A living will, formally known as an Advance Medical Directive, is a legal document that allows individuals to specify their preferences for medical treatment in situations where they may become incapacitated, vegetative state, or unable to communicate their decisions. This directive ensures that a person’s wishes regarding life-sustaining treatments are respected, even when they cannot express them due to medical conditions.
The concept of a living will in India has evolved through a series of landmark judicial pronouncements that have shaped the legal discourse on the right to die with dignity as a fundamental right under Article 211 of the Constitution of India2. This journey began with the judgment P. Rathinam v. Union of India3, wherein the constitutional validity of Section 3094 of the Penal Code, 18605 was challenged and the Supreme Court was pleased to struck down Section 309 of the Penal Code, 1860 (IPC) which criminalised attempt to suicide and hold that right to life under Article 21 of the Constitution of India shall also include right to die as a fundamental right. This judgment initiated legal discussions on personal autonomy and the right to end one’s life in particular circumstances. However, in Gian Kaur v. State of Punjab6, the Supreme Court overruled the judgment in P. Rathinam case7 and upheld the validity of Section 3068 IPC, which penalises the abetment of suicide, thereby distinguishing between passive euthanasia and assisted suicide. This judgment left room for the possibility of passive euthanasia while the Supreme Court affirmed that the right to life does not include the right to die.
A significant step forward came with Aruna Ramachandra Shanbaug v. Union of India9, whereby the Supreme Court, permitted a woman in a persistent vegetative state for decades, and recognised passive euthanasia under strict medical and judicial guidelines after taking approval from the High Court of Bombay. This judgment acknowledged that in specific circumstances, withdrawing life-sustaining treatment could be legally permissible. The most definitive ruling came in Common Cause v. Union of India10, where a five-Judge Constitution Bench of the Supreme Court of India held that the right to die with dignity is a fundamental right under Article 21 of the Constitution of India. This judgment not only legalised passive euthanasia but also laid down comprehensive guidelines for executing living wills, ensuring that individuals could make advance medical directives regarding their end-of-life care. Together, these cases have contributed to a nuanced legal framework that balances personal autonomy with ethical and medical considerations in end-of-life decisions.
In Common Cause v. Union of India (2018)11, the Supreme Court of India outlined procedures, guidelines and a structured framework for the execution of living wills to ensure that individuals could exercise their right to die with dignity in a legally recognised manner.
(a) Executor requirements: The executor of a living will must be an adult of sound mind, capable of making informed decisions about their medical care.
(b) Witnesses and authentication: To authenticate the living will, it should be signed in the presence of two independent witnesses and further countersigned by a Judicial Magistrate, First Class (JMFC) designated by the District Judge. As per the Supreme Court’s guidelines, the witnesses and the JMFC must record their satisfaction that the document has been executed voluntarily, without any coercion, inducement or compulsion. Further, they must also ensure that the executor possesses a clear understanding of all relevant medical and legal consequences before signing the living will. This safeguard is crucial in preventing misuse or undue influence, thereby upholding the integrity of the individual’s autonomy in making end-of-life decisions.
(c) Preservation and distribution: The JMFC is required to retain one copy of the document in their office, both in physical and digital formats. Additionally, the JMFC must forward another copy to the Registry of the District Court concerned, where it will also be maintained in both formats for record-keeping. To ensure that the executor’s family is informed, the JMFC must notify the immediate family members if they were not present at the time of execution, making them aware of the document’s existence and implications. Furthermore, a copy of the living will must be handed over to a designated Competent Officer of the local Government, whether it be the Municipal Corporation, Municipality or Panchayat, ensuring that an official custodian is responsible for maintaining the document. Lastly, if the executor has a family physician, the JMFC must also provide them with a copy.
(d) Medical Board Evaluation: In the event that the executor becomes terminally ill or enters a vegetative state, the treating physician must inform a Medical Board, which will assess the patient’s condition and determine whether to honour the living will.
Implementation of a living will
A living will comes into effect when the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery. Once the treating physician is informed of the living will, they must verify its authenticity with the jurisdictional JMFC before proceeding. The physician must give due consideration to the document but can only act upon it after confirming that the executor’s condition is incurable and that they are dependent on life support or prolonged treatment. If the physician determines that the instructions should be followed, they must inform the executor (if conscious) or their guardian/close relative about the nature of the illness, available treatments and possible outcomes.
The hospital must constitute a Medical Board comprising the Head of the Treating Department and at least three senior medical experts. This Board will assess the patient’s condition and issue a preliminary opinion. If the hospital’s Medical Board certifies that the living will should be implemented, the jurisdictional Collector must be notified. The Collector will then form a second Medical Board, chaired by the Chief District Medical Officer and three independent senior doctors, to review the case. If this Board concurs with the hospital’s findings, they will endorse the decision. Before implementing the living will, the second Medical Board must confirm the wishes of the executor if they are capable of communicating. If the executor is unable to decide, the consent of their nominated guardian must be obtained, ensuring adherence to the Advance Directive’s instructions. Finally, the Chief District Medical Officer must convey the Board’s decision to the jurisdictional JMFC, who will visit the patient, review all aspects, and countersign the withdrawal of medical treatment. Importantly, the executor retains the right to revoke the living will at any time before its implementation.
However, recognising that these procedures were complex and difficult to implement, the Supreme Court revisited its earlier guidelines in January 2023 to simplify the process. Under the revised framework, the requirement for countersignature by a JMFC was removed, and instead, the living will could be attested by two witnesses along with a notary or a gazetted officer, making the procedure more accessible. Furthermore, to expedite decision-making, the Court mandated that the Medical Board must reach and communicate its decision within 48 hours of the case being referred to them whether to allow withholding or withdrawing life support. The necessity for approval from a Judicial Magistrate has been removed and simplified the procedure for withholding or withdrawing life support. In cases where the executor becomes terminally ill or undergoing prolonged medical treatment with no hope of recovery, and lacks decision-making capacity, the treating physician must take necessary steps to verify the authenticity of the Advance Directive of the living will before acting upon it. Upon being informed of the living will’s existence, the physician must cross-check its genuineness by referring to the patient’s existing digital health records, if available. If such records are not accessible, then the physician must obtain confirmation from the designated custodian named in the living will.
Despite the legal recognition of living wills in India, their implementation continues to face several challenges. One of the primary obstacles is the lack of public awareness, as many individuals remain unfamiliar with the concept and the legal provisions governing living wills. This limited awareness has resulted in the underutilisation of living wills, preventing them from becoming a widely accepted tool for end-of-life decision-making. Additionally, cultural sensitivities play a significant role in shaping societal attitudes toward death. In a country where familial decision-making is deeply valued, discussions surrounding living wills are often met with reluctance, making it difficult for individuals to assert their right to refuse life-sustaining treatment in advance. Administrative inefficiencies further complicate the process, with bureaucratic delays hindering the effective execution of living wills. A notable example occurred in June 2024, when the Bombay High Court criticised the Maharashtra Government for its sluggish implementation of the Supreme Court’s directives on the matter. In a progressive move, Justice M.S. Sonak of the Bombay High Court became the first person in Goa to register a living will, setting a precedent for others to follow.
While these challenges persist, such developments indicate a gradual shift towards greater acceptance and recognition of living wills in Indian society. To ensure that individuals can effectively exercise this right, increased public awareness and administrative efficiency are essential. By streamlining procedures and fostering informed discussions, society can move closer to a legal and social environment where living wills are both accessible and respected.
*Advocate, Supreme Court of India. Author can be reached at: harshsinghmunday@gmail.com.
1. Constitution of India, Art. 21.
11. Common Cause v. Union of India, (2018) 5 SCC 1.
