ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Should the Supreme Court Legalise ‘Living Wills’?

Tilting at the Windmills (Again)

Recognising the legal validity of "living wills" is a necessary step in giving effect to the constitutional right to die with dignity and control her treatment. However, given the complex questions and competing interests involved in creating a proper legal mechanism and institutional support for living wills, the Supreme Court should leave it to the legislature.

In exercising its jurisdiction under the Constitution, the Supreme Court has often been drawn into legislating on complex and sometimes, confounding subject matters. The Supreme Court has, in the past, found it fit to issue detailed guidelines on inter-country adoptions,1 sexual harassment at the workplace2 and rehabilitation of sex workers,3 among many other fields on its own in a given case, but always with the caveat that such directions would hold the field subject to law made by Parliament. The wisdom of the Court entering into such fraught areas of social conflict, on its own, with little legislative guidance has been questioned elsewhere.4 It also remains to be seen how effective the Supreme Court’s interventions have been in meeting the object of such involvement.

Yet, the Supreme Court has once again been called upon to legislate in another fraught and complex area – legalising living wills.5 Common Cause, a non-governmental organisation, has in a writ petition filed under Article 32, asked the Court to declare that the “right to die with dignity” be recognised as an aspect of the “right to life with dignity”6 and in furtherance of this, pass orders to allow for the execution of “living wills”. In the alternative, the writ petition seeks the setting up of an expert committee consisting of “doctors, social scientists and lawyers” to study the aspects of the issue of “living wills” and frame guidelines in this respect.7

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