Right to Die- Analysing Euthanasia through the Prism of Article 21 and Judicial Interpretations

Right to Die- Analysing Euthanasia through the Prism of Article 21 and Judicial Interpretations

The Health Ministry released new guidelines in September 2024 as per which passive euthanasia could be done under four conditions which include patient being declared brain stem dead, patient unlikely to benefit from any further treatment, patient or surrogate documenting the refusal to continue life support and said procedure being complied with the one laid down by the Apex Court.

Euthanasia refers to a painless death which includes intentionally ending one’s life who is suffering from terminal illness. It is also known as mercy killing and is done to relieve the said person from unbearable pain.[1] The ‘Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill’, 2016, which was drafted based on the recommendations of the 241st Law Commission, is a proposed legislation to regulate euthanasia which has not been enacted yet. Euthanasia is a crucial concept in the contemporary era of evolving medical technology and recognition of legal rights.

The same must be regulated so as to strike a balance between rights of the patient and fundamental principles of social morality which advocate prioritizing a person’s life in every situation.

Furthermore, euthanasia isn’t well regulated in India such that there is no codified law regulating the same. Globally, in 2001, The Netherlands became the 1st country to legalize euthanasia. UK and US, like India, allow only for passive euthanasia and criminalize active euthanasia. So, this article delves into the evolution of euthanasia as a legal hot topic in the Indian context not only by evaluating it through the lens of Article 21 but also by considering landmark judgements regarding the same.

The Ever-Expanding Scope of Article 21

According to Article 21, “every person shall be entitled to right to life or personal liberty, and he/she shall not be deprived of this right except as per procedure established by Law”.[2] It prohibits the state from depriving any person of this right and is thus, negative in nature.[3] It is not a citizen centric right.[4] Thus, Article 21 has a wide scope and variety of rights covered under its prism have been given status of fundamental rights by judicial interpretations of the past.

Furthermore, right to life refers not only to mere physical existence but also includes a decent standard of living needed to live with dignity.[5] Mere animal existence cannot be called ‘living life’. As per judicial interpretations, some of the rights coming under the ambit of Article 21 are the right to choose spouse, right to sexual freedom, right against custodial violence, right to privacy[6], etc.

Euthanasia and Right to Die with Dignity

Right to die with dignity is the right to choose a procedure for one’s death wherein he/she may end life respectfully without compromising their dignity while being alive. Euthanasia, based on intensity of action, is divided into active and passive. While the former includes actively killing a suffering patient which may include administering lethal drugs, the latter includes depriving such person of necessary equipment needed to keep him alive.

Based on patient’s consent, euthanasia is divided into voluntary (Consent given by patient), non-voluntary (Patient has not consented as he is unable to communicate) and involuntary (Consent denied by the patient).

Judicial Evolution of Euthanasia in India

A series of landmark cases deal with the legality of euthanasia. The question as to whether right to life under Article 21 includes right to die came up for the first time before the Bombay High Court in the case of Maruti Sripati Dhubal, wherein the said question was answered in the affirmative and section 309 of the Indian Penal Code, 1860 which prescribed penalty for an attempt to commit suicide, was struck down as unconstitutional.[7]

Furthermore, after almost a decade, in 1994, this point was affirmed by a division bench of the Apex Court.[8] A significant development in this series of cases occurred two years later in 1996, when a five-judge constitutional bench of the Supreme Court, in the case of Gian Kaur, overruled the abovementioned 1994 Supreme Court decision and held that Article 21 is restrictive in nature and doesn’t include the right to die with dignity and euthanasia within its ambit.

In addition to this, the bench also acknowledged the constitutional validity of section 309 of Indian Penal Code, 1860 as there was no ground against it.[9] Herein, the court adopted a narrow approach while interpreting Article 21. This directly contradicted the motive of the Constituent Assembly which had intended to keep Article 21 open ended.

In the landmark case of Aruna Shanbaug, one of Ms. Shanbaug’s friends filed a petition in the Supreme Court seeking permission for her euthanasia, arguing that her right to live with dignity, a fundamental under Article 21, had been violated. Euthanasia was not permitted in this particular matter, but the court gave detailed guidelines on passive euthanasia and held it to be legal in India, subject to the said guidelines.

The court, relying on the ‘Parens Patriae’ principle(Court functioning as people’s guardian to decide in their best interests), also held that High Courts have the final authority in matters of euthanasia. Guidelines included the constitution of a High court bench, a committee of three reputed doctors, issuance of notice by the High court bench to the state as well as the patient’s close relatives, and the issuance of a final verdict by the High Court upon hearing both, the doctors’ committee and the patient’s relatives.[10]

In the Common Cause case of 2018, the Supreme Court gave guidelines for passive euthanasia including the concept of living will i.e., the medical preferences of patient if he/she is unable to communicate the same later.[11] However, these guidelines were further simplified in 2023 to make the process of passive euthanasia less cumbersome.

Under the new guidelines, the legal requirement of a judicial magistrate to attest the living will was done away with, and the ‘living will’ was incorporated into the National Health Record. Additionally, it was stipulated that until the Parliament enacts a new law regulating euthanasia, the aforementioned guidelines would hold the supreme authority on the matter.

Bharatiya Nyaya Sanhita, 2023 (“BNS”)- Adopting a Modern Approach

Active euthanasia is a criminal offence in India under section 105 of BNS, 2023 which deals with culpable homicide not amounting murder. Although this offence is considered less severe than murder, it is still punishable. Furthermore, section 306 of the IPC, 1860 talked about abetment to suicide and section 309 criminalized attempt to suicide. However, with the new BNS in place, section 309 of the IPC was repealed, thereby, decriminalizing attempt to suicide. However, like IPC, section 108 of the said act criminalizes abetment to suicide.

Views of the Constituent Assembly and Law Commissions

As far as the constituent assembly debates are concerned, there were no specific discussions on euthanasia, however, the makers intended to keep Article 21 wide and open to judicial interpretations and thus, an extensive study of the debates show that right to die was interpreted to come within the ambit of Article 21.[12] Lastly, the 42nd Law Commission Report, 1971 suggested decriminalizing section 309 of IPC and the 196th Law Commission Report, 2006, recommended recognition of passive euthanasia as a legal practice but suggested declaring active euthanasia illegal.

Concluding Suggestions

Hence, one of the suggested changes to the existing guidelines is that people who are at a comparatively higher risk of becoming terminally ill, such as those suffering from cancer, severely high diabetes and heart problems among other,  must be legally mandated to draft a living will, greatly reducing scope of confusion in future and if the said person had permitted euthanasia in his living will, the said process must be carried out under proper surveillance of appropriate medical authorities.

Another suggested reform would be to restrict the number of hospitals to perform passive euthanasia and release a list of such private or government hospitals on national databases for the ease of public. This would control malpractices by medical practitioners. Lastly, non-voluntary euthanasia, both active and passive, must not be permitted and should be criminalized, ensuring that the right to life and choice of the patient is respected. Thus, the concept of euthanasia, as far as legal regulation is concerned, is still vague in India due to the absence of a codified legislation regulating the same.  


[1] Definition of euthanasia – NCI Dictionary of Cancer Terms – NCI, (2011).

[2] India Const. art. 21

[3] Neepa Jani, ARTICLE 21 OF CONSTITUTION OF INDIA AND RIGHT TO LIVELIHOOD, 2 (2013).

[4] NHRC v. State of Arunachal Pradesh, (1996) 1 SCC 742

[5] Maneka Gandhi v. Union of India, (1978) 1 SCC 248

[6] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1

[7] Maruti Sripati Dubal v. State of Maharashtra, (1986) 88 Bom LR 589

[8] P. Rathinam v. Union of India, AIR 1994 SC 1844

[9] Smt. Gian Kaur v. State of Punjab, AIR 1996 SC 1257

[10] Aruna Ramchandra Shanbaug vs. Union of India and Ors., AIR 2011 SC 1290”

[11] Common Cause (A Regd. Society) vs. Union of India, AIR 2018 SC 1665

[12] Right to Life – Institute’s Journal – Shashi Kant Varma, (1996).


Author: Aditya Deshmukh, 2nd Year Law Student at Hidayatullah National Law University (HNLU), Raipur

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