Living Will Vis-à-Vis Right to Life | Justice Hariprasad, Senior Advocate

本站添加: 2026-05-18

[00:00:01]Good evening friends.

[00:00:03]We have done various sessions with justice Hari Pashad who is now a senior advocate and a former judge from Kerala.

[00:00:11]His sessions give us a insight which helps us to understand the nuances of law and one topic which on which we will see on the social media is quite above on the respect of the living will but visav a right to life. The judgment of the latest Supreme Court judgments has carved out a path which we will understand in this journey of around half an hour from justice harsh and we have seen that his subtle way of making things understandable is which creates the benchmark and people keep on requesting us that you should bring just to share his knowledge and despite his hectic schedule he has accepted our invite. We are grateful on behalf of beyond also CLC. Over to you sir.

[00:01:01]>> Thank you my friend because um with a a little apologetic because after a long time we are doing a session together partly due to my own fault. Sorry for the delay. Anyway, today's topic, a living will visi right to life.

[00:01:19]It's actually uh that topic has come up again or resurfaced again after the decision of the Supreme Court in March 2026 in titled that Harish Ran's case.

[00:01:31]Now even before that the the the the framework of the law has been laid down by two constitution bench and other decisions which we shall come uh we shall discuss later in point of time.

[00:01:45]Now to begin with let us understand whether the expression living will is legally proper in the sense that uh every every practitioner of law whether be a judge or a lawyer or any parallegal whoever it is has a concept as to what a will is because Indian succession act came into force in the year 1925 from that moment onwards or that time onwards we know What a bill will section 2H of the Indian succession act defines will as the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. So the fundamental feature of any will is that it operates from the death of the testator who is the author of the will.

[00:02:40]So but in the case of this expression called living will it actually operates from the time when the author becomes either incapable of expressing his desire or he goes into a complete state of comma whatever it is he is not able to speak for himself. In that situation the living will operate.

[00:03:03]But in the case of a regular will it it operates only on the death of the testator. That is the essential difference. Then second difference is that the will defined in Indian succession act is intended to deal with the properties whether it is immobile, movable, securities, cash whatever it is of the testator and of course some guidelines regarding to maintenance whatever it is such such temporal rights are dealt with under the Indian succession act will under the Indian succession act. Whereas in the case of living will it is the intention of the person making it as to how he should be medically treated or what should be how should he live his rest of life and how should how he should die in a dignified way. So that is the subject matter dealt with in living will. So there is no property right involved as such in the concept called living will. That is why I was actually discussing with Mr. Vikas that this living will itself is an oxymoron.

[00:04:11]Oxymoron or misnomer whatever it is it's a contradiction in terms there can't be a will at the time when a person is living and there can be a testator during the starting of operation of the will. But in this case it is different. That is why the the the correct expression is advanced medical directive rather instead of living will is only a layman's expression of it.

[00:04:39]Advanced medical directive must be the correct expression of this document which is intended to serve the the the the wishes of a person who is unable to speak due to some medical condition.

[00:04:57]Now uh just one more aspect regarding will.

[00:05:01]You are aware that there are two kinds of will in under the intent succession act. One is unprivileged will.

[00:05:07]Unprivileged bill will bill will is executed by normal persons civilians rather and uh it requires what we call writing down as a document and then execution of the document by the testator and then attestation by two competent witnesses. Section 63 of the Indian succession act deals with the formalities in which a will can be executed. And privileged will under the succession act is a nonupitative will that is made by word of mouth or oral which can be made only by a soldier whether he may be a military man, army man, air force, navy whoever the military man in actual warfare not as a civilian but as a person in the warfront because there is no possibility of probably writing a will. So that is why such privileged wills can be executed by military personnel in engaged in actual warfare. So these are the two types of will dealt with under the Indian succession act and there is no law as on today in our country relating to the execution or the operation of a living will or advanced medical directive. So with these aspects in our mind we will just try to analyze the subject. Of course Harish Rana and other decisions I shall uh discuss later.

[00:06:36]No, no. Actually the uh medical condition or of persons who wish to or or rather who who can have a what you call this privilege to execute such living will are persons uh having this uh medical condition called persistent vegetative state PVS or comma.

[00:07:06]These expressions are medical expressions we are familiar. And uh this C CPR stands for cardopulmonary resuscitation.

[00:07:16]Uh and uh persistent vegetative state uh is a severe brain damage and it is in a state of partial arousal but lacks true awareness of his surroundings. So a person in a condition called DVS may be opening his eyes. He may be responding to some stimuli but still he is not having the complete awareness of his surroundings. He may be speechless at times. He may be expressionless at times. So such persons also actually though see there may be signs of life but then they are for all practical purposes they are incapable of acting for themselves and coma is a condition you know that is still an aggravated situation where probably the patient is completely unconscious.

[00:08:10]He does not respond to any stimuli and he's unconscious not at all awakened he can't be awakened at all. So such persons are are in a difficult situation or rather impossible for them to express their desire to uh live rest of their life or end their life in a dignified way. Such persons are are the are the uh s sorry I'm sorry such is the medical condition that actually that prompts a person to execute a living will now the the purpose of a living will let us see what is the purpose of a living will it is to ensure that a person's medical wishes are respected even if he's unable to express them even if in a state of uh this PBS or comma he his wish must be translated into action by those who are close to him relatives blood relatives or friends whoever it is. So what what can be the the the this thing uh the in the directions that can be given? One specific med sorry specific medical interventions accepting or refusing life sustaining treatments like me mechanical ventilation, tube feeding, CPR, diialysis, surgeries or antibiotics. No, that is relating to specific medical interventions. Then the the urge for paliative care and comfort measures.

[00:09:48]He's not able to express it but he must have thought it before and reduced to writing relating to paliative care.

[00:09:54]Specifying preferences for pain management and comfort care. Then next thing appointment of healthare representative designating a trusted person to make medical decisions on behalf of the the of behalf of a person who has who is executing such a document. Then personal values and beliefs including what do you call this organ donation. Then where he should be kept under care. What are the funeral arrangements? All this can be expressed uh by the terms of a living will. Then as you are aware uh living will gives an autonomy and dignity ensuring that a person's medical wishes are respected even if he's unable to communicate. That is the the significance of a living will bill and of course it gives clarity for family and doctors as to how he should be treated if he's unable to speak out.

[00:10:53]Then preventing unwanted treatments you can estue unnecessary treatments saying that no I don't want this I don't want to be traumatized by keeping on ventilator that's a right because right to live includes right to die in a dignified manner that has been settled by supreme court in many decisions.

[00:11:12]So these are the basic uh aspects uh on which this this concept is founded. Then coming to the legal aspects of this uh living will rather advanced medical directive.

[00:11:31]The first decision probably is Aruna Ramachandra, Aruna Ramachandra Shahan that is a year 2011 Supreme Court 1290 that is reported in SEC also 20114 SEC 454 by two judge bench which legalized passive euthanasia.

[00:11:52]Passive euthanasia as all of you are aware is actually withdrawing life support because there is no positive act of killing a man. It is only allowing the nature to take its uh course or leave leave a person who is there is no hope of his coming back to life. Such a person should be left to nature. That is called pass passive euthanasia. But in Harana's case the Supreme Court prefers the expression withdrawal or withholding of medical treatment instead of passive euthanasia. But anyway the concept the the the fundamental idea is the same whatever be the expression. So that is the first decision. Arunar ramachandra shahend 2011 the supreme court uh the the recognized the the concept called passive euthanasia and allowed withdrawal of life support in certain circumstances with the approval of the high court.

[00:12:46]So that is the first decision probably that is relevant in our subject. There there came the thereafter the the first common cause case common cause a registered society versus union of India and another a year 2018 supreme court 1665 that is 2018 5 sec page 1 that is the uh basic decision which has been modified by another constitution bench in 2023 but the the the foundation can be uh foundation is laid by the first common cause case in 2018 where [clears throat] the learned judges sorry has expressed uh the the following observation in the the judgment is relevant express their mind with the following observations in our considered opinion advanced medical directive would serve as a fruitful means to facilitate the fractification of this across right to life with dignity. The set directive we think will dispel many a doubt at the relevant type of need during the course of treatment of the patient that upon 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. That is paragraph 198 of the decision. It is mentioned like this. Then regarding the conclusion in in the first common cause case the the conclusions can be called out like this a the right to die with dignity as fund as a fundamental right has already been declared by the constitution bench of the judgment in this court in gangor case that's a different case but right to die with dignity has been recognized by that constitution bench then b we declare that an adult human being having mental capacity to take an informed decision ition has a right to refuse medical treatment including withdrawal from life-saving devices. C. A person of competent mental faculty is entitled to execute an advanced medical directive in accordance with the safeguards as referred to uh in the decision that is par 5729.

[00:15:05]Then later this uh the there was some practical difficulty in the working of the uh modalities prescribed by first common cause case.

[00:15:19]So some the the the persons again approached the Supreme Court and the matter was considered by since the earlier matter was considered by a constitution bench the second matter was also considered by a constitution bench in common cause too.

[00:15:34]that is um uh 2023 SEC online 99 equal to two uh that is also reported in a I don't have that citation anyway that is in 23 the supreme court revisited the guidelines in common cause one and uh modified the terms so as to make it more practicable Then the attestation of this document that is advanced medical directive was a bit cumbersome as per the direction of the first common cause case which was simplified stating that a living will can now be attested by a notary or a gased officer. are eliminating the need for a judicial magistrate which is prescribed in the common cause one case. The digital storage of the document living wills are stored in the national health digital record making them accessible nationwide.

[00:16:44]Then streamlined approval hospital medical boards must decide within 48 hours and families can directly appeal to the high court against denials by hospital medical boards.

[00:16:57]Because suppose there are two stages preliminary board and secondary board.

[00:17:03]If both if there is any what you call disagreement by the doctors constituting the medical board against this passing euthanasia then the party agreed party can approach the high court under article 226 of the Indian constitution.

[00:17:17]Then those who are interested in understanding the law slightly in a deeper and wider magnitude, please refer to paragraphs 198 to 201 of the common cause case two.

[00:17:42]Then the next question is who can execute advanc directive and when he can do that.

[00:17:51]The advanced 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. So with open mind with open awareness an adult who is so jurist alone can execute such a document.

[00:18:12]It must be voluntarily executed and without any coercion or inducement or uh it can sorry it can be executed uh uh without any coercion or inducement or compulsion after having full knowledge or information.

[00:18:33]It should have characteristics of an informed consent given without any undue influence or constraint.

[00:18:39]It shall be in writing clearly stating as to when the 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 be otherwise caused to him or her pain, anguish and suffering and further put him put him or her in a state of indignity. So such persons who is sujuries, competent and of a sound state of mind can execute an advanced directive with uh with what do you call free consent without any coercion. So these are the essential conditions and it should be executed when the person is capable of taking an informed decision.

[00:19:23]Then probably what should it contain?

[00:19:26]What are the the contents essential contents required in a uh advanced medical directory? It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to at what what stage it should be done should be specifically mentioned because not for a slightest provocation it can't be done where a person is capable of being treated and taken back to life. Such a situation this this doesn't apply. It is only when there is no hope there is no possibility of medically uh giving him a quality quality life after treatment then only this can be resorted to. It should it should be in specific terms and the instructions must be absolutely clear and unambiguous. There should be clarity of expression. There shall not be any reason to have a uh dispute regarding the terms of the document. So it must be very clear. It should mention the that the executor may revoke the instructions authority any time as in the case of a will the testator has a right to revoke it at any time.

[00:20:30]Then it should disclose that the executor has understood the consequences of executing such a document. So he must be fully aware of the fact that if this is executed and if he goes into a comma or vegetative condition then this will be operated. So he must be he must be 100% what they call aware of the consequences of executing such a document.

[00:20:55]It should specify the name of a guardian or a close relative who in the event of the executor becoming imp incapable of taking decision at the relevant time will be authorized to give consent to refuse or withdraw medical treatment in a manner consistent with the advanced directive. So when this man goes when this author of this document goes into a state of unconsciousness without any chance of coming back then [clears throat] there must be a person named in the document who has to take a decision to to fulfill the directives in the document.

[00:21:30]In the event that there are more than one valid advanced directive assume a case as in the case of a bill some persons execute two or three wills.

[00:21:39]Likewise suppose two or three medical uh advanced medical directives have been executed by this person then the last one will prevail even if the other one the other earlier ones are not revoked expressly.

[00:21:54]Then regarding the recording and preservation, the the common cause case two, common cause two gives directions.

[00:22:03]Uh the document should be signed by the executor in the presence of two attesting witnesses, preferably independent and attested before a notary or a deserted officer. The witnesses and the notary or deserted officer shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with the full understanding of all the relevant information and consequences. Then copy shall be handed over to the competent officer of the local government or municipal corporation or municipality or punit as the case may be. The FOS and authority shall nominate a competent office off official in that regard who shall be the custodian of the said document. The exeutor may also choose to incorporate their advanced directive as part of the digital health records if any. So it must be executed in a manner specified therein and it should be kept by some responsible persons because it should be accessed in case of any requirement.

[00:23:03]Then of course it becomes operational in the event the executor becomes terminally ill and is under undergoing prolonged medical treatment with no hope of recovery and cure of the ailment and does not have a decision making capacity. The treating physician uh can uh treating the physician can when he is made aware of the advanced directive he shall ascertain the wish of the person named in the document or close relatives and deal with the patient in accordance with the directives.

[00:23:43]Then as I told you earlier there are two stages the scrutiny is done in a in the case of a person who has uh who is unable to speak out his mind is medically in a very bad condition without no chance of revival. Then of course the the procedure has to go on and there are two pre medical boards to be constituted before this withdrawing the life support. The preliminary primary medical board consisting of the treating physician and at least two subject experts of the concerned specialty with at least 5 years experience who in turn shall visit the patient in the presence of his guardian or close relative and form an opinion preferably within 48 hours of the case being referred to it whether it whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. So there is a preliminary medical board uh consisting of the doctor treating the person as well as two other subject experts and then they will examine the patient and then within 48 hours they should take a decision as to what should be done in his case whether life support should be withdrawn or not.

[00:25:01]Then after the certification of the preliminary primary medical board I'm sorry not preliminary primary after the certification of the primary medical board then uh the hospital shall immediately constitute a secondary medical board comprising of one registered medical practitioner nominated by the chief medical officer of the district and at least two subject experts with at least five years experience of the concerned speciality who were not part of the primary medical board. So another set of three another set of three doctors one designated by the chief medical officer of the district and two other subject experts who will again uh uh take stock of the situation and examine the patient medical records the possible uh the the the possible of coming back to life and everything has to be considered again a fresh because that this is a to ensure sure that nothing goes wrong.

[00:26:04]See by by probably one board may omit something or mistakenly do something to avoid that a second second inspection is also required as per the decision.

[00:26:17]The secondary medical court shall provide its opinion preferably within 48 hours of the case being referred to it because this this has to be a decision has to be taken in a time bound manner.

[00:26:30]Then the secondary board must beforehand assertain the bishops of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment or if he is not able to communicate they should have a what do you call this view of the the person nominated in the document or close relatives. [clears throat] Then the hospital where the patient is admitted shall convey the decision of the primary and secondary medical boards and the consent of the person or persons named in the advanced directive to the jur jurisdictional judicial first class magistrate before giving effect to the decision to withdraw the medical treatment administered to the exeutor.

[00:27:14]So after getting these two opinions by two medical boards, this has to be communicated by the hospital to the first class magistrate having >> having due restriction to the uh sorry no judicial first class magistrate having due restriction. This report has to be certified.

[00:27:38]Then if permission is denied by the medical board, of course the the the treating doctor or the hospital staff or the person uh close to this the the the author of the document can approach the high court under article 226 of the constitution and uh seek appropriate relief depending on the facts in each case.

[00:28:06]Then even the suppose there is no even in the case of a person where there is no advanced directive as in the case of Harish Rana the the courts are not powerless because they have to undergo the same process same procedure has to be followed as in the case of a medical directive and uh if his wish is not exceeded to by the the hospital then of course they can approach the constitution court under article 26 and uh get their grievance redressed.

[00:28:48]So these are the these are the guidelines in the decision because it's a very long decision. I I'm just calling out some portions of that decision for the purpose of completion of this subject because every aspect therein itself is a uh is a subject for hours of discussion. So I have cut shorted. Now these are the as of now these the the binding constitution bench decisions in Harishana's case you know a 30 almost 32 year old person who has been in a vegetative condition for more than 13 years on account of fall from a building. Of course there was no advanced medical directive in that case. The Supreme Court considered the entire matter in the light of the guidelines in the constitution bench and then decided to allow the plea of withdrawing the life support and uh that is that is how the matter again resurfaced. So the the point here is living will is nothing to do so I just summing up the matter living will is has nothing to do with the property rights.

[00:29:54]It is only a person's uh expression of his desire to have a dignified life and dignified death. Dignified life means even in comma a person is living but it's not a dignified life to some extent because he is incapable of pursuing a life as in the case of an ordinary human being. So virtually he's deprived of many many facets of life many pleasant facets of life. So he must in such a situation how long he should continue is a is a matter to be decided by himself for for what you call for for uh for effectuating the decision. Of course there should be some guidelines because you can't be arbitrary. That is why the the law says the the decision say uh we don't have a law as I told you earlier the decision say that there should be clarity of expression on the side of the author of the document and it should be interpreted pragmatically and in the uh and respecting the intention of the maker of the document and then still to avoid any possible mistreatment maltreatment or fraudulent act to end a person's life there should be safety walls like primary board, secondary board, then it should come to the magistrate. All things have to be done just to ensure that a citizen's life is not not taken uh by withdrawing medical support in a light manner. So the the Supreme Court in all these decisions have taken care to see that right to life includes right to a decent life and further includes a right to a dignified end of life. So that is what is uh the the subject that is what is intended by this subject which is uh now now it has become a what you call very very important aspect today because the present day life everyone is having one's own affairs. So old people are actually taken to care homes or what do you call in this this old age homes what whatever name you call it the same thing. So so such persons if they want to have a decent life in a in a in a on a day when he's not able to speak out it should be expressed in the terms of a document that is called advanced medical directive. So this this is an expanding subject. There is no statute on this.

[00:32:35]Hope that one day the legislature will intervene and uh make things clear so that it is uniformly applied in all parts of the country.

[00:32:46]There are there are certain directions given by the Supreme Court in this regard. Let us let us hope that it will be done um as early as possible and without any possibility of misusing the the provisions of this uh the the declaration of law. So these are all the the basic aspects relating to living will. So I think uh I I have covered all this all the aspects in a I have rushed through rather all these and I'll close it right now here if any questions Mr. Vikas probably I'll just answer just hold >> does uh an implementation of a valid living will amount to violation of fundamental rights granted under article 21. It is in concernance with article 21. That is what the Supreme Court says.

[00:33:41]It is not violation of article 21 because right to live includes right to die in a dignified way. That is the expression in common cause case. First even in first case.

[00:33:54]>> Second is that how can you sensitize people on uh living bills that is only through webinars >> correct correct >> social media etc. Seminars >> platform platforms like Mr. that you are doing and other areas where probably you can educate people. Even social media can play proactive role in this. Those who are able to able to what you call think during life has to consider this because we do not know what will happen after 40 years or 50 years nobody can say. So that is that has to be educated there. There must be some means the legal platforms must be profusely used.

[00:34:32]That is my suggestion to that.

[00:34:35]So uh thank you sir and before we part before we part they say that everything is constant except the change and that is why the law keeps on >> and thank you for sharing your knowledge bringing the entire vast subject of the judgments in a short half an hour people would actually cherish it. Thank you.