Background:

Back in 2018, the Supreme Court of India brought in the concept of “Living Wills” in India by its decision in the matter of Aruna Shanbaug v Union of India, thereby supplementing its ruling to include the right to die with dignity within the scope of Article 21 of the Constitution of India. In simple words, a living will is a legal document that allows the executor thereof to express their wishes regarding medical treatment and end-of-life care if they are ever in a situation where they are unable to communicate their preferences. It's a roadmap for the named guardian or close relative and their medical providers to follow and ensure that their wishes are respected, even if they are unable to express them at the time.

In this regard, the Supreme Court laid down broad guidelines, inter alia stating that a living will must be countersigned by a Judicial Magistrate and be shared with the guardian of the executor, family physician (if any), and designated local government officer or the jurisdictional Municipal Corporation, for official records. Later in 2023, acknowledging the complexity of the process, the Hon’ble Supreme Court simplified the process by mandating that living wills are to be signed in front of witnesses and attested by a notary or gazetted officer, instead of having it countersigned by a Judicial Magistrate, and further mandated that the government shall appoint a competent authority as custodian (“2023 SC Directive”). However, making the provision a bare skeleton, the state failed to appoint such a custodian until recently.

Developments in the Maharashtra:

One Mr Nikhil D Datar approached the Hon’ble Bombay High Court in PIL 3 of 2024 [Prof Dr Nikhil D Datar v The State of Maharashtra through the Chief Secretary & Ors] (“PIL”), seeking implementation of the 2023 SC Directive that simplified the guidelines of passive euthanasia and also sought that the state government and the BMC be directed to appoint a custodian for the same.

In response to the said PIL, the Maharashtra Government filed an affidavit before the Bombay High Court submitting that they have appointed 417 custodians as per the guidelines of the Hon’ble Supreme Court for the implementation of Living Wills. 29 of these custodians have been appointed in Mumbai, Pune, Thane and Navi Mumbai Municipal Corporations, and the rest of the 388 custodians have been appointed in the City Councils and Nagar Panchayats in the state of Maharashtra.

Alterations in the procedure for executing a Living Will:

Prior to the 2023 SC Directive, the process of executing Living Wills was overly complex with elaborate bureaucratic procedures in place to prevent abuse by unscrupulous individuals seeking to exploit the patient’s assets. The Living Will had to be signed by the person making the advance declaration in the presence of two witnesses and in the presence of the concerned Judicial Magistrate of First Class (JMFC), who was also required to countersign the said Living Will. Further, the JMFC’s office had to preserve a physical and a digital copy of the Living Will, and the JMFC was made responsible for ensuring that the Living Will was enforced once the writer of the instrument became incapacitated. Further, the treating physician of the writer of the Living Will was mandated to confirm its authenticity with the JMFC before acting upon it. The process as it stood before the 2023 SC Directive can be understood in detail by referring to our article.

In order to ease the process of executing Living Wills, the Hon’ble Supreme Court inter alia made the following alterations:

1. The requirement to have a JMFC countersign the Living Will has been dispensed with, rather the Living Will is now to be attested in the presence of two witnesses and before a notary or Gazetted Officer.

2. Further, the JMFC is no longer mandated to retain copies of the Living Wills.

3. The responsibility of forwarding a copy of the Living Will to the guardian(s) and close relative(s) and the family physician mentioned therein has been shifted from the JMFC to the executor.

4. Further, it is mandated that the treating physician, shall ascertain the genuineness and authenticity of the Living Will from the custodian of the document, instead of from the JMFC.

 

MHCO Comment: The Supreme Court passed the 2023 SC Directive intending to reduce the red tape surrounding the principle of Living Wills in India. However, it was a year later that the Maharashtra Government paid heed to the directions of the Apex Court and appointed custodians in the various government departments.

It is certain that the appointment of said custodians breathes life into the directions of the Supreme Court to introduce living wills in India, which remained ineffective up until now. However, it remains to be seen whether the custodians so appointed from within the bureaucratic structure, ease the process of making Living Wills.

This update was released on 13 May 2024.

The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance.

Legal Update Team
MANSUKHLAL HIRALAL & COMPANY
Advocates, Solicitors and Notaries
T: +91 22 40565252
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