By Saurav Goyal
As society evolves, individuals increasingly seek greater autonomy over their personal choices and life decisions. One important and sensitive question that emerges from this growing emphasis on individual freedom is whether a person in India has the right to die. Modern legal and ethical debates recognize that personal dignity and self- determination are central to human life. Under Article 21 of the Constitution of India, the right to life has been judicially interpreted to mean not merely animal existence but a life lived with dignity. This raises a profound constitutional question: if dignity is an essential component of life, should a person be compelled to continue living in circumstances where dignity is lost, such as in cases of extreme suffering or terminal illness? At the same time, the law historically treated an attempt to end one’s life as a criminal offence under Section 309 of the Indian Penal Code . Consequently, a constitutional dilemma arose between the protection of human life by criminal law and the broader interpretation of dignity and personal liberty under Article 21, leading courts and scholars to debate the extent to which the right to life may also encompass the right to die with dignity.
The story so far
In State v. Sanjay Kumar Bhatia, 1985, The Delhi High Court strongly criticized the provision( Section 309, IPC) and observed that punishing a person who had already suffered mental distress and attempted suicide is both irrational and inhumane. The Court remarked that a person who tries to end his life is in need of care and compassion and treatment rather than punishment by the criminal justice system. It described Section 309 as harsh and anachronistic though it formally did not strike down it. The accused was acquitted.
Similarly, in Maruti Shripati Dubal v. State of Maharashtra, 1987, The Bombay High Court identified that right to life also includes right to termination of life and held that Section 309 IPC was unconstitutional. In Case, P. Rathinam v. UOI, 1994, The Supreme court of India upheld the previous positions ( of Delhi High Court and Bombay High Court) and considered that right to life is right to a dignified life and if dignity is affected then right to terminate the life is included under right to life. Section 309 is in conflict with Article 21 of the Constitution of India. It is like punishing him doubly. However, it maintained that Section 306 (abetment to suicide) IPC shall continue as an offence. It opined that euthanasia and abetment to suicide as different but in the absence of any law on the subject both to be considered as same.
The Constitution Bench ( five judges bench), in Gian kaur v. State of Punjab , 1996, reversed the previous decision of 1994,( P. Rathinam Case) and held that extinction of life cannot be included in protection of life. These are opposite things. Right to life is a natural right , suicide is an unnatural termination of life which may generate negative tendency in society. The Apex Court upheld the validity of Section 306 and Section 309 of the Indian Penal Code but distinguished euthanasia from suicide leaving room for the possibility of passive euthanasia. Also, the bench made the punishment under the Section 309 discretionary. This was the first time a punishment was made discretionary for the judges.
In a landmark judgment in Aruna Ramachandra Shanbaug rejected the request for active euthanasia but made an important legal development by allowing passive euthanasia in certain circumstances. The court held that withdrawal of life- sustaining treatment could be permitted in cases where a patient is in permanent vegetative state ,
Provided strict safeguards are followed. The Court laid down a procedure that such decisions must be approved by the concerned High Court after medical examination by a panel of doctors. This judgment recognized that while the right to die is not a fundamental right, the right to die with dignity as part of a natural process of death can fall within the scope of Article 21 of the Constitution of India. This decision became a major step in the evolution of euthanasia in India. The court acknowledged the need for advance directives but did not provide specific guidelines for living wills.
Section 115 of the Mental Health Care, Act 2017 deals with the treatment of persons who attempt suicide. It is seen as an exception to Section 309 of IPC. It assumes a presumption that the person who attempts suicide is under severe stress unless proved otherwise. This provision does not decriminalize Section 309 but invokes a presumption, which is rebuttable. In case, if it is discovered that a person is under severe stress, it is the duty of the appropriate government to provide care , treatment and rehabilitation so that the person does not attempt it again. Hence operation of Section 309 of Indian Penal Code was significantly diluted by Section 115 of the Mental Health Care Act ,2017.
In 2018, in Common Cause( registered society) v. Union of India, The Supreme Court upheld the legality of passive euthanasia and by incorporating the recommendations of the Law Commission’s 241st report (2012), laid down an elaborate procedure for the execution and implementation of living wills in India. Living will is based on the best interest principle which is in consonance with one’s right to life. One has a right not to suffer, if he is reduced to a level of vegetative state or terminally ill. Details guidelines were provided for the execution, revocation, and implementation of living wills, involving multiple authorities and medical boards.
In Common Cause v. Indian Society of Critical Care Medicine, 2023, the Supreme Court modified and simplified the procedure for passive euthanasia and living will laid down earlier in Common Cause v. Union of India (2018). Some changes made were- a living will no longer requires attention by a judicial magistrate; it can be attested by a notary or a gazette officer. Earlier, living will was supposed to be kept in the custody of the district court concerned and in 2023 it was decided that the living will be a part of national digital health record which can be accessed by Indian hospitals. The 2018 judgment did not specify any outer limit on withdrawal of treatment but now the primary/secondary board has to decide within 48 hours on withdrawal of further treatment.
Recently, in Harish Rana v. Union of India and others, 2026, The Supreme Court held that where continuing treatment would merely prolong biological existence without any hope of recovery the life support can be withdrawn and directed that the process be carried out in a dignified manner. Also, the Court added that Clinically Assisted Nutrition and Hydration( CANH) is also a form of medical treatment and therefore it can be withdrawn in appropriate cases. It also urged the Union Government to enact a comprehensive law on end-of-life care. The court also acknowledged the general consensus that passive euthanasia is an obsolete and rather confusing term; it should be replaced by ‘withdrawing or withholding of medical treatment.’
Euthanasia The word Euthanasia is derived from the Greek word “eu” and “thanatos” which means good death or may be described as mercy killing. The word was used by Francis Bacon in the 17th century to refer to an easy and painless death as it is the duty and responsibility of the physician to alleviate the physical suffering of the body of the patient.
Active and Passive Euthanasia
Active euthanasia is also known as “positive” or “aggressive” euthanasia. Passive euthanasia is also called “negative” or “non-aggressive” euthanasia.
Supreme Court Judge, Justice J.B Pardiwala in the recent case, held that the distinction between the active and passive euthanasia goes beyond the simplistic binary of ‘act’ or ‘omission’. The true distinction lies not merely in the nature of the conduct but also in the source of the harm that leads to death. The judge characterized active euthanasia as causing death by introducing a new, external agency of harm, such as lethal injections, poisonous gases or shockwaves. In such cases, death is not the result of the patient’s underlying illness, but of an intervention that sets a new chain of events in motion. It is for this reason that active euthanasia is understood as an intervention that disrupts the natural path towards death. On the other hand, passive euthanasia should be understood as allowing death to occur. By withholding antibiotics or removing a patient from a life support system, the physician is not creating a new risk of death. Rather, the doctors are choosing to allow the underlying fatal condition to take its natural course by no longer continuing the medical interventions that were artificially prolonging life.
Living Will
A living will , also known as advance directive , is a legal document that allows individuals to express their wishes regarding end-of-life medical treatment. It provides instructions on whether to withhold or withdraw life sustaining measures in certain circumstances , such as terminal illness or a persistent vegetative state. By specifying their desires, individuals can avoid prolonged suffering and maintain dignity in the dying process.
Is passive euthanasia permitted even if the patient has not made a living will?
After the judgment in Common Cause v. Union of India by the Supreme Court of India, passive euthanasia is permitted even if the patient has not made a living will, including in cases where the person is in a permanent vegetative state. However, the decision cannot be solely taken by the family; it must follow safeguards laid down by the Court. What happens if a family refuses to follow the living will made by a person?
A living will represents the autonomous decision of the patient made while competent. It generally prevails because it reflects the individual’s fundamental right over their body and medical treatment. The hospital medical boards examine the living will to verify its authenticity and applicability. If the directive is valid and the medical condition matches the situation mentioned in it, the withdrawal of treatment can proceed even if family members object.
(The writer is PhD Scholar, Faculty of law, University of Delhi)
