Constitutionality of Attempt to Commit Suicide

March 12, 2022

INTRODUCTION

“To be, or not to be-that is the question: Whether it is nobler in the mind to suffer, The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles, And by opposing end them.” – Shakespeare, Hamlet, III, i.

Suicide is referred to as the act of self-murdering or killing of oneself. It is an intentional act whereby the person ends his/her life to escape tragedies they face. While there can be many reasons which push someone to end their life, the underlying cause traces to stress.

The Indian Penal Code was created in the year 1860. Law is an ever-evolving and a dynamic concept, it keeps changing with the development in society. Law in India has been subjected to change in societal beliefs. For more than 156 years, the section dealing with the offence of attempt to commit suicide had remained unchanged for years despite being questioned at every phase of the legal journey.

As per the Indian Penal Code, Section 309 provided that if a person attempts to commit suicide and does any act in pursuance of the attempt i.e., for committing the offence shall be made liable under this section. It is the offence of premature or unnatural death of valuable human lives. The punishment provided under this section was simple imprisonment that could extend to a maximum one year, or fine, or both. It was a cognizable offence (offences in which the police officer can arrest the accused without any warrant), a bailable offence (offences in which the bail can be granted once required papers are deposited) and a non-compoundable offence (offences in which the matter cannot be settled or compromised between the parties).

The main ingredients of this section are:

Firstly, the person must have been unsuccessful in committing suicide as there can be no offender if he/she succeeds in the act.
Secondly, the attempt must be intentional. It must not be a mistake or an accident. The intention must be clear to self-destruct one’s life.

One concern that was raised with respect to Section 309 was that it is placed under Chapter XVI of the Indian Penal Code. All other offences in this chapter are related to categories where harm to the human body is caused by another person except Section 309 which is a self-destructive act.

The main purpose of this section was to have a determent effect in order to minimize the number of suicide cases in India. It is the duty of the State to protect its citizens from any sort of harm. The data released by NCRB has shown a continuous increase in the number of reported cases of attempt to commit suicide in previous years which proves that clearly, this section had failed to fulfill its purpose.

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; is not like other Fundamental Right such as the right to form associations and speech which are positive rights. But the right to life does not include the right not to live. The act of attempted suicide is always given more importance than the act of committed suicide as because in case of the later the culprit is no more alive to get punishment, but in the former case the culprit is still alive to get some deterrent punishment so as not to repeat the same offence in future. Section 309 of the Indian Penal Code categorically makes attempt to commit suicide punishable, but time and again there arose several debates on the necessity of retaining or deleting this section from the statute book. The judiciary too perceived the criminalization of suicide with contrasting views. While Article 21, the life-line of all fundamental rights under the Indian Constitution guaranteeing right to life and personal liberty, sometimes interpreted to be including right to die under its wrap, in some other cases it is bluntly denied of having any such interpretation.

Considering the legislative intent behind insertion of penal provision for attempt to commit suicide in the 1860 statute, it could be very well understood the amount of importance given to the dignity of human life in that statute considering human life is precious not only for the person concerned holding it but also for the State which cannot stand blind-folded by allowing the person attempting to commit suicide set free without any punishment. Something deterrent would make the offender aware of the value of his life for himself as well as for others. The persons criticizing this view are of the opinion that the insertion of Section 309 under the Penal Code is altogether a wrong provision as it punishes the distressed person doubly who had tried to end his life due to deep depression.

Instead of having sympathetic approach towards the victim, if further punishment would be inflicted upon him it would be simply ruthless act. If a person succeeds in committing suicide, he is saved from being convicted but if he survives, he may face legal consequences. The logic is obvious Article 21 of the Constitution which is its backbone and the people who advocates the theory of deletion of Section 309 of IPC on the basis of Article 21 of the Constitution. Article 21 of the Constitution provides that “No person shall be deprived of his life and personal liberty except according to procedure established by law” So, it the duty of the State constitutionally that it should protect a citizen’s life howsoever his condition is miserable. The problem of suicide is of controversial nature.

The Constitution of India also provides for religious freedom from Article 25 to 28. However, no religion allows suicide, whether it is Hinduism, Christianity or Islam. Christianity prohibits suicide considering it as a sin which leads to a felony. In Hinduism it is considered that there is a process of rebirth, i.e., life after death. Still, it appears that Hindu law does not permit Suicide. In Islamic law, it is believed that Allah has given the life to serve the society and it will be disrespect to Allah if someone takes his own life.

Decriminalization of suicide

India has retained and preserved many laws enacted during the British Raj even after independence in 1947. Section 309 is one such which was retained despite the fact that the British parliament itself decriminalized attempted suicide in 1961 through the Suicide Act. The Law Commission of India undertook to revise IPC along with other central acts and as a result of which it recommended repealing of section 309. “We are, however, definitely of the view that the penal provision is harsh and unjustifiable and it should be repealed”. It rather suggested a new Section which reads as “309. Whoever, by persistent acts of cruelty, drives a member of his family living with him to commit suicide shall be punished with imprisonment of either description of the term which may extend to three years, and may also be liable to fine”.[1] The Bill to repeal this was introduced in Rajya Sabha in 1972 but it failed to pass through Lok Sabha as the house was dissolved then, lapsing the bill. Later, the Law Commission in its 210th report recommended that Sec. 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional…the offence of attempt to commit suicide under Sec. 309 needs to be omitted from the Indian Penal Code. It said that Sec. 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.[2]

At last, by the Mental Health Care Act 2017, which commenced in 2018, the scope of section 309 was limited without repealing it from IPC. The relevant provision reads as, “Notwithstanding anything contained in Section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.”[3] India has now decriminalized the attempt to commit suicide and views the issue as one requiring treatment rather than punishment. The enactment of the act was not a cakewalk for the legislators as there was opposition to it. The reasons and arguments against decriminalization are elaborated below.

CONSTITUTIONALITY WITH REFERENCE TO FUNDAMENTAL RIGHTS

An attempt implies at least an act towards the commission of suicide, such as drowning or poisoning or shooting oneself. If a person throws himself into a well with a view to drowning himself, and if rescued, he is guilty of such an attempt as is punishable under this Sec. 309 IPC.

In Emperor v. Mst. Dhirajia[4], a twenty-year-old lady ran away from her husband’s house after serious confrontation between the two with her six-month old child. The husband followed them and found them crossing the railway line. The lady apprehending him coming closure to them, got frightened and jumped into a nearby well with the baby in hand. This caused the death of the baby, but the lady was rescued with slight injury. The lady was subsequently charged with two offences one for murdering her child and the other for attempting to commit suicide. The court, however, discharged her from the charge of murder of her baby considering absence of mens rea in the act as it was caused out of fear without any guilty intention. Regarding the second charge for punishing the lady under Sec.309, the court was of the view that the word ‘attempt’ used under the provision speaks for some conscious effort made on the part of the offender to constitute the act, which was lacking in the instant case as the lady jumped into the well-being frightened and without having the consciousness of the act she was committing.

Regarding the Constitutionality of Sec. 309 of IPC, lots of diversifying views have come to the fore by the Hon’ble Apex Court time and again. For the first time the question was raised in the Delhi High Court in 1985 in the case of State v. Sanjay Kumar Bhatia[5] where the Division Bench headed by Sachar, J. Held the view that continuation of Sec. 309 in the Indian Penal Code would be an anachronism disgraceful for the Indian society. The court, however, not gave any comment on the constitutional validity of the provision. In Maruti Sripati Dubal v. State of Maharastra[6] the Division Bench of Bombay High Court presided by P.B. Sawant, J. Was of the view that Sec. 309 of IPC is violative of Art. 14 of the Constitution for being discriminatory in nature and for violating arbitrarily the equality guaranteed to the persons. The provision was further held to be violative of Art. 21 as right to life include the right to terminate one’s own life also. In Chenna Jagadeshwar v. State of Andhra Pradesh[7]the Division Bench of Andhra Pradesh High Court, however, rejected the above contention made by the Bombay High Court and held that Sec. 309 IPC is not violative of Article 14 and Article 21 of the Constitution. The decision of the Bombay High Court in Maruti Sripati Dubal’s Case is however, gained much momentum by the Supreme Court in P. Rathinam v. Union of India[8] where a Division Bench of the Court presided by B.L. Hansaria, J. held that right to life under Art. 21of the Constitution doesn’t speak for a right to live a forced life to one’s own disadvantage. The court further reasoned out that Art. 21ensures the right to live with dignity which in no way can include to live with continuous drudgery. To justify the point, the Court expressed its view in the following lines: “One may refuse to live, if the living be not according to the person concerned worth living or if the richness and fullness of life were not to demand living further. One may rightly think that having achieved all worldly pleasure and happiness; he has something to achieve beyond this life. This desire to communion with God may very rightly; lead even a very healthy mind to think that he would forgo his right to live and would rather choose not to live. In any case, a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking”. While categorically declaring Sec. 309 IPC unconstitutional, the Court further reiterated that “attempt to commit suicide is in realty a cry for help and not for punishment” and that right to life includes right to die also. Considering the point from a humanitarian approach, the Court held that when a person due to his various sufferings from life problems attempts to kill oneself, but becomes unsuccessful, if will be penalized for his act, it would be completely inhuman. Rather efforts are to be made to mitigate his problems by using separate methods. The Bombay High Court’s decision in Maruti Sripati Dubal’s Case to include right to die within right to life is, however, not declared absolute to be exercised under all circumstances, rather it was applicable only under certain situations satisfying the act. It entails in the absence of sufficient reasons for the court to rely upon for the attempted suicide, the act would be considered as an offence being punishable under the law. The Rathinam verdict created large hue and cry throughout the country and within few months only again the Apex Court came to review the ruling through a full bench Court in Gian Kaur v. State of Punjab[9]. The important point raised before the court against the previous judgment was that after the principal offence of attempt to commit suicide is declared void being violative of right to life under Art.21, how the abetment for the same can be made punishable under Sec. 306 of IPC? It was contended that right to die being a part of Art.21 after declaration of unconstitutionality of Sec. 309, anybody abetting another to commit suicide be not punished as abettor, rather he be considered to be assisting the victim to put into effect his fundamental right under Art.

Considering the far- reaching adverse consequence of the Rathinam verdict and to put an end to the much debated controversy, the Court overruled the decision and held that ‘right to life and personal liberty’ as enshrined under Art. 21 of the Constitution by no stretch of imagination can be extended to include ‘right to die’. Clarifying the point further the Court held that ‘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”. The Court also differentiated between ‘Euthanasia’ and attempt to commit suicide by saying the former may come within the purview of right to live with dignity up to the end of natural life and thus may include the right of a dying man to desire to die with dignity when his life is ebbing out, but the later in no way be equated with it to allow a person to die an unnatural death reducing natural duration of life. No Constitution can ignore the rights of individuals living in the country to lead a life with dignity, failing which the fundamental rights available to the citizens will be meaningless. Keeping the judicial analysis made above in view, it can be asserted that right to life by no implication be stretched to include right to die as it may lead to social disorder. If Sec. 309 be declared as ultra vires, punitive actions cannot be taken against those adopting the practice of attempting to commit suicide with the plea that they have right to do so. It is true that in most of such cases the victims attempt such acts due to heavy mental stress, for which instead of punishing, some reformatory actions be taken against them. The very essence of Sec. 309 also doesn’t mandate for punishment in every case, rather it only sets the higher limit of such punishment. The courts are endowed with enormous power to ensure that unnecessary harsh dealing or injustice is not caused to the victims who are under severe mental stress.

In Aruna Ramchandra Shanbaug vs Union of India & Ors[10] is a landmark case as suicide assisted by passive euthanasia was allowed in this case under special circumstances and broad guideline were laid down related to passive euthanasia in India. In this case the Supreme Court recommended Parliament to consider the decriminalization of Section 309 of IPC while laying guidelines of passive euthanasia.

CONCLUSION

Suicide is the act of taking one’s own life on purpose. The person ends his/her life intentionally to run away from their problems. There is a lot of taints attached to suicide. It a common mindset and a harsh reality that whenever a person attempts to commit suicide, he/she is already drenched mentally and has lost all hopes and expectations from their lives. The Supreme Court’s stand on attempt to commit suicide was categorically overruled in the case of Smt. Gian Kaur. The court held that right to die cannot be construed from right to life under Article 21. The court stated, “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. To give meaning and content to the word ‘life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself. The right to die, if any, is inherently inconsistent with the right to life as is death with life.”

Thus section 309 was upheld as constitutional. But the motive with which this section was first instated in the Indian Penal Code and the subsequent upholding of the section i.e.. to protect life and discourage self-destructive practice of suicide is now slowly losing its relevance. This is evident from the rise of suicide cases in recent years.

REFERENCES

[1] 42^nd Law Commission Report, The Indian Penal Code, 244 (1971), available at

http://lawcommissionofindia.nic.in/1-50/Report42.pdf.

[2] 210^th Law Commission Report, Humanization and Decriminalization of Attempt to Suicide, 39 (2008), available at http://lawcommissionofindia.nic.in/reports/report210.pdf.

[3] Sec. 115, Mental Health Care Act, 2017

[4] AIR 1940 All. 486.

[5] 1985 Crl.L.J. 931.

[6] 1987 Crl. L.J. 743.

[7] 1988 Crl. L.J. 549.

[8] AIR 1994 SC 1844.

[9] AIR 1996 SCC (2) 648.

[10] AIR 2014 5 SCC 338.

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March 12, 2022