Report No. 241

4. The question broadly and our approach

4.1 The question now is whether parliament should enact a law on the subject permitting passive euthanasia in the case of terminally ill patient.- both competent to express the desire and incompetent to express the wish or to take an informed decision. If so, what should be the modalities of legislation? This is exactly the reason why the Government of India speaking through the Minister for Law and Justice has referred the matter to the Law Commission of India.

In the letter dated 20 April 2011 addressed by the Hon'ble Minister, after referring to the observations made by the Supreme Court in Aruna's case, has requested the Commission "to give its considered report on the feasibility of making legislation on euthanasia taking into account the earlier 196th Report of the Law Commission."

4.2 Before proceeding further, we must acknowledge the fact that the Law Commission before formulating its recommendations in its 196th Report, has made an exhaustive study, considered the pros and cons of the issue and recorded its conclusions which were put in legislative framework. Five years later, the Supreme Court of India in Aruna's case has rendered a landmark judgment approving passive euthanasia subject to certain safeguards and conditions envisaged in the judgment.

There was an elaborate reference to the legal position obtaining in other countries, the best medical practices and the law laid down in series of authoritative pronouncements in UK and USA. Both the Supreme Court and Law Commission felt sufficient justification for allowing passive euthanasia in principle, falling in line with most of the countries in the world. The Supreme Court as well as the Commission considered it to be no crime and found no objection from legal or constitutional point of view.

4.3 Unless there are compelling reason.- and we find none, for differing with the view taken by the apex Court and the Law Commission, the views deserve respect. At the same time, we had a fresh look of the entire matter and have reached the conclusion that a legislation on the subject is desirable.

Such legislation while approving the passive euthanasia should introduce safeguards to be followed in the case of such patients who are not in a position to express their desire or give consent (incompetent patients). As regards the procedure and safeguards to be adopted, the Commission is inclined to follow substantially the opinion of the Supreme Court in preference to the Law Commission's view.

We have, however, suggested certain variations in so far as the preparation and composition of panel of medical experts to be nominated by the High Courts. Many other provisions proposed by the Law Commission in its 196th Report have been usefully adopted. A revised draft Bill has been prepared by the present Commission which is enclosed to this report. We shall elaborate our views and changes proposed at the appropriate juncture.