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Bombay High Court

Chandrakant Narayanrao Tandale vs The State Of Maharashtra And Another on 9 December, 2020

Equivalent citations: AIRONLINE 2020 BOM 2491

Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                        WRIT PETITION NO. 5613 OF 2020


 Shri Chandrakant S/o Narayanarao Tandale,
 Age : 81 Years, Occu. Nil.
 R/o: Plot No. 4, Railway Station Road,
 Opp. VITS Hotel, Raj Nagar, Aurangabad,
 District Aurangabad                                 ...PETITIONER

          VERSUS

 1.       The State of Maharashtra,
          Through the Secretary,
          Public Health Department,
          Mantralaya, Mumbai-32
 2.       The Government Medical College and
          Hospital, University Road, Aurangabad,
          District Aurangabad, Through its Dean. ...RESPONDENTS

 Mr A.B. Girase, Advocate holding for
 Mr Y.B. Bolkar and Mr B.K. Jadhav, Advocates for Petitioner
 Mr S.G. Karlekar, A.G.P. for Respondent Nos. 1 and 2

                               RESERVED ON       :       29.09.2020
                               PRONOUNCED ON     :      09.12.2020

 FINAL ORDER (PER SHRIKANT D. KULKARNI, J.) :


 1.       The petitioner is making extraordinary prayer seeking

 permission for active euthanasia (bPNkej.k) through registered

 medical practitioner by invoking Article 226 of the Constitution of

 India.




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 2.       Shorn of unnecessary details, the facts relevant for deciding

 the matter are as under :-


 2 (i)            The petitioner is aged about 81 years old and

 permanent resident of Aurangabad. The wife of the petitioner left for

 heavenly abode on 07.09.2019.


 2(ii)            The petitioner has four sons and one daughter.

 According to the petitioner, he has decided to donate his body to

 respondent No. 2/Government Medical College and Hospital,

 Aurangabad for the purpose of research.


 2(iii)            According to the petitioner, he is suffering from -

 (1) E/O sacralisation of the L5 vertebra,

 (2) E/O Dessication with posterocentrolateral protrusions of the L4-
 L5, L3-L4, L2-L3, L1-L2 Discs causing thecal sac compression and
 bilateral neural foramina stenosis with compression of the bilateral
 exiting nerve roots at that levels and,

 (3) Spinal cord shows normal signal intensities.

          He was admitted in Kamalnayan Bajaj Hospital, Aurangabad

 for the treatment due to enormous pain. He is not in a position to

 bear with severe pains. The MRI Lumber Spine of the petitioner was

 conducted on 14.06.2018 and doctor opined that operation is

 necessary. However, it was also opined by the doctor that




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 considering the age of the petitioner, there are remote chances of

 successful surgery.


 2(iv)            The petitioner is suffering from enormous pain since

 June, 2018 and it is neither operational nor curable. Due to said

 back disc problem, he is bed-ridden and requires assistance for

 moving from one place to another place. After the sad demise of

 spouse, there is no one to assist the petitioner. The sons, daughter

 in laws are not looking after the petitioner. Even the petitioner is not

 in a position to go for natural call and he needs assistance every

 time. For second time, he was admitted in a private hospital on

 03.02.2020 due to severe pain, but doctor again opined that pain

 and back disc problems of the petitioner are not curable in view of

 the age of the petitioner. There is no hope to come out of severe

 pains.


 2(v)             The petitioner is not mentally and physically able to face

 severe pain. In the above premise, the petitioner is seeking

 permission from this Court to allow him to have active euthanasia in

 view of the Judgment of the Hon'ble Supreme Court of India in the

 case of Common Cause(A Regd. Society) Vs. Union of India and

 another reported in (2018) 5 SCC 1.




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 2(vi)            According to the petitioner, medical treatment is neither

 reducing his pain nor recovering from back disc problem. It is the

 stand of the petitioner that every human being who is an adult and

 sound mind has a right to determine about his further journey of life.

 An adult person is entitled to refuse medical treatment. It is the final

 word of the patient whether to continue with medical treatment or to

 refuse it. It is contended by the petitioner that though Article 21 of

 the Constitution of India gives guarantee of protection of life and

 personal liberty and provides that no person shall be deprived of his

 life or personal liberty except according to procedure established by

 law. According to the petitioner, the word liberty is the sense and

 realization of choice of the attributes associated with the said choice

 and the term life is the aspiration to possess the same in a dignified

 manner. Life does not intend to live sans liberty as it would be, in all

 possibility, a meaningless survival. It is further stand of the petitioner

 that the right to life includes the right to live with human dignity and

 all that goes along with bear necessaries of life such as nutrition,

 clothing, shelter, right of expression, freely moving etc.


 2(vii)           According to the petitioner, he is not in a position to

 survive       with      enormous   pain.   As   such,      he      is    seeking

 permission/direction to have with the active euthanasia at the behest

 of respondent No. 2/registered medical practitioner in the light of




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 law laid down by the Hon'ble Supreme Court of India in the case of

 Aruna Shanbaugh and Common Cause (Supra).


 2(viii)          The State/Respondent has strongly opposed to allow

 such prayer by filing reply-affidavit. It is the stand of the State that

 active euthanasia is not permissible in law and if such exercise is

 made, it would amount to an offence. The Hon'ble Supreme Court in

 case of Common Cause (Supra) has only given approval to passive

 euthanasia. It is further stand of the State Government that Indian

 Medical Council (Professional Conduct, antiquate and ethics)

 Regulation 2002 does not permit such unethical medical practice.


 3.        Heard Mr A.B. Girase, the learned Counsel for the petitioner

 and Mr S.G. Karlekar, learned Assistant Government Pleader for

 respondent Nos. 1 and 2/State.


       SUBMISSIONS OF LEARNED ADVOCATE FOR THE PETITIONER

 4.        Mr Girase, learned Counsel for the petitioner invited our

 attention to the medical certificate of the petitioner and by taking

 help of the medical certificate, he has submitted that the petitioner is

 suffering from -

 (1) E/O sacralisation of the L5 vertebra and

 (2) E/O Dessication with posterocentrolateral protrusions of the L4-

 L5, L3-L4, L2-L3, L1-L2 Discs causing thecal sac compression and




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 bilateral neural foramina stenosis with compression of the bilateral

 exiting nerve roots at that levels and,

 (3) Spinal cord shows normal signal intensities.


          The petitioner is suffering from severe pains and due to

 advanced age, surgery is not possible. The petitioner is an adult and

 having sound mind. He has decided to donate his body to the

 Government Medical College and Hospital at Aurangabad for

 research purpose. The petitioner has lost his better half in the mid-

 way and as such, it has become difficult for the petitioner to live

 alone though there are members in the family. Mr Girase, learned

 Counsel invited our attention that though Article 21 of the

 Constitution of India provides protection of life and personal liberty,

 equally speaks life with dignity. The petitioner is unable to live with

 dignity with enormous pain which he is undergoing. Mr Girase

 submitted that petitioner has taken conscious decision by taking into

 consideration his prolonged illness and pains to end his life which

 needs to be respected. Mr Girase pressed the need to accord

 permission for active euthanasia in the background of old age and

 severe medical problems of the petitioner.


 5.       To buttress argument, Mr Girase, learned Counsel has placed

 reliance on following stock of citations.




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 (I)      P. Rathinam Vs. Union fo India (1994) 3 SCC 394
 (II)     Gian Kaur Vs. The State of Punjab (1996) 2 SCC 648
 (III)    Aruna Ramchandra Shanbaugh Vs. Union of India and others
          (2011) 4 SCC 454
 (IV)     Common Cause (Registered Society) Vs. Union of India and
          Anr. (2018) 5 SCC 1.

           SUBMISSIONS OF ASSISTANT GOVERNMENT PLEADER

 6.       Mr S.G. Karlekar, learned Assistant Government Pleader

 while giving reply also heavily placed reliance on the Judgment of

 the Hon'ble Supreme Court of India in case of Aruna Ramchandra

 Shanbaugh Vs. Union of India and others (2011) 4 SCC 454 and

 Common Cause (Registered Society) Vs. Union of India and

 Anr. (2018) 5 SCC 1.

 7.       By placing reliance on the above said decisions of the Hon'ble

 Supreme Court of India, Mr Karlekar submitted that active

 euthanasia is not permissible in India. The prayer for active

 euthanasia made by the petitioner needs to be turned down. Mr

 Karlekar, learned Assistant Government pleader further invited our

 attention to the Indian Medical Council (Professional Conduct,

 Etiquette and Ethics) Regulations, 2002. He submitted that

 practicing euthanasia may amount to unethical conduct.


 8.       We have considered arguments canvassed by Mr Girase,

 learned Counsel for the petitioner and Mr Karlekar, learned Assistant




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 Government Pleader for the State. We have also perused the

 medical certificate of the petitioner.

                                   DISCUSSION


 9.       It is undisputed that the petitioner is 81 years old and suffering

 from -

 (1) E/O sacralisation of the L5 vertebra

  (2) E/O Dessication with posterocentrolateral protrusions of the L4-

 L5, L3-L4, L2-L3, L1-L2 Discs causing thecal sac compression and

 bilateral neural foramina stenosis with compression of the bilateral

 exiting nerve roots at that levels and (3) Spinal cord shows normal

 signal intensities.


 10.      Let us see what is euthanasia. Euthanasia means intentional

 premature termination of life of another person as per his request to

 have a "good death". There are types of euthanasias. They are as

 under :-

 (I) Active euthanasia

 (II) Passive euthanasia

 (III) Voluntary euthanasia

 (IV) Non voluntary euthanasia

 (V) Involuntary euthanasia.




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 11.      The Hon'ble Supreme Court in case of Common Cause Vs.

 Union of India (supra) has elaborated above types of euthanasia in

 following words :-


 (I)      Active euthanasia - Causing death of a person with his/her

 consent by direct medical intervention - Some positive act on part of

 person causing death necessary.

 (II)     Passive euthanasia - Withholding or withdrawing life

 prolonging medical treatment in accordance with express or implied

 will of terminally ill, permanent vegetative state (PVS) brain dead

 patient resulting in his/her death.

 (III)    Voluntary euthanasia - Terminating life at request of patient

 - Request may be made prior to development of illness or during

 course of illness.

 (IV)     Non-voluntary euthanasia - Terminating life without patient's

 consent - It may be for patient's good on proxy request when not in

 position to express own views; an alternative to non-treatment.

 (V)      Involuntary euthanasia - Terminating life against patienty's

 will - Human and Civil Rights - Right to Die/Euthanasia.


 12.      Much water has flown under the bridge since the year 1994.

 In case of P. Rathinam Vs. Union of India (supra), the

 Hon'ble Supreme Court has declared section 309 of Indian Penal




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 Code as ultra vires. In the year 1996, while rendering decision in

 Gian Kaur Vs. The State of Punjab (supra), the Constitution

 Bench of the Hon'ble Supreme Court upheld the Constitutional

 validity of section 306 and 309 of Indian Penal Code overruling

 decision in P. Rathinam's case.


 13.      In case of Gian Kaur Vs. The State of Punjab (supra), the

 Constitution Bench of the Hon'ble Supreme Court held that Article

 21 guarantees protection of life and personal liberty. Extinction of life

 cannot be included in phraseology protection of life. Article 21 of the

 Constitution cannot be construed to include within it right to die as

 part of fundamental right. Suicide is unnatural termination or

 extinction of life and inconsistent with concept of right of life.


 14.      The same view is percolated in the case of Aruna

 Ramchandra Shanbaugh Vs. Union of India and others (supra).


 15.      It is once again held by the Supreme Court of India in Aruna

 Shanbaugh case that right to life guaranteed by Article 21 of the

 Constitution of India does not include the right to die. As such, the

 petition under Article 32 of the Constitution of India came to be

 dismissed.


 16.      The Hon'ble Supreme Court has highlighted various terms

 with meaning -



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        "Brain death" - Means complete absence of voluntary
        movements - This patient can only be maintained alive by
        advanced life support machine-- These patients can be
        legally declared dead to allow their organs to be taken for
        donation.


        "Coma" Patients--These patients are unconscious--
        They can not be awakened even by application of a painful
        stimules--They have normal heart beat and breathing and
        do not require advanced life support.

        "Permanent vegetative stage"--            In PVS complete
        absence of behavioral evidence for self or environmental
        awareness--"They can not voluntarily control passing of
        urine and stools--They have normal heart beating and
        breathing--There is no threat to life and can survive for
        many years.

        "Life--Scope of--Held-- Life is not mere living in health
        and health is not the absence of illness but a glowing
        vitaility.

        "Withdrawal of life support"-- Means and scope--Held--
        Withdrawal of life support by "Doctor is in law, considered
        as an omission and not a positive steps to terminate life--
        Later would be euthanasia and a criminal offence.

        "Active          and   Passive   Euthanasia"--Held--Active
        euthanasia entails use of lethal substances or forces to kill
        a person while passive euthanasia entails with holding of
        medical treatment for discontinuance of life.




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        "Permanent Vegetative Stage"-- Characteristic--Held-
        Distinguishing characteristic of PVS is that the brain stem
        remain alive and functioning while the cortex has lost its
        functions--So PVS patient continues to breath unaided
        and his digestion continues to function--Though his eye
        are open but unable to see and hear.


        Indian Penal Code, 1860-Section 309--Attempt to
        suicide-Legality--Held--Although Section 309 I.P.C. has
        been held to be constitutional valid but time has come
        when it should be deleted by parliament as it has become
        anachronistic--A person attempt to suicide in a depression
        and needs help.


        "Withdrawal of Life Support" of PVS Patient-- Requisite
        --Held--A decision has to be taken to discontinue life
        support either by the parents or spouse or other close
        relatives or in the absence of any of them such a decision
        can be taken even by a person or a body of persons acting
        as a next friend--It can also be taken by doctor attending
        the patient--Decision should be taken bona fide in the best
        interest of the patient.

        Constitution of India, 1950--Article 226--Withdrawal of
        life support--Competent court--Held--It is the High Court
        under Article 226 of Constitution which can grant approval
        for withdrawal of life support to a competent person--High
        Court under Article 226 of Constitution is not only entitled
        to issue writ but i9s also entitled to issue directions and
        orders.




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        Application for "withdrawal of life support"--Procedure
        to be adopted--Held--When application for withdrawal of
        life support is filed than the Chief Justice of High Court
        should forth with constitute a Bench of two Judges who
        should decide to grant approval or not--Before doing so
        Bench should seek opinion of experts--For this purpose a
        panel of Doctors in every city be prepared.



 17.      As on today, we have recent landmark decision of the

 Constitution Bench of the Hon'ble Supreme Court known as

 Common Cause (Registered Society) Vs. Union of India (supra).


 18.      The Constitution Bench of the Hon'ble Supreme Court after

 analyzing the decision in case of        Gian Kaur Vs. The State of

 Punjab (supra) elaborated the term passive euthanasia along with

 Article 21 of the Constitution of India. The Apex Court held that

 passive euthanasia is a complex issue and it requires consideration

 of morale, ethical, religious, philosophical, social, economic, penal

 and constitutional aspects.


 19.      The Constitution Bench of the Hon'ble Supreme Court in para

 Nos. 607 to 611 has held as under :-


        607. The two-Judge Bench in Aruna Ramchandra
        Shanbaug v. Union of India has held that withdrawal of
        live-saving measures is a passive euthanasia which is
        permissible in India. A critically ill patient who is mentally



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        competent to take a decision, decides not to take support
        of life prolonging measures, and respecting his wisdom if
        he is not put on such devices like ventilator, etc. It is not at
        all euthanasia. Large number of persons in advance age of
        life decide not to take medical treatment and embrace
        death in its natural way, can their death be termed as
        euthanasia. Answer is, obviously "No". The decision not to
        take life saving medical treatment by a patient, who is
        competent to express his opinion cannot be termed as
        euthanasia, but a decision to withdraw life saving
        treatment by a patient who is competent to take decision
        as well as with regard to a patient who is not competent to
        take decision can be termed as passive euthanasia. On
        the strength of the precedents in this country and weight of
        precedents of other countries as noted above, such action
        of withdrawing life saving device is legal. Thus, such acts,
        which are commonly expressed as passive euthanasia is
        lawful and legally permissible in this country.

        608.       We remind ourselves that this Court is not a
        legislative body nor is entitled or competent to act as a
        moral or ethical arbiter. The tasks of this Court is not to
        weigh or evaluate or reflect different beliefs and views or
        give effect to its own but to ascertain and build the law of
        land as it is now understood by all. Message which need to
        be sent to vulnerable and disadvantaged people should
        not, however, obliviously to encourage them to seek death
        but should assure them of care and support in life.




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        609. We thus are of the considered opinion that the act of
        withdrawal from live-saving devices is an independent right
        which can lawfully be exercised by informed decision.
        610. One related aspect which needs to be considered is
        that is case of those patients who are incompetent to
        decide due to their mental state or due to the fact that they
        are in permanent persistent vegetative state or due to
        some other reasons unable to communicate their desire.
        When the right of an adult person who expresses his view
        regarding medical treatment can be regarded as right
        flowing from Article 21 of the Constitution of India, the right
        of patient who is incompetent to express his view cannot
        be outside the fold of Article 21 of the Constitution of India.
        It is another issue, as to how, the decision in cases of
        mentally incompetent patients regarding withdrawal of life
        saving measures, is to be taken.

        611. The rights of bodily integrity and self-determination
        are the rights which belong to every human being. When
        an adult person having mental capacity to take a decision
        can exercise his right not to take treatment or withdraw
        from treatment, the above right cannot be negated for a
        person who is not able to take an informed decision due to
        terminal illness or being in a persistent vegetative state
        (PVS). The question is who is competent to take decision
        in case of terminally ill or PVS patient, who is not able to
        take decision. In case of a person who is suffering from a
        disease and is taking medical treatment, there are three
        stakeholders; the person himself, his family members and
        doctor treating the patient. The American Courts give




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        recognition to opinion of "surrogate" where person is
        incompetent to take a decision. No person can take
        decision regarding life of another unless he is entitled to
        take such decision authorised under any law. The English
        Courts have applied the "best interests" test in case of an
        incompetent person. The best interests of the patient have
        to be found out not by doctor treating the patient alone but
        a team of doctors specifically nominated by the State
        Authority. In Aruna Shanbaug, two-Judge Bench of this
        Court has opined that in such cases relying on doctrine of
        parens patriae" (father of the country), it is the court alone
        which is entitled to take a decision whether to withdraw
        treatment for incompetent terminally ill or PVS patient. In
        paras 130 to 131 following has been held (SCC p. 521)
        "130. In our opinion, in the case of an incompetent person
        who is unable to take a decision whether to withdraw life
        support or not, it is the Court alone, as parens patriae,
        which ultimately must take this decision, though, no doubt,
        the views of the near relatives, next friend and doctors
        must be given due weight.

                 Under which provision of law can the Court grant
        approval for withdrawing life support to an incompetent
        person.

        131. In our opinion, it is the High Court under Article 226 of
        the Constitution which can grant approval for withdrawal of
        life support to such an incompetent person. Article 226(1)
        of the Constitution states:




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            '226. Power of High Courts to issue certain writs
            - (1) Notwithstanding anything in Article 32, every
            High Court shall have power, through the territories
            in relation to which it exercises jurisdiction, to issue
            to any person or authority, including in appropriate
            cases, any Government, within those territories
            directions, orders or writs, including writs in the
            nature of habeas corpus, mandamus, prohibition,
            quo warranto and certiorari, or any of them, for the
            enforcement of any of the rights conferred by Part III
            and for any other purpose.'

                     A bare perusal of the above provisions shows
            that the High Court under Article 226 of the
            Constitution is not only entitled to issue writs, but is
            also entitled to issue directions or orders."

 20.      The Constitution Bench of the Hon'ble Supreme Court has

 issued advanced medical directive by observing that in our country

 there is yet no legislation pertaining to advanced medical directive.

 The Constitution Bench of the Supreme Court arrived at following

 conclusions :-


        629.1. The Constitution Bench in Gian Kaur case held that
        the "right to life: including right to live with human dignity"
        would mean the existence of such right up to the end of
        natural life, which also includes the right to a dignified life
        up to the point of death including a dignified procedure of
        death. The above right was held to be part of fundamental




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        right enshrined under Article 21 of the Constitution which
        we also reiterate.

        629.2.       We agree with the observation made in the
        reference order of the three-Judge Bench to the effect that
        the Constitution Bench in Gian Kaur case did not express
        any binding view on the subject of euthanasia. We hold
        that no binding view was expressed by the Constitution
        Bench on the subject of euthanasia.

        629.3.        The Constitution Bench, however, noted a
        distinction between cases in which physician decides not
        to provide or continue to provide for treatment and care,
        which could or might prolong his life and those in which he
        decides to administer a lethal drug even though with object
        of relieving the patient from pain and suffering. The latter
        was held not to be covered under any right flowing from
        Article-21.

        629.4. Thus, the law of the land as existing today is that
        no one is permitted to cause death of another person
        including a physician by administering any lethal drug even
        if the objective is to relieve the patient from pain and
        suffering.

        629.5. An adult human being of conscious mind is fully
        entitled to refuse medical treatment or to decide not to take
        medical treatment and may decide to embrace the death in
        natural way.

        629.6. Euthanasia as the meaning of word suggests is an
        act which leads to a good death. Some positive act is




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        necessary to characterise the action as euthanasia.
        Euthanasia is also commonly called " assisted suicide" due
        to the above reasons.

        629.7. We are thus of the opinion that the right not to take
        a life saving treatment by a person, who is competent to
        take an informed decision is not covered by the concept of
        euthanasia as it is commonly understood but a decision to
        withdraw life saving treatment by a patient who is
        competent to take decision as well as with regard to a
        patient who is not competent to take decision can be
        termed as passive euthanasia, which is lawful and legally
        permissible in this country.

        629.8. The right of patient who is incompetent to express
        his view cannot be outside the fold of Article 21 of the
        Constitution of India.

        629.9.       We are also of the opinion that in cases of
        incompetent patients who are unable to take an informed
        decision,"the best interests principle" be applied and such
        decision be taken by specified competent medical experts
        and be implemented after providing a cooling period to
        enable aggrieved person to approach the court of law.

        629.10. An Advance Medical Directive is an individual's
        advance exercise of his autonomy on the subject of extent
        of medical intervention that he wishes to allow upon his
        own body at a future date, when he may not be in a
        position to specify his wishes. The purpose and object of
        Advance Medical Directive is to express the choice of a
        person regarding medical treatment in an event when he




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        loses capacity to take a decision. The right to execute an
        Advance Medical Directive is nothing but a step towards
        protection of the aforesaid right by an individual.

        629.11.        Right of execution of an Advanced Medical
        Directive by an individual does not depend on any
        recognition or legislation by a State and we are of the
        considered opinion that such rights can be exercises by an
        individual in recognition and in affirmation of his right of
        bodily integrity and self-determination.

        630. In view of our conclusions as noted above the writ
        petition is allowed in the following manner:

        630.1. The right to die with dignity as fundamental right
        has already been declared by the Constitution Bench
        judgment of this Court in Gian Kaur case which we
        reiterate.


        630.2.       We declare that an adult human being having
        mental capacity to take an informed decision has right to
        refuse medical treatment including withdrawal from life
        saving devices.

        630.3. A person of competent mental faculty is entitled to
        execute an Advance Medical Directive in accordance with
        safeguards as referred to above.

 21.              In exercise of the powers conferred under Section 20A

 read with Section 33(m) of the Indian Medical Council Act, 1956

 (102 of 1956), the Medical Council of India with the previous

 approval of the Central Government has made regulations relating



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 to the      Professional Conduct, Etiquette and Ethics for registered

 medical practitioners. These regulations are known as the Indian

 Medical Council (Professional Conduct, Etiquette and Ethics),

 Regulations, 2002 and they shall come into force w.e.f. 11 th March,

 2002. The Regulation 6.7           governs the subject of euthanasia. It

 reads thus :-


           6.7. Euthanasia : Practicing euthanasia shall constitute
           unethical conduct. However, on specific occasion, the
           question of withdrawing supporting devices to sustain
           cardio-pulmonary function even after brain death, shall
           be decided only by a team of doctors and not merely by
           the treating physician alone. A team of doctors shall
           declare withdrawal of support system. Such team shall
           consist of the doctor in charge of the patient, Chief
           Medical Officer/Medical Officer in charge of the hospital
           and a doctor nominated by the in-charge of the hospital
           from the hospital staff or in accordance with the
           provisions of the Transplantation of Human Organ Act,
           1994.


          In view of the regulation 6.7, active euthanasia through

 registered medical practitioner is also not permissible in India.




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   22.            Now, turning back to the facts of the case in hand and

 the law stands as on today. It is true that petitioner is 81 years and

 suffering from various diseases. He is facing enormous pain and

 agony day to day, it becomes difficult for him to face such medical

 problems. It is his wish to have a "good death" by means of active

 euthanasia by taking help of registered medical practitioner. In view

 of landmark decision in case of Common Cause (supra), active

 euthanasia is not permissible in India. Article 21 of the Constitution

 gives guarantee to life which does not include right to die. In

 exceptional circumstances, the Hon'ble Supreme Court has

 prescribed the procedure for passive euthanasia.


 23.      The Apex Court in a landmark decision in the case of Aruna

 Ramchandra Shanbaugh (supra) has allowed passive euthanasia.

 Refusing mercy killing of Aruna Shaunbagh, lying in a vegetative

 state in a Mumbai Hospital for 37 years, laid down a set of

 guidelines under which passive euthanasia can be legalized

 through a High Court monitored mechanism. It is stated that

 parents, spouses, or close relatives of the patient can make such a

 plea to the High Court. The Chief Justice of the High Courts, on

 receipt of such a plea, would constitute a bench to decide it. The

 bench in turn, would appoint a Committee of at least 3 renowned

 doctors to advise the Court on the prayer made in the matter.




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 24.      Adverting to the concept of euthanasia, it is observed by the

 Hon'ble Supreme Court in case of Gain Kaur (supra) that

 protagonism of euthanasia on the view that existence in persistence

 vegetative state (PVS) is not a benefit to the patient of terminal

 illness being unrelated to the principle of "sanctity of life" or the "right

 to live with dignity" is of no assistance to determine the scope of

 Article 21 for deciding whether the guarantee of "right to life" therein

 includes the "right to die". The "right to life" includes the right to live

 with human dignity would mean the existence of such a right up to

 the end of natural life. It has been clarified that the right to die with

 dignity at the end of life is not to be confused or equated with the

 "right to die" an unnatural death reducing the natural span of life.


 25.      The case of the petitioner is not governed by passive

 euthanasia. The petitioner is not restricted to bed, he is discharging

 his daily pursuits though taking assistance of family members. We

 can understand pains of the petitioner which he is facing and lonely

 life when his better half has left him alone in the mid-way. By this

 petition, the petitioner is seeking intervention to curtail his natural

 span of life through registered medical practitioner. Certainly, it is not

 lawful for the doctor to administer any drug to his patient to bring

 about his death. Active euthanasia falls in the definition of crime.

 The difference between "active" and "passive" euthanasia is that in



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 active euthanasia, something is done to end the patient's life while

 in passive euthanasia, something is not done that would have

 preserved the patient's life. We have all the sympathy with the

 petitioner, but we are unable to accede to the request made by the

 petitioner for termination of life by way of active euthanasia.


 26.      With these reasons, we conclude and proceed to pass the

 following order :-

                           ORDER

(I) The writ petition stands dismissed.

(II) No order as to costs.

[ SHRIKANT D. KULKARNI, J ] [ S.V. GANGAPURWALA, J ] mta ::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::