The decision of the Supreme Court of India (“Supreme Court”) in the case of Common Cause v. Union of India1 (“Common Cause”) is the culmination of a fascinating evolution of jurisprudence: the relatively straightforward question of the constitutionality of the criminalization of attempted suicide, as discussed in P. Rathinam v. Union of India2 (“Rathinam”) made way for the nuanced analysis of a right to refuse life-prolonging medical treatment in Aruna Ramachandra Shanbaug v. Union of India3 (“Aruna Shanbaug”).

The Aruna Shanbaug case paved the way for predicating the validation of passive euthanasia and recognised the importance of Right to Life as provided in Article 21 of the Constitution of India. The contribution of Common Cause to the development of Indian law is two-fold: firstly, in advancing on the analysis provided in Aruna Shanbaug¸ the Supreme Court reiterated and strengthened the right of an individual suffering from a terminal illness with no hope of recovery to refuse (or allow the withdrawal of) life-extending medical treatment. Secondly, it provided a detailed framework for allowing individuals to regulate the manner in which they were to receive medical treatment and created a mechanism which would allow for the recognition of their wishes with regards to refusal to receive such treatment even in case of their being unable to provide direction in this regard at the time of such illness affecting them. It is this framework, enshrined in the form of ‘advance medical directives’ or ‘living wills’, which is to be evaluated in the course of this paper.

The position in law prior to Common Cause

The extent to which individuals were allowed to regulate the manner of their own deaths first drew significant attention as part of the case of Rathinam, which involved a two-judge bench of the Supreme Court looking at a challenge to the validity of Section 309 of the Indian Penal Code (“IPC”) (which criminalised attempted suicide), in light of Articles 14 and 21 of the Constitution. The decision in Rathinam hinged, inter alia, on the construction of the fundamental rights provided in the Constitution. The Supreme Court placed reliance on the dual nature in which other fundamental rights were construed so s to analogously determine the extent of the operation of the Right to Life in Article 21.

Relying on previous judicial pronouncements, the Supreme Court provided that the right to freedom of speech carried within itself the right to abstain from speech. Therefore, the recognition of a right to do an act would contain within itself the corollary right of not being compelled to take such action. In Rathinam, the Supreme Court allowed for such a construction to be applied in the case of Article 21, and included the right not to live a forced life as a part of Article 21.

This pronouncement, however, was overruled by a Constitution bench of the Supreme Court in the 1996 case of Gian Kaur v. State of Punjab4 (“Gian Kaur”). As part of an appeal against a conviction under Section 306 of the IPC (which criminalises abetment of suicide), the Supreme Court evaluated the reasoning employed in Rathinam. While it accepted the principle of a right to do an act also encompassing the right not to do such an act, the Supreme Court rejected the proposition that the same would result in Article 21 carrying within itself a supposed ‘right to die’.

Contributed by: Divi Dutta, Partner; Suranjan Shukla, Associate

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