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Report No. 241

11.8 This statement was quoted by Lord Goff approvingly in Airedale case (vide pg 502 of SCC in Aruna's case). Before referring to that passage, Lord Goff observed: "It is scarcely consistent with the primacy given to the principle of self-determination in those cases in which the patient of sound mind has declined to give his consent, that the law should provide no means of enabling treatment to be withheld in appropriate circumstances where the patient is in no condition to indicate, if that was his wish, that he did not consent to it".

11.9 It would be unjust and inhumane to thrust on him the invasive treatment of infructuous nature knowing fully well that the end is near and certain. He shall not be placed on a worse footing than a patient who can exercise his volition and express his wish to die peacefully and with dignity. Had he been alive, what he would have in all probability decided as a rational human being?

Would it be in his best interests that he should be allowed to die in natural course? These decisions have to be taken by the High Court as parens patriae and this will be a statutory safeguard against arbitrary or uninformed decisions. In this context, the words of Lord Goff in Airedale are pertinent: "Indeed if the justification for treating a patient who lacks the capacity to consent lies in the fact that the treatment is provided in his best interests, it must follow that the treatment may, and indeed ultimately should be discontinued where it is no longer in the best interests to provide it".

The right question to be asked, according to the learned Law Lord, "is not whether it is in the best interest of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by continuing this form of medical treatment and care".

11.10 Compassionate medical care towards a terminally ill patient does not necessarily mean artificially prolonging the life which has started sinking and which cannot, by any objective standards, be maintained for long. Life support intervention far from helping to mitigate the suffering would rather add to the agony of a prolonged dying process.

The Commission is of the view that on a reasonable interpretation, Article 21 does not forbid resorting to passive euthanasia even in the case of an incompetent patient provided that it is considered to be in his best interests, on a holistic appraisal. The doctors' duty to make assessment and the High Courts' duty to take stock of the entire situation are directed towards the evaluation of best interest which does not really clash with the right to life content under Art.21.

11.11 Article 21 of the Constitution of India injuncts against deprivation of life or personal liberty except according to procedure established by law. By the term 'Life', "something more is meant than mere animal existence". "The inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed", as observed by Field, J of the Supreme Court of US in Munn v. Illinois, (1877) 94 US 113 at 142 and this observation has been quoted by the Constitution Bench of the Supreme Court in Kharak Singh v. State of Uttar Pradesh (1963).

The expression 'procedure established by law', has been interpreted by the Supreme Court in Maneka Gandhi's case, AIR 1978 SC 597 to mean right and just and fair procedure and not any sort of procedure. The scope of Article 21 which was initially confined to arbitrary deprivation of life and personal liberty, was extended to positive rights to enable an individual to live the life with dignity. In Gian Kaur's case supra, the Constitution Bench of Supreme Court while upholding the validity of Section 309 of I.P.C. laid down the proposition that the right to life does not include the "right to die".

In this respect, it was pointed out that the analogy of the nature of rights in Article 19 of the Constitution e.g., freedom of speech includes the freedom not to speak, cannot be applied to the right under Article 21. The Court held that the right to death, if any, is inherently inconsistent with the right to life. The Court however emphasized that right to life under Article 21 would include the right to live with human dignity upto the end of natural life which includes within its ambit a dignified procedure of death. In other words, the right to die with dignity is subsumed within the right to life.

It was further clarified that the right to die with dignity at the end of life is not to be confused or equated with right to die an unnatural death curtailing the natural span of life. As already noticed, there are significant observations of the Supreme Court in Gian Kaur case while considering the aspect of withdrawal of life support systems to a patient in PVS which were stressed in the 196th report of Commission.

Such a step in a situation in which the patient is beyond recovery and when the process of natural death has already commenced, was placed on a different footing than suicide, while considering the impact of Art. 21. At this juncture, we may quote the pertinent observations of Constitution Bench in Gian Kaur's case:

"A question may arise, in the context of a dying man who is terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the 'right to die' with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced".

11.12 Post Maneka Gandhi (1978), law can deal with life and liberty of a person by or under a fair, just and reasonable procedure. By a series of judgments of the Supreme Court, life has been construed at the material and physical level to include various components, understood to be essential for a dignified and wholesome existence. The International Human Rights Documents identify and enumerate several entitlements which are acknowledged to be integral to a free and meaningful existence. These entitlements are now considered to be indisputable elements of life and liberty.

While the State or any other body is injuncted from denuding or depriving a person of all or any attributes of life possessed by him, the situation would be different when a person is disabled from the usual enjoyment of any of the attributes of life by a conscious exercise of choices or volition. The State or medical practitioner would not be accused of taking away the life when the law merely provides assistance to the patient to allow his life devoid of essential attributes to wane by withdrawal of medical care and procedures.

At any rate, the fairness and reasonableness of the procedure to be followed and the cautions to be exercised by the medical personnel and the High Court will negate a challenge to law based on violation of Art.21. It must be noted that the State would not be depriving life by sanctioning the proposed legislation but, as stated already, the proposed law would operate at a stage when a person has no life to be protected or to be preserved and has become an empty vessel devoid of volitional capacity and wholesome attributes of life in the physical as well as philosophical sense.

In these circumstances, the State cannot be said to be taking away anything, for there may exist nothing to be taken away which the person concerned may decide to retain as necessary or relevant for one's existence. What the State is forbidden from doing is interfering with the autonomy of a person when the autonomy makes sense.

However, when the patient is not in a position to make sense of his autonomy and is not in a position to wish death or prefer the life bereft of its basic and essential attributes, the intervention by the judicial organ of the State to sanction passive euthanasia cannot be said to be hostile to the concept of sanctity of life of the patient concerned. The constitutional concern to prevent external invasions of human autonomy will not conflict with constitutional concern to aid benignly human autonomy in its frailest condition.

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