Author: Masooma Naqvi, Amity University, Uttar Pradesh
ABSTRACT / HEADNOTE-
The following case includes the appellant which is Indian Society of Critical Care Medicine, who sought to seek clarifications on the judgement given in Common Cause (A Registered Society) v. Union of India and Another (2018) 5 SCC 1. The matter was referred to a five-judge bench in the Supreme Court and was filed under Article 32 of the Indian Constitution. The applicant argued that the guidelines laid down in the 2018 judgement were cumbersome and needed streamlining. In the following case the learned bench made numerous modifications with the intention to ease the process of administering passive euthanasia to terminally ill patients, who have no hope to recover and make it less time consuming. The Court also made clarifications on the question of Advance Directives. It further stated that as opposed to the guidelines of 2018 which required attestation by the judicial magistrate for a living will, the new guidelines would require a notary, or a gazetted officer to validate a living will. The case was disposed of by the Supreme court.
Keywords– Passive Euthanasia, Writ Petition, Supreme Court, Article 21, Terminally Ill Patients, Two- tiered process, Advance Medical Directives
CASE DETAILS
| Judgement Cause Title | Supreme court, Common Cause vs Union of India 2023 |
| Case Number | MA No. 1699/ 2019 in WP (C) No. 215/ 2005 |
| Judgement Date | 24th, January, 2024 |
| Court | Supreme Court |
| Quorum | C.T. Ravikumar, Hrishikesh Roy, Aniruddha Bose, Ajay Rastogi, K.M. Joseph |
| Author | K.M. Joseph |
| Citation | SCC OnLine SC 99 |
| Legal Provisions Involved | Article 21, Article 32, Constitutuion of India, 1950. |
INTRODUCTION AND BACKGROUND OF JUDGEMENT
We must first understand what Advanced directives are. “Advance Directives is a general name for several kinds of documents you can sign to help ensure that your wishes about medical treatment is known and respected if you are unable to communicate for yourself.”[1] In 2005, Common cause which is a registered society approached the Supreme court under article 32, praying to recognize the right to die with dignity within the ambit of article 21 of the Indian Constitution. Article 21 speaks about ‘Right to Life and Liberty’.
The petitioner argued that the patients who have had prolonged treatment going on, and have no hope to improve their condition must have the right to die with dignity, through Passive Euthanasia. “Passive euthanasia is the act of withholding or withdrawing medical treatment, such as withholding or withdrawing life support, with the intention of allowing a person to die.”[2]
Later, Indian Society of Critical Care Medicine filed an application before the supreme court to get clarification of the judgment reported in Common Cause (A Registered Society) v. Union of India and Another (2018) 5 SCC 1.
FACTS OF THE CASE
The petition seeks to modify some of the guidelines prescribed in the 2018 Judgement, to ease the procedure for terminally ill patients to exercise their right to die with dignity as the procedure mentioned in the act was rather complicated. The right to Die with Dignity was first recognized in Common Cause vs Union of India in its 2018 Judgement. The main takeaway was that a person should not be given further medical care if they do not demand.
Although this issue was initially brought before a three-judge Bench, where it was transferred to a Constitution Bench because of conflicting precedents about the law governing the right to die in India.
In the present case, the applicant came before the court to sought clarifications on some of the guidelines and praying to modify some of these guidelines as the process was very slow paced and cumbersome.
LEGAL ISSUES RAISED
- “Whether the Court should issue suitable directions or set in place norms to provide for what is described as Advance Directives?
- Whether even in the absence of Advance Directives, when a person is faced with a medical condition with no hope of recovery and is continued on life support system/medicines, life support system should be withdrawn?”[3]
PETITIONER/ APPELLANT’S ARGUMENTS
Since Common Cause a Regd. Society vs Union of India 2023 SCC OnLine SC 99 is based on the guidelines issued in its original application of 2018, it becomes important for us to also briefly touch upon the 2018 judgement arguments as well.
The counsels for Petitioner / Appellant in the original case of Common Cause vs Union of India 2018 submitted that every individual has the autonomy to decide to continue or discontinue their life, provided they are terminally ill, on prolonged medications, and have no hope to recover. This is applicable in cases where a person has reached a permanent irreversible state where death is not far away.
The petitioner also argued that Death with dignity is a far better option that allowing a person to continue to suffer in their vegetative state.
Further the petitioners argued that individual autonomy or the right to decide comes within the ambit of Right to Privacy and hence should be sustained.
In the case of Common Cause vs Union of India 2023 SCC OnLine SC 99, the applicant held that the difficulties due to the nature of the guidelines of 2018 were being voiced by a large numbers of doctors as well and hence it became a matter of importance for the court to address.
RESPONDENT’S ARGUMENTS
The counsels for Respondent in the original case of Common cause vs Union of India 2018 submitted that-
- The right to Life and Liberty mentioned under Article 21 of the Indian Constitution does not include the Right to die as its facet, but rather means availability of food, shelter, and health. Protecting the life of the people is believed to be the primary function of the state, and hence including the right to die with dignity will directly go against the basic right mentioned in the Constitution.
- The Counter Affidavit in Common Cause a Regd. Society vs Union of India 2023 SCC OnLine SC 99 submitted that “As we have noticed, this is an application seeking clarification. Ordinarily, be it an MA No. 1699/ 2019 in WP (C) No. 215/ 2005 application lodged in this Court blessed as it is with powers under Article 142 of the Constitution of India, we would have thought that the application should not receive further consideration. However, we notice that there has been a subsequent development. The development is in the form of orders evidencing an attempt being made by the respondent also to evolve/agree to certain changes.”[4]
RELATED LEGAL PROVISIONS
Section 92, Indian Penal Code 1860.
Article 21, Indian Constitution 1950.
JUDGEMENT
RATIO DECIDENDI
- The learned bench made several modifications in the 2018 case with the intention of making the process less cumbersome and time consuming.
- With regards to issue 1 “198.2.1. It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.”
- With regards to issue 2, the court held that “It is necessary to make it clear that there will be cases where there is no Advance Directive. The said class of persons cannot be alienated. In cases where there is no Advance Directive, the procedure and safeguards are to be same as applied to cases where Advance Directives are in existence and in addition there to, the following procedure shall be followed:
199.1. “In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board in the manner indicated earlier. The Hospital Medical Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the MA No. 1699/ 2019 in WP (C) No. 215/ 2005 patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion.”
199.2. “In the event the Hospital Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall immediately inform the jurisdictional Collector. The jurisdictional Collector shall then constitute a Medical Board comprising the Chief District Medical Officer as the Chairman and three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years.”
- In 2018, the Court declared Section 309 IPC ultra vires and held that it deserved to be effaced from the statute book to humanize our penal laws. “Delving into the facet of committing suicide, the larger Bench observed that when a man commits suicide, he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to or be included within the protection of the right to life under Article 21.” In the case of Common Cause vs Union of India 2023 SCC OnLine SC 99, the Hon’ble court made certain modifications of the guidelines issued in the 2018 case, some of which include the following-
A) Para 198.3.1 which earlier required a Judicial Magistrate of First Class appointed by the concerned Judicial Magistrate, to countersign the documents, signed by two independent witnesses, it now has been amended. The condition now requires countersign by notary and official gazette as appointed by the concerned judicial magistrate.
B) Para 198.4.5 Which earlier talked about a single medical board now talk about 2 Medical Boards, Primary and Secondary Medical Boards. “The primary medical board certifies that the instructions contained in the advance directives ought to be carried out, the hospital shall them immediately constitute a Secondary Medical board comprising one registered practitioner nominated by the Chief Medical Officer of the District atleast two subject experts with atleast five years of experience.”
Para .198.6.4 Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the medical board constituted by the collector and for appropriate consideration on the advance directive. It now stands amended. Now the persons mentioned in the advance directive may ask the hospital to refer the case to the secondary medical board.
These are some of the modifications that were made. The reasoning behind it was to make the process more speedy and hassle free.
CONCLUSION & COMMENTS
The amendment of the guidelines established by the court in 2018 was necessary as Right to Die with Dignity is not only based on the right to choose for oneself and personal autonomy but it prolongs the sufferings of the terminally ill people. It however is not limited to the terminally ill people themselves but also extends to their families. There is a constant financial pressure on them and they suffer themselves seeing their loved ones in peril. Hence, the process of passive euthanasia should be convenient, hassle free and speedy.
REFERENCES
Important Cases Referred
Common Cause (A Registered Society) vs Union of India[5]
Gian Kaur V. State of Punjab case[6]
Important Statutes Referred
Article 21, Indian Constitution, 1950
Section 92, Indian Penal Code 1860
Law Commission’s 241st report – ‘Passive Euthanasia’
[1] “Understand and Complete Your Advance Directives” (The Joint Commission)
[2] “SC Eases Norms for Passive Euthanasia” (Drishti IAS)
[3] Explained| Supreme Court’s Order Modifying Guidelines given in 2018 Euthanasia Judgment | SCC Times” (SCC Times, February 4, 2023)
[4] Common Cause (A Regd. Society) Director ..vs Union Of India (A) Ministry Of Health 2023.
[5] AIR 2018 SUPREME COURT 1665, AIR 2018 SC (CIV) 1683, (2018) 3 MAD LJ 503, (2018) 4 SCALE 1, (2018) 1 CRIMES 184, (2018) 1 CURCC 448, 2018 (5) SCC 1, 2018 (2) KLT SN 47 (SC), 2018 (1) KCCR SN 65 (SC)
[6] 1996 AIR 946 1996 SCC (2) 648, JT 1996 (3) 339 1996 SCALE (2)881
Important Online Sources Referred
https://indiankanoon.org/doc/184449972/
https://indiankanoon.org/doc/55919876/
https://www.scconline.com/blog/post/2023/02/03/detailed-order-supreme-court-modifies-the-guidelines-given-in-2018-euthanasia-judgment-legal-research-legal-news-updates/https://www.livelaw.in/pdf_upload/79-common-cause-v-union-of-india-24-jan-2023-457290.pdf