A Supreme Court’s five-judge constitutional bench will examine the issue of legalising active euthanasia or mercy killing in India in the public interest litigation brought by the NGO Common Cause. The bench will also reopen the 2011 verdict in Aruna Shaunbag which had legalised passive euthanasia in India but rejected the plea for active euthanasia, reported the PTI.

Advocate Prashant Bhushan had argued for the NGO that a medical expert’s opinion that a person has reached a point of no return should be sufficient to allow such person to come off a life support system instead of prolonging his or her agony.

However, additional solicitor general Sidharth Luthra had opposed the plea on the ground that allowing mercy killing is against Indian social and medical ethics.

In December 2011 a bench headed by Justice Markandey Katju had dismissed the Shaunbag petition for active euthanasia [read judgment].

However, today, Chief Justice of India (CJI) P Sathasivam and justices Ranjan Gogoi and Shiva Kirti Singh held that Katju was incorrect when relying on the Gian Kaur vs State of Punjab 1996 and interpreting the Supreme Court constitution bench in that case to have affirmed the landmark English House of Lords case of Airedale NHS Trust v Bland (1993).

Sathasivam held:

… Aruna Shanbaug (supra) aptly interpreted the decision of the Constitution Bench in Gian Kaur (supra) and came to the conclusion that euthanasia can be allowed in India only through a valid legislation. However, it is factually wrong to observe that in Gian Kaur (supra), the Constitution Bench approved the decision of the House of Lords in Airedale vs. Bland (1993) 2 W.L.R. 316 (H.L.). Para 40 of Gian Kaur (supra), clearly states that “even though it is not necessary to deal with physician assisted suicide or euthanasia cases, a brief reference to this decision cited at the Bar may be made...” Thus, it was a mere reference in the verdict and it cannot be construed to mean that the Constitution Bench in Gian Kaur (supra) approved the opinion of the House of Lords rendered in Airedale (supra). To this extent, the observation in Para 101 is incorrect. […]

In view of the inconsistent opinions rendered in Aruna Shanbaug (supra) and also 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 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.

Photo by William Grootonk

Euthanasia question referred to Constitutional Bench