Two Steps Forward, One Step Back

More than a decade after the writ petition was initially filed by Common Cause, a Delhi-based public interest advocacy organisation, a constitution bench of the Supreme Court has finally delivered its landmark verdict holding that advance directives (or “living wills”) will have legal recognition in India (Common Cause v Union of India 2018). The four concurring opinions are unanimous in holding that all adults of sound mind have the fundamental right to die with dignity (traceable to Article 21 of the Constitution), and cannot be compelled to take life-saving treatment against their will. All the judges hold that an advance directive made by a person should be respected by the treating doctor and hospital even when such person is not in a position to communicate lack of consent for treatment, and treatment should be withdrawn if the person has so indicated.

This means that a person can choose to say in an advance directive that even life-saving treatment be withdrawn under certain conditions. Even in the absence of an enabling legislation, the Court has held that such a right can be exercised, subject to the procedure laid down in the judgment by way of “directions.”