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To bring home the distinction between active and passive euthanasia, an illustration was noted in the context of administering lethal drug actively to bring the patient's life to an end. The significant dictum in that decision has been extracted in Gian Kaur (supra) wherein it is observed that it is not lawful for a doctor to administer a drug to his patient to bring about (1993) 2 WLR 316: (1993) 1 All ER 821, HL his death even though that course is promoted by a humanitarian desire to end his suffering and however great that suffering may be. Further, to act so is to cross the rubicon which runs between the care of the living patient on one hand and euthanasia - actively causing his death to avoid or to end his suffering on the other hand. It has been noticed in Airedale that euthanasia is not lawful at common law. In the light of the demand of responsible members of the society who believe that euthanasia should be made lawful, it has been observed in that decision that the same can be achieved by legislation. The Constitution Bench has merely noted this aspect in paragraph 41 with reference to the dictum in Airedale case.

27. After so stating, the Court addressed the legal issues, namely, active and passive euthanasia. It noted the legislations prevalent in Netherlands, Switzerland, Belgium, U.K., Spain, Austria, Italy, Germany, France and United States of America. It also noted that active euthanasia is illegal in all States in USA, but physician-assisted death is legal in the States of Oregon, Washington and Montana. The Court also referred to the legal position in Canada. Dealing with passive euthanasia, the two-Judge Bench opined that passive euthanasia is usually defined as withdrawing medical treatment with a deliberate intention of causing the patient‘s death. An example was cited by stating that if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available is passive euthanasia and similarly, withdrawing the machine where a patient is in coma or on heart-lung machine support will ordinarily result in passive euthanasia. The Court also put non-administration of life saving medicines like antibiotics in certain situations on the same platform of passive euthanasia. Denying food to a person in coma or PVS has also been treated to come within the ambit of passive euthanasia. The Court copiously referred to the decision in Airedale. In Airedale case, as has been noted in Aruna Shanbaug, Lord Goff observed that discontinuance of artificial feeding in such cases is not equivalent to cutting a mountaineer‘s rope or severing the air pipe of a deep sea diver. The real question has to be not whether the doctor should take a course in which he will actively kill his patient but whether he should continue to provide his patient with medical treatment or care which, if continued, will prolong his life.

44. As a first step, it is imperative to understand the concept of euthanasia before we enter into the arena of analysis of the expanded right of Article 21 in Gian Kaur and the understanding of the same. Euthanasia is basically an intentional premature termination of another person‘s life either by direct intervention (active euthanasia) or by withholding life-prolonging measures and resources (passive euthanasia) either at the express or implied request of that person (voluntary euthanasia) or in the absence of such approval/consent (non-voluntary euthanasia). Aruna Shanbaug has discussed about two categories of euthanasia - active and passive. While dealing with active euthanasia, also known as ―positive euthanasia‖ or ―aggressive euthanasia‖, it has been stated that the said type of euthanasia entails a positive act or affirmative action or act of commission entailing the use of lethal substances or forces to cause the intentional death of a person by direct intervention, e.g., a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia, on the other hand, also called ―negative euthanasia‖ or ―non-aggressive euthanasia‖, entails withdrawing of life support measures or withholding of medical treatment for continuance of life, e.g., withholding of antibiotics in case of a patient where death is likely to occur as a result of not giving the said antibiotics or removal of the heart lung machine from a patient in coma. The two-Judge Bench has also observed that the legal position across the world seems to be that while active euthanasia is illegal unless there is a legislation permitting it, passive euthanasia is legal even without legislation, provided certain conditions and safeguards are maintained. The Court has drawn further distinction between voluntary euthanasia and non-voluntary euthanasia in the sense that voluntary euthanasia is where the consent is taken from the patient and non-voluntary euthanasia is where the consent is unavailable, for instances when the patient is in coma or is otherwise unable to give consent. Describing further about active euthanasia, the Division Bench has observed that the said type of euthanasia involves taking specific steps to cause the patient‘s death such as injecting the patient with some lethal substance, i.e., sodium pentothal which causes, in a person, a state of deep sleep in a few seconds and the person instantly dies in that state. That apart, the Court has drawn a distinction between euthanasia and physician assisted dying and noted that the difference lies in the fact as to who administers the lethal medication. It has been observed that in euthanasia, a physician or third party administers it while in physician assisted suicide, it is the patient who does it though on the advice of the doctor. Elaborating further, the two-Judge Bench has opined that the predominant difference between ―active‖ and ―passive‖ euthanasia is that in the former, a specific act is done to end the patient‘s life while the latter covers a situation where something is not done which is necessary in preserving the patient‘s life. The main idea behind the distinction, as observed by the Bench, is that in passive euthanasia, the doctors are not actively killing the patient, they are merely not saving him and only accelerating the conclusion of the process of natural death which has already commenced.

48. Another distinction on the basis of ―action and non- action‖ was advanced in the Airedale case. Drawing a crucial distinction between the two forms of euthanasia, Lord Goff observed that passive euthanasia includes cases in which a doctor decides not to provide, or to continue to provide, for his patient, treatment or care which could prolong his life and active euthanasia involves actively ending a patient‘s life, for example, by administering a lethal drug. As per the observations made by Lord Goff, the former can be considered lawful either because the doctor intends to give effect to his patient‘s wishes by withholding the treatment or care, or even in certain circumstances in which the patient is incapacitated from giving his consent. However, active euthanasia, even voluntary, is impermissible despite being prompted by the humanitarian desire to end the suffering of the patient.