This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of Section 309 of the Indian Penal Code, 1860. 

Introduction 

Section 309 of the Indian Penal Code, 1860 lays down the provision for an attempt to commit suicide as an offence. It is to be noted that suicide is as such no crime under the Indian Penal Code, 1860 but an attempt to commit suicide has been made punishable under Section 309. The latter has been carried out taking into consideration mens rea as one of the essential elements of the aforementioned offence. There exists a lot of misunderstanding about Section 309 of the 1860 Code among the general public, and many of them believe that the Supreme Court of India and the legislature have struck it already. While this provision has been deemed unconstitutional by some, few argue that the same should be decriminalised. The present article provides a detailed analysis of Section 309 of the penal Code. 

Section 309 of the Indian Penal Code, 1860 : an insight 

Section 309 of the Indian Penal Code, 1860 reads as, “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.” The intention of the legislature while formulating this provision was clear as the provision implies that if someone tries to commit suicide and fails to achieve his or her goal, he or she may face simple imprisonment for up to one year, a fine, or both.

The subject matter of this provision is ‘suicide’ and understanding the same is significant with respect to the discussed provision. Suicide is made up of two words, ‘sui’, which means self, and ‘cide’, which signifies killing. In other words, a person committing suicide must do it themselves, regardless of the tools they use to accomplish their goal of killing themselves. One of the prime issues concerning suicide is that the same is not specifically defined in the Indian Penal Code, 1860. In a divergent sense, every act that brings a person closer to death and further from life is a crime. The intention, no doubt, maybe deduced from a variety of circumstances, including the method used to commit suicide. However, the veracity of these inferences may be questioned. As the simple acts themselves may not imply a specific intention, various people may engage in the same or similar behaviours with different intentions, and not all of them are intended to end one’s life.

The Law Commission of India proposed abolition of Section 309 in its 42nd Report (1971), stating that the criminal provision is “severe and unreasonable.” The Government of India approved the suggestion after the aforementioned Law Commission’s Report was made public, and the Indian Penal Code (Amendment) Bill, 1972 was tabled in the Rajya Sabha to remove Section 309. The Bill was referred to a Joint Committee of both Houses, and after receiving its report, the Rajya Sabha approved it in November 1978 with minor revisions. The Bill was pending in the Sixth Lok Sabha when it was dissolved in 1979, as a result, it expired.

State wise statistics of suicides in India (2016-2020)

Each suicide is a personal tragedy that steals an individual’s life too soon and has a long-term impact on the lives of their family, friends, and communities. In our nation, almost a million individuals commit suicide each year. Suicides can be caused by a variety of factors, including professional/career issues, feelings of loneliness, abuse, violence, family issues, mental diseases, alcohol addiction, financial loss, chronic pain, and so on. The National Center for Suicide Prevention collects statistics on suicides through police reports.

The National Crime Records Bureau’s (NCRB) report on suicide has calculated rate of suicides using projected population for the non-census years whereas for the census year 2011, the population in the Census 2011 Report was used. A total of 1,53,052 suicides were reported in the country during 2020 showing an increase of 10.0% in comparison to 2019 and the rate of suicides has increased by 8.7% during 2020 over 2019. While the rate of suicide was 10.3 back in 2016, it increased to 11.3 in 2020. 

Maharashtra had the highest number of suicides with 19,909 individuals, followed by Tamil Nadu with 16,883 suicides, Madhya Pradesh with 14,578 suicides, West Bengal with 13,103 suicides, and Karnataka with 12,259 suicides, accounting for 13.0%, 11.0 %, 9.5 percent, 8.6%, and 8.0 percent of total suicides, respectively. Suicides in the remaining 23 states and 8 UTs accounted for 49.9% of the total. Uttar Pradesh, the country’s most populous state (16.9% of the total population), has recorded a smaller percentage share of suicide fatalities, accounting for just 3.1 percent of all suicides reported in the country.

The most populous Union Territoriy (UT), Delhi, has the greatest number of suicides (3,142) among the UTs, followed by Puducherry with 408. During the year 2020, a total of 23,855 suicides were recorded in the country’s 53 megacities. Uttarakhand (82.8 percent), Mizoram (54.3 percent), Himachal Pradesh (46.7 percent), Arunachal Pradesh (42.9 percent), Assam (36.8%), and Jharkhand (30.5 percent) reported significant percentage increases in suicides in 2020 over 2019, while Manipur (24.1 percent), Puducherry (17.2%), Uttar Pradesh (12.1%), Haryana (4.5 percent), and Chandigarh (2.3 percent) reported significant percentage decreases in suicide cases.

The suicide rate trend in states and union territories

The rate of suicides, or the number of suicides per 100,000 people, has long been used as a benchmark for comparison by the NCRB while preparing its report. In the year 2020, the overall suicide rate in India was 11.3 percent. Suicide rates were greatest in the Andaman & Nicobar Islands (45.0), Sikkim (42.5), Chhattisgarh (26.4), Puducherry (26.3), and Kerala (24.0). 

‘Marriage related issues’ (particularly, ‘dowry related issues’) and ‘impotency/infertility’ were the significant reasons behind a higher proportion of female victims of attempted suicides. The most susceptible age groups committing suicides were those between the ages of 18 and 30, as well as those between the ages of 30 and 45. Suicides occurred in 34.4 percent and 31.4 percent of these age groups, respectively. Suicides among minors (below 18 years of age) were primarily caused by family problems (4,006), love affairs (1,337), and illness (1,327). 

Major causes of suicide in India

The NCRB Report 2020 reveals that suicides were mostly caused by ‘family problems’ and ‘illness,’ accounting for 33.6 percent and 18.0 percent of total suicides in 2020, respectively. Other reasons for suicide included;

1. Drug abuse/addiction (6.0 percent),
2. Marriage related issues’ (5.0 percent),
3. Love affairs (4.4 percent),
4. Bankruptcy or indebtedness (3.4 percent),
5. Unemployment (2.3 percent),
6. Failure in examination (1.4 percent),
7. Professional/career problem(1.2 percent), and
8. Poverty (1.2 percent).

In 2020, a total of 10,677 people working in the agriculture industry (including 5,579 farmers/cultivators and 5,098 agricultural labourers) committed themselves, representing for 7.0 percent of all suicide victims (1,53,052) in the nation. There were 5,335 men and 244 women among the 5,579 farmer/cultivator suicides. There were 4,621 males and 477 females among the 5,098 suicides committed by agricultural labourers in 2020.

Mass suicides  

In the year 2020, there were 121 reported cases of mass/family suicides. A total of 272 people died as a result of these suicides, including 148 married people and 124 unmarried. During the year 2020, the highest number of mass/family suicides were reported in Tamil Nadu (22 cases), followed by Andhra Pradesh (19 cases), Madhya Pradesh (18 cases), Rajasthan (15 cases), and Assam (10 cases), with a total of 45 people dying in Tamil Nadu, 46 in Andhra Pradesh, 39 in Madhya Pradesh, 36 in Rajasthan, and 10 in Assam. In ten of the 53 cities studied, mass/family suicides were documented. In these three cities, there have been 26 occurrences of mass/family suicides, resulting in the deaths of 63 people in 2020. There were 40 married people and 23 singles among them. 

Mass suicides are a common sight in India for every year there has been several cases across the nation that has been responsible for shooking the entire nation. One such incident was on December 6, 2021 when a 47-year-old auto parts merchant, his 67-year-old mother, his 45-year-old wife, a grocery store owner, and their two girls, committed suicide in Bhopal. The cause of their suicide was inadequacy in fulfilling moneylender’s loan. The two little girls had started poisoning the household pets the next day. Then each and every one of them ingested the poison. Neighbours had rushed them to the hospital, but in three days, the entire family had breathed their last. The Chief Minister, Shivraj Singh Chouhan, was startled by the incident as the long-standing issue of predatory lending came back into the spotlight. “Hum buzdil nahi, majboor hain” (we’re not cowards, we’re powerless) were the family’s concluding remarks in the 13-page message. 

Further, on 3rd January, 2021, a four members family, including two minors were found hanging from a tree at a village in Modasa rural area of Aravalli, two days after they went missing. Polices have claimed the incident to be a mass suicide. As per investigation, the cause of the suicide was financial difficulties as the bread earner of the family was unemployed since lockdown. Thus financial constrains have been discovered to be the primary reason behind mass suicides. 

Constitutionality of Section 309 of the Indian Penal Code, 1860

In order to understand the constitutionality of Section 309 of the Code of 1860, certain landmark decisions by courts across India need to be taken into account, as have been provided hereunder. 

Maruti Shripati Dubal v. State of Maharashtra (1986)

Constitutionality of Section 309 of Indian Penal Code, 1860 first came up for consideration before the Bombay High Court in the case of Maruti Shripati Dubal v. State of Maharashtra (1986). The reasonings that the Court had provided before arriving at its decision of striking down Section 309, have been elaborated below:

1. The desire to die, and the right to die, are both natural human emotions. Whatever circumstances lead to a person ending or terminating their life, arrive at that person’s voluntary decision. The conflation of the conditions that drive or encourage a person to end their lives and the act of ending one’s life leads to the incorrect conclusion that the desire to end one’s life is not natural. It’s also important to distinguish between the unnatural cause of death with that of the natural cause. The methods used to take one’s life can range from hunger to strangling and are often unnatural. But, the desire which leads one to resort to the means is not unnatural.
2. Suicide or attempts to commit suicide are not a normal part of life. It’s an unusual occurrence, an extraordinary circumstance, or a peculiar personality feature. Abnormality and uncommonness aren’t unnatural just because they’re unusual. Mental diseases and imbalances, unbearable physical ailments, affliction by socially feared diseases, decrepit physical condition preventing the person from taking normal care of his body and performing normal chores, 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 complete loss of interest in life or a sense of shame, are among the various circumstances in which suicide is committed or attempted.
3. The difficulty in coming up with a convincing definition cannot be used to argue for the legitimacy of the provision of Section 309, especially if it is penal in nature. Because there is no logical definition or even standards to separate the felonious from the non-felonious behaviour, Section 309 stands arbitrary and in violation of Article 14 of the Indian Constitution. Arbitrariness and equality, as it is aptly remarked, are adversaries. The provision of Section 309 further contravenes the equality established by Article 14 since they treat all attempts to commit suicide in the same way, regardless of the circumstances in which they are made. When it is realized that some people commit themselves to escape the brutal conditions of life, which are a punishment to them at all times, the arbitrariness of the section becomes even more apparent. The relief from such a monotonous existence is, in fact, a blessing for them. Despite this, a society that is either incapable or uninterested in changing a person’s living conditions wants to penalise him/her for attempting self-help or self-deliverance.
4. When the provisions of Section 309 are contrasted to those of Section 300 of the Indian Penal Code, 1860, the discriminating nature of the former becomes particularly prominent. When it comes to defining murder, the legislature has gone to great lengths to distinguish between culpable homicide that amounts to murder and culpable homicide that does not, and has prescribed different sentences for the two. Section 309, on the other hand, imposes the same punishment on all people, regardless of the circumstances in which they attempt suicide. This is odd, given that murder is a more severe crime with far-reaching ramifications for other members of society.
5. If the objective of the imposed penalty is to dissuade future suicide attempts, it is difficult to see how this can be accomplished by punishing individuals who have attempted suicide. Those who attempt suicide due to mental illnesses deserve psychiatric therapy rather than incarceration in person cells, where their condition is likely to worsen, leading to additional illness. Those who attempt suicide due to severe physical ailments, incurable diseases, torture, or a decrepit physical state created by old age or disablement, require nursing facilities rather than jails to prevent them from attempting suicide again.
6. Section 309 of the Indian Penal Code, 1860 was struck down by the Court on grounds that the provision is ultra vires the Constitution being violative of Articles. 14 and 21.

Chenna Jagadeeswar and Anr. v. State of Andhra Pradesh (1987)

In Chenna Jagdeshwar v. State of Andhra Pradesh (1988), the Andhra Pradesh High Court decided that the right to die is not a fundamental right under Article 21 of the Indian Constitution, and hence Section 309 of the IPC is not unconstitutional. The observations made by the Hon’ble High Court have been provided hereunder:

1. The Court reasoned that if Section 309 is declared unconstitutional, it is exceedingly unlikely that Section 306 of the Indian Penal Code, 1860 will survive. As a result, those who intentionally aid and persuade someone to commit suicide may get away with it. It is true that a society which is unconcerned about improving the living situations of troubled people cannot justify punishing them for seeking self-help or self-deliverance. But the question is whether it is appropriate for the government to take the stance that individuals who are unable to live a dignified life are welcome to depart it.
2. It is prudent to err on the side of caution in a nation like India, where the individual is subjected to enormous pressures. Conferring a right to self-destruction and removing it from the purview of the courts to investigate would be a step backwards in the scene of human pain and motivation. It may result in a number of inconsistencies, which are undesirable. As a result, the Court found that Section 309 of the Indian Penal Code, 1860 is lawful and does not violate Articles 19 and 21 of the Constitution.
3. In the present case, the appellant had killed his four children, attempted to commit suicide for reasons which are not clear. Taking into account the gravity of the facts, the Hon’ble Court held that the conviction of the appellant under Section 309 was perfectly justified and therefore confirmed the same.

P. Rathinam v. Union of India (1994)

In the case of P. Rathinam v. Union of India (1994), the Supreme Court upheld the Bombay High Court’s decision in State of Maharashtra v. Maruti Sripati Dubal (1986), observing that a person has the right to die and declared that Section 309 is unconstitutional. The different opinions that the Apex Court put forth in this present case have been provided hereunder:

1. The Court observed that suicide is a psychological issue, not a symptom of criminal behaviour. The Supreme Court agreed with Dr. (Mrs.) Dastoor who stated that suicide is essentially a “cry for aid,” and not a “request for punishment.”
2. The Court disagreed with the Andhra Pradesh High Court’s conclusion in the case of Chenna Jagadeeswar and Anr. vs State of Andhra Pradesh (1987) that if Section 309 is declared unconstitutional, Section 306 is unlikely to survive, because self-death is fundamentally distinct from assisting others in killing themselves. The Apex Court stated that the provisions are on opposing sides because in one, a person takes his own life, while in the other, a third person is aided in taking his own life.
3. The Court ruled that Section 309 of the Indian Penal Code, 1860 should be repealed in order to make penal rules more humane. It is a cruel and unreasonable provision that may result in a person being punished twice (due to his/her failure to commit suicide and who has undergone misery and would face ignominy if he/she did not commit suicide). An act of attempted suicide cannot be argued to be against religion, morality, or public policy, and it has no negative impact on society. Furthermore, suicide or attempts to commit suicide create no harm to others, hence the State’s intervention with the individuals’ personal liberty is unnecessary. The Apex Court had concluded that Section 309 violates Article 21, and so, it is void.

Gian Kaur v. State of Punjab (1996)

The Supreme Court’s constitution bench in Gian Kaur v. State of Punjab (1996) held that the right to life under Article 21 of the Constitution does not include the right to die or the right to be killed, thereby providing some clarity on the constitutionality of Section 309 of the Code of 1860. The Apex Court’s observations are provided hereunder: 

1. The importance of ‘sanctity of life’ should not be disregarded. Article 21 guarantees the protection of life and personal liberty, and extinction of life cannot be construed to encompass the protection of life by any stretch of the imagination. Whatever the philosophical justification exists for allowing a person to end his/her life by suicide, the Court considered it impossible to read Article 21 to include the right to die as a fundamental right provided therein. Although the ‘right to life’ is a natural right enshrined in Article 21, suicide is an unnatural termination or extinction of life, and hence incompatible with the idea of the right to life.
2. Article 21’s word ‘life’ has been interpreted as life with human dignity to give it meaning and content. Any component of life that makes it dignified may be read into it, but not that which extinguishes it and, as a result, is incompatible with life’s continuous existence, culminating in the effacing of the right itself. If there is a right to die, it is essentially incompatible with the right to life, just as death is incompatible with life. The Supreme Court had also held that there is no requirement of awarding any minimum sentence with respect to the offence of attempt to suicide. The sentence of imprisonment or fine is not compulsory but discretionary. Taking these reasons into consideration, the Apex Court concluded that Section 309 is not violative of constitutional provisions and therefore is valid. 

Attempt to commit suicide as perceived by the Mental Healthcare Act, 2017

With the Mental Healthcare Act, 2017 on board, there have been several speculations that Section 309 of the Indian Penal Code, 1860 has seen the end of the day already. After the passage of the Mental Healthcare Act of 2017, many people believe that Section 309 has been abolished or decriminalised. However, this legislation does not repeal Section 309 of the aforementioned Code, instead, it narrows the scope of its application. Section 115 of the Act explicitly specifies that if a person tries to commit suicide, it will be assumed that he or she was under tremendous stress and that he or she would not be prosecuted or punished under Section 309 of the Indian Penal Code, 1860.  

It’s worth noting that, with the exception of the section assuming “severe stress” on the side of the individual who attempted suicide, the Act hasn’t either expressly abolished Section 309 or made it applicable to all suicide attempts. Furthermore, it makes the government legally obligated to treat and rehabilitate them so that the chance of a suicide attempt is lowered. It appears that a person who attempts suicide but has no (proven) ‘severe stress’ cannot be kept out of Section 309. Nonetheless, the appropriate government is required by law to “plan, design, and implement programmes for the promotion of mental health and the prevention of mental illness in the country” in general, as well as “plan, design, and implement public health programmes to reduce suicides and attempted suicides in the country” in particular.

Debates for and against attempt to suicide 

Despite the fact that attempt to suicide is a severe problem that necessitates mental health interventions, it is nonetheless classified as a criminal offence under Section 309 of the Indian Penal Code, 1806.

Decriminalisation of attempt to suicide 

1. Decriminalisation of suicide attempt will help to reduce stigma and prevent punishment in the aftermath of an occurrence, as well as allow for more accurate collecting of suicide-related statistics.
2. According to research, psychiatric illness is a leading cause of non-fatal suicide conduct. Depression and other mental diseases are risk factors for non-fatal suicide attempts in adults and kids. Other risk factors include childhood adversities like sexual/physical abuse, alcohol or drug abuse, stressful life events like the death of a loved one, the loss of a job or relationship, financial bankruptcy, impending criminal prosecution, and suffering from, or recently being diagnosed with, a terminal illness.
3. In essence, persons who attempt suicide require assistance rather than punishment due to the substantial risk of mental or psychological illness. The philosophical boundaries surrounding an individual’s right to life and death have been argued, though inconclusively, across a variety of fields and views.
4. Suicide is now decriminalised in 59 nations throughout the world, according to the World Health Organization. Attempted suicide is no longer a crime throughout Europe, North America, much of South America, and a few areas of Asia. Suicide attempt decriminalisation took place relatively late in nations governed by English common law. Similarly, in these nations, legal and coroner participation in suicide certification is far higher than in continental Europe and the Scandinavian region, where clinicians are free to certify suicidal deaths without the intervention of legal authorities.
5. Most significantly, because the majority of attempted suicides are reported to authorities as unintentional, persons who have attempted suicide do not have access to the essential emotional and mental health help. Patients and their families will be in a better position to seek mental health care openly following an attempt if the crime is decriminalised. Decriminalisation is a more sensitive and humanitarian manner of dealing with the problem than prosecution from a society standpoint. It will also aid in the improvement of reporting and development of more accurate epidemiological data on suicidality. Suicide becomes a hidden problem as a result of the criminalisation of suicidal acts, making it harder for suicidal people to get the help they need. Improved and more accurate statistics can help in better planning and resource allocation for efforts towards suicide prevention.

Arguments against decriminalisation 

1. The first main argument is based on the theological idea that only God has the authority to choose when a person’s life should come to an end, and therefore attempting to terminate one’s own life should be regarded as a malicious act. Suicide has long been condemned by faiths all throughout the world. Suicidal deaths in several ethnic groups are not commemorated with traditional burial rites. In Hinduism, suicide is not considered to be a means of attaining salvation (moksha). Suicidal death is generally connected with dishonouring the entire family, social disgrace, and other consequences.
2. Another important proponent of criminalisation is the assumption that the law can serve as a deterrent to future efforts. However, it is still unclear if having a legislation that allows suicide attempters to be prosecuted serves as a deterrence or not. While awareness of Section 309’s presence in India cannot be said to be great, a considerable number of people are aware of its existence yet are not discouraged from attempting suicide. A study of 200 attempted suicides in a General Hospital Emergency Department found that 46.2 percent of males and 26.6 percent of females were aware of the legislation prior to attempting suicide.

Conclusion

While some readers might support the Apex Court’s decision in the 1996 case of Gian Kaur v. State of Punjab, many will disagree with the reasoning offered.  It is notable to mention that the provisions of the Mental Healthcare Act, 2017 are unknown to the general public along with several police officers. As a result, it is required to undertake a campaign to educate them about the statute so as to effectively implement the above-discussed provision.  

References 

1. https://www.latestlaws.com/bare-acts/central-acts-rules/ipc-section-309-attempt-to-commit-suicide/.
2. https://www.scobserver.in/journal/right-to-die-court-in-review/.
3. https://lawtimesjournal.in/gian-kaur-vs-the-state-of-punjab/.

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