This article is written by Jasmine Madaan, from Vivekananda Institute of Professional Studies (VIPS). This is an exhaustive article that describes how and what led to the decriminalization of attempt to commit suicide.

Introduction

A total of 1,34,516 cases of suicide were reported in the year 2018 as per NCRB’s data. There was an increase of 3.6 per cent in the number of cases reported in the year 2018 with comparison to the number of cases in the year 2017. “Can somebody take their own life?” a question that comes across every human’s minds. Suicide is an act of self-destruction and self-killing. We all know that it is not allowed and looked down upon morally but is it legally allowed? Does Right to Life include Right to die? The concept of ending one’s life by himself/herself has always been a debatable issue. The article will provide a solid gist of development of the law relating to an attempt to commit suicide.

Development over the years

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 instance, the decriminalization of Section 377 was a result of the change in the mindsets of the citizens of the country as now people are developing a broader thinking and learning to accept people of different sexual orientation. 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. 

Earlier situation (statutory)

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.

Cases that led to the decriminalization

List of Year and Events that led to the decriminalization of Section 309 of the Indian Penal Code-

Year	Event
1970-71	42nd Law Commission report suggested deleting the offence of attempt to commit suicide.
1978-79	The Government of India accepted the suggestion but in 1979, the elected body of the country was changed & the bill introduced in Lok Sabha lapsed.
1985	Delhi High Court in the case of State v. Sanjay Kumar Bhatia held Section 309 to be “unworthy of human society”
1987	Bombay High Court in the case of State of Maharashtra v. Maruti Satpati Dubal held Section 309 to be ultra vires the Constitution as it violated Article 14 and Article 21.
1988	Andhra Pradesh High Court in the case of Chenna Jagdeshwar v. State of Andhra Pradesh upheld the constitutionality of Section 309 and stated that right to life doesn’t include right to die.
1994	In the case of P. Rathinam v. Union of India (2-judge bench), Supreme Court upheld the view of Delhi and Bombay High Court and declared the Section 309 unconstitutional.
1996	In Smt. Gian Kaur v. State of Punjab, Supreme Court (5-judge bench) again held the Section 309 constitutional and thus overruled P. Rathinam’s judgment.
1997	156th Law Commission report favoured retention of Section 309 of IPC.
2008	210th Law Commission report favoured scrapping of Section 309 of IPC.
2011	Supreme Court in the case of Aruna Ramchandra Shanbaug vs Union of India & Ors recommended Parliament to consider the decriminalization of Section 309 of IPC while laying guidelines of passive euthanasia.
2013	The Mental Healthcare Bill was introduced in Rajya Sabha.
Mid 2018	Mental Healthcare Act (MHCA), 2017 was passed which led to the decriminalization of attempt to commit suicide.

 

Before jumping to the cases, it is important to know what does Article 21 of the Indian Constitution states. It confers the right to live with dignity to all human beings. No person can be deprived of his/her life or personal liberty subject to the procedure established by the law. This article is applicable to all people including citizens and non-citizens. A question that has been answered, modified and debated in various High Courts and Supreme Court judgments, is whether the right to life includes the right to die as well?

The above-mentioned question and the fate and constitutionality of Section 309 of the Indian Penal Code have been decided in the following cases:

• The Delhi High Court in the case of State v. Sanjaya Kumar Bhatia (1985), acquitted the accused who had attempted to commit suicide. The court emphasized the fact that Section 309 of IPC should be deleted from the statute i.e. opined for its decriminalization. The court stated it as ‘unworthy of society’.
• In the case of State of Maharashtra v. Maruti Satpati Dubal (1987), Bombay High Court considered the question of inclusion of the right to die under the purview of right to life for the first time. The court observed that all the efforts to prevent suicide by deterrence by punishing the person who has attempted the suicide are in vain. The court stated that a person who has attempted suicide is already in enough torment either physically or mentally, locking that individual behind bars will only aggravate his/her level of mental or physical agony. What one requires is medical attention or treatment. Therefore, the court struck the Section 309 of the Indian Penal Code as unconstitutional on the ground that it violates Article 14 (Right to Equality) and Article 21 (Right to Life and Personal Liberty) and held that Article 21 also includes the right to die.
• Andhra Pradesh High Court took a different view and upheld the constitutionality of Section 309 of IPC in the case of Chenna Jagdeshwar v. State of Andhra Pradesh. It also stated in the same case that right to life does not include right to die and Section 309 is not in violation of Article 19 and 21 of the Indian Constitution.
• A two-judge bench of the Supreme Court in the case of P. Rathinam v. Union of India (1994), took cognizance of the relationship and contradiction between Section 309 of the Indian Penal Code and Article 21 of the Indian Constitution. The court supported and upheld the view of Delhi and Bombay High Courts and overruled the view of Andhra Pradesh High Court stating that the Section 309 of the Indian Penal Code is unconstitutional on the ground that it violates Article 14 and 21 of the Indian Constitution. The court termed the provision as ‘cruel and irrational’.

The idea behind it was to stop the rule of double suffering of the accused. A person who attempts suicide is already suffering from agony and pain and punishing him would just increase the agony due to the humiliation caused. The person who suffers the most is the accused himself as he/she is not harming anybody else other than themselves and interference of the State in one’s personal liberty is not justifiable. If a student burdened by academic pressure commits suicide but fails, then that child is in need of some help either by counselling or soft words and clearly not to be treated heartlessly by a prosecutor and even punished for the same. Court finally upheld the contention of the petitioner that ‘right to life’ includes ‘right to not live a forced life’.

• A five-judge bench of the Supreme Court overruled the judgment of P. Rathinam in the case of Smt. Gian Kaur v. State of Punjab (1996). The question which was raised in this case was that as per P. Rathinam’ s judgment if Section 309 (attempt to commit suicide) is unconstitutional then keeping this in mind Section 306 (abetment to commit suicide) must also be unconstitutional and not to be considered as an offence. 

The court observed that ‘right to life’ does not consist of ‘right to die’ as they are inconsistent with each other. It was agreed that the right to life does include ‘right to die with dignity’ but the court stated that such death should be a natural death. It should not be confused with unnatural termination of the natural span of life.

The court upheld the constitutionality of Section 309 of the Indian Penal Code and Section 306 of IPC. It stated that Article 21’s interpretation in no way can lead to the conclusion that a right that provides protection to life also includes the right to end that life. Right to life is a natural right whereas the right to end one’s life by committing suicide is an unnatural right and cannot be included under Article 21 of the Indian Constitution.

• Aruna Ramchandra Shanbaug vs Union of India &Ors (2011) 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. The court also explained the difference between active and passive euthanasia. Only parents, spouses, or close relatives or a next friend can decide to discontinue life support in case the patient himself is not in a condition to give consent or does not have a living will. Dying via passive euthanasia is a way of dying with dignity as per the court. Again, in this case, the concept that ‘right to life’ includes ‘right to die with dignity’ under Article 21 of the Indian Constitution was upheld.
• In the case of Common Cause v. Union of India (2018), a five-judge bench of the Supreme Court took in view the unsettling and inconsistent opinions in Smt. Gian Kaur v. State of Punjab and Aruna Ramchandra Shanbaug vs Union of India & Ors It allowed passive euthanasia and formation of a living will- a written statement by the medically ill person mentioning his future desire for medical treatment in case he/she is not able to give consent. Court finally upheld that the right to life includes the ‘right to die with dignity’ and is a part of fundamental rights as per the Indian Constitution.

Present Scenario (statutory)

The government has shifted from a legal perspective to a more medical perspective by decriminalizing the attempt to commit suicide. The Mental Healthcare Act, 2017 which replaced the earlier Mental Health Act of 1987, has changed the whole concept of law regarding an attempt to suicide in India. The Rajya Sabha and Lok Sabha passed the bill on 8 August 2016 and 27 March 2017, respectively. The Mental Healthcare Act, 2017 was given assent by the president on 7 April 2017.

The most relevant section of the act regarding the attempt to commit suicide is Section 115. It provides that:

1. Any person who attempts to commit suicide shall be presumed to be under severe stress and not be tried and punished under section 309 or any other section of the Indian Penal Code unless otherwise is proved.
2. It is the duty of the appropriate government to take care, provide adequate treatment and rehabilitation to anyone who attempts to commit suicide due to severe stress. The purpose is to reduce the risk of reoccurrence of an attempt to commit suicide by the individual.

The act is a major step towards promoting mental and emotional health in India. The act also provides that any person who is suffering from mental illness should be treated at par with the physically ill in terms of healthcare services. There shall be no discrimination based on such illness. Right to life means the right to a meaningful and dignified life i.e. to live with dignity.

Reasons

The main reason behind this big step was the realization of the fact that a person who attempts to commit suicide is already in dark pain, despair and suffering from a mental health issue, punishing that individual leads to just aggravation of the pain and mental torture which the person is already exposed to. The court believes that for a person who has failed in a drastic attempt to end their life, the solution is to provide rehabilitation facilities rather than putting them through a rough patch of trial and punishment.

The step has helped the victims to take a second chance at living life rather than getting stuck in the legal hassles. To prevent the harassment of a victim who is already drenched emotionally and mentally. It is a common mindset and an unfortunate reality that whenever a person attempts to commit suicide, he/she is psychiatrically ill and has lost all hopes and expectations from their lives.

Other Countries

Almost all the countries in the world have decriminalized the offence of attempt to commit suicide from the USA, England, European Countries, few South American nations, etc.

The United Kingdom, colonial rulers of India laid the foundation of the common law system in India as well. The offence of attempt to commit suicide is no longer a crime in England by the virtue of Section 1 of the Suicide Act, 1961. The section states that the rule of law which punished the person who attempted to commit suicide stands abrogated. Abetting, counselling, procuring or aiding the suicide of another, or an attempt by another to commit suicide, is still an offence and one can be made liable for punishment of imprisonment which may extend to 14 years. There was a decline in the number of cases in England after the decriminalization of attempt to commit suicide during the year 1961-1974 as per the Office of National Statistics.

In 1751, Germany was the first country in the entire world to decriminalize the attempt to commit suicide.

Canada, Sri Lanka and Ireland decriminalized the attempt to commit suicide in the year 1972, 1998 and 1993, respectively.

In the Netherlands, one can provide moral support during someone’s suicide. One cannot participate in preparation, supplying of means or instructions to use them to commit suicide, as these are considered as a crime.

In Singapore, the offence of attempt to commit suicide was recently decriminalized by passing the Criminal Law Reform Bill, that suggested the decriminalization of attempt to commit suicide on 6 May 2019. The Act has come into effect from 1 January 2020. Earlier the person who attempted to commit suicide could have been punished with imprisonment up to one year. Abetting or assisting another person in committing suicide is still illegal.

There are still some countries like Pakistan, Malaysia and Bangladesh where an attempt to commit suicide is still an offence and one can be punished for the same. In these countries, the punishment can extend to imprisonment up to one year or fine or both as per Section 325 of Pakistan Penal Code, Section 309 of the Penal Code (Laws of Malaysia) and Section 309 of the Penal Code (Laws of Bangladesh), respectively.

                   

Present-day situation

The dearth of proper implementation is still felt in India. The main argument that was raised while decriminalizing Section 309 of the Indian Penal Code was that this step might lead to an increase in the number of suicide cases. The reporting of cases is still a necessity because it helps the government and concerned authorities to keep a track of the number of people that are needed to be provided with rehabilitation facilities. It is a Medico-legal case (MCL), a case which after examination of the patient, the doctor has to report to the concerned authorities.

As per the World Health Organization’s latest report released on 9 September 2019, in the South-Asian region, India has the highest suicide rate. India’s suicide rate is 16.5 suicides per 100,000 people. The atrocious data shows that Indian women comprise 37% of total per cent of global female suicide as per Lancet Public Health October issue.

Many senior lawyers, trauma researchers, psychiatrists believe that decriminalization of attempt to commit suicide will not lead to increase in the number of cases because a person who commits suicide is not in a state to analyze all the circumstances before him/her i.e. if the person has lost all faith in life and makes a decision to end the agony once and for all, a consequence of the act no matter how grave it might be will have very little effect on his/her decision.

The director of a suicide prevention hotline AASRA stated that even though the bill was passed, it still has not been brought into effect in every region of the country. People belonging to all parts of the country need to be sensitized about mental health and dealing with suicidal tendencies. Merely formation and passing of the bill are not enough, its proper implementation is the key to break the stigma and help the survivors regain faith in life.

Conclusion

Mental health in India is a big taboo, people are afraid and often hesitate to talk about it, implementation of the Mental Healthcare Act, 2017 is seen as a big step as per various mental healthcare experts which can help in breaking the taboo but it’s a long way ahead from here on. There is no punishment for an attempt to commit suicide, but the case still needs to be reported.

References

1. http://www.indianjpsychiatry.org/article.asp?issn=0019-5545;year=2018;volume=60;issue=1;spage=147;epage=148;aulast=Sneha#
2. https://www.thebetterindia.com/127121/decriminalisation-suicide-attempts-first-step-mental-health-revolution/
3. https://www.ndtv.com/india-news/government-decriminalises-suicide-notifies-new-law-1861575
4. https://www.lawctopus.com/academike/decriminalization-attempt-commit-suicide/
5. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6482674/
6. https://www.thenational.ae/world/attempted-suicide-no-longer-a-crime-as-india-changes-attitude-to-mental-health-problems-1.55290
7. https://timesofindia.indiatimes.com/india/court-takes-first-step-towards-taking-suicide-off-list-of-crimes/articleshow/63240079.cms
8. https://www.livemint.com/Politics/YCw8vC0qZUzAYkWSEVXS9N/Suicides-in-India-What-data-shows.html
9. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4261212/

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