COMMON CAUSE (A REGD. SOCIETY) versus UNION OF INDIA
[2023] 1 S.C.R. 1137, Supreme Court of India, 2023
Outcome: Disposed off
Segment: Body
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COMMON CAUSE (A REGD. SOCIETY)
v.
UNION OF INDIA
(Miscellaneous Application No. 1699 of 2019)
In
(Writ Petition (Civil) No. 215 of 2005)
JANUARY 24, 2023
[K.M. JOSEPH, AJAY RASTOGI,
ANIRUDDHA BOSE, HRISHIKESH ROY AND
C.T. RAVIKUMAR, JJ.]
Constitution of India – Right of the person to die with dignity
– Advanced directives –  Application seeking clarification of the
judgment in Common Cause (A Registered Society) v. Union of India
(2018) 5 SCC 1: [2018] 6 SCR 1 – In the said writ petition, the
Court was concerned with the question as to whether even in the
absence of Advance Directives, when a person is faced with a
medical condition with no hope of recovery and is continued on life
support system/medicines, support system should be withdrawn –
Thereafter, the Court proceeded to lay down the directives – Now,
application filed seeking clarifications – The reason for
approaching the Court again is the actual working of the directions,
insurmountable obstacles are being posed – Keeping in view the
concerns of the parties, the directions contained in paragraphs 198
to 199 are modified/ deleted – Miscellaneous application disposed
of.
CRIMINAL ORIGINAL JURISDICTION : Miscellaneous
Application No.1699 of 2019 in Writ Petition (Civil) No.215 of 2005.
Arvind P. Datar, Sr. Adv., Dr. Dhvani Mehta, Ms. Rashmi
Nandakumar, Ms. Shreya Shrivastava, Advs. for the Petitioner.
K. M. Nataraj, A.S.G., Gurmeet Singh Makker, Mohd. Akhil, Adit
Khorana, Shailesh Madiyal,
Udai Khanna, Vinayak Sharma, Anirudh
Bhat, Sanjay M Nuli, Nakul Chengappa K.K., Chitransh Sharma, Anuj
S. Udupa, Dr. R. R. Kishore, Advs. for the Respondent.
The Order of the Court was passed by
K. M. JOSEPH, J.
(1) This is an application filed by Indian Society of Critical Care
Medicine seeking clarification of the judgment reported in Common Cause
[2023] 1 S.C.R. 1137
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(A Registered Society) v. Union of India and Another (2018) 5
SCC 1.
(2) A Constitution Bench came to be constituted on the basis of a
Reference made to it by a Bench of three learned Judges. In the backdrop
of certain earlier decisions of this Court, in particular, this Court was
engaged with the question as to whether the Court should issue suitable
directions or set in place norms to provide for what is described as
Advance Directives. This Court also was concerned with the question
as to whether even in the absence of Advance Directives, when a person
is faced with a medical condition with no hope of recovery and is continued
on life support system/medicines, life support system should be withdrawn.
The Court went on to dwell on the right of a person to die with dignity.
Thereafter, this Court has proceeded to lay down the directives as follows:
“198. In our considered opinion, Advance Medical Directive would
serve as a fruitful means to facilitate the fructification of the
sacrosanct right to life with dignity. The said directive, we think,
will dispel many a doubt at the relevant time of need during the
course of treatment of the patient. That apart, it will strengthen
the mind of the treating doctors as they will be in a position to
ensure, after being satisfied, that they are acting in a lawful manner.
We may hasten to add that Advance Medical Directive cannot
operate in abstraction. There has to be
safeguards. They need to
be spelt out. We enumerate them as follows:
198.1. Who can execute the Advance Directive and how?
198.1.1. The Advance Directive can be executed only by an adult
who is of a sound and healthy state of mind and in a position to
communicate, relate and comprehend the purpose and
consequences of executing the document.
198.1.2. It must be voluntarily executed and without any coercion
or inducement or compulsion and after having full knowledge or
information.
198.1.3. It should have characteristics of an informed consent
given without any undue influence or constraint.
198.1.4. It shall be in writing clearly stating as to when medical
treatment may be withdrawn or no specific medical treatment
shall be given which will only have the effect of delaying the
process of death that may otherwise cause him/her pain, anguish
and suffering and further put him/her in a state of indignity.
198. 2. What should it contain?
198.2.1. It should clearly indicate the decision relating to the
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circumstances in which withholding or withdrawal of medical
treatment can be resorted to.
198.2.2. It should be in specific terms and the instructions must
be absolutely clear and unambiguous.
198.2.3. It should mention that the executor may revoke the
instructions/authority at any time.
198.2.4. It should disclose that the executor has understood the
consequences of executing such a document.
198.2.5. It should specify the name of a guardian or close relative
who, in the event of the executor becoming incapable of taking
decision at the relevant time, will be authorised to give consent to
refuse or withdraw medical treatment in a manner consistent with
the Advance Directive.
198.2.6. In the event that there is more than one valid Advance
Directive, none of which have been revoked, the most recently
signed Advance Directive will be considered as the last expression
of the patient’s wishes and will be given effect to.
198.3. How should it be recorded and preserved?
198.3.1. The document should be signed by the executor in the
presence of two attesting witnesses, preferably independent, and
countersigned by the jurisdictional Judicial Magistrate of First Class
(JMFC) so designated by the District Judge concerned.
198.3.2. The witnesses and the jurisdictional JMFC shall record
their satisfaction that the document has been executed voluntarily
and without any coercion or inducement or compulsion and with
full understanding of all the relevant information and
consequences.
198.3.3. The JMFC shall preserve one copy of the document in
his office, in addition to keeping it in digital format.
198.3.4. The JMFC shall forward one copy of the document to
the Registry of the jurisdictional District Court for being preserved.
Additionally, the Registry of the District Judge shall retain the
document in digital format.
198.3.5. The JMFC shall cause to inform the immediate family
members of the executor, if not present at the time of execution,
and make them aware about the execution of the document.
198.3.6. A copy shall be handed over to the competent officer of
the local Government or the Municipal Corporation or Municipality
or Panchayat, as the case may be. The aforesaid authorities shall
nominate a competent official in that regard who shall be the
custodian of the said document.
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]
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198.3.7. The JMFC shall cause to hand over copy of the Advance
Directive to the family physician, if any.
198.4. When and by whom can it be given effect to?
198.4.1. In the event the executor becomes terminally ill and is
undergoing prolonged medical treatment with no hope of recovery
and cure of the ailment, the treating physician, when made aware
about the Advance Directive, shall ascertain the genuineness and
authenticity thereof from the jurisdictional JMFC before acting
upon the same.
198.4.2.The instructions in the document must be given due weight
by the doctors. However, it should be given effect to only after
being fully satisfied that the executor is terminally ill and is
undergoing prolonged treatment or is surviving on life support and
that the illness of the executor is incurable or there is no hope of
him/her being cured.
198.4.3. If the physician treating the patient (executor of the
document) is satisfied that the instructions given in the document
need to be acted upon, he shall inform the executor or his guardian/
close relative, as the case may be, about the nature of illness, the
availability of medical care and consequences of alternative forms
of treatment and the consequences of remaining untreated. He
must also ensure that he beliefs on reasonable grounds that the
person in question understands the information provided, has
cogitated over the options and has come to a firm view that the
option
of withdrawal or refusal of medical treatment is the best
choice.
198.4.4. The physician/hospital where the executor has been
admitted for medical treatment shall then constitute a Medical
Board consisting of the Head of the treating department and at
least three experts from the fields of general medicine, cardiology,
neurology, nephrology, psychiatry or oncology with experience in
critical care and with overall standing in the medical profession of
at least twenty years who, in turn, shall visit the patient in the
presence of his guardian/close relative and form an opinion whether
to certify or not to certify carrying out the instructions of withdrawal
or refusal of further medical treatment. This decision shall be
regarded as a preliminary opinion.
198.4.5. In the event the Hospital Medical Board certifies that
the instructions contained in the Advance Directive ought to be
carried out, the physician/hospital shall forthwith inform the
jurisdictional Collector about the proposal. The jurisdictional
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Collector shall then immediately constitute a Medical Board
comprising the Chief District Medical Officer of the district
concerned as the Chairman and three expert doctors from the
fields of general medicine, cardiology, neurology, nephrology,
psychiatry or oncology with experience in critical care and with
overall standing in the medical profession of at least twenty years
(who were not members of the previous Medical Board of the
hospital). They shall jointly visit the hospital where the patient is
admitted and if they concur with the initial decision of the Medical
Board of the hospital, they may endorse the certificate to carry
out the instructions given in the Advance Directive.
198.4.6. The Board constituted by the Collector must beforehand
ascertain the wishes of the executor if he is in a position to
communicate and is capable of understanding the consequences
of withdrawal of medical treatment. In the event the executor is
incapable of taking decision or develops impaired decision-making
capacity, then the consent of the guardian nominated by the
executor in the Advance Directive should be obtained regarding
refusal or withdrawal of medical treatment to the executor to the
extent of and consistent with the clear instructions given in the
Advance Directive.
198.4.7. The Chairman of the Medical Board nominated by the
Collector, that is, the Chief District Medical Officer, shall convey
the decision of the Board to the jurisdictional JMFC before
giving
effect to the decision to withdraw the medical treatment
administered to the executor. The JMFC shall visit the patient at
the earliest and, after examining all aspects, authorise the
implementation of the decision of the Board.
198.4.8. It will be open to the executor to revoke the document at
any stage before it is acted upon and implemented.
198.5. What if permission is refused by the Medical Board?
198.5.1. If permission to withdraw medical treatment is refused
by the Medical Board, it would be open to the executor of the
Advance Directive or his family members or even the treating
doctor or the hospital staff to approach the High Court by way of
writ petition under Article 226 of the Constitution. If such
application is filed before the High Court, the Chief Justice of the
said High Court shall constitute a Division Bench to decide upon
grant of approval or to refuse the same. The High Court will be
free to constitute an independent committee consisting of three
doctors from the fields of general medicine, cardiology, neurology,
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]
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nephrology, psychiatry or oncology with experience in critical care
and with overall standing in the medical profession of at least
twenty years.
198.5.2. The High Court shall hear the application expeditiously
after affording opportunity to the State counsel. It would be open
to the High Court to constitute Medical Board in terms of its order
to examine the patient and submit report about the feasibility of
acting upon the instructions contained in the Advance Directive.
198.5.3. Needless to say that the High Court shall render its
decision at the earliest as such matters cannot brook any delay
and it shall ascribe reasons specifically keeping in mind the
principles of “best interests of the patient”.
198.6. Revocation or inapplicability of Advance Directive
198.6.1. An individual may withdraw or alter the Advance Directive
at any time when he/she has the capacity to do so and by following
the same procedure as provided for recording of Advance
Directive. Withdrawal or revocation of an Advance Directive must
be in writing.
198.6.2. An Advance Directive shall not be applicable to the
treatment in question if there are reasonable grounds for believing
that circumstances exist which the person making the directive
did not anticipate at the time of the Advance Directive and which
would have affected his decision had he anticipated them.
198.6.3. If the Advance Directive is not clear and ambiguous, the
Medical Boards
concerned shall not give effect to the same and,
in that event, the guidelines meant for patients without Advance
Directive shall be made applicable.
198.6.4. Where the Hospital Medical Board takes a decision not
to follow an Advance Directive while treating a person, then it
shall make an application to the Medical Board constituted by the
Collector for consideration and appropriate direction on the
Advance Directive.
199. It is necessary to make it clear that there will be cases where
there is no Advance Directive. The said class of persons cannot
be alienated. In cases where there is no Advance Directive, the
procedure and safeguards are to be same as applied to cases
where Advance Directives are in existence and in addition there
to, the following procedure shall be followed:
199.1. In cases where the patient is terminally ill and undergoing
prolonged treatment in respect of ailment which is incurable or
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where there is no hope of being cured, the physician may inform
the hospital which, in turn, shall constitute a Hospital Medical Board
in the manner indicated earlier. The Hospital Medical Board shall
discuss with the family physician and the family members and
record the minutes of the discussion in writing. During the
discussion, the family members shall be apprised of the pros and
cons of withdrawal or refusal of further medical treatment to the
patient and if they give consent in writing, then the Hospital Medical
Board may certify the course of action to be taken. Their decision
will be regarded as a preliminary opinion.
199.2. In the event the Hospital Medical Board certifies the option
of withdrawal or refusal of further medical treatment, the hospital
shall immediately inform the jurisdictional Collector. The
jurisdictional Collector shall then constitute a Medical Board
comprising the Chief District Medical Officer as the Chairman
and three experts from the fields of general medicine, cardiology,
neurology, nephrology, psychiatry or oncology with experience in
critical care and with overall standing in the medical profession of
at least twenty years. The Medical Board constituted by the
Collector shall visit the hospital for physical examination of the
patient and, after studying the medical papers, may concur with
the opinion of the Hospital Medical Board. In that event, intimation
shall be given by the Chairman of the Collector nominated
Medical
Board to the JMFC and the family members of the patient.
199.3. The JMFC shall visit the patient at the earliest and verify
the medical reports, examine the condition of the patient, discuss
with the family members of the patient and, if satisfied in all respects,
may endorse the decision of the Collector nominated Medical
Board to withdraw or refuse further medical treatment to the
terminally-ill patient.
199.4. There may be cases where the Board may not take a
decision to the effect of withdrawing medical treatment of the
patient or the Collector nominated Medical Board may not concur
with the opinion of the hospital Medical Board. In such a situation,
the nominee of the patient or the family member or the treating
doctor or the hospital staff can seek permission from the High
Court to withdraw life support by way of writ petition under Article
226 of the Constitution in which case the Chief Justice of the said
High Court shall constitute a Division Bench which shall decide
to grant approval or not. The High Court may constitute an
independent committee to depute three doctors from the fields of
general medicine, cardiology, neurology, nephrology, psychiatry
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]
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or oncology with experience in critical care and with overall
standing in the medical profession of at least twenty years after
consulting the competent medical practitioners. It shall also afford
an opportunity to the State counsel. The High Court in such cases
shall render its decision at the earliest since such matters cannot
brook any delay. Needless to say, the High Court shall ascribe
reasons specifically keeping in mind the principle of “best interests
of the patient”.
200. Having said this, we think it appropriate to cover a vital aspect
to the effect the life support is withdrawn, the same shall also be
intimated by the Magistrate to the High Court. It shall be kept in a
digital format by the Registry of the High Court apart from keeping
the hard copy which shall be destroyed after the expiry of three
years from the death of the patient.
201. Our directions with regard to the Advance Directives and
the safeguards as mentioned hereinabove shall remain in force till
Parliament makes legislation on this subject.”
(3) The applicant has approached this Court within a short period.
The reason for approaching this Court all over again appears to
be that in the actual working of the directions, insurmountable obstacles
are being posed. For instance, it is pointed out that this Court has provided
in paragraph 198.3 that in the case of an Advance Directive which is
devised by a person, it should not only be in the
presence of two attesting
witnesses who are preferably independent witnesses, but also it should
have countersigned by a Judicial First Class Magistrate. It is pointed out
that this clause has led the very object of this Court issuing directions
being impaired, if not completely defeated.
There are other aspects which have been highlighted in the
application.
(4) The respondent, viz., the Union of India, has filed a counter
affidavit. We find from the contents of the counter affidavit that the
stand of the Union of India was that it opposed the application.
(5)  As we have noticed, this is an application seeking clarification.
Ordinarily, be it an application lodged in this Court blessed as it is with
powers under Article 142 of the Constitution of India, we would have
thought that the application should not receive further consideration.
However, we notice that there has been a subsequent development.
The development is in the form of orders evidencing an attempt being
made by the respondent also to evolve/agree to certain changes. Several
rounds of discussions, it would appear, have taken place between officers
of the respondent-Union who not unnaturally includes medical experts.
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According to the applicant, the difficulties which are being
encountered have been voiced by a large number of Doctors and it
becomes absolutely necessary for this Court to revisit the directions so
that this Court puts in place a mechanism which effectively carries out
the object of this Court laying down the principles in the paragraphs
which have already been adverted to.
(6) Having heard Shri Arvind Datar, learned senior counsel,
appearing for the applicant, assisted by Dr. Dhvani Mehta and Ms.
Rashmi Nandakumar, learned counsel, Dr. R. R. Kishore, learned counsel,
as also Mr. K. M. Nataraj, learned Additional Solicitor General appearing
on behalf of respondent-Union of India, we are of the view that the
directions contained in paragraphs 198 to 199 require to be modified/
deleted as hereinafter indicated:
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]

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[2023] 1 S.C.R.

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
[K. M. JOSEPH, J.]
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(7) Registry will communicate a copy of this Order to Registrar
Generals of all the High Courts.
The Registrar Generals of the High Courts will dispatch a copy of
this Order to the Health Secretaries in the respective States/Union
Territories for onward communication to all the Chief Medical Officers
in the States/Union Territories.
The miscellaneous application will stand disposed of as above.
No orders as to costs.
Ankit Gyan
Miscellaneous application disposed of.
(Assisted by : Mahendra Yadav, LCRA)