From Jurisprudential Triumph to Administrative Gridlock: A Comparative Critique of Substantive Due Process and Institutional Competence in India's and America's "Right to Die" Jurisprudence

Abstract

The comparative constitutional literature on end-of-life rights has long been organised around a single doctrinal contrast: Washington v. Glucksberg, [1] in which the Supreme Court of the United States declined to read a right to physician-assisted suicide into the Due Process Clause of the Fourteenth Amendment, and Common Cause (A Registered Society) v. Union of India, [2] in which the Supreme Court of India held that the right to die with dignity is a facet of the right to life under Article 21. This paper moves past that contrast. Its concern is not whether a court should recognise a right to die, but what follows institutionally once it has recognised or refused to recognise one. The Indian path produced judicially designed administrative machinery that the Court itself modified in 2023 and applied for the first time in March 2026 in Harish Rana v. Union of India. [3] The American path produced a patchwork of state statutes whose coverage remains geographically fragmented nearly three decades after Glucksberg. Comparing these two institutional after-effects, the paper argues that neither judicial recognition nor judicial refusal, standing alone, resolves the execution-stage problem of rights-creation, and it proposes a sunset-limited, dialogic remedial model as a middle path. [1] Washington v. Glucksberg, 521 U.S. 702, 728 (1997). [2] Common Cause (A Regd. Soc’y) v. Union of India, (2018) 5 SCC 1 (India). [3] Harish Rana v. Union of India, 2026 INSC 222 (India).