The-Evolution-Of-Living-Wills-in-India

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In India, the concept of a living will—commonly referred to as an Advance Medical Directive—marks a significant step toward recognising individual autonomy in end-of-life care. It allows a person to record their preferences regarding medical treatment in advance, ensuring those choices are respected if they later become incapable of communication, such as in cases of coma or irreversible unconsciousness. Fundamentally, it gives individuals the right to decide whether to accept or refuse life-sustaining treatment in terminal or severely debilitating conditions.

Constitutional Roots and Judicial Evolution

The journey toward legal recognition of living wills has been gradual, shaped by decades of judicial interpretation of the right to life under Article 21 of the Constitution.

The debate began with P. Rathinam v. Union of India (1994), where the Supreme Court struck down Section 309 of the Indian Penal Code (IPC), which criminalised attempted suicide. The Court reasoned that the right to life inherently included the freedom to choose death. However, this view was overturned in Gian Kaur v. State of Punjab (1996), where the Court upheld Section 306 IPC (abetment of suicide) and clarified that the right to life does not include the right to die. Importantly, it recognised a dignified process of dying as part of the right to life, laying the foundation for the concept of passive euthanasia.

A defining moment came in Aruna Ramachandra Shanbaug v. Union of India (2011), where the Court, confronted with the case of a nurse in a persistent vegetative state for over four decades, endorsed passive euthanasia in specific circumstances under judicial oversight. This decision opened the door for legally supervised end-of-life choices.

The most decisive interpretation arrived with Common Cause v. Union of India (2018), in which a Constitution Bench declared the right to die with dignity as an integral part of the right to life under Article 21. The judgment not only reaffirmed passive euthanasia but also introduced the concept of living wills—allowing individuals to express advance instructions for their medical care, thereby institutionalising respect for patient autonomy.

Framework for Executing a Living Will (2018 Guidelines)

The Common Cause judgment laid down a detailed legal framework governing the creation and implementation of living wills:

1. Eligibility: Only adults of sound mind can execute a living will voluntarily and without external influence.

2. Authentication: The statement must be signed before two witnesses and attested by a Judicial Magistrate of the First Class (JMFC).

3. Preservation: Copies are to be stored with the JMFC, the District Court, local authority, and family physician where applicable.

4. Medical Oversight: Upon the executor’s terminal illness, a Medical Board reviews the condition before any action is taken.

5. Judicial Supervision: Final approval must come from the JMFC after confirming the findings and the patient’s or guardian’s consent.

Simplification in 2023

While the 2018 guidelines ensured robust safeguards, their complexity made practical implementation difficult. To address this, the Supreme Court simplified the process in January 2023. The requirement of magistrate attestation was replaced by verification from two witnesses and either a notary public or a gazetted officer. The Court also imposed a 48-hour limit for Medical Board decisions and removed the need for prior judicial approval before withdrawing treatment. These reforms made living wills more accessible and less bureaucratic.

Challenges in Implementation

Despite constitutional backing, the awareness and adoption of living wills remain limited. Many citizens are unfamiliar with the concept, and cultural factors—such as the taboo surrounding death-related discussions—further discourage their creation. Indian families often make collective medical decisions, which can conflict with individual autonomy. Moreover, inconsistent state-level implementation and administrative inefficiencies have hindered systematic enforcement. For instance, the Bombay High Court in June 2024 criticised Maharashtra for poor compliance with Supreme Court directives on living wills.

The Way Forward

• Progress is emerging gradually. A symbolic step came when Justice M.S. Sonak of the Bombay High Court became the first person in Goa to register a living will, signalling growing public and judicial acceptance. To realise the full potential of this right, India must continue simplifying administrative procedures, enhancing awareness, and normalising open dialogue about dignity in death. Broader education on patient rights and ethical medical decision-making can help embed living wills into public consciousness, ensuring that the constitutional promise of a dignified death becomes a practical reality.

Posted On: 2025-11-14