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
1 WP-5613-2020
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.
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
2 WP-5613-2020
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
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
3 WP-5613-2020
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.
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
4 WP-5613-2020
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
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
5 WP-5613-2020
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
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
6 WP-5613-2020
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.
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
7 WP-5613-2020
(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
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
8 WP-5613-2020
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.
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
9 WP-5613-2020
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
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
10 WP-5613-2020
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 -
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
11 WP-5613-2020
"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.
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
12 WP-5613-2020
"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.
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
13 WP-5613-2020
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
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
14 WP-5613-2020
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.
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
15 WP-5613-2020
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
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
16 WP-5613-2020
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:
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
17 WP-5613-2020
'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
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
18 WP-5613-2020
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
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
19 WP-5613-2020
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
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
20 WP-5613-2020
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
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
21 WP-5613-2020
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.
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
22 WP-5613-2020
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.
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
23 WP-5613-2020
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
::: Uploaded on - 09/12/2020 ::: Downloaded on - 10/12/2020 08:06:16 :::
24 WP-5613-2020
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 :::