In this blogpsot, Sonal Srivastava, Student, Amity Law School, Lucknow, writes about the different judgements on the validity of Section 309 of the Indian penal Code.   

Right to die has always been a controversial topic of Indian law. It has been a point of debate, and many judicial precedents have been laid down on the topic. There has been a constant debate that when Article 21 of the Indian Constitution promotes and guarantees right to life than it should also include right not to live that is right to die in the same way as Right to freedom of speech under Article 19 of the Indian Constitution includes freedom not to speak as well. Different High Courts have been of different views on the topic, and the Supreme Court has differed invariably on the point. So lets us have a look at the judicial approach towards the right to die.

Section 309 of IPC valid or not

In the case of State of Maharashtra v.  Maruti Sripati Dubal[1], the Bombay High Court struck down section 309 of IPC and declared it to be violative of Article 21 of the Indian Constitution. In the opinion of the court right to die was not unnatural instead an abnormal activity wherein there could be many instances when a person would want to end his life.

An opposite view was held in C. Jagadeeswar v. State of Andhra Pradesh[2], the High Court held section 309 of IPC to be valid and observed that it in no case violated the norms of Articles 14 and 21 of the Indian Constitution. The court observed that section 309 is very wide in scope, and it gives enough discretion to the court to decide that under what circumstances the suicide could take place. Thus, section 309 of Indian Penal Code was held to be valid.

The judgement of the Supreme Court in the case of P. Ratinam v. Union of India[3] was a shocking one as the five-judge bench by a majority held that Article 309 of IPC was inhuman and irrational. The court observed that section 309 of IPC should be deleted from the statute in order to humanize our penal law. According to court, a person who attempts to commit suicide is already undergoing agony and, in that case, the interference of the state shall make the situation more pathetic. Thus, section 309 is violative of Article 21of the Indian Constitution.

The decision was soon overruled by Supreme Court in the case of Gian Kaur v. State of Punjab[4], where the Supreme Court overruled the judgment in P. Ratinam v. Union of India and held section 309 of IPC to be valid. The court observed that right to life does not include right to die. It was held that right to life as enshrined under Article 21 of the Indian Constitution was a natural right and right to suicide or die was an unnatural right and inconsistent and incompatible with the right to life.

Euthanasia or Passive Killing

In C.A. Thomas Master v Union of India[5], the High Court of Kerala dismissed the writ petition filed by a citizen wherein he wanted the government to set up Mahaprasthana Kendra (Voluntary Death Clinic) for the purpose of facilitating voluntary death and donation/transplantation of bodily organs, relying on Gian Kaur’s case.

In the case of Aruna Shaunbaugh v. Union of India, a petition was made to Supreme Court by the social activist Pinki Virani, a friend of Aruna Shaunbaugh who was completely in a vegetative state for the past 36 years after she was attempted for rape. The Supreme Court gave various guidelines which were to be strictly followed for passive killing though it did not legalize euthanasia. A few among them are-

• The person should be completely in a vegetative state and there should be no chances of the person to get recovered from the same.
• Before euthanasia the consent of the nearest family member should be taken and then the permission from the High Court should be taken.

In Naresh Marotrao Sakhre v. Union of India[6], Lodha J. affirmed that Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is carried out.
Thus from the principles laid ‘down by the Courts in several cases, it is clear that (i) in the case of a patient who is seriously ill, but competent, his refusal, not to take medical treatment and allow nature, to take its own course, it is lawful and does not amount to ‘attempt to commit suicide’, (ii) Likewise, (a) where doctors do not start or continue medical treatment in such cases because of such patients’ refusal, they are not guilty of abetment of suicide or murder or culpable homicide and (b) if the patient is a minor or is incompetent or is in a permanent vegetative state, or (c) if the patient was competent but his decision was not an informed one, and if the doctors consider that there are no chances of recovery and that it was in the best interests of the patient that medical treatment is withheld or discontinued, the doctor’s action would be lawful and they will not be guilty of any offence of abetting suicide or murder or culpable homicide. In such case, as the doctor is acting in good faith, his action in withholding or withdrawing medical treatment is protected, and he is also not liable in tort for damages.

Conclusion

Right to die should be legalized or not would remain a topic of debate. In my opinion right to die should not be legalized as it could lead to adverse effects as well. It would become easy for miscreants to execute their evil plans in the shadow and umbrella of the “right to die”. Whereas in the cases of complete vegetative state or other medical conditions, Supreme Court has already laid down various guidelines for the same and those should be strictly followed. As it is easy to take someone’s life but impossible to put it back into the person so such sensitive issues should be dealt with utmost carefulness, sensitivity and rationality.

As, “Life is a gift of God and only he has the right to take it back”, so the humans should as long as possible refrain from making any unnatural  law”.

[1] (1987) Crl. LJ 743

[2] (1987) Crl. LJ 549

[3] AIR 1994 SC 1844: 1994 Cri. L. J. 1605: (1994) 3 SCC 394,
P. Ibdi

[4] 1996

[5] 252000 Cri LJ 3729

[6] 1995 Cri L J 96 (Bom)