NEW DELHI. Euthanasia or mercy killing in its passive form has taken legal root in India. The Supreme Court on Monday broke new ground with a judgment sanctioning passive euthanasia -- or withdrawal of life-support systems -- on patients who are brain dead or in a permanent vegetative state, and whom doctors have lost hope of reviving even with the most advanced medical aid.
The court, however, clarified that active euthanasia, involving injecting a potent drug to advance the death of such a patient, was a crime under law and would continue to remain so.
A Supreme Court bench, comprising Justices Markandey Katju and Gyan Sudha Misra, laid down the guidelines for the concerned high courts alone to give a final go-ahead for passive euthanasia, involving withdrawal of life sustaining drugs and/or life support system, in a brain dead or PVS patient, after bona fide consent from the patient's relatives and the doctor's opinion.
The court devised this rather long-winding procedure, while pointing out that it would have to hold good until Parliament enacts a law on this issue, since it was wary of passive euthanasia being misused by unscrupulous relatives to grab the property of the terminally ill.
While laying down the guidelines, the two-judge bench rejected the euthanasia plea for Aruna Shanbaug who is in a permanent vegetative state for the last 37 years after a brutal sexual assault in 1973. It said the high courts must take the help of expert doctors before deciding on passive euthanasia pleas.
The court said an expert panel, comprising a neurologist, psychiatrist and a physician, would examine the patient and give a report. The HC would issue notice to concerned parties and give an expeditious judgment since delay could aggravate the mental agony of the relatives, the bench said.
Agreeing with a 1993 UK decision in the Airedale case, the bench said: "While giving great weight to the wishes of the parents, spouses, or other close relatives or next friend of the patient and also giving due weight to the opinion of the attending doctors, we cannot leave it entirely to their discretion whether to discontinue the life support or not."
"We make it clear that it is experts like medical practitioners who can decide whether there is any reasonable possibility of a new medical discovery which would enable such a patient to revive in the near future it," it added.
"We agree that the approval of the high court should be taken in this connection. This is in the interest of the protection of the patient, protection of the doctors, relatives and next friend, and for reassurance of the patient's family as well as the public," said Justice Katju, who authored the 110-page judgment for the bench.
Why was the court insistent that a final view should be taken by high courts? It was probably a result of the apprehension expressed by Attorney General G E Vahanvati that unscrupulous relatives in collusion with hospital staff could engineer a consent to grab the property of a dying man. However, Vahanvati had opposed euthanasia in all forms, claiming that India was not emotionally ready for it.
The bench said when an application for euthanasia is filed, the Chief Justice of the HC should "constitute a bench of at least two judges who should decide to grant approval or not. Before doing so, the bench should seek the opinion of a committee of three reputed doctors to be nominated by the bench after consulting such medical authorities/medical practitioners as it may deem fit."
"For this purpose a panel of doctors in every city may be prepared by the HC in consultation with the state government/union territory and their fees for this purpose may be fixed," the court said.
While appointing the panel, the HC must issue notice to the state and close relatives of the patient, and in their absence to the patient's next friend, and supply a copy of the report of the doctor's committee to them, the court said and asked the HC to decide passive euthanasia pleas expeditiously.