“Is the government making its stand clear in a reasonable time,” a five-judge Constitution Bench, headed by Justice AR Dave, asked Additional Solicitor General PS Patwalia, who sought some time to get instruction from the competent authority.
The law officer apprised the Bench about the 241st report of the Law Commission, which has stated that passive euthanasia should be allowed with certain safeguards and there was a proposed law – Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practioners) Bill, 2006. He said his contention will also be based on 6.7 regulation of 2002 under the Medical Council of India (MCI) Act, which says that practising euthanasia shall constitute unethical conduct. However, on specific occasions, the question of withdrawing supporting devices to sustain cardio-pulmonary function even after brain death, shall be decided only by a doctors’ team and not merely by the treating physician alone.
Taking note of his submission, especially that the Law Commission’s 241st report was under government’s consideration, the Bench, which also comprised Justices Kurian Joseph, Shiva Kirti Singh, AK Goel and RF Nariman, said it will await the outcome of the report, which is under the Centre’s consideration and posted the matter for hearing on February 1.
The Bench was hearing a PIL filed in 2005 by Common Cause, an NGO, which had said that when a medical expert opines that a person afflicted with a terminal disease has reached a point of no return, then he should be given the right to refuse being put on life-support system as otherwise, it would only prolong his agony.
The Apex Court had two years ago issued notices to the states and Union Territories on the issue, even as the Centre had strongly opposed the petition, saying it is a form of suicide, which cannot be allowed. The NGO had prayed for declaring the right to die with dignity a fundamental right and sought direction to the government to adopt suitable procedures to ensure that those with deteriorating health or the terminally-ill should be able to execute a living Will and attorney authorisation for termination of life.
Advocate Prashant Bhushan, appearing for the NGO, said there are three types of euthanasia – positive, passive and living Will. He said his emphasis was on the category of living Will, in which a person makes an advance declaration that if during his/her treatment, it becomes clear that there is no chance of revival, s/he should not be put on life-support system or ventilator.
The Bench, which had several queries on the practicability of the issue, also deliberated as to how putting a patient on ventilator has become a commercial medical practice. “It (putting a patient on ventilator) is also a torture for the family. It is very expensive,” the Bench said, when the ASG spoke about the commercial angle.
Referring to 6.7 regulation of 2002 under the MCI Act, the Bench wanted to know about the implication of the regulation if the four words ‘even after brain death’ is deleted from it.
Patwalia said questions relating to euthanasia and decriminalising attempt to suicide by deleting Section 309 of the Indian Penal Code were raised in Parliament.
The ASG said: “The Central government has taken a decision to delete the same from the statute and some state governments have ratified it, but it has not gone from the statute book.” The Apex Court had on July 16, 2014, issued notices to states and Union Territories on the issue, even as the Centre had strongly opposed the petition saying it is a form of suicide which cannot be allowed.
At that time, another five-judge Bench had said that states must also be heard as the issue pertained not only to the Constitution, but involves morality, religion and medical science.
Attorney General Mukul Rohatgi had submitted that the issue should be debated and decided by the legislature and it was not a matter to be adjudicated by the court. The Bench had appointed senior lawyer and former Solicitor General TR Andhyarujina as amicus curiae to assist it in the case relating to legalising euthanasia.