Decriminalization of Attempt to Commit Suicide

By Naveen Kumar Gautam, RMLNLU

Editor’s Note: It is really unfortunate that Attempt to Commit Suicide continues to find mention as an offence under our Penal Statute notwithstanding the fact that when a distressed or frustrated person decides to terminate his/her previous life prematurely, it is indeed irrational and unfair to visit him with punishment on his failure to do so. Such hapless individuals rather require sympathy, counselling and appropriate treatment and not the prison in any case. Suicide means the destruction of the self by the self or the intentional destruction of one’s self. Suicide as such is no crime under the Indian Penal Code (IPC) for obvious reasons. It is only attempt to commit suicide that is punishable under the section 309 IPC. The researcher has drawn the attention towards the ongoing debate of retaining or deleting section 309 by testing its validity on the ground of article 21 of the constitution of India which provides right to life as a fundamental right. As per present scenario, right to die is not included within the meaning of right to life as held by the Supreme Court in the case of Gian Kaur v. State of Punjab[i]. The paper is concerned with the legality of Section 309 I.P.C. vis – a – vis Article 21 of Indian Constitution. All the fundamental rights guaranteed to the citizens of India reflects our needs, our aspirations, our right to be able to do something and by defining its boundaries this right is curtailed which in turn curtails our desires. The issue of suicide has generated heated and controvertible argument as many are inclined to recommend suicide on certain grounds while others spoke vehemently against suicide.

1.     Introduction

Life is a stage with one entrance but many exits. Among those, suicide is one exit having a long ancestry. In 1968, the World Health Organisation defined suicidal act as “the injury with varying degree of lethal intent” and that suicide may be defined as “a suicidal act with fatal outcome”. Suicidal acts with non fatal outcome are labelled by World Health Organisation as “attempted suicide.” In recent times, attempted suicide, though a failed act, has gained more importance than the suicide which is the successful act because for this there is no offender who can be brought within the purview of law. In India, attempt to suicide is made punishable under section 309[1] of Indian Penal Code, 1860. A lot of conflicting opinions have generated on the desirability of retaining or deleting Section 309 of Indian Penal Code because of some contrasting judgments given by our Courts about whether right to life includes right to die within the meaning of article 21 of the Constitution of India.

One set of people are of the opinion that Article 21 of the Constitution of India is a provision guaranteeing protection of life and personal liberty and by no stretch of the imagination can extinction of life be read to be included in protection of life. By declaring an attempt to commit suicide a crime, the Indian Penal Code upholds the dignity of human life, because human life is as precious to the State as it is, to its holder and the State cannot turn a blind eye to a person in attempting to kill himself. Another set of people are of the opinion that the Section 309 of Indian Penal Code is cruel and irrational because it provides double punishment for a troubled individual whose deep unhappiness had caused him to try and end his life. It is cruel to inflict additional legal punishment on a person who has already suffered agony and ignominy in his failure to commit suicide.

2.     Section 309 of Indian Penal Code, 1860

Suicide has not been defined anywhere in the IPC. However briefly defined, ‘suicide’ is the human act of self-inflicted, self-intentioned cessation.[2] It has been defined by various sociologists and psychologists in different ways. Some of the definitions are ‘suicide is the initiation of an act leading to one’s own death’. “It is synonymous with destruction of the self by the self or the intentional destruction of one’s self.”[3] Thus, suicide is killing oneself intentionally so as to extinguish one’s life and to leave this world. The Oxford Companion to Law, explains it as ‘self killing or taking one’s own life’.

Suicide as such is no crime under the code. It is only attempt to commit suicide that is punishable under this section, i.e., code is attracted only when a person is unsuccessful in committing the suicide. If the person succeeds, there is no offender who could be brought within the purview of law. The section is based on the principle that the lives of men are not only valuable to them but also to the state which protects them.

S. 309 – Attempt to commit suicide: “Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.”

Attempt must be intentional- The essence of suicide is an intentional self destruction of life. Thus, if a person takes an overdose of poison by mistake or in a state of intoxication, or in order to evade capture by his pursuers he is not guilty under this section. Similarly, if a person because of family discord, destruction, loss of a near and dear relation or other cause of a like nature overcomes the instinct of self- preservation and decides to take his life, he should not be held guilty for attempt to suicide. In such a case, the unfortunate man deserves indulgence, sympathy and consolation instead of punishment. It is under very compelling adverse circumstances that a person resorts to taking the extreme step of attempting to commit suicide. Some of them are depressive illness, schizophrenic attitude, physical illness which is intolerable, poverty, unemployment, frustration, disappointment, dowry problems etc.

There are many ways in which suicide can be committed. The known methods are by drowning, hanging, poisoning, cutting throat, burning, shooting oneself, hunger strike etc. But it is difficult to generalize any and conceptualize particular theory because whenever we hear news about individuals committing suicide, we immediately come up with a conclusion that these people are depressed, dissatisfied, and unhappy with their lives. However, when popular and rich people commit suicide, we are left in confusion. Why would someone who is loved and idolized by many decide to kill himself? Depression may be the main culprit, but there are a lot of things to consider as well. These include overwhelming pain, grief, and stress; some use it as an escape for their failure and shortcomings like criminals who are about to be sentenced or caught. However, there are cases where suicide is an option that is mandatory or required. Thus, most people end up sacrificing themselves to save the lives of others in unbelievable circumstances. Heroes during the wartime generally belong to this category.

3.     Article 21 of Indian Constitution

The Constitution of India provides a long list of fundamental rights under Part-III. Article 21 of our Constitution is one of the important fundamental rights among those rights.

Article 21Protection of Life and Personal Liberty: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Though the phraseology of Article 21 starts with negative word but the word No has been used in relation to the word deprived. The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law. It clearly means that this fundamental right has been provided against the state only. If an act of private individual amounts to encroachment upon the personal liberty or deprivation of life of other person, such violation would not fall under the parameters set for the Article 21; in such a case the remedy for aggrieved person would be either under Article 226 of the constitution or under general law.

But, where an act of private individual supported by the state infringes the personal liberty or life of another person, the act will certainly come under the ambit of Article 21. Article 21 of the Constitution deals with the prevention of encroachment upon personal liberty or deprivation of life of a person. The state cannot be defined in a restricted sense. It includes Government Departments, Legislature, Administration, Local Authorities exercising statutory powers and so on so forth, but it does not include non-statutory or private bodies having no statutory powers.

Right to Life means the right to lead a meaningful, complete and dignified life. It does not have restricted meaning. It is something more than surviving or animal existence. The meaning of the word life cannot be narrowed down. As far as Personal Liberty is concerned, it means freedom from physical restraint of the person by personal incarceration or otherwise and it includes all the varieties of rights other than those provided under Article 19 of the Constitution. Procedure established by Law means the law enacted by the State. Deprived has also wide range of meaning under the Constitution. These ingredients are the soul of this provision. The fundamental right under Article 21 is one of the most important rights provided under the Constitution which has been described as heart of fundamental rights by the Apex Court.

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in A.K.Gopalan v. State of Madras [4] that the contents and subject matter of Article 21 and 19 (1) (d) are not identical and they proceed on total principles. In this case the word deprivation was construed in a narrow sense and it was held that the deprivation does not restrict upon the right to move freely which came under Article 19 (1) (d). At that time Gopalan’s case was the leading case in respect of Article 21 along with some other Articles of the Constitution, but post Gopalan case the scenario in respect of scope of Article 21 has been expanded or modified gradually through different decisions of the Apex Court and it was held that interference with the freedom of a person at home or restriction imposed on a person while in jail would require authority of law.

Whether the reasonableness of a penal law can be examined with reference to Article 19, was the point in issue after Gopalan’s case in the case of Maneka Gandhi v. Union of India[5] , the Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure for depriving a person of his life or personal liberty. This view has been further relied upon in a case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others[6] as follows: Article 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful. The law of preventive detention has therefore now to pass the test not only for Article 22, but also of Article 21 and if the constitutional validity of any such law is challenged, the court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just.

In the same case Bhagwati J. held:

“ We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing, and shelter  over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingle with fellow human beings.”

The Judge conceded that “the magnitude and content of the components of this right would depend upon the extent of the economic development of the country”, but emphasised that “it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human – self.”

In another case of Olga Tellis and others v. Bombay Municipal Corporation and others[7] , it was further observed: Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right must conform the norms of justice and fair play. Procedure, which is unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it.

The interpretation which has been given to the words life and personal liberty in various decisions of the Apex Court, it can be said that the protection of life and personal liberty has got multi-dimensional meaning and any arbitrary, whimsical and fanciful act of the State which deprived the life or personal liberty of a person would be against the provision of Article 21 of the Constitution. “The expression personal liberty in Article 21 is of widest in nature and it covers a bundle of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19”.

Supreme Court again and again after Maneka Gandhi[8] underlined the theme that Article 14, 19 and 21 are not mutually exclusive, but they “sustain, strengthen and nourish each other”. To any civilized society there can be no attributes more valuable than the life and personal liberty of its members. This is why the Supreme Court has now given pride of place to Article 21.

Thus, Article 21 provides ‘right to live with dignity’ as well as ‘right against cruel and unusual punishment’ and ‘Due process of law’ laid down in Article 21 has became the source of many substantive rights and procedural safeguards to the process.

4.     Whether Right to life include Right to die?

The Indian constitution under Article 21 confers the right to Life as the fundamental right of every citizen. The Right to Life enriched in Article 21 have been liberally interpreted so as to mean something more than mere survival and mere animal existence. The Supreme Court has asserted that Article 21 is the heart of the fundamental Rights provided under part III of the constitution. The Supreme Court has clearly stated that in order to treat a right as a fundamental it is not mandatory that it should be expressly stated as a fundamental right. In India “The right to life” under Article 21 of the Constitution has received the widest possible interpretation under the able hands of the judiciary and rightly so.

On the grounds as mentioned, Article 21 does not have a restrictive meaning and needs to be interpreted broadly. This affirms that if Article 21 confers on a person the right to live a dignified life, it should bestows the “Right to Die” also, but the inclusion of Right to die under Article 21 contradict the provision of Indian Penal Code under section 309. As according to section 309 of the I.P.C. “Whoever attempts to commit suicide and does any act towards the commission of such offense, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both”. This section is based on the principle that lives of men are not only valuable to them but also to the state which protects them.

By considering both the laws the provision of I.P.C. under section 309 is contradictory to the fundamental right guaranteed under Article 21 of the Indian Constitution. The state’s power under section 309, I.P.C. to punish a man for attempt to commit suicide is questioned not only on the grounds of morality, but also on the constitutionality of the said provision. A lot of conflicting opinions have been given on desirability of retaining or abolishing section 309 of Indian Penal Code because of some contrasting judgement given by the courts.

A very fascinating development in the Indian constitutional jurisprudence is the extended dimension given to Article 21 by the Supreme Court in the post-Maneka era. Since then, Article 21 has proved to be multi-dimensional. This aspect of Article 21 is brought up by many judicial pronouncements. This right is inalienable and is inherent in us. It cannot and is not conferred upon us. This vital point seems to elude all those who keep on clamoring for the “Right to die”. That means that every individual has fundamental freedom to choose not to live. On this issue the stance taken by the judiciary is unquestionable. The main question arises is whether the right to life includes right to death.

5.     Constitutional validity of Section 309 I.P.C.

The state’s power under section 309, I.P.C. is questioned not only on grounds of morality but also on the constitutionality of the provision.

  1. Maruti Shripati Dubal v. State of Maharashtra[9]

This is the case in which first time it came for the consideration before the court that whether a person has a right to die.  The petitioner, a police constable, who became mentally ill after a road accident attempted to commit suicide by dousing himself with kerosene and then trying to light a match was prevented and prosecuted under section 309 of I.P.C. In 1987, the Division Bench of  Bombay High Court stuck down sec 309, I.P.C., as ultra vires vide article 14 and 21 of the constitution which guarantees ‘right to life and personal liberty’. The court said the ‘right to life’ includes ‘right to live’ as well as ‘right to end one’s life’ if one so desires. It was pointed out that Fundamental Rights have positive as well as negative aspects. For example: Freedom of Speech and Expression also includes freedom not to speak and to remain silent. If this is so, logically it must follow that right to live as recognized by article 21 of the constitution also includes a right not to live or not to be forced to live.

Justice P.B. Sawant:

“If the purpose of the prescribed punishment is to prevent the prospective suicides by deterrence, it is difficult to understand how the same can be achieved by punishing those who have made the attempts. Those who make the suicide attempt on account of mental disorder requires psychiatric treatment and not confinement in the prison cells where their condition is bound to be worsen leading to further mental derangement. Those on the other hand, who makes a suicide attempt on account of actual physical ailments, incurable disease, torture (broken down by illness), and deceit physical state induced by old age or disablement, need nursing home and not prison to prevent them from making the attempts again. No deterrence is going to hold back those who want to die for a special or political cause or to leave the world either because of the loss of interest in life or for self- deliverance. Thus in no case does the punishment serve the purpose and in some cases it is bound to prove self defeating and counter – productive.

  1. State v. Sanjaya Kumar Bhatia[10]

In 1985, the Division Bench of  Delhi High Court while acquitting a young boy who attempted to commit suicide by consuming ‘Tik Twenty’ strongly advocated for deletion of section 309, I.P.C. from the statue book and held that “the continuance of section 309 of the Indian Penal Code is an anachronism unworthy of human society like ours. Instead of sending the young boy to a psychiatric clinic society, gleefully (happily) sends him to mingle with criminals. Medical clinics are needed for such social misfits; but police and prison never.”

  1. Chenna Jagadishwar v. State of A.P.[11]

The Division Bench of Andhra High court upheld the constitutionality of section 309, I.P.C., and remarked that “right to life does not necessarily signify a right to die” which is an offence and therefore section 309 is not violative of Articles 19 and 21 of the constitution. It was also pointed out that the courts have sufficient power to see that unwarranted harsh treatment or prejudice is not meted out to those who need care and attention. This, therefore does not violative of article 14.

  1. P. Rathinam v. Union of India[12]

The two petitioners assailed the validity of Section 309 by contending the same to be violative of Articles 14 and 21 of the Constitution and the prayer was to declare the section as void. The additional prayer was to quash the proceedings initiated against the latter petitioner under sec 309. In 1994, the Division Bench of Supreme Court comprising of Justices R.M. Sahai and B.L. Hansaria, approved the Judgment of Bombay and Delhi High Courts, but overruled the Andhra Pradesh High Court Judgment by contending that the Section 309 is violative of Articles 14 and 21 of the constitution.

While striking down Section 309, I.P.C., the Apex Court said ‘it is cruel and irrational provision violative of Article 21 of the constitution.’ Expanding the scope of Article 21, the court upheld that, ‘right to life’ include ‘right not to live a forced life’; i.e., to end one’s life if one so desires. The court went on to say that-

“…it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy (humiliation) because of his failure to commit suicide…An act of suicide cannot be said to be against religion, morality or public policy and an act of attempted suicide has not baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which state’s interference with a personal liberty of the concerned person is called for.”

The Court further said a person who attempts to commit suicide does not deserve prosecution because he has failed. There can be no justification to prosecute sacrificers of their lives. For instance, students who jump into the well after having failed in examination but survive; girls and boys who resent arranged marriage and prefer to die, but ultimately fail, do not deserve punishment; rather soft words, wise counselling of a psychiatrist and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor.

  1. Gian Kaur v. State of Punjab[13]

In 1996, a five judge Constitutional Bench of the Apex Court comprising of Justices J.S. Verma, G.N. Ray, N.P. Singh, Faizauddin and G.T. Nanawati overruled its decisions of 1994 in P. Rathinam/ Naghbhusan Patnaik and upheld the constitutionality of Section 309.

The appellant and her husband were convicted by the Trial Court under Section 306, I.P.C. for abetting the commission of suicide by Kulwant Kaur. In special leave before the Apex Court the conviction of the appellant has been assailed (challenged), inter alia on the ground that Section 306 I.P.C.is unconstitutional in view of Judgment in 1944; wherein Section 309 I.P.C. has been held to be unconstitutional as violative of Article 21 of the Constitution. The Court while dismissing the petition held that the ‘right to life’ is inherently inconsistent with the ‘right to die’ as is ‘death’ with ‘life’. In furtherance, the right to life, which includes right to live with human dignity, would mean the existence of such a   right up to the natural end of life. It may further include ‘death with dignity’ but such existence should not be confused with unnatural existence of life curtailing natural span of life. In progression of the above, the constitutionality of section 309 of the I.P.C. which makes “attempt to suicide” an offence, was upheld, overruling the judgment in P. Rathinam’s  case.

The Apex Court further held that Section 306, I.P.C. as constitutional and said that ‘right to life’ does not include ‘right to die’. Extinction of life is not included in protection of life. The Court further went on to say that Section 306 constitute a distinct offence and can exist independently of Section 309, I.P.C. As regards Section 309, I.P.C. is concerned, the court said that the’ right to life’ guaranteed under Article 21 of the Constitution did not include the ‘right to die’ or ‘right to be killed’ and therefore an attempt to commit suicide under section 309, I.P.C. or even abetment of suicide under section 306, I.P.C., are well within the constitutional mandated, and are not void or ultra vires. [14]

The Court said – “Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can ‘extinction of life’ be read to be included in ‘protection of life’ whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, it is difficult to construe Article 21 to include within its ambit the ‘right to die’ as a part of the Fundamental Right guaranteed therein. ‘Right to life’ is a natural right embodied in Article 21, but suicide is an unnatural termination or extinction of life and therefore incompatible and inconsistent with the concept of ‘right to life’.”

  1. C. A. Thomas Master v. Union of India[15]

The accused, a retired teacher of 80 years, wanted to voluntarily put an end to his life after having had a successful, contented and happy life. He stated that his mission in life had ended and argued that voluntary termination of one’s life was not equivalent to committing suicide. The Kerala High Court held that no distinction can be made between suicide as ordinarily understood and the right to voluntarily put an end to one’s life. Voluntary termination of one’s life for whatever reason would amount to suicide within the meaning of Sections 306 and 309, I.P.C.  No distinction can be made between suicide committed by a person who is either frustrated or defeated in life and that by a person like the petitioner. The question as to whether suicide was committed impulsively or whether it was committed after prolonged deliberation is wholly irrelevant.

6.     Is it morally right to punish an ‘Attempt to Commit Suicide’?

As a normal rule, every human being has to live and continue to enjoy the fruits of life till nature intervenes to end it. Death is certain. It is a fact of life. Suicide is not a feature of normal life. It is an abnormal situation. But if a person has right to enjoy his life, he cannot also be forced to live that life to his detriment, disadvantage or disliking. If a person is living a miserable life or is seriously sick or having incurable disease, it is improper as well as immoral to ask him to live a painful life and to suffer agony. It is an insult to humanity.

Right to life means right to live peacefully as an ordinary human being. One can appreciate the theory that an individual may not be permitted to die with a view to avoiding his social obligations. He should perform all duties towards fellow citizens. At the same time, however, if he is unable to take normal care of his body or has lost all the senses and if his real desire is to quit the world, he cannot be compelled to continue with torture and painful life. In such cases, it will indeed be cruel not to permit him to die. There are people who though see suicide as morally wrong, still create obligatory grounds to commit suicide and advanced some arguments with moral backups in favour of suicide. Thus giving us the chance of raising the question whether man has the moral right to die or take his or her life.

 Argument in favour of criminalization of attempting suicide[16]:

  • Moral right to die on account of terminal illness- Suicide is one of the ways in which people can exercise a right to die. Burn victims having severe injuries resort to and claim that they have a right to die of which any prevention of their intention to die is seen as a breach of their right to die because it seems impossible to recover from their suffering.
  • Losses and shameful acts- Suicide is morally right in the instance of losses or shameful acts like loss of limb or of physical beauty and the person is not in a position to give any meaning to his life, i.e., he is under the high level of depression, as no relief can be procured.
  • Liberty- To those who see man as a free agent, suicide is morally right. Man’s life belongs to him, hence he is at liberty to take it without denial; and no other person has the right to force their own ideals that life must be lived. Rather, only the individual involved can make such decision and whatever decision he or she does make, should be respected.
  • To save the life of more people- When a person refuses to give information to an enemy camp in order not to endanger the lives of other; killing himself is morally right.

Argument against decriminalization of attempting suicide[17]:

  • Suicide is unhealthy approach to the problems of life- Most people who opt to die are somehow begging for help in order to solve the problems of life. “If a man really does not wish to live, then we think he must be insane, and unfit therefore, to decide his own fate. It becomes our duty to save him first to save his life and then to cure his melancholy.” The depressive situations occasioned by frustration, losses, shame, fear etc. are not enough to warrant ones to commit suicide. After all there are societal approved means of coping with human problems not suicide.
  • Suicide degrades human worth- Kant and Mappes argue on the immoral nature of suicide, also that it degrades human worth. Granted that man is an image of God, he occupies a very special place in creation and to commit suicide reduces his nature below the level of animal nature hence man should abhor suicide.
  • Suicide is against the law of self-preservation- This argument proceeds from man’s natural instinct of self-preservation so; killing oneself is a direct negation of this natural law of self. Hence, suicide is always contrary to the natural law and to charity whereby every man should love himself. Suicide is a terrible aberration which is diametrically opposed to a well ordered self-love and the natural instinct of self-preservation.Suicide seen as an escape from overwhelming personal disaster, evil, life misery, frustration, or dishonour, far from an act of fortitude, is an act of cowardice.
  • Suicide destroys the basis of morality- Kant observes that suicide destroys the basis of morality. He adds, when the subject of morality in one’s person is destroyed, it means that morality itself is rooted out of existence.
  • Suicide violates God’s supremacy- This argument proceeds from the fact that God is the creator and Lord of life. Man is placed on Earth under certain conditions and for specific purposes. The act of suicide therefore opposes the very purpose of the creator. To St. Augustine and others, God prohibits suicide and that we are under obligation to obey a divine command.
  • Utilitarianism- The theory of Utilitarianism given by Bentham based on ‘Pleasure and Pain’ concept also make ‘suicide an evil’ because the pleasure is obtained only by one person who commits suicide to escape from the life full of sufferings but the pain is caused to many members of society who all are dependent on the person who has committed suicide.

Views by eminent persons regarding Section 309 I.P.C.

  • In this regard eminent lawyer Ram Jethmalani says “The right to die is a part of a wider concept of liberty. The whole nation of the state controlling your life and death is grotesque”. Equally radical is Dr Appa Ghatate, Supreme Court lawyer who agrees, “The right to die should be included in the Indian Constitution as a fundamental right. The very idea of the state controlling your life is absurd.”
  • Mr. V. S. Deshpande, after his retirement as Chief Justice of Delhi High Court, referring to what had been held by this Court regarding the scope of Article 21, took the view that if Section 309 is restricted in its application to attempts to commit suicide which are cowardly and which are unworthy, then only this section would be in consonance with Article 21, because, if a person having had no duties to perform to himself or to others when he is terminally ill, decides to end his life and relieve himself from the pain of living and the others from the burden of looking after him, prosecution of such a person would be adding insult to injury and it was asked : “Should a Court construe Section 309 I.P.C. to apply to such cases ?”
  • Sometime afterwards appeared an article of Justice R.A. Jahagirdar of Bombay High Court in which the learned Judge took the view that Section 309 was unconstitutional for four reasons:

(1)   Neither academicians nor jurists are agreed on what constitutes suicide, much less attempted suicide;

(2)   Mens rea, without which no offence can be sustained, is not clearly discernible in such acts;

(3)   Temporary insanity is the ultimate reason of such acts which is a valid defence even in homicides; and

(4)   Individuals driven to suicide require psychiatric care not the prison cells.

  • While dealing with issues pertaining to euthanasia, the bench of justices Markandey Katju and Gyan Sudha Mishra observed, “We are of the opinion that although Section 309 of I.P.C. (attempt to suicide) has been held to be constitutionally valid in Gyan Kaur’s case by Supreme Court, the time has come when it should be deleted by Parliament as it has become anachronistic”.[18]
  • Fali S. Nariman, a senior Supreme Court Advocate, “It is time for India to take consideration of the International hue and cry which has been going on and take a humane step towards mankind and his existence with dignity.”

7.     Contemporary Scenario & Position in Other Jurisdictions

The Supreme Court of India overruled the Judgement given by Bombay High Court in Maruti Shripati Dubalv. State of Maharashtra and also its earlier decision given in P. Rathinam v. Union of India cases wherein Section 309 of Indian Penal Code, 1860 was held to be unconstitutional. It upheld the Judgement of the Andhra Pradesh High Court in Chenna Jagadishwarv. State of Andhra Pradesh holding that Section 309 of the I.P.C. was not violative of Articles 21 and 14 of the Indian Constitution and therefore, it cannot be declared null and void. Presently the verdict given in Gyan Kaur v. State of Punjab is followed, in which the Supreme Court upheld the validity of Section 309 and states that it is within the constitutional mandates and is not violative of any fundamental rights.

England- Laws against suicide and attempted suicide prevailed in English common law until 1961. Suicide ceased to be a legal offense with the passing of the Suicide Act 1961which states that “the rule of law where it is a crime for a person to commit suicide is hereby abrogated.”

Australia -Assisted suicide was legal in Australia for a period, but now is not. In 1995, the world’s first euthanasia legislation, the Rights of the Terminally Ill Act 1995, was passed in the Northern Territory of Australia. Four patients died under the Act, using a euthanasia device designed by Dr Philip Nitschke. The legislation was overturned by Australia’s Federal Parliament in 1997. In response to the overturning of the Act, Dr Nitschke founded Exit International.

Ireland-Attempted suicide is not a criminal offence in Ireland, and under Irish law self-harm is not generally seen as a form of attempted suicide. Assisted suicide and euthanasia are, however, illegal.

NetherlandsIn the Netherlands, being present and giving moral support during someone’s suicide is not a crime; neither is supplying general information on suicide techniques. However, it is a crime to participate in the preparation for or execution of a suicide, including supplying lethal means or instruction in their use. Physician-assisted suicide may be an exception.

North KoreaNorth Korea has a peculiar deterrent for suicides. Although law cannot punish a dead person, in North Korea relatives of a criminal (including a suicide victim) might be penalized, as a form of collective punishment.

RussiaIn Russia, inciting someone to suicide by threats, cruel treatment, or systematic humiliation is punishable by up to 5 years in prison. (Article 110 of the Criminal Code of the Russian Federation).

ScotlandThere was no legislation on this topic until 1961 when the Suicide Act was passed. Suicide is not currently an offence under Scots Law. However, the offence of attempting suicide is a Breach of the peace. A person who assists a suicide might be charged with murder, culpable homicide, or no offence depending upon the facts of each case.

SingaporeIn Singapore, a person who attempts to commit suicide can be imprisoned for up to one year.

United States- Historically, various states listed the act of suicide as a felony, but these policies were sparsely enforced. In the late 1960s, eighteen U.S. states lacked laws against suicide. By the late 1980s, thirty of the fifty states had no laws against suicide or suicide attempts but every state had laws declaring it to be felony to aid, advice or encourage another person to commit suicide. By the early 1990s only two states still listed suicide as a crime, and these have since removed that classification. In some U.S. states, suicide is still considered an unwritten “common law crime,” as stated in Blackstone’s Commentaries. As a common law crime, suicide can bar recovery for the late suicidal person’s family in a lawsuit unless the suicidal person can be proven to have been “of unsound mind.” That is, the suicide must be proven to have been an involuntary act of the victim in order for the family to be awarded monetary damages by the court. This can occur when the family of the deceased sues the caregiver (perhaps a jail or hospital) for negligence in failing to provide appropriate care.

8.     Law Commission of India Reports

Law Commission 42th Report. [19]

The Law Commission of India in its 42nd Report (1971) recommended repeal of Section 309 being of the view that this penal provision is “harsh and unjustifiable”. The apprehension that the repeal of the law criminalizing attempted suicide would result in increase in suicide is betrayed by the fact that Sri Lanka repealed the law four years ago and the suicide rate is showing a trend in reduction. On the contrary, in Singapore suicide rates have been increasing in recent years despite their having suicide as a punishable offence.

Law Commission 210th Report[20]

The 18th Law Commission in its 210th Report titled ‘Humanization and Decriminalization of Attempt to Suicide’ submitted on October 17, 2008 gave the following recommendations:-

  1. Suicide occurs in all ages. Life is a gift given by God and He alone can take it. Its premature termination cannot be approved by any society. But when a troubled individual tries to end his life, it would be cruel and irrational to visit him with punishment on his failure to die. It is his deep unhappiness which causes him to try to end his life. Attempt to suicide is more a manifestation of a diseased condition of mind deserving of treatment and care rather than punishment. It would not be just and fair to inflict additional legal punishment on a person who has already suffered agony and ignominy in his failure to commit suicide.
  2. The criminal law must not act with misplaced overzeal and it is only where it can prove to be apt and effective machinery to cure the intended evil that it should come into the picture.
  3. Section 309 of the Indian Penal Code provides double punishment for a person who has already got fed up with his own life and desires to end it. Section 309 is also a stumbling block in prevention of suicides and improving the access of medical care to those who have attempted suicide. It is unreasonable to inflict punishment upon a person who on account of family discord, destitution, loss of a dear relation or other cause of a like nature overcomes the instinct of self-preservation and decides to take his own life. In such a case, the unfortunate person deserves sympathy, counselling and appropriate treatment, and certainly not the prison.
  4. Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional. The repeal of the anachronistic law contained in section 309 of the Indian Penal Code would save many lives and relieve the distressed of his suffering.
  5. The Commission is of the view that while assisting or encouraging another person to (attempt to) commit suicide must not go unpunished, the offence of attempt to commit suicide under section 309 needs to be omitted from the Indian Penal Code.

9.     Conclusion

It is most intriguing and frustrating to observe that our penal laws which are nothing but the handiwork of Britishers have by and large remained untouched even after more than 60 years of independence. What a pity that Britishers have themselves amended their penal laws and decriminalised attempt to suicide way back in 1961 but we are yet to even deliberate on taking any action on this decisive issue which subjects an already tormented person to further punishment and ignominy!

Certainly, we should not be the copycat of Britishers but can we deny that increasingly more and more countries like Netherlands, Belgium, Luxembourg, Switzerland, Oregon and Washington in USA and Thailand are even legalising euthanasia or mercy killing for terminally ill persons? Can we deny the decriminalization of attempted suicide by all countries in Europe, North America and Canada? Can we deny that it is only a handful of countries in the world like Pakistan, Bangladesh, Malaysia, Singapore and India who still punish attempt to suicide under their penal laws? Are we still waiting only to be the last country in the world to decriminalise attempt to suicide?

Let us not forget that Section 309 of I.P.C. tantamount to brazenly punishing a person who is already suffering endlessly by not only sending him/her to prison for one year but also imposing fine which only serves to make their life more miserable by further compounding their endless problems. How can this grave injustice be ever justified? Can an ordinary person even dream to commit suicide? It is under very compelling adverse circumstances that a person resorts to taking the extreme step of attempting to commit suicide which must be fully taken into account. Such people suffering from severe depression need the company of good doctors and not jailors which we all must also now realise and appreciate

Ours is a democracy which means that it is by the people, of the people and for the people. Constitution locates power that resides in the people. It is the people’s power for people’s benefit. Constitution creates rights and duties. All most all our demands get converted into rights-even our feelings, emotions is governed by the rights and duties we have. As we have got the right to live life with all dignity so we should also have right to die as when it is necessary by law in certain situation. Constitution is a social document. It is the society in its political aspect. We can’t understand its nature without understanding the chief characteristics of the society. If the constitution is such that it has taken into its consideration, the social set up, then only will it stand the test of time. Constitution and society grows, develops together and gets intertwined in each other. The constitution takes into account change and developments in the society.

Therefore, it is wrong to say that the Indian penal code is a modern code in every possible sense. Laws are made for the people and it should be change to meet the aims and aspiration of the changing society. Ultimately, the aim should be to evolve a consensual and conceptual model effectively handling the evils without sacrificing human rights. Therefore section 309 should be deleted from the Indian penal Code because as mentioned in Maruti Shripati Dubal that “No deterrence is going to hold back those who want to die for a special or political cause or to leave the world either because of the loss of interest in life or for self- deliverance.

Thus in no case does the punishment serve the purpose and in some cases it is bound to prove self defeating and counter – productive”. In any case a person should not be forced to enjoy the right to live to his detriment, disadvantage, and disliking. Further, the “Right to life” under Article 21 should not include “right to die” because this provision might increase the rates of suicides in the country and moreover the “Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore incompatible and inconsistent with the concept of “right to life”.

Although the judgement given by Supreme Court in Gyan Kaur is followed but according to me this should be scrapped from the I.P.C. but the ‘right to die’ should not be expressively included in the “right to life”, because “Life is a gift given by God and He alone can take it”. Its premature termination cannot be approved by any society. Neither it should be penalised. Attempt to commit suicide is a ‘manifestation of diseased mind’. So what is to be done is rightly stated by the decision given in P. Rathinam’s case-“What is needed to take care of suicide prone persons are soft words and wise counselling (of a psychiatrist), and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor. Section 309 of the Penal Code deserves to be effaced from the statute book to humanise our penal laws. It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide.”

The desirability for deletion of Section 309 of I.P.C. is also the view supported by the majority of states in India. Twenty five Indian states except Madhya Pradesh, Bihar and Sikkim have favoured striking down I.P.C. Section 309 that criminalises attempt to commit suicide by making it punishable with imprisonment.

In conclusion, it can be said that to resolve this debate, the conflict between the principle of sanctity of life and the rights of self determination and dignity of an individual is to be resolved first and right to die should not be generalized but should be exercised as an exception in the “RAREST OF RARE CASES” like Death Penalty in India.

Formatted on 15th March 2019.

Footnotes

[1] “Sec 309-Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both”

[2] Encyclopaedia Britannica, (1973) at p. 383.

[3] The Social Meaning of Suicide(1967): Jack D. Donglas, Princeton Univ. Press, New Jersey.

[4] AIR 1950 SC 27.

[5] AIR 1978 SC 97.

[6] AIR 1981 SC 746.

[7] AIR 1986 SC 180.

[8] AIR 1978 SC 97.

[9] (1987) Cr LJ 473 (Bom.)

[10] (1985) Cr LJ 931 (Del)

[11] (1988) Cr LJ 549 (AP)

[12] AIR 1994 SC 1844

[13] AIR 1996 SC 1257

[14] Varun Kumar, Right to Die and constitutionality of Section 309 IPC: a global perspective, Referred Research Journal,July, 2011,ISSN-0975-3486,RNI: RAJBIL 2009/30097,VOL-II*ISSUE 22

[15] 2000 Cri LJ 3729

[16] http://forums.philosophyforums.com/threads/convincing-arguments-for-suicide-40130.html(last visited on 3rd of april 2014)

[17]www.nhs.uk/Conditions/Euthanasiaandassistedsuicide/…/Arguments.aspx(last visited on 3rd of april 2014 )

[18]http://news.oneindia.in/2011/03/08/supreme-court-india-suicide-euthanasia-aid0120.html

[19]http://lawcommissionofindia.nic.in/reports/report210.pdf

[20Ibid.

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