Right To Die : Supreme Court To Hear Plea Seeking Modification Of Guidelines Issued Regarding "Living Will" On 23rd November

Appearing before a Bench comprising Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, at the outset Senior Advocate, Mr. Arvind Datar elucidated on the concept of Living Will. Living Will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent. He said -

"All of us have to ultimately meet our maker. I will give an outline of what is Living Will. I can make a declaration stating that if I am in a coma, braindead etc.,please do not intervene, or provide a life support system, I would like to die with dignity. So, this is the concept accepted in different parts of the country."

Mr. Datar informed the Bench that the guidelines issued by the Court on 09.03.2021 have become unworkable. He explained the impediments in implementing the same. The Living Will has to be signed by the executor in the presence of two attesting witnesses, and countersigned by jurisdictional Judicial Magistrate of First Class (JMFC). He submitted that suppose subsequently after 10 years, the executor of the Will is admitted in a hospital and the team of doctors certify that there is no hope for recovery, as per the guidelines, the matter has to be, then, sent to the Collector, who would constitute another board of doctors who will give second opinion. Thereafter, the jurisdictional JMFC has to personally go to the hospital and authenticate the document. Mr. Datar argued that this cumbersome process is not workable and therefore some suggestions have been made in the present application to modify the guidelines.

Mr. Datar informed the Bench that the Union Government, the sole respondent in the matter has filed a counter affidavit stating that the suggestions are not suitable.

Justice Rastogi suggested if there can be only one committee and the first kin to the executor of the will can be included in the decision making process.

"One committee of doctors can take a decision in one go. If he is not able to make a decision then can't the first kin take the decision."

The Solicitor General of India, Mr. Tushar Mehta expressed concern that 'old people in some families become unwanted, so Living Will should not be misused'. He was apprehensive that if sufficient safeguards are not in place, then in some cases the elderly person would be forced by their family members to sign a Living Will and the worst possible scenario would be they are murdered after they execute the document. He submitted that he would sit with the Government of India to discuss the issues raised in the application.

Justice Bose noted, "This is essentially in the domain of legislature."

Mr. Datar submitted that the Supreme Court's directions with respect to the Living Will are like the Vishakha guidelines, which would be in operation till the legislation is put in place.

Mr. Mehta suggested that it is not an adversarial matter, so there can be a joint meeting amongst the parties and the concerned government officers.

As Mr. Datar beseeched the Bench to make suggestions in this regard, Justice Roy remarked, "There is a very interesting film and the title is 'Whose Life Is It Anyway?'. It is on the issue of the right to die. I think it would be an interesting film to watch during the vacation in the context of this debate."

During the course of the hearing, Mr. Mehta referred to philosopher Bertrand Russel's article 'Right to Commit Suicide'. On the issue of suicide, Justice Joseph reckoned "Many of the cases of suicide can be really put down to mental health issues. If properly counselled they could have been brought back."

The Solicitor General was of the opinion,"There might not be many takers of this view, but maybe that is because of the family shrinking…there is now only virtual friends."

[Case Status: Common Cause v. UoI MA 1699/2019 in WP(C) No. 215/2005]