Common Cause (A Regd. Society) v.

Union of India and Another, 9 March 2018: A critical

case analysis
Tushar Choudhary, 2nd year B.A LL.B (Hons.), Institute of Law Nirma University, Ahmedabad

Facts and Background of the Case

Common cause is a registered society under the Societies Registration Act 1860, it is
dedicated to work for people to provide them redressal and it argues for the “right to die with
dignity” should be incorporated as a fundamental right under the ambit of “right to live with
dignity” which has been guaranteed under Article 21 of India Constitution.

On 19/06/2002 and 25/06/2002, the petitioner wrote letters to the Ministries of law and
justice, Ministry of Health and Family Welfare and company affairs. And also to the state
government with a prayer to make right to die with dignity a fundamental right. Their
complaints were unheard and therefore in 2005 the Society decided to file a writ petition
before the Supreme Court of India under article 32 of the Constitution. They prayed before
the court to include Right to die with dignity as a fundamental right under article 21.

The society also prayed before the Supreme Court that it should issue guidelines to union
government so that it allows terminally ill patients to execute “living wills” for appropriate
action in the event that they are admitted to hospitals.1

On 25 February 2014 a 3 judge bench comprising of the then chef justice p.sathasiavn ,
justice Ranjan Gogoi and justice Shiva Kirti Singh referred the matter to a larger bench so
that the issue can be settled in the light of inconsistent opinions in Aruna Ramchandra
Shanbaug v. Union of India & ors. 20112 and Gian kaur v. State of Punjab, 19963.

Issues before the Court

1. Whether Article 21 of the Constitution which guarantees the Right To Life includes
Right to Die?
2. Can Euthanasia be made lawful only by legislation?
3. What is the difference between passive Euthanasia and Active Euthanasia?

1
Euthanasia, Living Wills, and the Right to Die with Dignity, Supreme Court Observer (July 10, 2018, 11:20
p.m.), http://scobserver.clpr.org.in/court-case/euthanasia-living-wills-and-the-right-to-die-with-dignity
2
Aruna Ramchandra Shanbaug v. Union of India & ors,(2011) IV S.C.C 454.
3
Gian Kaur v. State Of Punjab, (1996) II S.C.C. 648(India).
 4. Can Individuals be allowed to give “Advance Directives” i.e. directives on medical
treatment if they become incompetent or unable to communicate in the future?45

Rules Applied

In the light of contentions raised , it was requisite to analyse the judgements in the case of
Gian Kaur and Aruna Shanbaug so as to arrive at a specific decision in the given case as the
prayers and relief sought in this case had a direct link and reasoning with these two aforesaid
mentioned judgements but the history of this relates to some older cases where the concept of
right to die evolved therefore it is necessary to take into consideration the judgement
pronounced in those cases.

In the case of P.Rathinam v. Union of India & another.6 Two individuals namely
p.Rathinam and Nagbhushan Patnaik , filed two writ petetions under Article 32 of the
constitution which was decided by a two judge bench . The writ petition focused on the
constitutional validity of section 309 of the Indian penal Code 1860 contending that it was
violative of article 14 and 21 of the Indian constitution. The Court posed 16 Questions. The
relevant ones are :-

(1) Has Article 21 any positive content or is it merely negative in its reach?

(2) Has a person residing in India a right to die?

(13) Does commission of suicide damage the monopolistic power of the State to take life?
(14) Is apprehension of constitutional cannibalism ‘justified?

(15) Recommendation of the Law Commission of India and follow-up steps taken, if any.

(16) Global view. What is the legal position in other leading countries of the world regarding
the matter at hand?

the Court referred to the decision of the Bombay High Court in Maruti Shripati Dubal v.
State of Maharashtra7 that placed reliance on R.C. Cooper v. Union of India wherein it had
been held that what is true of one fundamental right is also true of another fundamental right
and on the said premise, the Bombay High Court had opined that it cannot be seriously
disputed that fundamental rights have their positive as well as negative aspects. Citing an
4
Common Cause (A Registered Society) v. Union of India, Writ Petition (civil) No. 215 of 2005.
5
Euthanasia, Living Wills, and the Right to Die with Dignity, Supreme Court Observer (July 10, 2018, 11:20
p.m.), http://scobserver.clpr.org.in/court-case/euthanasia-living-wills-and-the-right-to-die-with-dignity
6
P.Rathinam v. Union Of India & another,(1994) III S.C.C 394.
7
Maruti Shripati Dubal v. State of Maharashtra, (1986) II S.C.C 68.
example, it had stated that freedom of speech and expression includes freedom not to speak
and similarly, the freedom of association and movement includes freedom not to join any
association or move anywhere and, accordingly, it stated that logically it must follow that the
right to live would include the right not to live, i.e., right to die or to terminate one‘s life.

Therefore it was held that In any case, a person cannot be forced to enjoy the right to life to
his detriment, disadvantage or disliking. Eventually, it concluded that the right to life of
which Article 21 speaks of can be said to bring in its trail the right not to live a forced life.

Answering all the question posed in the case the Supreme Court held that Section 309 is Ultra
vires and need to be effaced from the Statute Book thereby humanizing our penal laws.

In the case of Gian Kaur v. State of Punjab, the subject matter before the constitutional
bench was to interpret article 21 relating to the constitutional validity of Section 306,309 of
The Indian Penal Code, 1860. It was held that the "right to life" is inherently inconsistent
with the "right to die" as is "death" with "life". In furtherance, the right to life, which includes
right to live with human dignity, would mean the existence of such a right up to the natural
end of life. It may further include "death with dignity" but such existence should not be
confused with unnatural extinction of life curtailing natural span of life. The apex court held
that Section 306 of Indian penal code is constitutional and extinction of life is not included in
protection of life therefore section 306 constitute a different offence and it can exist
independently of section 309 .In progression of the above, the constitutionality of Section 309
of the I.P.C, which makes "attempt to suicide" or even abetment of suicide an offence was
upheld stating that right to life in article 21 does not include right to die or right to be killed,
therefore section 306 and 309 are constitutionally valid and not void or ultra vires overruling
the judgment in P. Rathinam's case.8

But this decision in this case does not arrive at a conclusion whether passive or active
euthanasia should be made lawful in India or not so the only case that holds the ground in
respect to euthanasia in India is Arun Shaunbaug’s case.

The court also referred to the decision in Airedale N.H.S. Trust v. Bland9 the decision in
this case was related to restricting or withdrawing artificial life support to a patient by a
physician. the constant support given to a person in permanent vegetative state to keep him
alive violated the principle of sanctity of life which is major concern of the state was stated to
8
Spiti Sarkar, Right to die –To be or not to be,LEGAL SERVICES INDIA,
http://www.legalservicesindia.com/articles/die.html
9
Airedale National Service Trust v. Bland (1993), I All ER 821
be not an absolute one. It has been noticed in Airedale that euthanasia is not lawful at
common law because administering a drug to a patient promoted by a humanitarian desire to
end his suffering and however great that suffering may be, does not allow someone to take
away the life of another. Euthanasia can be made legal via legislation and it up to the next of
kin of the patient to decide whether his artificial life support is to be removed or not.

The Supreme Court referred to authorities in Charan Lal Sahu v. Union of India10 and
State of Kerala and another v. N.M. Thomas and others 11 and held that the High Court
can grant permission for the removal of life support of an incompetent person under Article
226 of the constitution because it give abundant power to high court to pass suitable orders on
the application filed by the near relatives or next friend or the doctors/hospital staff praying
for permission to withdraw the life support of an incompetent person.

In the case or Aruna Shaunbaug v. Union of India, a Division Bench of the Supreme Court
of India, comprising Justice Markandey Katju and Justice Gyan Sudha Mishra, delivered this
historic judgment on March 7, 2011. The bench disapproved Active Euthanasia to patients
who had been living in a permanent vegetative state for a long time, also the plea of giving
Euthanasia to Aruna was set aside by the bench stating that “Allowing of euthanasia to Aruna
would mean reversing the efforts taken by the nurses of KEM Hospital over the years.”
Moreover, in furtherance of the parens patriae principle, the Court to prevent any misuse in
the vested the power to determine the termination of life of person in the High Court. Thus,
the Supreme Court allowed passive euthanasia in certain conditions, subject to the approval
by the High Court following the due procedure.12

This case clarified the issues revolving around euthanasia and also laid down guidelines with
regard to massive euthanasia. Alongside, the court also made a recommendation to repeal
Section 309 of the Indian Penal Code.

10
Charan Lal Sahu v. Union of India (1990) I S.C.C. 613.
11
State of Kerala and another v. N.M. Thomas and others (1976) II S.C.C 310
12
Mounica Kasturi, Aruna Ramchandra Shanbaug v. Union Of India: Case Analysis,Academike (jan. 07,2015),
https://www.lawctopus.com/academike/aruna-ramchandra-shanbaug-v-union-of-india-case-analysis.
Analysis

The constitutional bench of five judges in this case held that right to die with dignity is
fundamental right “The right to life and personal liberty as envisaged under article 21 of the
Constitution is meaningless unless it encompasses within its sphere individual dignity with
the passage of time, this court has expanded the spectrum of Article 21 to include within it
the right to live with dignity as component of right to life and liberty”. The bench also held
that passive Euthanasia and a living will is also valid, this ruling therefore permit the removal
of life support system for the terminally ill or people who are in a permanent vegetative state
or incurable comas.

The court also laid down the principles relating to the procedure for execution of advance
Directive and provided the guideline to give effect to passive Euthanasia in both
circumstances, namely, where there are advance directives and where there are none, in
excersise of the power under article 142 of the constitution and the law stated in Vishakha
and ors. V. State of Rajasthan and ors. The directive and guidelines laid down by the court
shall remain in force till the parliament brings legislation in the field.13

Individual dignity as a facet of Article 21

The judgement in this case will be important milestone in terms of interpreting Article 21 and
bringing the “right to die with dignity” under its ambit. The recent judgement popularly
known as the puttaswamy judgement which has been a landmark judgement on the privacy of
individuals. This judgment had pronounced that “The right to privacy is protected as an
intrinsic part of the right to life and personal liberty under Article 21 and as a part of the
freedoms guaranteed by Part III of the Constitution”. The constitutional bench recognised
that limiting the scope to only passive euthanasia , they put forward the argument that right to
life and liberty under article 21 also includes individual dignity and therefore right to live
with dignity. And a failure to recognise the need of a terminally ill patient in a permanent
vegetative state to be given euthanasia will lead to denial of these rights.

By this judgement it is clear that there must be a progressive outlook of the constitution and
the need for its dynamic interpretation in changing contexts. The judgements mention that

13
Raj Krishna ,COMMON CAUSE(A REGISTERED SOCIETY) V. UNION OF INDIA: A CRITICAL ANALYSIS, RACOLB
LEGAL, ( Aug. 13,2018), http://racolblegal.com/common-cause-a-registered-society-v-union-of-india-a-critical-
analysis.
“We may clearly state here that the interpretation of the Constitution, especially fundamental
rights, has to be dynamic and it is only such interpretative dynamism that breathes life into
the written words. As far as Article 21 is concerned … dynamism can, of course, infuse life
into life and liberty as used in the said Article”

Limitations and missed opportunities in the judgement

Firstly, Still the judgement does not clearly identifies the position of ongoing debate
regarding the futility of the distinction between passive and active euthanasia. The four key
criteria for determining legal and ethical permissibility invoked in the judgement are – the
moral principle of freedom from suffering, the ability to exercise the right to self-
determination under Article 21 of the Constitution , the International Covenant on Civil and
Political Rights (ICCPR) (10), and the applicability of Sections 76, 79, 81, and 88 of the
Indian Penal Code, which are about “good faith protections”, are inconsistently applied to
passive and active euthanasia to justify the legal permissibility of the former and
impermissibility of the latter.

Secondly, the judgement has not clearly identified the issue of “right to die“debate, if we take
into consideration the present inequity in access to healthcare and the overall organisation of
healthcare system in India. Presently there is no universal health coverage for citizens of
India except for the government’s most recent announcement of the National Health
Protection Scheme (NHPS).

Finally I would like to express my distress on the opinion of justice sikri as he bring into the
perspective of economics and the need for rationing scarce healthcare resources He suggests
that euthanasia could also be justified if it is viewed or discussed in the context of economic
principles. He mentions two questions: “First, because of rampant poverty where majority of
the persons are not able to afford health services, should they be forced to spend on medical
treatment beyond their means and in the process compelling them to sell their house property,
household things and other assets which may be means of livelihood. Secondly, when there
are limited medical facilities available, should a major part thereof be consumed on those
patients who have no chances of recovery?” it is indeed a disturbing point that neither justice
sikri nor the other judges makes a reference to the state’s ethical obligation to honour
people’s right to healthcare by putting in place robust policies such as universal health
coverage.
Conclusion

The debate on the issue of Euthanasia has been of great interest since the inception of various
cases which have thrown light on this topic and raised several questions regarding its validity
and legitimacy. It has been a controversial topic which raises several questions pertaining to
religion, morality, ethics, philosophy and law. When we talk about Euthanasia then the
society is divided into two parts, one group is of those of the religious sects like Islam and
Christianity who denies Euthanasia as immoral and irreligious practice and they do not
recognise it as a valid practice.

The second group relates to the people who are themselves suffering under permanent
vegetative state and need to give their consent for their death. Leading a very miserable life in
a vegetative state for a long period with no hope of revival to normal life. Therefore this
raised the question to grant right to die under article 21 where a person can decide whether to
live or not subject to reasonable conditions.

Euthanasia has been a issue of conflict between law and religion where the need of hour is to
give weightage to the law over the religious practices because the right to life is inherent part
of a person can it cannot be denied, people undergoing the permanent vegetative state are
subjected to cruel treatments and the live a life which is not worth living therefore denying
them the right to dignified death extends their suffering to another level.

Therefore in the light of the judgement passed by the Supreme Court by allowing passive
euthanasia it can be concluded that the court is right in its opinion and it will cater to the
needs of the people who lead a miserable life and can die with dignity.