A Living Will No Longer Needs a Magistrate

A living will - an advance medical directive - records what treatment a person wants or refuses if they later become incapable of communicating the decision. The Supreme Court recognised them as legally valid in Common Cause v. Union of India in 2018, holding that the right to die with dignity forms part of the right to life under Article 21.

The 2018 judgment then attached a procedure that made the right largely theoretical. An advance directive had to be countersigned by a Judicial Magistrate First Class, with copies lodged with the Magistrate and the District Court, and the District Collector given a custodial role. Very few directives were ever executed under it - the process asked a healthy person to obtain judicial attestation for a document addressing a hypothetical future, and most people simply didn’t.

The 2023 Order Cut the Threshold to Two Witnesses and a Notary

On 24 January 2023, a clarificatory order of the Supreme Court simplified the requirements substantially. The Judicial Magistrate’s countersignature was removed, as was the District Collector’s role. In their place, the directive needs two attesting witnesses and attestation by a notary or a Gazetted Officer - a threshold comparable to routine documents, rather than one requiring a court.

A Right Recognised in 2018 Was Unusable Until 2023

The sequence is worth noting on its own terms. The right was established in 2018; what changed in 2023 was only the procedure for exercising it. For five years the entitlement existed and was, for practical purposes, unusable - a reminder that in Indian law the recognition of a right and the machinery for using it can be separated by a considerable distance.

A living will sits adjacent to an estate plan rather than inside it: it governs medical decisions during life, not the disposition of assets after death, and it operates independently of any will. But it is the one instrument in the set that takes effect while the person is still alive, which is exactly why the 2023 simplification made a practical difference that the 2018 recognition, on its own, had not.

If a living will was abandoned as impractical under the old procedure, revisit it - the countersignature and the Collector’s role are gone. It is also the one instrument in the set that operates while the person is alive, so it does not wait on the rest of the estate plan.