Is an Attempt to Suicide Decriminalised, Unconstitutional and Repealed - Story Behind Section 309

Is an Attempt to Suicide Decriminalised, Unconstitutional and Repealed – Story Behind Section 309

Legal luminaries have been debating over ‘Section – 309’ of Indian Penal Code (IPC) from a very long time. Its constitutional validity is under scanner and courts are waiting for the legislature to form a stance over the issue. Section 309 criminalises ‘attempt to suicide’ in India, while Section 115 of the Mental Healthcare Act, 2017 (MHCA) negates Section 309. Masses and even many learned people have confusions regarding the position of Section 309. Here we’ll clear the fog and settle the confusions regarding Section 309 and will answer the common queries like, Is Section 309 now decriminalised? Is Section 309 repealed? and Is Section 309 unconstitutional? Let’s find the answers.

Setting the Approach

Before taking a step further, the reader must be warned, that when it comes to the legal dimension of suicide, there must be absolute refrain from over-simplification of the matter purely on emotional terms. We all do agree to a much humane, stress-based and emotional approach to suicide, but there is more to it and a sweeping yes or no to its repeal or decriminalization will be equally irrational and defying legal reasoning. The aim here is to have a complete grasp of the issue rather than a quick jump to forming an opinion and taking postures. An informed opinion must consider all viewpoints including the devil’s.

It was in the year 1860 when the Indian Penal Code was formed by the colonial British Raj. It is ‘archaic’ and we have a tendency to junk anything and everything when the term, ‘archaic’ comes into play. And thou, we fell directly into the intellectual trappings of the terms. The IPC itself has been amended, updated and suited to the needs of the society and the law innumerable times. It does have some outdated features, but that does not sufficiently hold the logic to junk Sections on the basis of limited understandings based on personal biases.

Introduction

Centers for Disease Control and Prevention (CDC) defines suicide as “death caused by injuring oneself with the intent to die”. And when such injury is caused with the intent to die, does not lead to death, it is called a suicide attempt. Section 309 of Indian Penal Code (IPC), punishes an “attempt to suicide”. Before going further and building useless suspense, let me clear that, as per the status quo in November 2020, Sec 309 is constitutional, is Not decriminalised and has not been repealed. It continues to exist in the statute books. Though, Section 115 of the Mental Healthcare Act, 2017 has reduced its scope, but had not quite blunt it, as common widespread perception goes. Now let’s investigate further into the legal quagmire of Suicide being present in IPC.

Section 309 of IPC: 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 and shall also be liable to fine, [or with fine, or with both.]

The Law Commission in India has twice recommended repealing Section 309 of IPC, one in 1971 and other in 2008. In 1978, the Parliament came too close to repealing it when Rajya Sabha (Upper House) passed IPC (Amendment) Bill, 1978, but the bill lapsed as the Parliament was dissolved and Lok Sabha (House of People) could not take up the matter.

There have been many turbulent cases, through which the debate has come to the present time, where Section 309 remains in the statute but is as good as repealed. The debate has touched many other topics from ‘Right to life’, ‘Right to Die’, ‘Right to Die with Dignity’ and ethical-moral dimensions. The cases majorly being referred here are:

YearCase/ Commission / ReportOutcome/ Recommendation/ Verdict
197142nd Law Commission ReportRecommended the repeal of Section 309. It called Sec 309 as “harsh and unjustifiable”.
1981Beni Madhava And Ors. vs State Of RajasthanRajasthan High Court upheld the validity of Section 309
1985State v. Sanjaya Kumar BhatiaDelhi High Court said that Section 309 is ‘Unworthy of Society’. The court emphasised that Sec 309 should be decriminalised and deleted.
1986Maruti Shripati Dubal vs State of MaharashtraBombay High Court declared that Section 309 ultra vires the constitution and violates Article 21 (Right to Life) and Article 14 (Right to Equality), thus – unconstitutional. Here first time the ‘Right to Die’, was discussed. The court observed that Article 21 also covers Right to Die.
1987Chenna Jagadeeswar And Anr. vs State Of Andhra PradeshAndhra Pradesh High Court upheld the constitutionality of Sec 309. Also said that Right to life does not include the right to die.
1994Rathinam/Nagbhusan Patnaik v. Union of IndiaSupreme Court said that Sec 309 is ‘cruel and irrational’. There is a contradiction between Sec 309 and Article 21, thus it is unconstitutional.
1996Smt. Gian Kaur vs The State Of PunjabSupreme Court overturned the Judgement on Rathinam Case (1994) and said that ‘Right to Life’ is a natural right, whereas suicide is unnatural termination of life. Thus, the apex court upheld the constitutional validity of Section 309. Court also opined that Right to Life does not include Right to Death.
1998Deepak Hadfadkar vs StateBombay High Court upheld the constitutional validity of Sec 309 and gave orders to continue the proceedings under the said section.
2008210th Law Commission Report18th Law Commission in its 210th Report titled
‘Humanization and Decriminalization of Attempt to
Suicide’, termed Section 309 as inhuman irrespective of being constitutional or unconstitutional.
2011Aruna Ramchandra Shanbaug vs Union of India & OrsHonourable Supreme Court recommended the legislature to decriminalise Sec 309 and also to frame guidelines regarding ‘Passive Euthanasia’. The court opined that Right to Life includes ‘Right to Die with Dignity”
2015Nikhil Soni vs Union Of India & Ors.Rajasthan High Court in a response to PIL criminalised Santhara/Sallekhana, a religious practice of Jain community. On the contrary, Articles 25, 26 and 29 protect religious practices and also ‘Right to Die with Dignity’ has been emphasised in Aruna Shanbaug Case (2011).
2017Mental Healthcare Act (MHCA), 2017Attempted suicide due to mental health reasons comes under the purview of MHCA and the person cannot be tried and punished under Section 309 of IPC. MHCA has not repealed Sec 309 but has drastically reduced its scope.
2018Common Cause vs Union Of IndiaThe court upheld, the ‘Right to Die with Dignity’ and included it in the Fundamental Rights.
Story Behind Section 309 – Attempt to Suicide and Its Legal Journey

Ending Double Suffering

Many legal hawks and NGOs have called for the decriminalisation of the ‘attempt to suicide’ The viewpoint is that, the person who has been pushed to commit suicide is already under stress and is undergoing a lot of pain and mental agony. By prosecuting them and framing them under Sec 309, increases the pain and agony and also leads to humiliation. The mental health needs to be taken care off. Section 309 causes double suffering to such a person and is outrightly cruel.

Though one of the most misguided logic is that the person who has attempted suicide is harming himself and not anyone else is completely false. This logic could have been true if that person had been living alone on the planet and had been appeared not born. The reason is that, in the modern world, the individual is supported not just by the parents, peers, teachers but also by the state. The person while enjoying this personal freedom is also a citizen from whom the state also expects some functions. Suicide by a person does affect other people, especially the people who very very close to the person. Affecting their lives too. Thus, it modern world is not born in watertight compartments neither the society.

Reducing the Scope of Section 309

Mental Healthcare Act (MHCA), 2017 of Parliament received the assent of the President on the 7th April 2017/Chaitra 17, 1939 (Saka). It is the only law in the country that relates to mental health. Section 115 of this act has made suicide punishable, as an exception rather than the norm. As per this section, any person who has attempted to commit suicide is presumed to be having stress and should not be tried under Sec 309 of IPC, unless proved otherwise.

Section 115 of Mental Healthcare Act (MHCA), 2017 : (1) 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.
(2) The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.

Corollary: Where Sec 309 is Needed

Due to the MHCA, 2017 the use of Sec 309 of IPC has become exceptional. It is so because most of the times, attempt to suicide is done under stress and is an issue of mental health. But there are cases which has been reported by the police, where there is a threat of attempt to suicide or the attempt to suicide is undertaken to enforce one’s own will. You may think of Veeru from Sholay threatening suicide, thereby forcing Buddhi Mausi to marry undecided Basanti to him.

But the cases where Section 309 still applies are:

  • Where protest or hunger strike- unto death, is undertaken for any other motives but not due to mental stress. As this directly violates the fundamental right to life and no one can surrender his/her fundamental right.
  • Where there was an act done which could kill the person himself/herself while there was no such intention of dying.
  • Under the religious practice of Santhara/Sallekhana.
  • Where the threat of suicide is given of the act of attempt to suicide is undertaken to pressurise or to force a person into something he or she is unwilling to do.

Rajat Jhingan

Your comments and valuable suggestions on this topic are most welcome and much awaited.

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