A Citizen’s Guide Based on the Supreme Court’s 2023 Judgment
Introduction
In a major boost to personal autonomy, the Supreme Court of India has empowered citizens to make informed choices about end-of-life medical care through Living Wills and Advance Medical Directives.
Grounded in Article 21 of the Constitution, this right was affirmed in the landmark Common Cause v. Union of India judgments (2018 & 2023), allowing individuals to express how they wish to be treated when they are no longer able to communicate.
“The right to die with dignity is as fundamental as the right to live with dignity.”
— Supreme Court of India, 2018
What Are Living Wills and Advance Medical Directives?
| Term | Definition |
|---|---|
| Living Will | A legal document outlining treatment preferences during terminal illness |
| Advance Directive | May include a Living Will and appointment of a Healthcare Proxy |
| Healthcare Proxy | A trusted person authorized to make medical decisions on your behalf |
These instruments uphold your bodily autonomy, prevent unnecessary suffering, and provide clarity for families and caregivers during difficult times.
Legal Journey: From Complexity to Clarity
2018: The Foundational Judgment
Key Recognitions:
- Recognized the right to die with dignity under Article 21.
- Legalized Passive Euthanasia (withholding or withdrawing life support).
Challenges:
- Required judicial oversight by a Judicial Magistrate First Class (JMFC).
- Evaluation by two Medical Boards.
- Final court approval, making it hard to implement in emergencies.
2023: The Simplification
What Changed:
- Judicial approval removed – attestation by a Notary Public or Gazetted Officer is now sufficient.
- Medical review timeline reduced – Medical Boards must decide within 48 hours.
- Easier access – Citizens can keep copies with family, physicians, local authorities, or store them digitally.
Impact:
The revised process is quicker, simpler, and more practical, giving citizens real control over their end-of-life choices.
How to Create a Living Will
Step 1: Draft Your Directive
Include:
- Full name, date of birth, and address
- Clear instructions on treatments to refuse or accept
- Conditions under which the directive applies
- Voluntary declaration
- Optional appointment of a healthcare proxy
- A clause allowing revocation or amendment at any time
Step 2: Attestation
- Sign in the presence of two witnesses
- Attest by a Notary Public or Gazetted Officer
- Certify that the person is of sound mind and acting voluntarily
Step 3: Document Preservation
Store copies with:
- Family members
- Treating physician
- Local municipal or Panchayat office
- Digital health platforms (e.g., DigiLocker)
During a Medical Crisis
- Treating doctor reviews the directive
- Primary Medical Board assesses the patient’s condition
- Secondary Medical Board reaffirms the decision within 48 hours
- Treatment is adjusted: life support is withdrawn or comfort care is initiated
No court approval is required following the 2023 judgment.
Safeguards Against Misuse
- Created voluntarily by a person of sound mental health
- Contains clear and unambiguous instructions
- Can be revoked at any time
- Reviewed by qualified medical professionals
Why You Should Create One
- Affirms personal autonomy
- Reduces emotional burden for families
- Provides legal protection for caregivers and doctors
- Prevents unnecessary or invasive medical interventions
Legal and Ethical Significance
- Aligns Indian jurisprudence with global human rights standards
- Encourages medical ethics based on informed patient choice
- Eases moral and legal responsibility for families and doctors
Key Role of the Custodian
The custodian is a trusted person or professional responsible for:
- Safekeeping the original Living Will
- Timely disclosure during a medical emergency
- Coordination with healthcare providers, family, and legal representatives
- Keeping a record of when and to whom the document was disclosed
Note: The custodian does not make healthcare decisions but ensures that the individual’s instructions are respected.
Challenges Ahead
Despite legal clarity, several issues remain:
- Lack of public awareness
- Limited training among healthcare professionals
- Absence of a formal legislative framework (currently based only on judicial interpretation)
- Special considerations for individuals with lifelong mental incapacity
Conclusion
The Common Cause judgments have laid the foundation for dignified end-of-life care in India. The 2023 ruling simplifies the process and makes it accessible to every citizen.
As India progresses, it is essential to:
- Raise public awareness
- Train medical professionals
- Encourage statutory legislation for consistency and clarity
Empower yourself. Choose dignity. Plan your care—your way.
Article by Vedant Chavan under the aegis of Adv Shankarlal Raheja and published on his website www.shankarlalraheja.com