Issues:

1. The right to life which is revered under Article 21 of the Indian constitution also comprises the liberty to lose one's life with nobility
2. Is the institution of Passive euthanasia allowed in the living will of patients in India?
3. Whether there exists a difference between Passive and Active Euthanasia?
4. Is there any advancement proposed by the law commission in India regarding provisions of euthanasia?
5. Whether any right is given to an individual to scrap medical treatment consisting of termination from life-activating apparatus?

Common Cause (A Regd. Society) V. Union Of India
Citation: Air 2018 Sc 1665
Bench: Dipak Misra, Cji; Justice A.K. Sikri; Justice D.Y. Chnadrachud; Justice Ashok Bhushan & Justice A.M. Khanwilkar.
Supreme Court Of India - Date Of Judgement- March 9th, 2018.

Ratio:
In Common Cause (A Regd. Society) v. Union of India, the discernment was dispatched by a bench of 5 judges. The decision was given by Chief Justice and other judges with distinct opinions. The main issue which evolved in the case was whether the right to life includes the liberty to die under article 21. Bench in Common Cause case considered that liberty to live with dignity consists of flattening of procedure of demising if a patient is suffering from incurable disease.

It is contended that Article 21 does not pursue to be negative in nature but also has some positive content. The Fifth issue explanation-The reasoning behind the discussion is, by announcing the liberty to die with dignity as a basic right and by providing legitimate paramountcy to Advance Medical guidelines, the liberty to die as a positive liberty is given to patients by the court in situation of a sufferer who is not curable and the physician has given a positive duty to observe such rights.

For example, suppose a patient through Advance Medical guidelines states that, if he suffers from cancer and is curable so treatment shall not be given to them. In such situations, if the doctor thinks that a suffered is not curable then it is his duty not to give such medicaments against the consent of the sufferer. So, the sufferer going through a not curable disease through euthanasia can die peacefully.

Hence, lacuna on the side of doctor by non-alteration of the not curable sufferer would be a violation of his helpful obligation. Further, it can be asserted that the legislation is given under Gian Kaur v. State of Punjab[1], in context of Article 21 that contended the liberty to die does not consider the right to die has been moderately overrided in Common Cause to the scope that the sufferers going through a disease that is not curable would now have a right to die with dignity under Article 21.

The bench also contended that in Aruna Shanbaug case, an error was reported on the concept that Passive euthanasia could only be introduced through a law. The court rationed that the right to isolation was discussed in Justice K.S. Puttaswamy v. Union of India mandated protected the integrity and privacy of an individual based on his choice in the decisions in relation to his death and life and further contended that these protections are part of their right to privacy as in close relation to the elemental liberty to life and personal liberty revered under our constitution.

Analysis:
The first issue mentioned above that is the liberty to die comes under article twenty one was first raised in P. Rathinam v. Union of India, [2]where constitutional viability of section 309 of the Indian Penal Code that states an attempt to commit suicide was questioned & decision was given based on the judgment given in Maruti Shripati Dubal v. the State of Maharashtra.

The bench contended that a coin has two sides in the same way fundamental rights have both positive and negative contents which mean the liberty to die comes under the liberty to life and hence section 309 of the IPC was held constitutionally invalid and held violative of article fourteen and twenty one of our constitution.

Hence, in Gian Kaur v. State of Punjab intrinsic rationality of section 306 of the IPC that talks about abetment to suicide, and section 309 of IPC was challenged. The Apex court upheld the validity of these two provisions and overruled the decision given in the P. Rathinam case.

The bench contended that the right to life under article 21 did not consider the right to die. This was expressed by giving the rationale based on the argument that right to life is an innate liberty enshrined in our constitution under article twenty one and suicide is an unusual way to end one's life and cannot be considered a fundamental right under our constitution. The unnatural ending of life could not come under liberty to life.

The bench additionally held that the decision given in P. Rathinam failed to differentiate between the negative and positive aspects of the right. The question regarding the right to die with dignity and the liberty to die with unnatural death was dealt with in Airedale NHS Trust v. Bland and it was contended viz. lawful legislation could make euthanasia legal.

The second issue can be answered by the judgment given in Gian Kaur and Aruna Shanbaug case. Based on judgment given in the Gian Kaur case, the Apex court in the Aruna Ram Chandra Shanbaug v. Union of India [3]allowed Passive Euthanasia & invoked the principle of Parens Patriae meaning parents of the nation wherein the court works as the guardian of the patient and is the final chooser decider of what is better for the sufferer.

The court contended that passive euthanasia can be legitimized and enlarged into India only by legislation. Writ remedy in Passive euthanasia is available both under article 32 (in the case of the SC) and under Article 226 (in the case of the HC) of the constitution. In the year two thousand twelve, the Law Commission again advanced forming law on passive euthanasia & composed a draft bill called the Medical Treatment of Terminally Ill Patients (protection of patients and medical practitioners) bill which does not proposed ending life by administering some external substance to speed the death.

The third issue can be answered by stating that there is a difference between both types of Euthanasia. Passive Euthanasia means speeding death by disconnecting the person's bearing complex and allowing death of innate calamity. This technique involves omission of performing certain exceptional operations such as the disconnecting the person's bearing complex, refusing bare needs, or not considering Cardio Pulmonary Resuscitation. Active Euthanasia is given to terminate the misery of person who is suffering through a painful and meaningless life by administering some external substance to speed the death.

The Fourth Issue Explanation:
The Law Commission of India in its 196th report advanced certain amendments in sections 306 and 299 of the IPC to protect the people assisting terminally ill patients in committing euthanasia. The Law Commission of India in its 210th report considered section 309 IPC inhumane. The Law commission recognized the attempt to commit suicide as a visualization of the suffering position of human brain and imposing subsequent sanction under section 309 of IPC on the person who has already suffered agony and pain is unjust and unfair.

The petitioner argued that every individual has a right to determine about oneself and hence once can choose his own way. The use of modern medical equipment only prolongs a life causing a lot of distress to the patients and their relatives. If a patient is suffering from an incurable disease then he should be allowed to die with dignity in the treatment of the patient who is suffering from incurable disease lot of money, time, and mental, and physical aspects are spent by the family, and then also no positive result comes out. The liberty to scrap nursery medicaments is a law considered in India consisting nursery care extent life of an individual.

The right to repudiate treatment develops passive euthanasia. Euthanasia given to actively dying patients gives a chance to propose organ giver. This would result in helping patients suffering from organ failure. Passive Euthanasia not only provides the liberty to die to incurable patients but also the right to life to organ-required sufferers.

The respondent contended that all deaths are not painful. The respondent's argument was based on the judgment in the Gian Kaur case that the right to life is an innate liberty and suicide is an unusual death. The respondent contended that it is the obligation of the state to preserve and safeguard the survival of an individual and euthanasia would underpin the duty of the physicians to give care and save the life of the patients.

It would be difficult to search for and invent latest medicaments & cures for not curable sufferers the respect of society would be weakened on the sanctity of life if euthanasia would be allowed. The stoppage of operative medicaments with the work of effective suffering ease can be the best alternative to euthanasia.

Who can Execute Advanced Medical Guidelines or Directives (Living Will) and How?- This can be exercised by a person of unsound mind, voluntarily, without any coercion, inducement or compulsion, or undue influence, and shall be in writing stating clearly medical support of any type which would have the effort of hampering the procedure of dying or make of him/her free from pain, anguish, and suffering.

Conclusion:
The current study indicates that the debate regarding euthanasia is not constrained to the topic of suicide but also has fundamental, significance and doctrinal perspectives. Primarily, death was considered an innate phenomenon of an individual. But, due to development in the nursing field, it has been now become easy to cause death of a person through unnatural ways, which could extent human life for an infinite period. Hence, it became important to pay attention to trauma caused to terminally ill and untreatable patients for whom death has become an undetermined incident.

As a precedent of a judicial verdict, there are various circumstances wherein the absence of any law the affirmations are considered as a right of a person. Passive euthanasia is one of the conditions or the situation which is considered a right through judicial decision. Euthanasia must be legalized with kosher caution in a situation where doctors are required to conduct euthanasia. In the present world, many jurisdictions like the USA and the UK consider the liberty of an individual to scrap care and to die with dignity.

The topic of passive euthanasia is very controversial. It basically focuses on two groups i.e. a regional group that does not consider the liberty to die under article 21 and second group talks about the concept of consent i.e. to get consent from terminally-ill patients to end their life. For the betterment of the people, laws have been formed for euthanasia.

I would completely support the judgment as those who are suffering from chronic diseases have been suffering from persistent pain and suffering and the treatments of which is no cure, so for them, the forum is correct in considering the liberty to die with regality and helps them in reducing their pains and enduring from persistent surgeries and care and will be apt to end their life in a dignifies form.

In my opinion, the current provision in relation to euthanasia and the current situation in our country is prudent and just. Though there exists an ambiguous element such as what comes under right to life i.e. in common cause case, right to life includes the liberty to die with regality & concept of active euthanasia needs to be clearly and properly examined by our judicial system forget a more clear and crystal view of the provisions of euthanasia. Further, I would say by promoting Advanced Medical Directive directives are helpful as it helps a patient suffering from terminally ill disease to pre-decide to end his life.

End-Notes:

1. Gian Kaur v. State of Punjab, (1996) 2 SCC 648
2. P. Rathinam v. Union of India, (1994) 3 SCC 394
3. Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 524

Award Winning Article Is Written By: Ms.Palak Nigam

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