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Right to Die with Dignity: Shifting the Needle From Legal Recognition to Simplified Execution In India

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It is said that "It matters not how a man dies, but how he lives". Philosophers, thinkers, writers from all over the world have penned various aspects of life and death in their very own ways, they have both glorified and disparaged it. The subject is of such importance that Article 21 of the Indian Constitution gives us the basic human right of "right to live with dignity", and by now it has also been held that a person has right to die with dignity.

Thus, we are entitled to dignity not just during our lifetime but also during the moments of death.

Concept of Living Will
Living Wills are advance directives, legally valid and binding instructions regarding an individual's preferences, made by the individual themselves, in context to medical care from the time they are unable to make decisions for themselves. Living Will spells out what the individual would and would not want to be used for their medical treatment, and to what extent.

The terminally ill and patients suffering from chronic diseases like heart disease, cancer etc., where sufferings upon a person are inevitable, and where the individual can no longer support themselves or their condition cannot be helped the situation is miserable. Such individuals may make a Living Will stating what kind of treatment they would like to receive, what not and to what extent. A crucial aspect is that the individual may also state in their Living Will about when they wish to cease to live their life any further. Therefore, the concept of Living Will is directly linked with the concept of Euthanasia.

Euthanasia itself has two facets of active and passive euthanasia. Passive euthanasia is one wherein there is withdrawal or ceasing of life support medication or systems as per the wishes of an individual stated in his Living Will or otherwise. Active Euthanasia is nothing but an assisted suicide.

Global View
In countries like the United Kingdom, America, Canada among others, the concept of Living Will is widely encouraged. The Legal understanding which is gaining ground is that when an individual is in an able state, they have the ability, they are competent to make decisions regarding their preferences in context to health care, and so it is better that way rather than when they are not, or somebody else taking decision on their behalf. In the absence of a Living Will, it becomes necessary to employ an alternative decision-making process or another person has to decide as to what treatment should be provided and up to what extent.

In countries like the U.K there are conflicting views related to Euthanasia. The one which is against it considers it amounting to manslaughter.

In the case of Nancy Cruzan as early as in 1970, the Missouri Supreme Court Highlighted the practicality and usefulness of a Living Will. It held that "no person can assume that choice for an incompetent in the absence of the formalities required under Missouri's 'Living Will' statutes". The fall out was that then the procedures for surrogate decision-making started gaining acceptance.

Recently during the COVID-19 pandemic when the situation seemed to be escalated where innumerous patients were in an unconscious or incapable state for long durations, the doctors in the U.S. had urged the American Citizens to create essential documents in terms of health care to provide better coordination regarding their treatment, like Living Will.

Living Will in India
It can be said that the concept of living will is relatively unexplored in India. Article 21 of the Indian Constitution gives every citizen the right to live life with dignity. An Indian NGO, Common Cause, had approached the Hon’ble Supreme Court of India in 2005, praying for a declaration that the 'fundamental right to live with dignity' should be inclusive of the 'right to die with dignity.'

The Hon'ble Supreme Court in 2018 stated that "We declare that an adult human being having the mental capacity to make an informed decision has the right to refuse medical treatment including withdrawal from life saving devices."

The Law Commission of India in 2006 for the first time implicitly dealt with the subject of Living Will by stating in its 196th report that a patient's decision to not receive medical treatment did not constitute an attempt to commit suicide under Section 309 of IPC. Also, a doctor who obeys the instructions of a competent patient to withhold/withdraw medical treatment does not commit a breach of professional duty.

The subject of Euthanasia was first dealt by Indian Courts in Aruna Shanbaug Case (2011) where in the Hon’ble Supreme Court allowed passive euthanasia for the first time to a nurse lying in a vegetative state.

Contents and Registration Of Living Will
A Living Will should specifically contain or indicate what the individual would want and what not in the context of medical care, and to what extent. The details of the person who can execute the Will shall be mentioned clearly and an alternative in case the executor isn't available at the required time. Detailed description as to when such Living Will be invoked is to be included.

Registration of the Living Will is mandatory. Till recently the law required a living will to be signed in presence of two attesting competent witnesses and it was required to be mandatorily affirmed by a judicial magistrate of first class (JMFC). The registration involved various steps right from forming of the document and getting it signed and inspected by the JMFC to forwarding it to the District Collector to informing the families and the physicians. People who were willing to register a Living Will have stated their experience as stressful and weary. There have been instances where the process took 9 to 10 months just to conclude the procedure at the JMFC. Thereafter the Collector forms a medical board which decides whether to certify and carry out the instruction in the Living Will at the time of actual need.

In a landmark move, taking note of earlier guidelines being impractical, the Hon'ble Supreme Court on 24th of January 2023, has agreed to simplify the conditions including to consider removing the requirement of a JMFC's approval of a Living Will at the time of registration.

Execution of Living Will
Living Will can be only executed by an adult with a sound mind and who is mentally in the state to communicate, relate, and comprehend the objectives and consequences of executing such Will.

India has recognized "right to die with dignity" is a fundamental right and thereby legalized the advance directives like Living Will. What is now required is a proper and effective framework for its registration and execution. While some people do not think Living Will is an appropriate concept and for others who do, the majority of such people give up on the idea of making a Living Will due to long and stringent process. The idea of Living Will is to make a dying person's death a peaceful one, avoid the misery, and so should be the procedure for registering and executing it.

It is also important that proper checks and balances are maintained while the procedure is expected to be simplified, so that the concept of Living Will does not transform into a tool of misuse and abuse. No doubt the concept shall gain popularity once the procedure is rationalized.


Read the Article here:
Financial Express

Satya Muley

Satya is a leading Civil & Criminal Law lawyer from Western India.
He practices at Bombay High Court, the Supreme Court and Courts in Pune/Maharashtra & New Delhi.
For any queries or support in legal matters you can reach him at or at Contact Us
Click here to read more about us.




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Right to Die with Dignity: Shifting the Needle From Legal Recognition to Simplified Execution In India

It is said that "It matters not how a man dies, but how he lives". Philosophers, thinkers, writers from all over the world have penned various aspects of life and death in their very own ways, they have both glorified and disparaged it. The subject is of such importance that Article 21 of the Indian Constitution gives us the basic human right of "right to live with dignity", and by now it has also been held that a person has right to die with dignity.

Thus, we are entitled to dignity not just during our lifetime but also during the moments of death.

Concept of Living Will
Living Wills are advance directives, legally valid and binding instructions regarding an individual's preferences, made by the individual themselves, in context to medical care from the time they are unable to make decisions for themselves. Living Will spells out what the individual would and would not want to be used for their medical treatment, and to what extent.

The terminally ill and patients suffering from chronic diseases like heart disease, cancer etc., where sufferings upon a person are inevitable, and where the individual can no longer support themselves or their condition cannot be helped the situation is miserable. Such individuals may make a Living Will stating what kind of treatment they would like to receive, what not and to what extent. A crucial aspect is that the individual may also state in their Living Will about when they wish to cease to live their life any further. Therefore, the concept of Living Will is directly linked with the concept of Euthanasia.

Euthanasia itself has two facets of active and passive euthanasia. Passive euthanasia is one wherein there is withdrawal or ceasing of life support medication or systems as per the wishes of an individual stated in his Living Will or otherwise. Active Euthanasia is nothing but an assisted suicide.

Global View
In countries like the United Kingdom, America, Canada among others, the concept of Living Will is widely encouraged. The Legal understanding which is gaining ground is that when an individual is in an able state, they have the ability, they are competent to make decisions regarding their preferences in context to health care, and so it is better that way rather than when they are not, or somebody else taking decision on their behalf. In the absence of a Living Will, it becomes necessary to employ an alternative decision-making process or another person has to decide as to what treatment should be provided and up to what extent.

In countries like the U.K there are conflicting views related to Euthanasia. The one which is against it considers it amounting to manslaughter.

In the case of Nancy Cruzan as early as in 1970, the Missouri Supreme Court Highlighted the practicality and usefulness of a Living Will. It held that "no person can assume that choice for an incompetent in the absence of the formalities required under Missouri's 'Living Will' statutes". The fall out was that then the procedures for surrogate decision-making started gaining acceptance.

Recently during the COVID-19 pandemic when the situation seemed to be escalated where innumerous patients were in an unconscious or incapable state for long durations, the doctors in the U.S. had urged the American Citizens to create essential documents in terms of health care to provide better coordination regarding their treatment, like Living Will.

Living Will in India
It can be said that the concept of living will is relatively unexplored in India. Article 21 of the Indian Constitution gives every citizen the right to live life with dignity. An Indian NGO, Common Cause, had approached the Hon’ble Supreme Court of India in 2005, praying for a declaration that the 'fundamental right to live with dignity' should be inclusive of the 'right to die with dignity.'

The Hon'ble Supreme Court in 2018 stated that "We declare that an adult human being having the mental capacity to make an informed decision has the right to refuse medical treatment including withdrawal from life saving devices."

The Law Commission of India in 2006 for the first time implicitly dealt with the subject of Living Will by stating in its 196th report that a patient's decision to not receive medical treatment did not constitute an attempt to commit suicide under Section 309 of IPC. Also, a doctor who obeys the instructions of a competent patient to withhold/withdraw medical treatment does not commit a breach of professional duty.

The subject of Euthanasia was first dealt by Indian Courts in Aruna Shanbaug Case (2011) where in the Hon’ble Supreme Court allowed passive euthanasia for the first time to a nurse lying in a vegetative state.

Contents and Registration Of Living Will
A Living Will should specifically contain or indicate what the individual would want and what not in the context of medical care, and to what extent. The details of the person who can execute the Will shall be mentioned clearly and an alternative in case the executor isn't available at the required time. Detailed description as to when such Living Will be invoked is to be included.

Registration of the Living Will is mandatory. Till recently the law required a living will to be signed in presence of two attesting competent witnesses and it was required to be mandatorily affirmed by a judicial magistrate of first class (JMFC). The registration involved various steps right from forming of the document and getting it signed and inspected by the JMFC to forwarding it to the District Collector to informing the families and the physicians. People who were willing to register a Living Will have stated their experience as stressful and weary. There have been instances where the process took 9 to 10 months just to conclude the procedure at the JMFC. Thereafter the Collector forms a medical board which decides whether to certify and carry out the instruction in the Living Will at the time of actual need.

In a landmark move, taking note of earlier guidelines being impractical, the Hon'ble Supreme Court on 24th of January 2023, has agreed to simplify the conditions including to consider removing the requirement of a JMFC's approval of a Living Will at the time of registration.

Execution of Living Will
Living Will can be only executed by an adult with a sound mind and who is mentally in the state to communicate, relate, and comprehend the objectives and consequences of executing such Will.

India has recognized "right to die with dignity" is a fundamental right and thereby legalized the advance directives like Living Will. What is now required is a proper and effective framework for its registration and execution. While some people do not think Living Will is an appropriate concept and for others who do, the majority of such people give up on the idea of making a Living Will due to long and stringent process. The idea of Living Will is to make a dying person's death a peaceful one, avoid the misery, and so should be the procedure for registering and executing it.

It is also important that proper checks and balances are maintained while the procedure is expected to be simplified, so that the concept of Living Will does not transform into a tool of misuse and abuse. No doubt the concept shall gain popularity once the procedure is rationalized.


Read the Article here:
Financial Express

Satya Muley
Satya is a leading Civil & Criminal Law lawyer from Western India.
He practices at Bombay High Court, the Supreme Court and Courts in Pune/Maharashtra & New Delhi.
For any queries or support in legal matters you can reach him at or at Contact Us
Click here to read more about us.