New Delhi: The Supreme Court on Friday said it will await the government's stand in its endeavour to examine a plea to legalise passive euthanasia by means of withdrawal of life support system to terminally ill patients.
"Is the government making its stand clear in a reasonable time," a five-judge Constitution Bench, headed by Justice AR Dave, asked Additional Solicitor General PS Patwalia, who sought some time to get instruction from competent authority.
The law officer apprised the bench about the 241st report of the Law Commission which has stated that passive euthanasia should be allowed with certain safeguards and there was a proposed law -- Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practitioners) Bill, 2006.
He said his contention will also be based on 6.7 regulation of 2002 under Medical Council of India Act which says that practicing euthanasia shall constitute unethical conduct.
However on specific occasions, the question of withdrawing supporting devices to sustain cardio-pulmonary function even after brain death, shall be decided only by a doctors' team and not merely by the treating physician alone.
Taking note of his submission especially that the Law Commission's 241st report was under government's consideration, the bench, which also comprised Justices Kurian
Joseph, Shiva Kirti Singh, AK Goel and RF Nariman, said it will await the outcome of the report which is under the Centre's consideration and posted the matter for hearing on February 01.
The bench was hearing a PIL filed in 2005 by NGO Common Cause which said when a medical expert opines that the person afflicted with a terminal disease has reached a point of no return, then he should be given the right to refuse being put on life support system as otherwise, it would only prolong his agony.
The apex court had two years ago issued notices to states and Union Territories on the issue, even as the Centre had strongly opposed the petition saying it is a form of suicide which cannot be allowed.
The NGO had prayed for declaring the right to die with dignity as a fundamental right and sought a direction to the government to adopt suitable procedures to ensure that those with deteriorating health or the terminally ill should be able to execute a living Will and attorney authorisation for termination of life.
Advocate Prashant Bhushan, appearing for the NGO, explained that there are three types of euthanasia – positive, passive and living Will.
He said his emphasis was on the category of living Will in which a person makes an advance declaration that if during his treatment, it becomes clear that there is no chance of revival, he should not be put on life support system or ventilator.
The bench, which had several queries on the practicability of the issue, also deliberated as to how putting a patient on ventilator has now become a commercial medical practice.
"It (putting a patient on ventilator) is also a torture for the family. It is very expensive," the bench said when the ASG spoke about the commercial angle.
While referring to 6.7 regulation of 2002 under Medical Council of India, the bench wanted to know about the implication of the regulation if the four words 'even after brain death' is deleted from it.
Patwalia said questions relating to euthanasia and decriminalising attempt to suicide by deleting Section 309 of the Indian Penal Code were raised in Parliament.
The ASG said: "The Central Government has taken a decision to delete the same from the statute and some state governments have ratified it but it has not gone from the statute book.”
"The apex court on July 16, 2014, had issued notices to states and Union Territories on the issue, even as the Centre had strongly opposed the petition saying it is a form of suicide which cannot be allowed.”
At that time, another five-judge bench had said that states must also be heard as the issue pertained not only to the Constitution, but involves morality, religion and medical science.
Attorney General Mukul Rohatgi had submitted that the issue should be debated and decided by the legislature and it was not a matter to be adjudicated by the court.
The bench had appointed senior lawyer and former Solicitor General TR Andhyarujina as amicus curiae to assist it in the case relating to legalising euthanasia.
The Constitution Bench, hearing the matter, was set up after a three-judge bench had on February 25, 2014 referred the matter to a larger bench saying it was extremely important to have a clear enunciation of law in view of inconsistent opinions in its previous judgement.
It had said that its verdict of 2011 allowing passive euthanasia was delivered on a "wrong premise".
"In view of the inconsistent opinions rendered in Aruna Shanbaug case and considering the important question of law involved which needs to be reflected in the light of social, legal, medical and constitutional perspective, it becomes extremely important to have a clear enunciation of the law. Thus, in our cogent opinion, the question of law involved requires careful consideration by a Constitution Bench of this court for the benefit of humanity as a whole," the court had said.
It had said that its earlier Constitution Bench verdict, which was wrongly relied in Aruna Shanbaug case, had held that the right to live with dignity will be inclusive of the right to die with dignity, but the judgement did not arrive at a conclusion on validity of euthanasia.
The present PIL has contended that a person whose life was ebbing out should be allowed to die as the continuance of the life with the support system was an unnatural extension of the natural life span.