COMMON CAUSE (A REGD. SOCIETY) ….Petitioner
VERSUS
UNION OF INDIA ….Respondent
MISCELLANEOUS APPLICATION NO. 1699 OF 2019
WRIT PETITION (CIVIL) NO. 215 OF 2005
FACTS
The petitioner, Common Cause, a registered non-governmental organization, filed a Public Interest Litigation (PIL) in 2005 before the Supreme Court under Article 32 of the Constitution of India seeking legal recognition of the right to die with dignity as a part of the right to life under Article 21. The core demand was to legalize passive euthanasia and allow individuals to execute Advance Medical Directives (AMDs) or “Living Wills”, enabling them to refuse medical treatment in the event of terminal illness or permanent vegetative state. In 2018, a five-judge Constitution Bench of the Supreme Court, in Common Cause v. Union of India, accepted the petitioner’s arguments and recognized that the right to die with dignity is a fundamental right. The Court legalized passive euthanasia and laid down detailed guidelines for the execution and implementation of Advance Medical Directives.
These guidelines included:
- Execution of Living Will in presence of two witnesses and counter-signature by a Judicial Magistrate (JMFC),
- The formation of two medical boards to determine the applicability of AMD, and
- Prior approval from the jurisdictional Magistrate before withdrawing treatment.
However, the implementation of these procedural safeguards proved extremely complex and impractical in real-life situations. Medical professionals and civil society groups found these procedures to be too complex, bureaucratic and impractical, especially in emergencies. In response to these concerns, the Indian Society of Critical Care Medicine (ISCCM) and other stakeholders filed Miscellaneous Applications seeking modification of the procedural guidelines issued in 2018. The Supreme Court, considering these concerns, constituted a five-judge Constitution Bench, which delivered its judgment on 24 January 2023, modifying the earlier guidelines to make them more practical and accessible, while preserving essential safeguards for patient autonomy and dignity.
ISSUES RAISED
- Whether the procedural guidelines issued by the Supreme Court in 2018 regarding Advance Medical Directives (Living Wills) under passive euthanasia were excessively rigid, impractical, and difficult to implement in real-world medical situations.
- What if permission is refused by the Medical Board?
CONTENTION
Contentions on behalf of the Petitioner, Common Cause (A Regd. Society)
The petitioner argued that the Supreme Court’s 2018 decision outlining procedures for Advance Medical Directives, also known as Living Wills, was too stringent, overly formal, and impractical for use in everyday medical practice. Although the Court had justifiably affirmed the right to die with dignity as part of the fundamental rights under Article 21 of the Constitution, the numerous safeguards intended to protect that right ended up creating considerable barriers to its real-world application.
The requirement to have two medical boards, made up of government doctors who might not always be available quickly, was seen as a major problem in the process. Furthermore, the absence of a defined remedy in cases where permission for passive euthanasia is denied by either board or the magistrate raised concerns about the lack of accountability and transparency.
The petitioner also pointed out that, as acknowledged by the Court in paragraph 198 of its 2018 ruling, the main goal of an Advance Directive was to offer guidance and reassurance to both patients and medical professionals when making end-of-life decisions. However, the current procedure was too complex to fulfill that goal effectively. They suggested that the process could be made more practical by reducing it to a single medical board, simplifying the paperwork, and introducing a defined appeal mechanism, steps that would still ensure necessary protections while making the system more functional and accessible.
Contentions on behalf of the Respondent, The Union of India
The Union of India, while broadly supportive of the right to die with dignity, maintained that any relaxation of the existing safeguards must not come at the cost of potential misuse or coercion, particularly in cases involving elderly or terminally ill individuals, who might be vulnerable to pressure from family or other stakeholders. The State emphasized that end-of-life decisions involve highly sensitive and irreversible consequences, warranting a strict legal framework to prevent abuse, and any dilution in procedural safeguards could result in irreversible harm, and that the sanctity of life must be given due regard.
The government stressed that ongoing judicial oversight and detailed medical review remain essential to ensure accountability and safeguard ethical standards in end-of-life decisions. However, it also recognized that certain modifications such as reducing the number of required medical boards, simplifying the rules around witnesses, and introducing standardized documentation, could help create a more balanced approach. This could help achieve a more effective balance between individual autonomy and necessary safeguards.
RATIONALE
The Court reiterated that the right to make decisions about one’s own body, including the decision to withdraw life-sustaining treatment in hopeless medical conditions, is a facet of personal autonomy protected under Article 21. The Advance Medical Directive was characterized as a crucial instrument in realizing this right, especially in cases where patients are unable to communicate their choices. While maintaining that procedural safeguards are necessary to avoid abuse or coercion, the Court recognized that excessive formalism was antithetical to the principle of dignity. Accordingly, it simplified the process by reducing the number of medical boards required from two to one, constituted by the District Collector, and by streamlining the role of the JMFC to avoid unnecessary delays.
The Court thoughtfully preserved avenues for judicial oversight. In cases where the Medical Board refuses permission to withdraw treatment, the executor, family members, or even the treating hospital may approach the High Court under Article 226. The High Court, in turn, may constitute an expert medical committee to independently evaluate the patient’s condition and the applicability of the Advance Directive.
The decision to modify the 2018 guidelines was not seen as judicial overreach but as an exercise of continuing mandamus under Article 142, allowing the Court to ensure complete justice. The Court made it clear that its directions would hold the field until Parliament enacted suitable legislation. In doing so, it maintained a delicate balance between judicial activism and institutional restraint, preserving the primacy of the legislature while fulfilling its duty to protect fundamental rights.
By emphasizing the role of the executor’s informed consent even post-execution, the Court further entrenched the notion that a competent individual can refuse or withdraw consent to medical treatment. This positions Advance Directives not as abstract documents but as active expressions of legal agency and constitutional identity. The Court held that an Advance Directive may be revoked at any time by the executor prior to implementation, reinforcing its voluntary nature. Moreover, in case of multiple valid Advance Directives, the most recent one would prevail, an important clarification that avoids conflicts and preserves the contemporaneity of the executor’s will.
DEFECTS OF LAW
The Supreme Court’s judgment on Common Cause (A Regd. Society) v. The Union of India attempted to make efforts in refining the procedural guidelines regarding Advance Medical Directives (Living Wills) and passive euthanasia, several legal and practical shortcomings persist.
The most significant defect remains the lack of a formal statutory law governing passive euthanasia and Advance Directives in India. While the judiciary has stepped in to fill this void using its constitutional powers, these guidelines do not carry the enforceability or clarity that a detailed legislative enactment would offer. The absence of codified law creates ambiguity in implementation and leaves healthcare institutions and patients reliant on court interpretations.
The guidelines lack specific legal consequences for doctors or institutions that fail to implement valid Advance Directives in good faith. This legal grey area may discourage doctors from acting on Living Wills due to fear of litigation or professional liability, thereby weakening the directive’s practical enforceability.
Even with clarified guidelines, treating physicians are often uncertain about their legal protection if they act upon an Advance Directive. The medical fraternity continues to operate in fear of legal consequences, which may lead to unnecessary prolongation of treatment contrary to a patient’s wishes.
There is no central or state-level mechanism to oversee, record, or standardize Advance Directives. A lack of a digital registry or national database makes it difficult for medical professionals to access or verify a directive quickly in emergencies, reducing its utility.
There is minimal public awareness regarding the concept of Advance Directives, their legal validity, and the procedures to draft and register them. The process still requires legal and medical knowledge, which may not be accessible to large sections of the population, especially those in rural or under-resourced areas.
INFERENCE
The judgment in Common Cause v. Union of India (2023) reflects the judiciary’s continued commitment to affirming the constitutional right to die with dignity under Article 21 of the Constitution. This evolution in judicial thinking underscores the dynamic nature of constitutional rights, particularly when they intersect with medical ethics, human dignity, and individual autonomy. The Court’s nuanced approach acknowledges the need to balance protection against misuse with respect for personal choice, especially in end-of-life decisions. Importantly, it also demonstrates judicial responsiveness to real-world feedback and the necessity of reforming earlier frameworks that proved too complicated.
However, the judgment also reveals the judiciary’s limitations in effectuating wide-scale systemic change in the absence of formal legislation. While the revised guidelines provide temporary clarity, their implementation across India remains dependent on administrative efficiency, public awareness, and the discretion of healthcare professionals.
Ultimately, the case serves as a significant milestone in Indian constitutional jurisprudence expanding the scope of Article 21 to cover the right to make informed and dignified decisions about end-of-life care. It also highlights the pressing need for clear legislative measures to formally establish and protect these rights.
CONCLUSION
The Supreme Court’s 2023 ruling in Common Cause v. Union of India reaffirmed the right to die with dignity as an essential facet of Article 21 of the Constitution. By relaxing the procedural requirements for implementing Advance Medical Directives laid down in its 2018 guidelines, the Court addressed practical concerns raised by citizens, healthcare providers, and legal experts. The revised framework simplifies the process while preserving necessary safeguards, thus allowing individuals to exercise end-of-life decisions in a more humane and accessible manner.
While this verdict is a progressive stride towards recognizing individual autonomy, it also underlines the pressing need for legislative clarity. The lack of a statutory framework means that implementation may remain inconsistent and open to interpretation. To ensure uniformity and long-term effectiveness, Parliament must enact a comprehensive law on passive euthanasia and Advance Directives. Until then, the judiciary’s intervention serves as a guiding light, bridging the gap between ethical healthcare practices and constitutional values.
By-
Priyank Mahendra
Hidayatullah National Law University