Aruna Shanbaug v. Union of India

In 2009 a writ petition was filed in the Supreme Court under article 32 by Pinki Virani, who described herself as Aruna Shanbaug's next friend, seeking a direction that the hospital stop feeding her and allow her to die peacefully.

The Court appointed a team of three eminent doctors to examine her and to report. It also heard the staff of the hospital, who had nursed her for decades. They opposed the petition and said that they wished to continue caring for her.

Two things in those facts do the work. Aruna Shanbaug could not decide for herself, so any euthanasia would be non-voluntary. And the person asking for her death was not the person caring for her, which is what the Court fastened on.

What the Court held

Held. On the facts the petition was dismissed. The Court held that the KEM hospital staff, and not the petitioner, were Aruna Shanbaug's real next friend: they had cared for her day and night for many years, while the petitioner had visited on a few occasions and written a book about her. Since the staff did not want the life support withdrawn, the application failed.

Having decided that, the Court went on to deal with the law, and the rest of the judgment is what the case is known for.

Active euthanasia is a crime. Administering a lethal substance is an offence, and nothing in the judgment touches that. Under the current criminal law that conduct falls within the general provisions on culpable homicide, and the separate offence of abetment of suicide, formerly section 306 of the Indian Penal Code 1860, is now section 108 of the Bharatiya Nyaya Sanhita 2023, while attempted suicide as an offence has not been re-enacted in the general form it once had.

Passive euthanasia is different in kind. Withholding or withdrawing treatment is an omission rather than an act, and the question is whether continuing treatment is in the patient's best interests.

Passive euthanasia should be permitted in certain situations, and the Court disagreed with the Attorney General's submission that it should never be permitted.

Then the technique. The Court said in terms that, following the technique used in Vishaka's case, it was laying down the law in this connection, which will continue to be the law until Parliament makes a law on the subject.

The procedure it laid down. A decision to discontinue life support may be taken by the parents, the spouse or other close relatives, or, in their absence, by a person or body of persons acting as next friend, or by the doctors attending the patient; and the decision must be taken bona fide in the best interests of the patient. Because of the risk of abuse, the Court required the approval of the High Court in the exercise of its parens patriae jurisdiction, on an application to be decided by a bench of two judges, who would nominate a committee of three reputed doctors to examine the patient and report, and would hear the close relatives and the State before giving or refusing approval.

Parens patriae means "parent of the nation": the jurisdiction under which the State, through the courts, acts as guardian of persons who cannot look after themselves.

The two limbs, and why the case is easy to misstate

The judgment does two different things and they must be kept apart.

On the facts, it refused relief. Aruna Shanbaug's feeding was not stopped. She lived until 2015.

On the law, it permitted passive euthanasia and legislated a procedure. That is not obiter dictum in the ordinary sense, because the Court expressly declared it to be the law under article 141 until Parliament acted, in the same way as in [Vishaka v. State of Rajasthan] and [D.K. Basu v. State of West Bengal].

A student who says "the Court allowed Aruna Shanbaug to die" has the case exactly backwards, and it is the commonest error on it.

What has happened since

This is the part that a chapter written from an older set of notes leaves out, and it changes the answer.

In Common Cause (A Regd. Society) v. Union of India, decided on 9 March 2018, a Constitution Bench of five judges took the subject up again. Facts. A registered society moved the Supreme Court under article 32 for a declaration that the right to die with dignity is part of the right to life under article 21, and for permission to execute an advance directive, or living will, refusing life-prolonging treatment in the event of becoming incompetent to decide; the matter went to a Constitution Bench because of the state of the law after Aruna Shanbaug. Held. The right to live with dignity under article 21 includes the right to a dignified process of dying for a person who is terminally ill or in a persistent vegetative state; passive euthanasia, both voluntary and non-voluntary, was upheld; the advance directive was recognised, so that a competent adult may specify in writing, in advance, the treatment they refuse if they become incapable of deciding; and detailed safeguards were laid down for making, recording, giving effect to and revoking such a directive, and for cases where none exists, to hold the field until Parliament legislates. Why it matters. It supersedes the procedural part of Aruna Shanbaug: the requirement of a High Court application in every case has been reworked, and the living will, which did not exist in Indian law in 2011, now does.

So the correct statement of the law for an examination in December 2026 is: passive euthanasia is permitted; the foundation is article 21; Aruna Shanbaug is the decision that first permitted it and laid down a procedure; and the operative safeguards, including the advance directive, come from the 2018 Constitution Bench.

Majority and minority

There is no dissent in Aruna Shanbaug. It was decided by a bench of two judges and the judgment is of the Court.

A worked example

Ramesh has been in a persistent vegetative state in a Mumbai hospital for four years after a road accident. There is no prospect of recovery. His wife and both his adult children agree that artificial feeding should be discontinued. He left no written instruction. His brother objects.

Is this active or passive euthanasia? Passive. Nothing positive is proposed; what is proposed is the withdrawal of treatment necessary to continue life. Had a lethal injection been proposed, it would be active euthanasia and a crime, and no procedure could authorise it.

Is it voluntary or non-voluntary? Non-voluntary, because Ramesh cannot decide and left no directive. That is the same category as Aruna Shanbaug's case.

Who may take the decision? On Aruna Shanbaug, the parents, spouse or other close relatives, or a next friend, or the attending doctors, provided the decision is taken bona fide in his best interests. The brother's objection does not by itself veto it, but it is a matter the court weighs, and it is precisely why an approving authority exists.

What is the safeguard? Aruna Shanbaug required the approval of the High Court in its parens patriae jurisdiction, by a bench of two judges advised by a committee of three doctors, after hearing the close relatives and the State. The 2018 Constitution Bench has since reworked that machinery, and it is the 2018 safeguards that a hospital follows today.

Would a living will have changed anything? Yes, and this is the whole point of the change. Had Ramesh, while competent, executed an advance directive refusing life-prolonging treatment in such a situation, the decision would be his and not his family's. That instrument did not exist in Indian law in 2011 and does now.

Distinctions table

What this case does NOT decide

It did not allow Aruna Shanbaug to die. The petition was dismissed.

It did not legalise active euthanasia. That remains a crime.

It did not create a general right to die. What article 21 was held to protect is a dignified process of dying for a person terminally ill or in a persistent vegetative state, which is the 2018 formulation.

It is not the last word on the procedure. The 2018 Constitution Bench reworked it and recognised the advance directive.

Limits and criticism

A High Court application in every case is slow, and the criticism of the 2011 procedure was that a safeguard which takes months is no safeguard for a family facing the decision, and drives the practice underground. That is one of the reasons the matter returned to the Court.

"Best interests" is a standard, not a rule, and it requires somebody to decide what is best for a person who cannot say. The advance directive answers that objection where it exists, and does nothing where it does not.

The risk of abuse is real and is why the safeguards exist. An elderly or dependent patient whose treatment is expensive is exposed to pressure, and the case for a judicial or committee check rests on that risk rather than on distrust of families.

Quick revision

Facts: Aruna Shanbaug, a KEM Hospital nurse, assaulted in 1973 with a dog chain, left in a persistent vegetative state and nursed by the staff for thirty seven years; a petition under article 32 by Pinki Virani as next friend to stop feeding her; the staff opposed it.

Held on the facts: the KEM staff, not the petitioner, were her next friend, and they did not want life support withdrawn; petition dismissed.

Held on the law: active euthanasia is a crime; passive euthanasia is different and should be permitted in certain situations; and, following the technique used in Vishaka, the Court laid down the law until Parliament legislated. Decision by parents, spouse, close relatives, next friend or attending doctors, bona fide in the patient's best interests, with High Court approval in its parens patriae jurisdiction, a bench of two judges, a committee of three doctors, and the relatives and the State heard.

Since: Common Cause, 9 March 2018, Constitution Bench: article 21 includes a dignified process of dying for the terminally ill and those in a persistent vegetative state; passive euthanasia upheld; the advance directive or living will recognised, with safeguards.

No dissent.

Test yourself

1. Distinguish active from passive euthanasia, and state the legal position on each.

Active euthanasia is a positive act that causes death, such as administering a lethal injection, and it remains a crime. Passive euthanasia is the withholding or withdrawal of treatment necessary for the continuance of life, such as discontinuing a ventilator or artificial feeding, and it is permitted in the situations and on the safeguards laid down by the courts. The distinction is between an act and an omission, and the question in the second case is whether continuing the treatment is in the patient's best interests.

2. What did the Court actually decide on the facts?

That the petition failed. The Court held that the staff of the King Edward Memorial Hospital, who had cared for Aruna Shanbaug day and night for many years, and not the petitioner, who had visited on a few occasions and written a book about her, were her real next friend; and since the staff did not wish life support to be withdrawn, no direction to stop feeding her could be made. Aruna Shanbaug lived until 2015. Saying that the Court allowed her to die is the commonest error on the case.

3. What procedure did the Court lay down, and on what authority?

A decision to discontinue life support may be taken by the parents, the spouse or other close relatives, or in their absence by a next friend, or by the attending doctors, and must be taken bona fide in the best interests of the patient; and because of the risk of abuse the approval of the High Court is required in the exercise of its parens patriae jurisdiction, on an application decided by a bench of two judges who nominate a committee of three reputed doctors and hear the close relatives and the State. The authority was article 141: the Court said expressly that, following the technique used in Vishaka's case, it was laying down the law, which would continue until Parliament legislated.

4. What is parens patriae?

The expression means "parent of the nation", and it describes the jurisdiction under which the State, acting through the courts, assumes the guardianship of persons who cannot look after themselves, such as minors, persons of unsound mind and patients incapable of deciding for themselves. In Aruna Shanbaug it was the basis on which the High Court was made the approving authority, because somebody with no interest of their own had to decide whether withdrawal of treatment was truly in the patient's best interests.

5. How has the law moved since 2011?

In Common Cause (A Regd. Society) v. Union of India, decided on 9 March 2018, a Constitution Bench of five judges held that the right to live with dignity under article 21 includes the right to a dignified process of dying for a person who is terminally ill or in a persistent vegetative state, upheld passive euthanasia both voluntary and non-voluntary, and recognised the advance directive or living will, by which a competent adult may specify in advance the treatment they refuse if they become incapable of deciding. It laid down detailed safeguards for making, recording, giving effect to and revoking such a directive and for cases where none exists, so the procedural part of Aruna Shanbaug no longer states the law by itself.

6. Why is this case grouped with D.K. Basu and Vishaka?

Because all three use the same technique, and Aruna Shanbaug names it. In each, the Court found a gap between a constitutional guarantee and the machinery for giving effect to it, filled the gap with directions declared to be the law under article 141, and made those directions expressly interim so that the legislature could take over. Aruna Shanbaug says in terms that it is "following the technique used in Vishakha's case", which is why the three should be read as one line of authority rather than as three unrelated decisions.