Your Right to Die with Dignity: Is India Going to Make ‘Living Wills’ a Legal Reality?

Picture this – A 62-year-old surgeon who has accomplished a lot in his professional career and helped many patients over the years, suffers a stroke one morning.

After many tests and several opinions from leading doctors, the future looks bleak for him. On the same day he suffered the stroke, he slipped into a coma, which doctors believed was not something that he could come out of.

During many conversations he has had with his family, he has always expressed his desire of dying with dignity, and on his terms.

He always supported the idea of a ‘living will’ or the right to die with dignity.

Unfortunately, since in India the concept of ‘legal wills’ still remains a concept on paper, this doctor continues to occupy a room in the hospital in which he saved so many lives, on a ventilator for life support – in a vegetative state.

Well now, there may be another solution.

On 10 October 2017, a five-judge constitution bench, headed by Chief Justice Dipak Misra, reserved its judgment on ‘living will’.

The top court was of the opinion that there should be guidelines for drafting ‘living wills’ and authenticating them. The bench said that advance directive by a person in the form of ‘living will’ may be approved by a magistrate.

A ‘living will’ is a document in which a person specifies that if they slip into a vegetative state, the incapacitated existence should not be prolonged with the help of life support.

To understand the concept of ‘living wills’, we must go back to where India was introduced to the concept from a legal perspective. Currently, the concept of a living will is not legally recognised in India. However, this is a subject which has been under judicial review for a long time.

As early as in 1981, in the case of Francis Coralie Mullin vs. Administrator, Union Territory of Delhi, the Apex Court held in very clear terms that right to life does not mean a mere animal existence of the human being.

In 2005, Common Cause-a Society, an NGO based in Delhi filed a petition praying for declaring ‘right to die with dignity’ as a fundamental right within the fold of ‘right to live with dignity’ which is a guaranteed fundamental right under Article 21 of the Constitution.

This NGO has been championing this cause since 2002. They have been emphasising on the need for a law to be passed which would authorise the execution of the ‘Living Will & Attorney Authorisation’.

While many countries across the globe have legalized euthanasia or mercy killing, some remain sceptical. Countries like Netherlands, Belgium, Columbia, and Switzerland have enacted laws legalising Euthanasia.

The concept of ‘living wills’ is also one that is recognised by many countries. The United States of America recognizes this concept, and it finds mention in ‘The Patient Self-determination Act 1990’.

In Australia – The Consent to Medical Treatment and Palliative Care Act, 1995, covers the concept of ‘living wills’.

Arguing in favour of ‘living wills’, Prasanth Bhushan contended, “Euthanasia would be a part of my Article 21 right. Whether I have a right to reject treatment flows from my right under Article 21. Forcing a person to take medical treatment against their will is also a social issue.”

“On the one hand, you are short of medical facilities etc., and on the other hand, you force those who are in a hopeless situation to take treatment.”

While the bench did see differing views on the issue, it is important to note here that The Law Commission, under the chairmanship of Justice (retired) P V Reddy, had in its 241st report, come out in favour of allowing withdrawal of life support for certain categories of people — like those in persistent vegetative state (PVS), in irreversible coma, or of unsound mind, who lack the mental faculties to make decisions.

Therefore while this is not the first time this issue has come up for consideration, we will have to wait and see what the Apex Court decides.

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