Albert Camus, while contemplating the absurdity of life, declares that the ultimate philosophical question of existence is whether life is worth enduring despite its inherent meaninglessness. Perhaps the French philosopher’s observation in The Myth of Sisyphus merits a modern reinterpretation. Trapped in the bureaucratic mazes we craft, the real philosophical question may no longer be whether to end it all, but how many stamps are required to do so. In India, stringent procedural barriers obstruct the implementation of living wills, a tool designed to uphold the right to a dignified death, underscoring the urgent need for legislative reform to simplify the process and ensure that the right is accessible, protected and respected.

The genesis of living wills can be traced back to the 2018 case of Common Cause v. Union of India. This case, while elaborating on the legality of passive euthanasia as established in the 2011 case of Aruna Shanbaug v. Union of India, upheld the validity of living wills and provided detailed guidelines for their implementation. A living will, also known as an advance directive, is a written legal document that authorizes an individual to specify their preferences for medical treatment in the event that they are unable to communicate in the future. It becomes operative, for instance, when the individual is in a vegetative state. Unlike a traditional will or testament, living wills do not deal with the distribution of property.

At present, due to the absence of a dedicated legislative framework, bureaucratic reliance is placed on the guidelines laid down in the Common Cause case for the execution and implementation of living wills in India. While these guidelines are extensively deliberated on paper, India’s socio-economic reality hampers its practical application. Being excessively stringent and cumbersome they are not suited to India’s ground reality. While most legal documents require notarization, a living will involves an exorbitant multi-layered approval process.

Firstly, the living will must be signed by two independent witnesses and countersigned by a Judicial Magistrate of First Class (JMFC). Upon an individual’s incapacitation, two medical boards must be constituted. The first board, formed by the hospital, is tasked with preparing a preliminary opinion. The second board, constituted by the jurisdictional collector, is responsible for providing the final opinion. Both boards are required to include expert doctors with at least 20 years of experience. The second board then communicates its decision to the Jurisdictional JMFC who is required to personally visit the patient and, if satisfied, authorize the living will. Such stringent procedures often prolong suffering and undermine the patient’s autonomy.

In light of this, the Hon’ble Supreme Court revisited the 2018 guidelines to streamline the process and reduce delays. Under the 2023 guidelines, attestation is now permitted by a Notary Public or Gazetted Officer instead of requiring a JMFC. Additionally, a 48-hour limitation is established for decisions of the medical board and the mandatory experience requirement for doctors on these boards has been reduced from 20 years to 5 years.

This marks significant progress, however, further revision is still required. In under-resourced areas where access to specialized medical expertise is limited, assembling two medical boards becomes impractical. Even with the 48-hour deadline, delays are inevitable in cases involving public healthcare systems or complex medical situations. The guidelines also lack clarity, particularly in situations where families disagree with the will.

Heavy reliance on in-person documentation also leaves room for corruption and malpractice. This is in stark contrast to other legal processes such as those concerning voter ID registration, Aadhaar issuance, filing a tax return, etc… that are supported by tech-driven processes. Exacerbating the problem, revocation of a living will obligates the exact same procedure as its execution. This may result in a terminally ill patient falling into a vegetative state before he can revoke his advance directive. While safeguards are important, the current framework is disproportionately complex, violating the test of proportionality.

Such barriers erode individual autonomy, and the resulting delays prolong suffering, thereby violating individual dignity. They also disproportionately affect those without legal or medical resources rendering the right inaccessible for many.

Against this backdrop, legislative intervention is pivotal. In 2023, the Apex Court pulled up the ruling government for not passing a law on passive euthanasia. Countries like Canada and the Netherlands provide models for streamlining such procedures and ensuring accessibility through clear legislation and digital systems. It is high time that India enacts a comprehensive law of its own in line with international standards and principles enshrined in the Universal Declaration of Human Rights (UDHR).

Such legislation can reduce procedural complexity, establish a centralized digital registry and ensure legal aid for marginalized groups, thereby honouring the global commitment to dignified healthcare and the constitutional right to a dignified death. Perhaps, it is time to untangle the red tape that stands in the way. 

Albert Camus, while contemplating the absurdity of life, declares that the ultimate philosophical question of existence is whether life is worth enduring despite its inherent meaninglessness. Perhaps the French philosopher’s observation in The Myth of Sisyphus merits a modern reinterpretation. Trapped in the bureaucratic mazes we craft, the real philosophical question may no longer be whether to end it all, but how many stamps are required to do so. In India, stringent procedural barriers obstruct the implementation of living wills, a tool designed to uphold the right to a dignified death, underscoring the urgent need for legislative reform to simplify the process and ensure that the right is accessible, protected and respected.

The genesis of living wills can be traced back to the 2018 case of Common Cause v. Union of India. This case, while elaborating on the legality of passive euthanasia as established in the 2011 case of Aruna Shanbaug v. Union of India, upheld the validity of living wills and provided detailed guidelines for their implementation. A living will, also known as an advance directive, is a written legal document that authorizes an individual to specify their preferences for medical treatment in the event that they are unable to communicate in the future. It becomes operative, for instance, when the individual is in a vegetative state. Unlike a traditional will or testament, living wills do not deal with the distribution of property.

At present, due to the absence of a dedicated legislative framework, bureaucratic reliance is placed on the guidelines laid down in the Common Cause case for the execution and implementation of living wills in India. While these guidelines are extensively deliberated on paper, India’s socio-economic reality hampers its practical application. Being excessively stringent and cumbersome they are not suited to India’s ground reality. While most legal documents require notarization, a living will involves an exorbitant multi-layered approval process.

Firstly, the living will must be signed by two independent witnesses and countersigned by a Judicial Magistrate of First Class (JMFC). Upon an individual’s incapacitation, two medical boards must be constituted. The first board, formed by the hospital, is tasked with preparing a preliminary opinion. The second board, constituted by the jurisdictional collector, is responsible for providing the final opinion. Both boards are required to include expert doctors with at least 20 years of experience. The second board then communicates its decision to the Jurisdictional JMFC who is required to personally visit the patient and, if satisfied, authorize the living will. Such stringent procedures often prolong suffering and undermine the patient’s autonomy.

In light of this, the Hon’ble Supreme Court revisited the 2018 guidelines to streamline the process and reduce delays. Under the 2023 guidelines, attestation is now permitted by a Notary Public or Gazetted Officer instead of requiring a JMFC. Additionally, a 48-hour limitation is established for decisions of the medical board and the mandatory experience requirement for doctors on these boards has been reduced from 20 years to 5 years.

This marks significant progress, however, further revision is still required. In under-resourced areas where access to specialized medical expertise is limited, assembling two medical boards becomes impractical. Even with the 48-hour deadline, delays are inevitable in cases involving public healthcare systems or complex medical situations. The guidelines also lack clarity, particularly in situations where families disagree with the will.

Heavy reliance on in-person documentation also leaves room for corruption and malpractice. This is in stark contrast to other legal processes such as those concerning voter ID registration, Aadhaar issuance, filing a tax return, etc… that are supported by tech-driven processes. Exacerbating the problem, revocation of a living will obligates the exact same procedure as its execution. This may result in a terminally ill patient falling into a vegetative state before he can revoke his advance directive. While safeguards are important, the current framework is disproportionately complex, violating the test of proportionality.

Such barriers erode individual autonomy, and the resulting delays prolong suffering, thereby violating individual dignity. They also disproportionately affect those without legal or medical resources rendering the right inaccessible for many.

Against this backdrop, legislative intervention is pivotal. In 2023, the Apex Court pulled up the ruling government for not passing a law on passive euthanasia. Countries like Canada and the Netherlands provide models for streamlining such procedures and ensuring accessibility through clear legislation and digital systems. It is high time that India enacts a comprehensive law of its own in line with international standards and principles enshrined in the Universal Declaration of Human Rights (UDHR).

Such legislation can reduce procedural complexity, establish a centralized digital registry and ensure legal aid for marginalized groups, thereby honouring the global commitment to dignified healthcare and the constitutional right to a dignified death. Perhaps, it is time to untangle the red tape that stands in the way.