Govt passing the buck: SC on 'living will' decision

The Supreme Court on Thursday said the Union government was abdicating its legislative responsibility and passing the buck by not taking a decision on 'living will', an advance medical directive on end of life treatment.

The apex court's 2018 order on passive euthanasia wherein it recognised the right to die with dignity as a fundamental right and an aspect of Article 21 (right to life) notwithstanding, people wanting to get a 'living will' registered have been facing problems due to cumbersome guidelines.

Observing that this is a matter where the chosen representatives of the country should debate, a five-judge Constitution bench headed by Justice K M Joseph said the court lacks the requisite expertise and is dependent on the information provided by the parties.

"The areas which are meant for the Legislature to exercise its powers, by not exercising the power and by actually sort of agreeing to the issues, you are actually passing the buck. Ultimately you will say we didn't do anything, the court passed the order. You are abdicating your legislative responsibility.

'Under the scheme of separation of powers, this is squarely a matter you should have taken up. This is a matter where the chosen representatives should debate and come out with meticulous guidelines. We don't have the expertise except the information you have provided,' it observed.

Additional Solicitor General K M Nataraj, appearing for the Centre, submitted that the issue was discussed and deliberated upon.

"Not passing any legislation was a categorical decision. The judgement has been accepted and we are not aggrieved by the original directions," he said.

Expressing apprehension of possible misuse of "living will", the bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and Justice C T Ravikumar, said there are chances that this might be abused and there needs to be a safeguard.

'We are concerned about absence of ethics and lack of morals which might drive profit driven people. Beware of that. Throughout we have seen. Relatives might be very enamoured by the idea that this person should not go through a particular treatment because of their wealth. So beware of it. There should be safeguards,' it said, adding the matter should not be taken as adversarial.

Senior advocate Arvind P Datar, appearing for The Indian Society for Critical Care, submitted that the advance directive is declared when the person is fully conscious and there are safeguards like witnesses and putting the information in health records.

Datar said the society has sought clarifications because those willing to apply for advance directive could not do so as there were lots of hurdles.

The top court asked the ASG and Datar to sit together and submit the final compilation by Monday.

The matter will now be taken up on Tuesday.

The apex court had on Wednesday indicated that it might accept the suggestion to keep a Judicial Magistrate of First Class and district collector out of the process for making a living will.

The top court had said that it will not review its 2018 judgment on passive euthanasia and only make the guidelines on 'living will' more workable.

More than four years after its landmark order on passive euthanasia, the top court had on Tuesday said it is for the legislature to enact a law for terminally ill patients wanting to stop treatment but agreed to modify its 2018 guidelines on 'living will'.

Observing that the legislature is much more endowed with 'skills and sources of knowledge' to enact a relevant law, the court said it will limit itself to improving the guidelines it had laid down on 'living will'.

The bench had said there can only be a little tweaking of the guidelines or else it will become a review of its own 2018 judgment.

It was considering a plea seeking modification of the guidelines for Living Will/Advance Medical Directive issued by it in 2018.

The court had in its March 9, 2018 judgment recognised that a terminally ill patient or a person in a persistent vegetative state may execute an advance medical directive or a 'living will' to refuse medical treatment, holding that the right to live with dignity also included "smoothening" the process of dying.

It had observed that the failure to legally recognise advance medical directives might amount to 'non-facilitation' of the right to smoothen the dying process, and that dignity in that process was also part of the right to life under Article 21 of the Constitution.

The court had laid down principles related to the procedure for execution of advance directives and spelt out guidelines and safeguards to give effect to passive euthanasia in both circumstances where there are advance directives and where there are none.

'The directive and guidelines shall remain in force till Parliament brings a legislation in the field,' it had said.

The verdict had come on a PIL filed by NGO Common Cause seeking recognition of the 'living will' made by terminally-ill patients for passive euthanasia.