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Report No. 241

3. Passive Euthanasi.- How the Law Commission & Supreme Court viewed it

3.1 Passive Euthanasia has been advocated by the Law Commission of India in the 196th Report both in the case of competent patients and incompetent patients who are terminally ill. In the case of incompetent patients, the attending medical practitioner should obtain the opinion of three medical experts whose names are on the approved panel and thereafter he shall inform the Patient (if conscious) and other close relatives. Then he shall wait for 15 days before withholding or withdrawing medical treatment including discontinuance of life supporting systems.

This 15 days' time was contemplated with a view to enable the patient (if conscious) or relatives or guardian to move an original petition in the High Court seeking declaratory relief that the proposed act or omission by the medical practitioner /hospital in respect of withholding medical treatments is lawful or unlawful. High Court will then give a final declaration which shall be binding on all concerned and will have the effect of protecting the doctor or hospital from any civil or criminal liability.

The Supreme Court in Aruna's case has put its seal of approval on (non-voluntary) passive euthanasia subject to the safeguards laid down in the judgment. In the arena of safeguards, the Supreme Court adopted an approach different from that adopted by the Law Commission. The Supreme Court ruled in Aruna's case that in the case of incompetent patients, specific permission of the High Court has to be obtained by the close relatives or next friend or the doctor / hospital staff attending on the patient.

On such application being filed, the High Court should seek the opinion of a Committee of three experts selected from a panel prepared by it after consultation with medical authorities. On the basis of the report and after taking into account the wishes of the relations or next friend, the High Court should give its verdict. At paragraph 135, it was declared:

"the above procedure should be followed all over India until Parliament makes legislation on this subject." Earlier at para 124 also, the learned Judges stated "we are laying down the law in this connection which will continue to be the law until parliament makes a law on the subject."

Passive Euthanasia - A relook Back

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