Under a humane Constitution

Under a humane Constitution

What is Passive euthnasia?

The removal of life-support mechanisms from persons who, for the most part, have slipped into a persistent vegetative state in order to allow them to die in the natural course of things

Practice of Passive Euthnasia upheld by the SC

Case: In Common Cause v. Union of India

SC Ruling:

• That every individual has the right to die with dignity.
• It upheld the practice of passive euthanasia and laid down a set of detailed procedural guidelines to facilitate this process
• These include “advance directives” and “living wills”, which are instructions issued by a person specifying what should be done to her in the event of a terminal illness, and who will decide if she herself is incapacitated from giving or withholding consent

Terminal ill patients also addressed

• The court also addressed situations where a patient was terminally ill, but had not issued an advance directive.
• In such situations it held that the consent of the patient’s close family, subject to the supervision of and concurrence by trained medical personnel, would substitute for the advance directive.

The individual’s choice

• SC ruling organised around the constitutional values of personal autonomy, bodily integrity and human dignity
• And these values, in turn, are expressed in the language of an individual’s choice to receive or decline medical intervention or medical treatment.

Principle of technological self-determination

• Individuals have the right to engage with technological systems on their own terms, the right to opt into or opt out of such systems without suffering for it, and the right not to be subjected to technological intervention without being given meaningful choice.
• Common Cause,is an emphatic recognition of the basic principle that, in today’s world, individuals must be empowered to engage with technological systems on their own terms.

Medical Treatment cannot be forced

• Medical treatment cannot be thrust upon an individual, however, it may have been conceived in the interest of the individual
• Such arguments cannot override human freedom and human choice
• The principles of autonomy, bodily integrity, and human dignity “enable an adult human being of conscious mind to take decision regarding extent and manner of taking medical treatment.”

Judicial legislation

The court laid down detailed procedures for the implementation of the advance directives.

Vishakha Judgement cited: These safeguards are quasi-legislative in nature, and the court justified them by citing the famous Vishaka judgment, which had held that when there is a legislative vacuum, the court can step in and fill the gap until a law comes into force.

• That principle, however, may merit some reconsideration, because even with the best of motives, it involves the court stepping into the legislative sphere.

Constitutional device: suspended declaration of invalidity

• The Constitutional Court of South Africa is empowered to declare a legal provision unconstitutional, but also give the legislature some breathing space to remedy the defect before the judgment actually comes into force.
• Similarly, in cases where the Indian Supreme Court finds a legislative vacuum, it could (like it has done in Common Cause ) issue guidelines, but suspend their operation for a period of a few months, giving Parliament an opportunity to consider the guidelines, and take action.
• If, then, Parliament fails to take action, it could be presumed to have tacitly endorsed the court’s guidelines, and they could then acquire legal force.
• Such a model would promote dialogue between the different branches of government, and strengthen the court’s legitimacy and competence to act in difficult cases of this kind.