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This article has been written by Jaimithra S[1]

Introduction

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. As per the reports of the World Health Organisation, nearly 8 million die due to suicide which is one person every 40 seconds.[2] According to the Accidental Deaths and Suicides in India report made by the National Crime Records Bureau, there were 130,000 suicides in India in 2015[3] and in 2012 the state of Tamil Nadu reported 12.5% suicides, the highest per cent followed by Maharashtra[4]. This article will focus on the legal facets of Suicide in India answering hypothetical issues that arise from decriminalization of attempted suicide.

Right to die

Section 309 of the Indian Penal Code declares that attempting suicide is a crime and the survivor is punished accordingly. The provision reads as, 

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.”[5] 

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The constitutional validity of this section was very much challenged on the ground that it violated the Right to life guaranteed under Article 21 of the Constitution of India which according to many included the Right of individuals to end their lives. Article 21 of the Constitution reads as,

“No person shall be deprived of his life or personal liberty except according to the procedure established by law”. 

The following are the landmark judgments regarding the question of law, Whether Section 309 of IPC is ultra-vires the Constitution?

In Maruti Shripti Dubal v. State of Maharashtra[6], the Bombay High Court ruled that section 309 is unconstitutional as it violates Article 21. The court observed that when the freedom to remain silent[7] exists concurrently with the freedom of speech and expression[8], there also exist a right to die concurrently with the right to life; the desire to die is not unnatural and so there exists a right to die. In 1987, the decision of Andhra Pradesh High Court in Chenna Jagadeeswar v. State of Andhra Pradesh[9] contradicted the aforesaid decision. The constitutional validity of Section 309 was challenged on the ground of violating Articles 14 and 21. It was held that the said section was not unconstitutional as it did not violate any of these articles. Abrogating this decision, the division bench of the Supreme Court while disposing of P Rathnam v. Union of India[10] held section 309 as unconstitutional and void for it violates Article 21. The court also observed that the provision is cruel and inhuman as it once again punishes a person who had already suffered agony and as a result of which that person attempted suicide. 

This proposition was overruled in Smt. Gian Kaur v. State of Punjab[11]. The Supreme Court held that right to life is a natural right while suicide is an unnatural extinction of life and therefore the latter is inconsistent with the former. Aspects which are in accord with and will add on to life with dignity can be read into Article 21 and not those which extinguishes it. The court thus upheld the constitutional validity of Section 309. However, as an exception to this, the Apex Court in Aruna Ramchandra Shanbaug v. Union of India & Ors[12] upheld the validity of Passive Euthanasia, Assisted suicide, whereby the life support of a terminally ill patient is removed or halted. So, as far as India is considered, right to life does not include the right to die but provides for “right to die with dignity” which is facilitated by Passive Euthanasia only in certain circumstances permitted with the leave of the Supreme Court. 

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[13]. “We are, however, definitely of the view that the penal provision is harsh and unjustifiable and it should be repealed[14]. 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”[15]. 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 Section 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 Section 309 needs to be omitted from the Indian Penal Code.”[16] It said, “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.”[17] 

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.”[18] 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 decriminalisation are elaborated below.

Arguments against

As per the Constitution, the state is entrusted with the duty to promote and protect the lives of its people. In this accord, section 309 provided authority to the state to punish a person if he/she attempted to commit suicide. Life is a gift bestowed by nature and it shall not be taken away by man unnaturally. The state has a duty to prevent persons from terminating their lives. This argument does not hold good, as the Constitution and courts in various cases have stated that state shall not interfere into the personal lives of individuals. Their rights and freedoms, however, are not absolute. They are subjected to reasonable restrictions which are provided by the Constitution and its scope being elaborated by the courts. Retaining section 309 allows the state to intrude into an individual’s life and curtails their freedoms.

The argument advanced by few state governments was that section 309 was instrumental in convicting drug traffickers and suicide bombers who survived. This proposition is also absurd as there are separate laws to deal with these offenders like the Narcotic Drugs and Psychotropic Substances Act 1985 and Unlawful Activities (Prevention) Act 1967 respectively. Also, other provisions of IPC like Criminal Conspiracy[19], War against the state (waging or attempting or abetting)[20], Murder[21], Attempt to Murder[22] etc, are simultaneously invoked in cases involving terrorist activities.

Another argument raised against decriminalisation of attempt to suicide was that it would handicap the authorities in dealing with persons going on hunger strike or fasting until death. This kind of protest is mostly showcased by activists to press the government to accept their demands, which may not necessarily be legitimate. Whether the person actually wanted to suicide or not is irrelevant because the logic that the ultimate point of hunger strike being death proves that section 309 is of utmost use.

Addressing unaddressed issues

A new concept introduced, introduces new questions. Since punishing a person who attempted suicide served no purpose and to change the outlook of people on the subject, suicide was decriminalised. However, as stated before, it gave rise to many questions of which three interesting ones are discussed below.

Is the abetment of suicide an offence?

Attempt to suicide is no more a criminal offence and the survivor is kept out of punishment. Thus the scope of section 309 is limited to section 115 of the Mental Health Care Act. Now, the immediate question which arises is whether abetment of suicide is an offence or not? Attempting suicide is the result of severe mental stress and it is not the same in the case of abetment of suicide. The person who abets another person to commit suicide actually has an ill-intention and that cannot go unreported and unpunished. It is this ill-intention that creates intense stress or fear if the intention is materialised through threat. Abetment need not necessarily involve forcing someone to commit suicide but also aiding that person in that process. The IPC provision regarding this reads as,

Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”[23]. 

In Gurcharan Singh vs. State of Punjab[24], the Supreme Court held that to constitute abetment of suicide, the intention and involvement of the accused in aiding or instigating the commission of suicide is imperative. Too remote acts or omission to realise suicide does not attract section 306. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of an offence under Section 306 of IPC.”[25] It must be an active role rather than mere words spoken in a fit of anger. In Swamy Prahaladdas v. State of Madhya Pradesh & Anr[26], the Supreme Court held that the words “go and die” uttered by the accused during a quarrel prima facie do not amount to the instigation of the commission of suicide. Thus, abetment of suicide is still an offence and section 306 is still operative despite the decriminalization of suicide.

What if severe stress is not proved?

According to the Mental Health Care Act, it is presumed that the person who attempts to suicide is under severe stress unless it is proved otherwise. So, the survivor will be provided with treatment and rehabilitation, by the Central Government, to prevent recurrence of attempt to commit suicide[27]. What would be the scenario if severe stress or even stress is not proved? Since the enactment is silent about what has to be done when it is proved otherwise, the issue has to be addressed through logical reasoning. Generally, a person commits suicide to escape the tragedies of his/her life and this apparently proves stress. But there can also exist a situation where a person might have committed/attempted suicide for absurd reasons like to experience the near-death moment or to force someone to accept their love. Here, the person is not under any stress. It is fortunate that section 309 is still not repealed. When it is proved that the person had attempted suicide, not under severe stress, section 309 will be handy to deal with such cases. The person will be charged for the offence of the attempt of suicide and will be punished as per the provision. By this, section 309 of IPC is made operative to cure the lacuna without violating section 115 of 2017 Act.

Is suicide case still a medico-legal case?

This question arises mostly in the minds of young medical graduates. When the law had declared that the attempt of suicide is no more crime, should it still be considered a medico-legal case (MLC)? A medico-legal case is one where the attending doctor, after examining the patient, thinks that it has to be reported to the authorities for investigation and for fixing responsibility in accordance with the law. Suicide is indeed an MLC as it will be governed by section 309 for reasons stated in the previous question and the hospitals are duty-bound to provide Medico-Legal report to facilitate the investigation. This report will also aid the investigators to trace if there was abetment or harassment. Even if it is proved that there was stress which led the person to attempt suicide, it has to be reported so as to make available to that person the necessary treatment and counselling. In short, suicide is an MLC irrespective of whether it is crime or not.

Conclusion

To quote Phil Donahue, “Suicide is a permanent solution to a temporary problem”. Every person desires to lead a problem-free life but life is a mystery cycle surprise with what we least expect. When a person is exposed to a tragedy, he fails to analyse the surroundings and situation because of which he is not able to recognize ways to tackle the issue leading him to resort to committing suicide. Suicide is never a solution; even if it is one, it is neither desired nor encouraged. The World Health Organisation recognises suicide as a public health priority and it committed itself to work for the reduction of suicide rate globally. As far as India is concerned, suicide is now viewed as one which requires treatment more than punishment, which itself is a great start. With the direction set by law, it is the duty of every individual to act in ways which do not affect their lives and the peace of the society. 

Endnotes

[1] Jaimithra S, pursuing III year B.A.LLB(HONS) in School of Excellence in Law, The Tamil Nadu Dr.Ambedkar Law University, Chennai.

[2] Suicide Data, World Health Organization, available at https://www.who.int/mental_health/prevention/suicide/suicideprevent/en/,  last seen on 04/10/2019.

[3] Suicides in India- What data shows, livemint, available at https://www.livemint.com/Politics/YCw8vC0qZUzAYkWSEVXS9N/Suicides-in-India-What-data-shows.html, last seen on 05/10/2019

[4] Suicides in India, Wayback Machine, available at https://web.archive.org/web/20140513155939/http:/ncrb.nic.in/CD-ADSI-2012/suicides-11.pdf, last seen on 05/10/2019.

[5] S. 309, Indian Penal Code, 1960

[6] 1987 (1) BomCR 499, (1986) 88 BOMLR 589

[7] Art. 20(3), the Constitution of India

[8] Ibid, Art. 19(1)(a).

[9] AIR 1988 Cr.L.J. 549

[10] 1994 AIR 1844, 1994 SCC (3) 394

[11] 1996 AIR 946, 1996 SCC (2) 648

[12] (2011) 4 SCC 454

[13] 42nd Law Commission Report,  The Indian Penal Code, 244 (1971), available at http://lawcommissionofindia.nic.in/1-50/Report42.pdf,  last seen on 07/10/2019.

[14] Ibid

[15]  Ibid,  p.245

[16] 210th Law Commission Report, Humanization and Decriminalization of Attempt to Suicide, 39 (2008), available at http://lawcommissionofindia.nic.in/reports/report210.pdf,  last seen on 07/10/2019

[17] Ibid, p.38

[18] S. 115, Mental Health Care Act, 2017

[19] S. 120B, Indian Penal Code, 1860

[20] Ibid, S. 121.

[21] Ibid, S. 302

[22] Ibid, S. 307

[23] S. 306, Indian Penal Code, 1860

[24] (2017) 1 SCC 433

[25] Randhir Singh vs. State of Punjab,  (2004)13 SCC 129

[26] 1995 Supp SCC (3) 438.

[27] S. 115(2), Mental Health Care Act, 2017


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