

2. BACKGROUND OF THE CASE

In the year 2002, Common Cause, a registered society wrote to the Ministries of Law & Justice, Health & Family Welfare, and Company Affairs, State Governments, on the issue of the right to die with dignity.

In 2005, Common Cause knocked the doors of Supreme Court under Article 32 of the Constitution with an objective to declare Right to die with dignity as a fundamental right under Article 21. It prayed before the Court to issue directions to the Union Government to allow terminally ill patients to execute ‘living wills’ for appropriate action in the event that they are admitted to hospitals. [3]

As an alternative, Common Cause sought guidelines from the Court on this issue, and the appointment of an expert committee comprising lawyers, doctors, and social scientists to determine the aspect of executing living wills.

On 25th February 2014, a 3 Judge Bench of the Supreme Court comprising the then Chief Justice P. Sathasiavn, Justice Ranjan Gogoi and Justice Shiva Kirti Singh referred the matter to a larger bench, to settle the issue in light of inconsistent opinions in Aruna Ramchandra Shanbaug vs Union Of India & Ors (2011) and Gian Kaur vs State of Punjab (1996).

3. ISSUES BEFORE THE COURT

The issues before the court were as follows:

* Whether Article 21 of the Constitution which guarantees the Right to Life includes the Right to Die?

*Can euthanasia be made lawful only by legislation?

*What is the difference between passive euthanasia and active euthanasia?

* Can individuals be allowed to give ‘Advance Directives’, i.e. directives on medical treatment if they become incompetent or unable to communicate in the future? [4] [5]

4. JUDGMENT

The Supreme Court in this case held that individuals have a right to die with dignity. This ruling thus permits the removal of life-support systems for the terminally ill or those in incurable comas. The court also permitted individuals to decide against artificial life support, should the need arise by creating a living will.[6]

The Court in this case also laid down the principles relating to the procedure for execution of Advance Directive and provided the guidelines to give effect to passive euthanasia in both circumstances, namely, where there are advance directives and where there are none, in exercise of the power under Article 142 of the Constitution and the law stated in Vishaka and Others v. State of Rajasthan and Others. The directive and guidelines laid down by the court shall remain in force till the Parliament brings legislation in the field.[7]

5. WAY AHEAD

The subject of euthanasia is quite controversial and raises an array of sophisticated moral, ethical, social, philosophical, legal and religious concerns. Broadly there are two groups formed whenever euthanasia is discussed. The first group is of religion notably Christianity and Islam which don’t recognize a right to die, believing life to be a divine gift.[8]

Second group relates to the requirement of consent. The capacity of terminally-ill patients to give informed consent for their own killing is often questioned. As a reason in past there have been many campaigns relating to euthanasia some for its support whereas others for its withdrawal. However taking into account the interest of people laws have been laid down in support of euthanasia. This is against the religious beliefs, but for the benefit of society. This shows the clash of law and religion. It has been observed many a times that law remains ahead of society and religion stays behind the society.[9]

Thus, it can be said that this is a judgment in right direction.  Those suffering from chronic diseases are often subjected to cruel treatments.  Denying them the right to die in a dignified manner extends their suffering. Hence, the court is right in declaring Right to Die with Dignity is as a Fundamental Right as it will help in reducing the pains of those suffering from chronic treatments and they will be able to die in a dignified manner.

[1] Breaking : Right To Die With Dignity A Fundamental Right, SC Allows Passive Euthanasia And Living Will, Issues Guidelines, Live Law (July 9, 2018, 11:30 p.m.),  http://www.livelaw.in/breaking-right-die-dignity-fundamental-right-sc-allows-passive-euthanasia-living-will-issues-guidelines/

[2] Id.

[3] Euthanasia, Living Wills, and the Right to Die with Dignity, Supreme Court Observer (July 10, 2018, 11:20 p.m.), http://scobserver.clpr.org.in/court-case/euthanasia-living-wills-and-the-right-to-die-with-dignity

[4] Common Cause (A Registered Society) v. Union of India, Writ Petition (Civil) No. 215 of 2005.

[5] Euthanasia, Living Wills, and the Right to Die with Dignity, Supreme Court Observer (July 10, 2018, 11:30 p.m.), http://scobserver.clpr.org.in/court-case/euthanasia-living-wills-and-the-right-to-die-with-dignity

[6] Common Cause (A Registered Society) v. Union of India, Writ Petition (Civil) No. 215 of 2005.

[7] Common Cause (A Registered Society) v. Union of India, Writ Petition (Civil) No. 215 of 2005.

[8] Raj Krishna, “IS IT THE TIME FOR INDIA TO LEGALIZE VOLUNTARY ACTIVE EUTHANASIA? DISCUSS IN LIGHT OF THE RECENT DEMISE OF ARUNA SHANBAUG”,GLC Mumbai , Melawnge 2015-16.

[9] Id.