1. INTRODUCTIONThe right to die is the concept based on the opinion that a human being is entitled to end their life. Euthanasia, or mercy killing, means the deliberate killing of a patient who is terminally ill and/or in severe and chronic pain. The word ‘Euthanasia’ is a derivative from the Greek words ‘eu’ and ‘thanotos’ which literally mean “good death”.1 The death of a terminally ill patient is accelerated through active or passive means in order to relieve such patient of pain or suffering. However, the issue of euthanasia is not as simple as the literal translation of the term. The issue is complex and involves several moral, ethical, societal and economic aspects.2 Those who are in favor of euthanasia argue on the right to self-determination and futility of prolonging a life without meaning and dignity and those who are against the practice believe that emphasizes must be given to palliative care, and that legalizing euthanasia would be violate of the principle of sanctity of life.3 It is because of this that most of the States allow only passive euthanasia and to check the misuse enacted laws on the subject.

1. 1
RIGHT TO DIE: A STUDY OF DIFFERENT JURISDICTIONS
Submitted by – Shruti Sahni
LLM, 19546
1. INTRODUCTION-
The right to die is the concept based on the opinion that a human being is entitled to end their life.
Euthanasia, or mercy killing, means the deliberate killing of a patient who is terminally ill and/or
in severe and chronic pain. The word ‘Euthanasia’ is a derivative from the Greek words ‘eu’ and
‘thanotos’ which literally mean “good death”.1
The death of a terminally ill patient is accelerated
through active or passive means in order to relieve such patient of pain or suffering. However, the
issue of euthanasia is not as simple as the literal translation of the term. The issue is complex and
involves several moral, ethical, societal and economic aspects.2
Those who are in favor of
euthanasia argue on the right to self-determination and futility of prolonging a life without meaning
and dignity and those who are against the practice believe that emphasizes must be given to
palliative care, and that legalizing euthanasia would be violate of the principle of sanctity of life.3
It is because of this that most of the States allow only passive euthanasia and to check the misuse
enacted laws on the subject.
1.1.Meaning of Euthanasia – Active Euthanasia and Passive Euthanasia
It is important to first understand the concept of euthanasia before we study right to die and right
to life in the light of Article 21. Euthanasia is basically an intentional premature termination of
another person’s life either by direct intervention(active euthanasia) or by withholding life
prolonging measured and resources (passive euthanasia) either at the express or implied request of
that person(voluntary euthanasia) or in the absence of such approval or request (non- voluntary
euthanasia).4
Euthanasia is often confused with assisted dying and assisted dying. Euthanasia
refers to an instance where active steps are taken to end someone’s life, but the fatal act is carried
1
Edward J. Gurney, “Is There a Right to Die – A Study of the Law of Euthanasia”, 3 CUMB. -SAMFORD L. REV.
235, 1972.
2
Deepak Gupta, Sushma Bhatnagar & Seema Mishra, “Euthanasia; Issues Implied Within”, The Internet Journal of
Pain, Symptom Control and Pallative Care, 2006.
3
Vini Singh, “On advance directives and Attorney Authorizations- An analysis of Judgement of Supreme Court in
Common Cause (Registered Society) v Union of India”, Constitutional Law & Administrative Law Quarterly,
Vol.4.2, 2018, pp. 23-34.
4
Common Cause (Registered Society) v Union of India, (2018) 5 SCC 1, para 46.

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out by someone else, such as a doctor. Assisted suicide is when someone takes their own life but
is assisted by somebody else. Rather than a doctor carrying out the fatal act, they themselves do
so. Assisted dying can refer to either euthanasia or assisted suicide.
In the case of Aruna Shanbaug5
the Apex Court discussed in detail the difference between active
euthanasia and passive euthanasia. Active euthanasia is also known as “positive euthanasia” and
this type of euthanasia entails a positive act or affirmative action or an act of commission entailing
the use of lethal substances or forces to cause intentional death of the person by direct intervention
e.g. a lethal injection given to a person with cancer who is in agony.6
Passive euthanasia on the
other hand entails withdrawal of life supporting system or withholding of a medical treatment for
continuance of life e.g. removal of a heart lung machine from a person in coma. Passive euthanasia
is also called “negative euthanasia”.7
Passive euthanasia is further classified as voluntary and non-
voluntary. In Voluntary passive euthanasia, where the consent is taken from the patient whereas
in non-voluntary euthanasia, the consent is unavailable on account of the condition of the patient
for example, when he is in coma.8
It is perhaps due to the distinction between these two forms of euthanasia most of the countries
today have legalized passive euthanasia either by the way of legislations or through judicial
interventions but there remains ambiguity whether active euthanasia should be granted legal status
or not.9
Active human euthanasia is legal in the Netherlands, Belgium, Colombia, Luxembourg,
and Canada. Passive euthanasia or assisted suicide is legalized in Switzerland, Germany,
the Netherlands.
2. RIGHT TO DIE WITH DIGNITY A FUNDAMENTAL RIGHT-
Right to die with dignity has been declared as a fundamental right within the fold of “right to live
with dignity” guaranteed under Article 21 of the Constitution.10
Every individual is entitled to take
his/her decision about the continuance or discontinuance of life when the process of death has
already commenced and he or she has reached an irreversible permanent progressive state where
5
Aruna Ramchandra Shanbuag v Union of India, (2011) 4 SCC 454.
6
Supra at note 5, para 39.
7
Ibid, at para 66.
8
Ibid, at para 40.
9
James Ashfor, “Countries where euthanasia is legal”(2019) https://www.theweek.co.uk, available at
https://www.theweek.co.uk/102978/countries-where-euthanasia-is-legal (last accessed date- 29.10.2019).
10
Supra at note 4.

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death is not far away. This is called the right of self-determination. Each individual has the right
to die with dignity which is an inextricable facet of article 21 of the Constitution.
In cases where there is no hope of recovery, accelerating the process of death for reducing suffering
constitutes a right to live with dignity. Due to the advancement of modern medical technology
pertaining to medical science and respiration, a situation has been created where the dying process
of the patient is unnecessarily prolonged causing distress and agony to the patient as well as to the
near and dear ones and, consequently, the patient is in a persistent vegetative state thereby allowing
free intrusion.
The right to die with dignity is distinguished from suicide, physician-assisted suicide, or
euthanasia. In the case of suicide, there has to be a self-initiated positive action with a specific
intention to cause one’s own death.11
On the other hand, a patient’s right to refuse treatment lacks
his specific intention to die; rather, it protects the patient from unwanted medical treatment. When
a patient refuses a medical treatment he is not self-initiating his death instead, he is allowing the
disease to take its natural course. If in this process death occurs, it will be because of the disease.12
3. LANDMARK DECISIONS WHICH PAVED THE WAY FOR RIGHT TO DIE WITH
DIGNITY –
3.1. P. Rathinam’s case13 – The question of unconstitutionality of Section 309 of the Indian
Penal Code-
In this case writ petitions were filled challenging the constitutional validity of Section 309 of IPC
and contending it to violate of Article 14 and 21 of the Constitution. Section 309 penalizes attempt
to commit suicide.14
The Court held that, right to life means not only physical existence but also
the quality of life. The Court relying on the case of Maruti Shripati Dubal15
held that what is true
of one fundamental right is also true of another fundamental right and on the said premise, that it
cannot be disputed that fundamental rights have their positive as well as negative aspects.
11
V. Venkatesan, “Dying with Dignity” (2018) https://frontline.thehindu.com , Available at-
https://frontline.thehindu.com/the-nation/dying-with-dignity/article10105943.ece (Accessed on- 29.10.2019)
12
Ibid.
13
P. Rathinam v. Union of India, AIR 1994 SC 1844.
14
Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished
with simple imprisonment for a term which may extend to one year or with fine, or with both.
15
Maruti Shripati Dubal v State of Bombay, 1987 (1) BCR 499.

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Logically it must follow that the right to live would include the right not to live, i.e., right to die
or to terminate one’s life. right to live of which Article 21 speaks of can be said to bring in its trail
the right not to live a forced life. The Court declared Section 309 IPC ultra vires and held that it
deserved to be effaced from the statute book to humanize our penal laws.
3.2. Gian Kaur’s case16 – The question of unconstitutionality of Section 306 of the Indian
Penal Code
In the Gian Kaur case, the Constitution Bench considered the correctness of the decision rendered
in P. Rathinam. It was urged that once Section 309 IPC had been held to be unconstitutional, any
person abetting the commission of suicide by another is merely assisting in the enforcement of the
fundamental right under Article 21 and, therefore, Section 306 IPC penalizing abetment of suicide
is equally violate of Article 21. The court held that when a man commits suicide, he performs
certain positive overt acts and such acts cannot be included within the protection of the “right to
life” under Article 21. It also held that the significant aspect of “sanctity of life” should not be
overlooked. With respect to the case of euthanasia the Court held
“A question may arise, in the context of a dying man who is terminally ill or in a persistent
vegetative state that he may be permitted to terminate it by a premature extinction of his
life in those circumstances. This category of cases may fall within the ambit of the ―right
to die with dignity as a part of right to live with dignity, when death due to termination of
natural life is certain and imminent and the process of natural death has commenced.”17
The court differentiated the case of euthanasia with that of suicide and held that the former is not
the case of extinguishing life but only of accelerating conclusion of the process of natural death
which has already commenced. Even in such cases the physical assisted termination of life is not
permitted by Article 21 of the Constitution. Article 21 do not permit termination of life to reduce
the period of suffering during the process of certain natural death.
3.3. Aruna Shanbaug case - Passive Euthanasia:
16
Gian Kaur v. State of Punjab, (1996) 2 SCC 648.
17
Supra at 15, Para 25.

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The case of Aruna Ramachandra Shanbaug18
is the first case in India which deliberated at length
on ‘euthanasia’. The Supreme Court held that passive euthanasia is permissible in our country and
laid down the safeguards and guidelines to be observed in the case of a terminally ill patient who
is not in a position to signify consent on account of physical or mental predicaments such as
irreversible coma and unsound mind. Only the family members were given the right to withdraw
the life supporting system with the final approval of High Court. The High Court in its turn will
have to obtain the opinion of three medical experts. The distinctive feature of PVS, it was pointed
out, is that brain stem remains active and functioning while the cortex has lost its function and
activity.19
The Court addressed the question when a person can be said to be dead. It was answered
by saying that “one is dead when one’s brain is dead”. Brain death is different from PVS.
The question was then posed as to who is to decide what the patient’s best interest is where he or
she is in a Persistent Vegetative State (PVS). It was then answered by holding that although the
wishes of the parents, spouse or other close relatives and the opinion of the attending doctors
should carry due weight, it is not decisive and it is ultimately for the Court to decide as parens
patriae as to what is in the best interest of the patient. The High Court has been entrusted with this
responsibility.
Whenever any petition has been filled in any High Court for the approval, the Chief Justice of the
High Court shall immediately constitute the bench of three high court judges who shall decide
whether approval should be granted or not. The Bench should seek the opinion of a committee of
three reputed doctors. Preferably one of the three doctors should be a neurologist, one should be a
psychiatrist, and the third a physician. The committee of three doctors nominated by the Bench
should carefully examine the patient and also consult the record of the patient as well as taking the
views of the hospital staff and submit its report to the High Court Bench. The Court will also
supply the copy of the report to the friends or family of the patient. Only after hearing them high
Court should give its verdict.20
3.4. Common Cause v Union of India21- Right to Die with Dignity
18
Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454.
19
Supra at 17, Para 70.
20
Supra at 17, Para 85 and 134.
21
Supra at 4.

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In the year 2005 an NGO named Common cause filled a writ petition in the Supreme Court seeking
legalization of “advance directive and attorney authorizations” in order to enable the people who
are terminally till or are in the permanent vegetative state, to exercise their right to die with dignity.
The matter was referred to the constitutional bench of the Court.
The bench derived the right to die with dignity from the privacy autonomy dignity matrix within
the guarantee under Article 21 as expounded in the Puttaswamy22
case. The Court upheld the right
of an individual who is capable of consent, to issue advance directive to allow for the withdrawal
of life supporting technology, if the patient is terminally ill or in the permanent vegetative state.23
The bench also issued guidelines in order to prevent any possible misuse of such directives and
provided the manner in which such directives may be executed in order to ensure the balance
between law and bioethics.24
The bench analyzed the precedents set out by the Apex court from P. Rathinam25
case to
Shanbaug26
case in order to uphold the right to die with dignity. The rulings have distinguished
between “right to die” and “right to die with dignity” and only the latter is considered to be the
part of guarantee to life and personal liberty under Article 21 in a limited manner, i.e. only in the
form of passive euthanasia and only for the terminally ill and patients in the permanent vegetative
state. The right of a dying man to die with dignity when life is ebbing out, and in the case of a
terminally ill patient or a person in PVS, where there is no hope of recovery, accelerating the
process of death for reducing the period of suffering constitutes a right to live with dignity.
An inquiry into common law jurisdictions reveals that all adults with capacity to consent have the
right of self- determination and autonomy. The said rights pave the way for the right to refuse
medical treatment which has acclaimed universal recognition. A competent person who has come
of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment,
even if such decision entails a risk of death.
22
Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
23
Supra at 4, Para 187.
24
Supra at 4, Para 197-201.
25
Supra at 13.
26
Supra at 17.

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PROCEDURE AND SAFEGUARDS FOR ISSUE OF ADVANCE DERICTIVE-
Advance directives are instruments through which persons express their wishes at a prior point in
time, when they are capable of making an informed decision, regarding their medical treatment in
the future, when they are not in a position to make an informed decision, by reason of being
unconscious or in a PVS or in a coma.
The Supreme Court in the Case of Common Cause27
has observed that “A failure to legally
recognize advance medical directive would amount to non-facilitation of the right to smoothen the
dying process and the right to live with dignity… Though the sanctity of life has to be kept on a
high pedestrian yet in the cases of terminally ill persons or PVS patients where there is no hope
for revival, priority shall be given to advance directive or right to self-determination.”28
The Apex Court in the above mentioned case has set out guidelines for a valid advance directive.
The advance directive can only be issued by a person who, is an adult, of sound mind and able to
understand the consequences of executing the document. It must clearly state as to when medical
treatment may be withdrawn or no specific medical treatment shall be given which will only have
the effect of delaying the process of death that may otherwise cause him/her pain, anguish and
suffering. The document must be voluntary executed without any coercion, undue influence and
inducement. The document must be in writing and must be signed by the executor in the presence
of two attesting witnesses after which it has to be countersigned by the Judicial Magistrate of First
Class(JMFC). The JMFC shall also inform the family members of the executor about the execution
of advance directive.29
When the executor becomes terminally ill and is undergoing prolonged medical treatment with no
hope of recovery and cure of the ailment, the treating physician, when made aware about the
Advance Directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional
JMFC. On being satisfied with the advance directive the physician/hospital shall constitute a
Medical Board consisting of the Head of the treating Department and at least three experts with 20
years of experience in medical field. The Board shall after examining the condition of the patient
27
Supra at 17.
28
Supra at 17, Para 177
29
Supra at 17, Para 191.

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will give its opinion whether to certify or not to certify carrying out the instructions of withdrawal
or refusal of further medical treatment. If the Hospital Medical Board certifies that the instructions
contained in the Advance Directive ought to be carried out the hospital shall inform the Collector
about the proposal. The Collector shall then constitute another Medical Board comprising of Chief
District Medical Officer of the concerned district as the Chairman and three expert doctors with
experience in the in the medical profession of at least twenty years. After examining the patient if
the Board agrees with the opinion of the Hospital’s Medical board they may endorse the certificate
to carry out the instructions given in the Advance Directive. Chief District Medical Officer, shall
convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to
withdraw the medical treatment administered to the executor. The JMFC shall visit the patient at
the earliest and, after examining all aspects, authorize the implementation of the decision of the
Board. The executor can at any stage revoke the document before it is acted upon and
implemented.30
If permission to withdraw medical treatment is refused by the Medical Board, it would be open to
the executor of the Advance Directive or his family members or even the treating doctor or the
hospital staff to approach the High Court by way of writ petition under Article 226 of the
Constitution.31
Whenever any such petition is filled before the High Court, the Chief Justice of the
said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the
same.32
The High Court shall render its decision at the earliest as such matters cannot brook any
delay and it shall ascribe reasons specifically keeping in mind the principles of "best interests of
the patient".33
An individual may withdraw or alter the Advance Directive at any time when he/she has the
capacity to do so.34
Withdrawal or revocation of an Advance Directive must be in writing. If the
Advance Directive is not clear and ambiguous, the concerned Medical Boards shall not give effect
to the same.35
The person who has made an advance directive is not to be differented from the
30
Supra at 17, para 191(d).
31
Supra at 17, Para 191(e)(i).
32
ibid
33
Supra at 17, Para 191(e)(iii)
34
Supra at 17, Para 191(f)(i)
35
Supra at 17, Para 191(f)(iii)

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person who has not made an Advance directive. In cases where there is no advance directive, same
procedure and safeguards is to be applied.
EUTHANASIA: INTERNATIONAL POSITION
Those in favor of euthanasia say that in a civilized society, people should be able to choose when
they are ready to die and should be helped if they are unable to end their lives on their own.
Basically they believe that a person should be put out of his misery. But the one who are against
euthanasia and assisted suicide, saying life is given by God and only God can take it. Many things
that euthanasia can be misused and people can be killed against their will.
When we talk about assisted dying, Switzerland allows physician-assisted suicide without a
minimum age requirement, diagnosis or symptom state. However, assisted suicide is deemed
illegal if the motivations are “selfish”.36
In Netherlands Euthanasia and assisted suicide are legal
in cases where someone is experiencing unbearable suffering and there is no chance of it
improving. Canada allows euthanasia and assisted suicide for adults suffering from “grievous and
irremediable conditions” whose death is “reasonably foreseeable”.37
Judgements of various international courts were referred by the Supreme Court in the case of
Common Cause38
and Aruna Shambuag39
while interpreting Article 21 to include right to die with
dignity. All the judges in the above cases have referred the ruling of the House of Lords in
Airdale40
, wherein the House of Lords has allowed passive euthanasia for patients in permanent
vegetative state. The court held that in cases where patients are unlikely to recover and are in such
a state that a large number of medical professionals hold the view that prolongation of life is not
the best interest of the patient, then an exception can be made to the principle to the sanctity of
life. In fact, giving treatment to patient who does not wish to continue it, and which confers no
benefit upon him, would amount to invasive manipulation of such patient’s body.41
It is also
emphasized that to prevent misuse, the opinion of the Court must be sought in cases of any medical
36
Christopher de Bellaigue, “Death on demand: has euthanasia gone too far?”, (18 January 2019),
https://www.theguardian.com. Available at - https://www.theguardian.com/news/2019/jan/18/death-on-demand-has-
euthanasia-gone-too-far-netherlands-assisted-dying (accessed on 27.10.2019)
37
Ibid.
38
Supra at 4.
39
Supra at 18.
40
Airedale N.H.S. v. Anthony Bland [1993] A.C. 789.
41
Ibid.

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disagreement, dispute between next of kin, or a disagreement of next of kin with the medical
opinion or absence of next of kin to give consent. Further, it is observed that prolongation of life
in such cases as a lose-lose situation and the skill, labour and money that would be utilized in
prolonging the life of the patient could be fruitfully employed in improving the condition of other
patients, who if treated, may be able to lead a healthy life. However, despite permitting passive
euthanasia, it refrained from developing any law with respect to the same and left the question for
coordination with the Parliament. The parliament enacted Mental Capacity Act, 2005 with the
purpose to provide a legal framework for acting and making decisions on behalf of adults who lack
the capacity to make particular decisions for themselves. The provisions of Mental Capacity Act,
2005 contains detailed provisions as to capacity to consent, appointment of guardian and medical
opinion. The guidelines propounded by Misra C.J. in Common Cause case42
bear a close similarity
with the provisions of this Act.
In the USA with people have the right to refuse treatment and physician assisted suicide is
legalized. However, the courts in India have only approved the right to refuse the treatment and
disapproved physician assisted suicide. The legislation in the States of Oregon, Washington,
Montana and Columbia provide for advance directives and safeguards with respect to their
implementation. The decisions of the U.S. Supreme Court in Cruzan v. Director, Missouri
department of health43
, wherein the Court upheld patient autonomy by declaring that in order to
oblige the physician to end life support, the State would require a “clear and convincing evidence”
of the patients desire to do so. The court in Schloendroff v. New York Hospital Trust44
, in order to
hold that individual autonomy protects the right of an individual to direct removal of life support
in the cases of terminal illness.
The Supreme Court of Canada in Carter v. Canada45
, held that the physically assisted suicide was
permitted in cases such as grievous medical conditions when such wish was expressed by an adult
who is capable of giving consent. In Australia, advance directives and the right to refuse treatment
42
Supra at 4.
43
Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990).
44
Schloendorff v. New York Hospital Trust 211 N.Y. 125 (1914).
45
Carter v. Canada (2015) SCC 5.

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have been considered as common law rights. The best interest of patient is given priority in
deciding whether treatment can be withdrawn or not.
CONCLUSION
Right to life creates a compelling State interest in preserving human life, on the other hand it also
assures the individual autonomy to take decisions with respect to his/her own body. The social,
philosophical, ethical and economical aspects regarding this issue have to be considered whenever
we talk about the right to die and euthanasia. Recognizing right to have a dignified death is only
one side of the coin. The important question which needs to be answered is how this right is to be
interpreted and decided with respect to the people demanding it. This question if not answered
will lead to hundreds of cases being filled in various constitutional courts and cause tremendous
increase in litigation.
If proper check is not made this right can be exploited by many for their greed. Poor status of
education and lack of legal awareness can cause exploitation of advance directives. It is important
for the government to enact a strict legislation through with a check can be made.