The Legal Journey of Living Wills
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 India. 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 criminalized 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 Punjab,
the Supreme Court overruled the judgment in P. Rathinam case 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.
NOW OUTMODED FROM HERE
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.}
MODERATED PROCEDURE AND MUMBAI HC present
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 under utilisation 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....
KR IRS 91125
On Sun, 9 Nov 2025 at 15:41, Narayanaswamy Sekar <[email protected]>
wrote:
>
>
> ---------- Forwarded message ---------
> From: N Sekar <[email protected]>
> Date: Sun, Nov 9, 2025 at 2:09 PM
> Subject: Re: Fwd - Why proling death, accept it gracefully
> To: Rangarajan T.N.C. <[email protected]>, APS Mani <[email protected]
> >
> Cc: Narayanaswamy Sekar <[email protected]>, Chittanandam V. R. <
> [email protected]>, Suryanarayana Ambadipudi <
> [email protected]>, Mathangi K. Kumar <[email protected]>,
> Rama (Iyer 123 Group) <[email protected]>, Srinivasan Sridharan <
> [email protected]>, Surendra Varma <[email protected]>
>
>
> Thanks.
>
> Re: Sri T N C R's observations, my response is:
>
> Yes, it is not an easy decision BUT when we are alive and still active, we
> can say to our family members that we don't want to prolong our life by
> being put on ventilators or when the treatment would leave us more like
> vegetables, than human beings.
>
> What kind of a life one would lead, if he or she is perpetually dependent
> on the machines or others - inconveniencing both himself and others. Even
> close kith and kin will become tired after some time and will start looking
> forward to his departure.
>
> All that she says is Make it known to your close ones these problems and
> let her go with dignity and honour. It takes extraordinary Will to say so
> and ensure it is followed.
>
> I have told my son precisely this (if the situation arises) and have also
> put a monetary limit on how much can be spent on keeping me alive, in a
> more or less vegetable state. I insisted he honours my wish.
>
> I have lived a decent life with reasonable comforts and have no desire to
> be a burden, even to my wife. She also shares my feeling and told our son.
> Both myself and my wife share the same feelings, how much painful it may be.
>
> Yes, we don't know if our wish will be carried out but nothing prevents us
> to state our wish, firmly and insisting on it.
>
> Re: When will anyone know whether death / living in a vegetable state will
> come, well, medical science is advanced enough to come to such a
> conclusion. Given the current Corporate Hospitals tendency to milk the
> patients till the last drop, we need to be brutal in talking to them and
> get a second / third opinion, where warranted. The money thus saved, will
> help our progeny or if in excess, help others - in education, marriage,
> living etc.
>
> My opinion and I know there will be many who may not share this view. But
> it is up to each individual.
>
> N Sekar
>
>
> On Sunday, November 9, 2025 at 08:21:41 AM GMT+4, APS Mani <
> [email protected]> wrote:
>
>
> Thought provoking, Mani
>
> On Sun, Nov 9, 2025 at 9:46 AM Rangarajan T.N.C. <[email protected]>
> wrote:
>
> IMHO this article is full of conflict of interests
> Who is going to decide that there is no chance of recovery? If the doctor
> says 10% chance what will be the decision? Who will decide when you are
> under sedation and cannot express your wish? Will they decide without fear
> or guilt even if you have given them to the right to decide?
> Some may look at it as war against death, some others as wish to prolong
> life. What of the quality of life? The family may like to have him with
> them for more time but will soon get exhausted attending to him. But they
> will not be able to think of consequences to him but of what people will
> say about them. Not an easy decision for the family.
>
> On Saturday, 8 November 2025 at 01:17:14 pm IST, N Sekar <
> [email protected]> wrote:
>
>
> EXCELLENT ARTICLE 💐
>
> *When the body stops cooperating, when there is no chance of recovery, do
> not perform treatments on me* -Dr. Lopa Mehta
>
> Dr. Lopa Mehta was a professor at GS Medical College in Mumbai, where she
> served as the head of the Anatomy Department. At the age of 78, she wrote a
> living will. In it, she clearly stated... “When the body stops cooperating,
> when there is no chance of recovery, do not perform treatments on me. No
> ventilators, no tubes, no unnecessary hospital commotion. My final moments
> should pass peacefully.
> Wisdom should take precedence over the stubborn insistence on treatments.”
> Dr. Lopa not only wrote this document but also published a research paper
> on death. In it, she clarified that death is a natural, inevitable, and
> biological process.
>
> According to her argument, modern medicine has never viewed death as an
> independent concept. Medicine always assumes that death results from some
> disease, and by treating that disease, death can be prevented.
> But physiology is far more profound than that.
> She argues... the body is not a machine that runs continuously. It is a
> limited system with a specific amount of vital energy. This energy does not
> come from some stored tank but from the subtle body.
> This subtle body is something everyone experiences but cannot see. It is a
> system composed of the mind, intellect, memories, and consciousness.
> This subtle body acts like a gateway for vital energy. This energy spreads
> throughout the body, keeping it alive. The heartbeat, digestion, and the
> ability to think all depend on it.
> But this energy is not infinite.
>
> Each body has a specific amount of it. Like a fixed battery in a machine,
> it cannot be increased or decreased.
> “As much as Rama winds the key, that’s how much the doll dances”... as the
> saying goes.
> Dr. Lopa wrote that when this energy in the body is depleted, the subtle
> body separates from the physical body. At that moment, the body becomes
> still. We call this “the life force has left.” This process is not related
> to any disease or any fault. It is the internal rhythm of the body.
> This begins in the womb, progresses, and culminates in death. This energy
> is constantly being spent every moment. Every cell, every organ completes
> its lifespan. And when the entire body’s “quota” is exhausted, the body
> comes to rest peacefully.
> The moment of death is not measured by a clock. It is a biological time.
> It is different for each individual.
> For some, life is complete in 35 years, for others in 90 years. But both
> complete their full journey.
>
>
> If we do not see it as a defeat or something forced, no one dies
> incomplete.
> According to Dr. Lopa, when modern medicine stubbornly tries to prevent
> death, not only the patient’s body but the entire family becomes exhausted.
> The cost of a month in the ICU for a breath can sometimes destroy a
> lifetime of savings.
> Relatives keep saying, “There’s still hope,” but the patient’s body has
> long been saying, “Enough.”
> That’s why she wrote... “When my time comes, just take me to KEM Hospital.
> I trust they won’t intervene unnecessarily. They won’t cause prolonged
> suffering in the name of treatment. Do not stop my body. Let it go.”
> But the question is... have we made such a decision for ourselves?
> Will our family respect that wish? And will those who respect it be
> respected in society?
> Do our hospitals honor such wishes, or is a bill issued for every breath,
> and are accusations made for every death?
> This is not so simple. Balancing logic and emotions is perhaps the most
> difficult task.
> If we learn to see death as a peaceful, inevitable process arising from
> the body’s internal rhythm, perhaps the fear of death will lessen, and our
> expectations from doctors will become more realistic.
> In my opinion, we should stop fighting death and instead prepare to live
> before it.
> And when that moment comes... face it peacefully, with dignity.
>
> In the words of the Buddha — death is the next stage in the journey of
> life. No science can make it eternal.
>
> That’s why we must be able to observe this true state. 🙏🏼
>
> Yahoo Mail: Search, Organize, Conquer
> <https://mail.onelink.me/107872968?pid=nativeplacement&c=US_Acquisition_YMktg_315_SearchOrgConquer_EmailSignature&af_sub1=Acquisition&af_sub2=US_YMktg&af_sub3=&af_sub4=100002039&af_sub5=C01_Email_Static_&af_ios_store_cpp=0c38e4b0-a27e-40f9-a211-f4e2de32ab91&af_android_url=https://play.google.com/store/apps/details?id=com.yahoo.mobile.client.android.mail&listing=search_organize_conquer>
>
> --
> You received this message because you are subscribed to the Google Groups
> "Thatha_Patty" group.
> To unsubscribe from this group and stop receiving emails from it, send an
> email to [email protected].
> To view this discussion visit
> https://groups.google.com/d/msgid/thatha_patty/CABC81ZeD%2B%2BjFLF%2BtqhO4Sn_4070VFVY16QLfAOCpvPTtjOmqHA%40mail.gmail.com
> <https://groups.google.com/d/msgid/thatha_patty/CABC81ZeD%2B%2BjFLF%2BtqhO4Sn_4070VFVY16QLfAOCpvPTtjOmqHA%40mail.gmail.com?utm_medium=email&utm_source=footer>
> .
>
--
You received this message because you are subscribed to the Google Groups
"Thatha_Patty" group.
To unsubscribe from this group and stop receiving emails from it, send an email
to [email protected].
To view this discussion visit
https://groups.google.com/d/msgid/thatha_patty/CAL5XZopqxH%3DL%3DnRQdPQpFnK5cZJ_kPJ8ue0aQj6hCmDY%2BzErTQ%40mail.gmail.com.
