Error of Supreme Court in dismissing PIL pertaining to Right to End of Life Care

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“To give meaning and content to the word ‘life’ in Article 21, it has been construed as life with human dignity.”

~ Hon’ble Supreme Court of India in Smt. Gian Kaur v. State of Punjab

(1996) 2 SCC 648

An important issue was recently in consideration before the Supreme Court of India in a Public Interest Litigation (“PIL’) Girish Gokhale & Ors. V. Union of India[1]. The Supreme Court was seized with the issue whether or not right to refuse medical treatment, pharmaceutical as well as invasive, is a facet of right to life conferred under Article 21 of the Constitution of India.

The Petitioners, who were lawyers, doctors and experts in the field of “End of life care”, argued that right to refuse treatment is an important aspect of right to life. An important argument raised was that there was no clarity in identifying “brain death” as “death”, as contemplated in section 46 of the Indian Penal Code (“IPC”) in India. Section 46 of the IPC defines “death” as “death of a human being (unless context otherwise requires)”. Section 2 (b) of the Registration of Birth and Death Act, 1969 does not make brain stem death a sufficient criterion for death. As such, a person whose brain stem is dead, whereas he is breathing through a ventilator, is not considered dead. However, Transplantation of Human Organ Act, 1994 treats brain death as death. The Petitioners further argued that when a patient enters a vegetative state or a stage of brain death, or terminal illness, such a person can no longer enjoy the rights conferred under Article 21 of the Constitution.

Image result for end of life care

The Petitioners argued that the Supreme Court had held in Gian Kaur (Smt) v. State of Punjab[2] that right to life under Article 21 of the Constitution includes the right to live with human dignity and that such an inclusion would mean the existence of such a right up to the end of one’s natural life. However, with the robust advancement of medical technology, a new problem has been created. Due to advancement of life support equipment, naturally dying has become a complicated process. Brain death is when other vital organs like heart and lungs are artificially kept alive. This results in no benefit to the patient whatsoever.

The Supreme Court dismissed the PIL on the ground that the Parliament is already seized of the bill. It appears that the reasoning of the Supreme Court in dismissing the PIL is erroneous. The Bill referred to by the Supreme Court is The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill. The said Bill has been only uploaded by the Government inviting comments and suggestions and the Parliament is not yet seized of the matter. Therefore, the assumption on which the matter has been dismissed appears to be erroneous.

 

[1] WP (C) No. 793 of 2016

[2] (1996) 2 SCC 648

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About kawaljit

Kawaljit Singh Bhatia is a Lawyer and appears regularly at the Supreme Court of India and Delhi High Court. He has handled various high-stake matters in the filed of arbitration, telecom and broadcasting laws, labour matters, corporate matters, etc. He is passionate about legal issues that affect the society. He can be reached at kawaljitbhatia@gmail.com
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