Examining Law Commission's report on euthanasia: Centre to Supreme Court

New Delhi: The Law Commission's report favouring legalising of passive euthanasia with certain safeguards is being examined and a bill will be drafted thereafter, the government told the Supreme Court on Friday.

A five-judge Constitution Bench headed by Justice A R Dave, which is awaiting 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, was informed that on receiving the report from the Law Ministry, a Bill will be drafted.

The statement to this effect was made by Additional Solicitor General (ASG) P S Patwalia before the bench, which also comprises Justices Kurian Joseph, Shiva Kirti Singh, A K Goel and R F Nariman, which will also peruse the Centre's latest affidavit on the issue.

Advocate Prashant Bhushan, appearing for NGO Common Cause, which has filed the PIL for legalising passive euthanasia, said the affidavit "does not take us anywhere."

After a brief hearing, the ASG sought that the matter be deferred for a week so that the Law Ministry comes out with its stand on the Law Commission's report.

Accepting his request, the bench posted the next hearing on February 12.

The Centre in its recent affidavit said it has framed a legislation on the issue but would await the apex court's verdict on it.

"Based on the recommendations of the expert committee, the Directorate General of Health Services (DGHS) has proposed formulation of legislation on passive euthanasia. The expert committee has further suggested certain changes in the draft bill.

"The committee has not agreed to active euthanasia since it has more potential for misuse and, as on date, it is prevalent in very few countries worldwide," the ASG said.

The apex court on January 15 had asked the government to make its stand clear in a reasonable time.

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 Practioners) Bill, 2006.

The ASG had 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 an 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 by the treating physician alone.

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 was 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.

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.

The NGO had explained that there were three types of euthanasia -- positive, passive and living Will. It said the 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.

While referring to 6.7 regulation of 2002 under Medical Council of India, the bench wanted to know about implication of the regulation if the four words 'even after brain death' is deleted from it.

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 T R 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.