By: Phalguni Garg, Amity Law School Noida
Long years of battle for sensitively dealing with mental health was finally won with the introduction of the Mental Health Care Act, 2017 (hereinafter called the ‘Act’) repealing the Mental Healthcare Act 1987. While the Act(1) is a landmark law for multitudinous reasons(2) including decriminalizing suicide and prima facie everything seems to be welcoming but there’s a dubiety that this paper identifies and seeks to address.
Section 115(1) of the Act presumes the person attempting to commit suicide to be under severe stress and hence should not be tried under section 309 of the IPC(3) unless proved otherwise. But the presumption is open to challenges on various grounds.
First, it miserably fails in defining ‘severe stress’. The very basis of determining whether a person should be subject to punishment or treatment is itself unclear in its meaning and application. Second, it does not prescribe the stress measurement scale to be adopted to ascertain that the stress had been severe. And finally, the paper discusses other challenges to the presumption such as in the cases where the cause of suicide is not ‘severe stress’.
The paper progresses in search of the meaning and application of the impugned presumption to provide a more definite avenue to the said section. The paper first digs for finding the meaning of the term ‘severe stress’ and then proceeds to its measurement and consequently addresses other challenges to the presumption.
Meaning of severe stress
The term ‘severe stress’ was introduced in section 115(1) in 2016(4) as a replacement for ‘mental illness’ used earlier in the 2013 Bill(5). Based on a lot of deliberations on the issue, the crux being the social stigma, and the abatement laws, the Indian Parliament had concluded to make the substitution(6).
However logical these reasons might seem, it somewhere reflects the hypocrisy in the mindset of the lawmakers. It was not for the first time that the term ‘mental illness’ appeared in the Act, it’s multiple recurrences are evident. When social stigma couldn’t affect its usage previously, how did it daunt the makers so immensely this time that they had to replace it?
In this regard, we have nothing but a wad of unanswered questions which unfortunately failed to make it to the contemplation of the legislators. In the times when there’s a desperate need for changing the attitude of people towards ‘mental illness’(7), it is disheartening to discover that the lawmakers in the Parliament themselves are hung back by the ‘stigma’ in using the term.
Giving all due respect to the decision of the lawmakers, let us for once accept this replacement with an encomium. But what is difficult to ingest here is the meaning of ‘severe stress’ that had been borne in mind by the legislators while incorporating it.
Definitions of stress are in themselves a snapshot of a dynamic process(8), which worryingly indicates the non-existence of its single concrete definition. With stress being a subjective affair,(9) it becomes even more important to define its meaning to avoid future perplexities.
What might fall under stress according to one, the same might not as per someone else. But it is not a trivial affair. Determination of ‘severe stress’ decides the fate of the person attempting to commit suicide.
The kismet of an already perturbed person shall not rest upon any subjective analysis. Not advocating for penalizing them, but section 309 is at least clear with its words and application unlike Section 115 of the Act which has been left to uncertainty and subjectivity. With no definite explanation, the examination authority or the State machinery will unhesitantly be able to furnish faulty reports(10) resulting in the abuse of the very purpose of the section.
Furthermore, the reasoning of the use of ‘severe stress’ did not define the intention to adopt a new meaning in place of ‘mental illness’. The reasons superficially indicated the non-usage of the term without suggesting any change in meaning. So did they mean to use ‘severe stress’ in the same line as ‘mental illness’? Because of the unavailability of its exact meaning, it is open to a variety of interpretations.
Knowing the fact that stress does not have a single definition, it should have been defined within the Act to curb the unprecedented wide interpretation of the section. The failure of this is likely to be witnessed through the wrong interpretations of the term leading to confusion in the procedure to be adopted with the victims of an unsuccessful suicide attempt
Measurement of severe stress
Section 115(1) of the Act seems to restrict the application of section 309 by providing a presumption which is too vague to be understood. When there is no certainty regarding the measurement scale and the measurement level to be adopted, the presumption under the section is impossible to be ascertained accurately. It is therefore good in prints but shoddy in the application. This leads us to the ambiguity relating to two fundamental issues. One, what is the measurement scale that will be adopted uniformly to measure stress level and what is that level of stress which will be considered to be ‘severe’.
The lawmakers had in their mind to protect those under ‘severe’ stress, but it slipped out of their thought to define how they measured ‘severe stress’. A riposte to it, as one may conclude, will be through a stress measurement scale.
But the daunting fact here is that which stress measurement scale(11) has to be adopted, the Standard Stress Scale, the Perceived Stress Scale, the Suicide Intent Scale, some other scale, or a few scales in a combination? While it has been suggested to administer the perceived stress scale and the suicide intent scale to ascertain the severity of stress and the intent objectively(12), but what if some other stress measurement scale is used?
Since the section does not advocate for a uniform stress measurement scale, usage of varied scales won’t be an unsurprising outcome which is consequently bound to lead to conflicting results of the analysis.
Furthermore, even if a uniform measurement scale is adopted, it is not going to solve the problem completely. For the presumption to be applicable it is important that the stress must have been ‘severe’. But the deciding factor for the level of stress is unclear. In the 74th Law Commission Report(13) also, which dealt with the 2013 Bill, it was recommended that the stage up to which the presumption operates was unclear.
Hence, it was pointed out way before the Act was enacted that there was a need to improve on the presumption. Although, the new Act was passed by replacing the term ‘mental illness’ but it still did not answer the impugned question. Since stress is possible to be measured by various scales, it would also be possible to determine the various levels of stress and certainly, there would be a hierarchy of the levels of stress.
Therefore, there would be a point on the scale beyond which stress would be ‘severe’. But unfortunately, the Act nowhere discusses this aspect and leaves measurement of ‘severe stress to vague interpretations which are likely to result in subjective reviews. It would hence become difficult to prove whether the cause of suicide was ‘severe stress’ or a mild one adding to the misery of an already disturbed being.
Other challenges to the presumption
Apart from its hazy meaning, the presumption under section 115 of the Act is subject to other challenges too. The presumption herein restricts itself only to ‘severe stress’ whereas there is much evidence of the existence of various other causes too of an attempt to suicide. All the attempts to suicide are not backed by psychological reasons(14).
Before concluding anything, it is important to acquaint ourselves with various other causes of suicide. In its ADSI-2018 Report, the National Crime Records Bureau of India issued a Report on Suicides in India15 where it enlisted various causes of suicide.
But it did not expressly list out all the causes. While most of the cases therein referred to the psychological issues, there were a considerable number of suicides mentioned whose causes were either not known or mentioned under ‘other causes’.
But it did not state what these other causes could be inclusive of. In contrast to this report, P. Rathinam v. Union of India(16) listed out a variety of causes of suicide that had not been dealt with in the Report. The judgment of the case listed out the following reasons:-
- Mental diseases and imbalances
- Unbearable physical ailments
- Affliction by socially-dreaded diseases
- Decrepit physical condition disabling the person from taking normal care of his body and performing the normal chores
- The loss of all senses or desire for the pleasures of any of the senses
- Extremely cruel or unbearable conditions of life making it painful to live
- A sense of shame or disgrace or a need to defend one’s honour or a sheer loss of interest in life or disenchantment with it
- A sense of fulfillment of the purpose for which one was born with nothing more left to do or to be achieved and a genuine urge to quit the world at the proper moment
It can be unambiguously concluded that section 115 of the Act covers only the first cause (still unclear though) and leaves the other causes entirely unaddressed. It would be erroneous to conclude that there will be no suicide attempts in the future based on a cause other than ‘severe stress’. Therefore, it is paramount to know what will those victims of unsuccessfully attempted suicide be subject to.
Since section 309 of the IPC is still in force, it seems through logical interpretation that the situations where section 115 is inapplicable, section 309 would come into play(17). It sounds good in terms of logic but not in terms of application. Section 309 of the Code penalizes the victims to simple imprisonment up to one year, or fine, or both, therefore, according to the reasoning, such victims of an unsuccessful attempt to suicide shall be liable to the punishment. But it vehemently imposes injustice to them.
For instance, in C.A. Thomas Master And Etc. vs Union Of India (Uoi) And Ors(18), the accused wanted to voluntarily end his life for the purpose of his life had been fulfilled. The Kerala High Court in this regard did not differentiate it as anything different from an attempt to commit suicide which was illegal. The act of the accused therefore attracted sections 309 and 306 of the IPC.
Wistfully, these victims are either already battling against their fortune or desire nothing more in their lives, subjecting them to the torturous prosecution is equivalent to intentionally throwing them into the well of misfortune and torment. Saving section 309 in the statute would be justified for dealing with the cases of failed attempts to consume the cyanide pill and the human bomb(19) but not for the people already dwelling in the miseries.
Like those under ‘severe stress,’ the cry of such people is for help and support instead of punishment. Subjecting them to punishment is equivalent to handing them over sufferings which they already own in abundance.
It is, therefore, a strong challenge to the presumption under section 115 as it protects only a handful of people and leaves the others to uncertainty. It is important for section 115 to recognize other causes of suicide too so that such victims do not have to face the consequences under section 309 of the IPC.
The Mental Health Care Act as the name suggests, is the legislation advanced to protect the right to live with dignity of the people with mental illness(20) and to ameliorate their mental health. Section 115 of the Act is much-celebrated legislation as it decriminalizes the attempt to commit suicide, but its grand procession overshadows its shortcomings. The presumption which it acknowledges is subject to great uncertainty.
What will fall under the presumption, what will not, what is severe stress, which measurement scale has to be adopted to measure it, and the level up to which the stress would be severe, all of it is a matter of concern as the Act heeds no attention in addressing these issues? Moreover, even if such victims are concluded to be under severe stress, there is a huge queue of victims of an unsuccessful attempt to suicide whose acts are not caused by ‘severe stress’ but by sundry other reasons which shall certainly not witness prosecution under section 309 of the IPC.
Hence, the presumption is of a raw nature that needs to be molded with a lot of additions and amendments concerning the meaning and the application of the presumption imposed therein to justify the purpose of the Act and to protect and promote the welfare of the victims of an unsuccessful attempt to suicide.
- Mental Health Care Act 2017 (MHCA).
- Soumitra Pathare, ‘Mental Healthcare Act: A paradigm shift’ (Livemint, 27 December 2017) < https://www.livemint.com/Opinion/BdVVXjyKWDhAAcU1ulHwSI/Mental-Healthcare-Act-A-paradigm-shift.html> last accessed 29 June 2020.
- Indian Penal Code 1860 (IPC).
- Mental Health Care Bill 2016, s115.
- Mental Health Care Bill 2013, s124.
- Laxmi Naresh Vadlami and Mahesh Gowda, ‘Practical implications of Mental Healthcare Act 2017: Suicide and suicide attempt’ (Indian Journal of Psychiatry, April 2019) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6482674/> last accessed 19 July 2020.
- World, Health Organization, ‘Mental health care in India: restoring hope and dignity’ (World Health Organization, October 2015) < https://www.who.int/features/2015/mental-health-care-india/en/> last accessed 20 July 2020.
- Dr Gillian Butler PhD, ‘Chapter 1 Definition of stress’ <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2560943/pdf/occpaper00115-0007.pdf> last accessed 21 July 2020.
- James Porter, ‘Is stress subjective’ (Forbes, 5 January 2019) <https://www.forbes.com/sites/quora/2019/01/05/is-stress-subjective/#3cbf88621912> last accessed 21 July 2020.
- Amba Salekar, ‘How the Celebrated Mental Healthcare Act Restricts Individual Liberty and Fails to Comply with International Standards’ (Caravan, 11 April 2017) <https://caravanmagazine.in/vantage/mental-healthcare-act-restricts-individual-liberty-fails-international-standards> last accessed 21 July 2020.
- Naresh (n 6).
- Law Commission of India (Report No. 74).
- Law Commission of India (Report No. 210) (210 Report).
- ‘Chapter- 2 Suicides in India’ (National Crime Reports Bureau, 03 March 2020) <https://ncrb.gov.in/sites/default/files/chapter-2-suicides-2018.pdf> last accessed 20 July 2020.
-  SCC (3) 394 15(2).
- Jaimithra S, ‘Decriminalized Crime in India: Suicide’ (iPleaders, 22 October 2019) <https://blog.ipleaders.in/decriminalized-crime-india-suicide/#:~:text=%E2%80%9CAbetment%20of%20suicide.,to%20fine%E2%80%9D%5B23%5D.> last accessed 20 July 2020.
-  CriLJ 3729.
- 210 Report.
- Abhishek Mishra and Abhiruchi Galhotra, ‘Mental Healthcare Act 2017: Need to Wait and Watch’ (International Journal of Applied basic Medical Research, April- June 2018) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5932926/#:~:text=The%20Mental%20Healthcare%20Act%202017%20aims%20to%20provide%20mental%20healthcare,being%20discriminated%20against%20or%20harassed.> last accessed 20 July 2020.