Decriminalization of Attempt to Commit Suicide

On July 24, 2014 By admin

By Naveen Kumar Gautam, RMLNLU

Editor’s Note: It is really unfortunate that Attempt to Commit Suicide continues to find mention
as an offence under our Penal Statute notwithstanding the fact that when a distressed or frustrated
person decides to terminate his/her previous life prematurely, it is indeed irrational and unfair to
visit him with punishment on his failure to do so. Such hapless individuals rather require
sympathy, counselling and appropriate treatment and not the prison in any case. Suicide means
the destruction of the self by the self or the intentional destruction of one’s self. Suicide as such is
no crime under the Indian Penal Code (IPC) for obvious reasons. It is only attempt to commit
suicide that is punishable under the section 309 IPC. The researcher has drawn the attention
towards the ongoing debate of retaining or deleting section 309 by testing its validity on the
ground of article 21 of the constitution of India which provides right to life as a fundamental
right. As per present scenario, right to die is not included within the meaning of right to life as
held by the Supreme Court in the case of Gian Kaur v. State of Punjab[i]. The paper is concerned
with the legality of Section 309 I.P.C. vis – a – vis Article 21 of Indian Constitution. All the
fundamental rights guaranteed to the citizens of India reflects our needs, our aspirations, our right
to be able to do something and by defining its boundaries this right is curtailed which in turn
curtails our desires. The issue of suicide has generated heated and controvertible argument as
many are inclined to recommend suicide on certain grounds while others spoke vehemently
against suicide.

1. Introduction

Life is a stage with one entrance but many exits. Among those, suicide is one exit having a long
ancestry. In 1968, the World Health Organisation defined suicidal act as “the injury with varying
degree of lethal intent” and that suicide may be defined as “a suicidal act with fatal outcome”.
Suicidal acts with non fatal outcome are labelled by World Health Organisation as “attempted
suicide.” In recent times, attempted suicide, though a failed act, has gained more importance than
the suicide which is the successful act because for this there is no offender who can be brought
within the purview of law. In India, attempt to suicide is made punishable under section 309[1] of
Indian Penal Code, 1860. A lot of conflicting opinions have generated on the desirability of
retaining or deleting Section 309 of Indian Penal Code because of some contrasting judgments
given by our Courts about whether right to life includes right to die within the meaning of article
21 of the Constitution of India.

One set of people are of the opinion that Article 21 of the Constitution of India is a provision
guaranteeing protection of life and personal liberty and by no stretch of the imagination can
extinction of life be read to be included in protection of life. By declaring an attempt to commit
suicide a crime, the Indian Penal Code upholds the dignity of human life, because human life is as
precious to the State as it is, to its holder and the State cannot turn a blind eye to a person in
attempting to kill himself. Another set of people are of the opinion that the Section 309 of Indian
Penal Code is cruel and irrational because it provides double punishment for a troubled individual
whose deep unhappiness had caused him to try and end his life. It is cruel to inflict additional
legal punishment on a person who has already suffered agony and ignominy in his failure to
commit suicide.

2. Section 309 of Indian Penal Code, 1860

Suicide has not been defined anywhere in the IPC. However briefly defined, ‘suicide’ is the
human act of self-inflicted, self-intentioned cessation.[2] It has been defined by various
sociologists and psychologists in different ways. Some of the definitions are ‘suicide is the
initiation of an act leading to one’s own death’. “It is synonymous with destruction of the self by
the self or the intentional destruction of one’s self.”[3] Thus, suicide is killing oneself
intentionally so as to extinguish one’s life and to leave this world. The Oxford Companion to
Law, explains it as ‘self killing or taking one’s own life’.

Suicide as such is no crime under the code. It is only attempt to commit suicide that is punishable
under this section, i.e., code is attracted only when a person is unsuccessful in committing the
suicide. If the person succeeds, there is no offender who could be brought within the purview of
law. The section is based on the principle that the lives of men are not only valuable to them but
also to the state which protects them.

S. 309 – 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.”

Attempt must be intentional- The essence of suicide is an intentional self destruction of life. Thus,
if a person takes an overdose of poison by mistake or in a state of intoxication, or in order to
evade capture by his pursuers he is not guilty under this section. Similarly, if a person because of
family discord, destruction, loss of a near and dear relation or other cause of a like nature
overcomes the instinct of self- preservation and decides to take his life, he should not be held
guilty for attempt to suicide. In such a case, the unfortunate man deserves indulgence, sympathy
and consolation instead of punishment. It is under very compelling adverse circumstances that a
person resorts to taking the extreme step of attempting to commit suicide. Some of them are
depressive illness, schizophrenic attitude, physical illness which is intolerable, poverty,
unemployment, frustration, disappointment, dowry problems etc. There are many ways in which
suicide can be committed. The known methods are by drowning, hanging, poisoning, cutting
throat, burning, shooting oneself, hunger strike etc. But it is difficult to generalize any and
conceptualize particular theory because whenever we hear news about individuals committing
suicide, we immediately come up with a conclusion that these people are depressed, dissatisfied,
and unhappy with their lives. However, when popular and rich people commit suicide, we are left
in confusion. Why would someone who is loved and idolized by many decide to kill himself?
Depression may be the main culprit, but there are a lot of things to consider as well. These
include overwhelming pain, grief, and stress; some use it as an escape for their failure and
shortcomings like criminals who are about to be sentenced or caught. However, there are cases
where suicide is an option that is mandatory or required. Thus, most people end up sacrificing
themselves to save the lives of others in unbelievable circumstances. Heroes during the wartime
generally belong to this category.

3. Article 21 of Indian Constitution

The Constitution of India provides a long list of fundamental rights under Part-III. Article 21 of
our Constitution is one of the important fundamental rights among those rights.

Article 21 – Protection of Life and Personal Liberty: “No person shall be deprived of his life or
personal liberty except according to procedure established by law.”

Though the phraseology of Article 21 starts with negative word but the word No has been used in
relation to the word deprived. The object of the fundamental right under Article 21 is to prevent
encroachment upon personal liberty and deprivation of life except according to procedure
established by law. It clearly means that this fundamental right has been provided against state
only. If an act of private individual amounts to encroachment upon the personal liberty or
deprivation of life of other person, such violation would not fall under the parameters set for the
Article 21; in such a case the remedy for aggrieved person would be either under Article 226 of
the constitution or under general law. But, where an act of private individual supported by the
state infringes the personal liberty or life of another person, the act will certainly come under the
ambit of Article 21. Article 21 of the Constitution deals with prevention of encroachment upon
personal liberty or deprivation of life of a person.The state cannot be defined in a restricted sense.
It includes Government Departments, Legislature, Administration, Local Authorities exercising
statutory powers and so on so forth, but it does not include non-statutory or private bodies having
no statutory powers.

Right to Life means the right to lead meaningful, complete and dignified life. It does not have
restricted meaning. It is something more than surviving or animal existence. The meaning of the
word life cannot be narrowed down. As far as Personal Liberty is concerned, it means freedom
from physical restraint of the person by personal incarceration or otherwise and it includes all the
varieties of rights other than those provided under Article 19 of the Constitution. Procedure
established by Law means the law enacted by the State. Deprived has also wide range of meaning
under the Constitution. These ingredients are the soul of this provision. The fundamental right
under Article 21 is one of the most important rights provided under the Constitution which has
been described as heart of fundamental rights by the Apex Court.

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in
A.K.Gopalan v. State of Madras [4] that the contents and subject matter of Article 21 and 19 (1)
(d) are not identical and they proceed on total principles. In this case the word deprivation was
construed in a narrow sense and it was held that the deprivation does not restrict upon the right to
move freely which came under Article 19 (1) (d). At that time Gopalan’s case was the leading
case in respect of Article 21 along with some other Articles of the Constitution, but post Gopalan
case the scenario in respect of scope of Article 21 has been expanded or modified gradually
through different decisions of the Apex Court and it was held that interference with the freedom
of a person at home or restriction imposed on a person while in jail would require authority of
law.

Whether the reasonableness of a penal law can be examined with reference to Article 19, was the
point in issue after Gopalan’s case in the case of Maneka Gandhi v. Union of India[5] , the Apex
Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or
unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure
for depriving a person of his life or personal liberty. This view has been further relied upon in a
case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others[6] as
follows: Article 21 requires that no one shall be deprived of his life or personal liberty except by
procedure established by law and this procedure must be reasonable, fair and just and not
arbitrary, whimsical or fanciful. The law of preventive detention has therefore now to pass the
test not only for Article 22, but also of Article 21 and if the constitutional validity of any such law
is challenged, the court would have to decide whether the procedure laid down by such law for
depriving a person of his personal liberty is reasonable, fair and just.

In the same case Bhagwati J. held: “ We think that the right to life includes the right to live with
human dignity and all that goes along with it, namely, the bare necessaries of life such as
adequate nutrition, clothing, and shelter over the head and facilities for reading, writing and
expressing oneself in diverse forms, freely moving about and mixing and commingle with fellow
human beings.” The Judge conceded that “the magnitude and content of the components of this
right would depend upon the extent of the economic development of the country”, but
emphasised that “it must, in any view of the matter, include the right to the basic necessities of
life and also the right to carry on such functions and activities as constitute the bare minimum
expression of the human – self.”

In another case of Olga Tellis and others v. Bombay Municipal Corporation and others[7] , it was
further observed: Just as a mala fide act has no existence in the eye of law, even so,
unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure
prescribed by law for depriving a person of his fundamental right must conform the norms of
justice and fair play. Procedure, which is unfair in the circumstances of a case, attracts the vice of
unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the
action taken under it.

The interpretation which has been given to the words life and personal liberty in various decisions
of the Apex Court, it can be said that the protection of life and personal liberty has got multi
dimensional meaning and any arbitrary, whimsical and fanciful act of the State which deprived
the life or personal liberty of a person would be against the provision of Article 21 of the
Constitution. “The expression personal liberty in Article 21 is of widest in nature and it covers a
bundle of rights which go to constitute the personal liberty of man and some of them have raised
to the status of distinct fundamental rights and given additional protection under Article 19”.

Supreme Court again and again after Maneka Gandhi[8] underlined the theme that Article 14, 19
and 21 are not mutually exclusive, but they “sustain, strengthen and nourish each other”. To any
civilized society there can be no attributes more valuable than the life and personal liberty of its
members. This is why the Supreme Court has now given pride of place to Article 21.

Thus, Article 21 provides ‘right to live with dignity’ as well as ‘right against cruel and unusual
punishment’ and ‘Due process of law’ laid down in Article 21 has became the source of many
substantive rights and procedural safeguards to the process.

4. Whether Right to life include Right to die?

The Indian constitution under Article 21 confers the right to Life as the fundamental right of
every citizen. The Right to Life enriched in Article 21 have been liberally interpreted so as to
mean something more than mere survival and mere animal existence. The Supreme Court has
asserted that Article 21 is the heart of the fundamental Rights provided under part III of the
constitution. The Supreme Court has clearly stated that in order to treat a right as a fundamental it
is not mandatory that it should be expressly stated as a fundamental right. In India “The right to
life” under Article 21 of the Constitution has received the widest possible interpretation under the
able hands of the judiciary and rightly so. On the grounds as mentioned, Article 21 does not have
a restrictive meaning and needs to be interpreted broadly. This affirms that if Article 21 confers
on a person the right to live a dignified life, it should bestows the “Right to Die” also, but the
inclusion of Right to die under Article 21 contradict the provision of Indian Penal Code under
section 309. As according to section 309 of the I.P.C. “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”. This section is
based on the principle that lives of men are not only valuable to them but also to the state which
protects them. By considering both the laws the provision of I.P.C. under section 309 is
contradictory to the fundamental right guaranteed under Article 21 of the Indian Constitution.
The state’s power under section 309, I.P.C. to punish a man for attempt to commit a suicide is
questioned not only on the grounds of morality, but also on the constitutionality of the said
provision. A lot of conflicting opinions have been given on desirability of retaining or abolishing
section 309 of Indian Penal Code because of some contrasting judgement given by the courts.

A very fascinating development in the Indian constitutional jurisprudence is the extended

dimension given to Article 21 by the Supreme Court in the post-Maneka era. Since then, Article
21 has proved to be multi-dimensional. This aspect of Article 21 is brought up by many judicial
pronouncements. This right is inalienable and is inherent in us. It cannot and is not conferred
upon us. This vital point seems to elude all those who keep on clamoring for the “Right to die”.
That means that every individual has a fundamental freedom to choose not to live. On this issue
the stance taken by the judiciary is unquestionable. The main question arises is that whether right
to life include right to death.

5. Constitutional validity of Section 309 I.P.C.

The state’s power under section 309, I.P.C. is questioned not only on grounds of morality, but
also on the constitutionality of the provision.

Maruti Shripati Dubal v. State of Maharashtra[9]

This is the case in which first time it came for the consideration before the court that whether a
person has a right to die. The petitioner, a police constable, who became mentally ill after a road
accident attempted to commit suicide by dousing himself with kerosene and then trying to light a
match was prevented and prosecuted under section 309 of I.P.C. In 1987, the Division Bench of
Bombay High Court stuck down sec 309, I.P.C., as ultra vires vide article 14 and 21 of the
constitution which guarantees ‘right to life and personal liberty’. The court said the ‘right to life’
includes ‘right to live’ as well as ‘right to end one’s life’ if one so desires.It was pointed out that
that Fundamental Rights have positive as well as negative aspects. For example: Freedom of
Speech and Expression also includes freedom not to speak and to remain silent. If this is so,
logically it must follow that right to live as recognised by article 21 of the constitution also
includes a right not to live or not to be forced to live.

Justice P.B. Sawant: “If the purpose of the prescribed punishment is to prevent the prospective
suicides by deterrence, it is difficult to understand how the same can be achieved by punishing
those who have made the attempts. Those who make the suicide attempt on account of mental
disorder requires psychiatric treatment and not confinement in the prison cells where their
condition is bound to be worsen leading to further mental derangement. Those on the other hand,
who makes a suicide attempt on account of actual physical ailments, incurable disease, torture
(broken down by illness), and deceit physical state induced by old age or disablement, need
nursing home and not prison to prevent them from making the attempts again. No deterrence is
going to hold back those who want to die for a special or political cause or to leave the world
either because of the loss of interest in life or for self- deliverance. Thus in no case does the
punishment serve the purpose and in some cases it is bound to prove self defeating and counter –
productive.

State v. Sanjaya Kumar Bhatia[10]

In 1985, the Division Bench of Delhi High Court while acquitting a young boy who attempted to
commit suicide by consuming ‘Tik Twenty’ strongly advocated for deletion of section 309, I.P.C.
from the statue book and held that “the continuance of section 309 of the Indian Penal Code is an
anachronism unworthy of human society like ours. Instead of sending the young boy to a
psychiatric clinic society, gleefully (happily) sends him to mingle with criminals. Medical clinics
are needed for such social misfits; but police and prison never.”

Chenna Jagadishwar v. State of A.P.[11]

The Division Bench of Andhra High court upheld the constitutionality of section 309, I.P.C., and
remarked that “right to life does not necessarily signify a right to die” which is an offence and
therefore section 309 is not violative of Articles 19 and 21 of the constitution. It was also pointed
out that the courts have sufficient power to see that unwarranted harsh treatment or prejudice is
not meted out to those who need care and attention. This, therefore does not violative of article
14.

P. Rathinam v. Union of India[12]

The two petitioners assailed the validity of Section 309 by contending the same to be violative of
Articles 14 and 21of the Constitution and the prayer was to declare the section as void. The
additional prayer was to quash the proceedings initiated against the latter petitioner under sec
309. In 1994, the Division Bench of Supreme Court comprising of Justices R.M. Sahai and B.L.
Hansaria, approved the Judgment of Bombay and Delhi High Courts, but overruled the Andhra
Pradesh High Court Judgment by contending that the Section 309 is violative of Articles 14 and
21 of the constitution.

While striking down Section 309, I.P.C., the Apex Court said ‘it is cruel and irrational provision
violative of Article 21 of the constitution.’ Expanding the scope of Article 21, the court upheld
that, ‘right to life’ include ‘right not to live a forced life’; i.e., to end one’s life if one so desires.
The court went on to say that-“…it may result in punishing a person again (doubly) who has
suffered agony and would be undergoing ignominy (humiliation) because of his failure to commit
suicide…An act of suicide cannot be said to be against religion, morality or public policy and an
act of attempted suicide has not baneful effect on society. Further, suicide or attempt to commit it
causes no harm to others, because of which state’s interference with a personal liberty of the
concerned person is called for.” The Court further said a person who attempts to commit suicide
does not deserve prosecution because he has failed. There can be no justification to prosecute
sacrificers of their lives. For instance, students who jump into the well after having failed in
examination but survive; girls and boys who resent arranged marriage and prefer to die, but
ultimately fail, do not deserve punishment; rather soft words, wise counselling of a psychiatrist
and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor.

Gian Kaur v. State of Punjab[13]

In 1996, a five judge Constitutional Bench of the Apex Court comprising of Justices J.S. Verma,
G.N. Ray, N.P. Singh, Faizauddin and G.T. Nanawati overruled its decisions of 1994 in P.
Rathinam/ Naghbhusan Patnaik and upheld the constitutionality of Section 309.

The appellant and her husband were convicted by the Trial Court under Section 306, I.P.C. for
abetting the commission of suicide by Kulwant Kaur. In special leave before the Apex Court the
conviction of the appellant has been assailed (challenged), inter alia on the ground that Section
306 I.P.C.is unconstitutional in view of Judgment in 1944; wherein Section 309 I.P.C. has been
held to be unconstitutional as violative of Article 21 of the Constitution. The Court while
dismissing the petition held that the ‘right to life’ is inherently inconsistent with the ‘right to die’
as is ‘death’ with ‘life’. In furtherance, the right to life, which includes right to live with human
dignity, would mean the existence of such a right up to the natural end of life. It may further
include ‘death with dignity’ but such existence should not be confused with unnatural existence
of life curtailing natural span of life. In progression of the above, the constitutionality of section
309 of the I.P.C. which makes “attempt to suicide” an offence, was upheld, overruling the
judgment in P. Rathinam’s case.

The Apex Court further held that Section 306, I.P.C. as constitutional and said that ‘right to life’
does not include ‘right to die’. Extinction of life is not included in protection of life. The Court
further went on to say that Section 306 constitute a distinct offence and can exist independently
of Section 309, I.P.C. As regards Section 309, I.P.C. is concerned, the court said that the’ right to
life’ guaranteed under Article 21 of the Constitution did not include the ‘right to die’ or ‘right to
be killed’ and therefore an attempt to commit suicide under section 309, I.P.C. or even abetment
of suicide under section 306, I.P.C., are well within the constitutional mandated, and are not void
or ultra vires. [14]

The Court said – “Article 21 is a provision guaranteeing protection of life and personal liberty
and by no stretch of imagination can ‘extinction of life’ be read to be included in ‘protection of
life’ whatever may be the philosophy of permitting a person to extinguish his life by committing
suicide, it is difficult to construe Article 21 to include within its ambit the ‘right to die’ as a part
of the Fundamental Right guaranteed therein. ‘Right to life’ is a natural right embodied in Article
21, but suicide is an unnatural termination or extinction of life and therefore incompatible and
inconsistent with the concept of ‘right to life’.”

C. A. Thomas Master v. Union of India[15]

The accused, a retired teacher of 80 years, wanted tovoluntarily put an end to his life after having
had a successful, contented andhappy life. He stated that his mission in life had ended and argued
thatvoluntary termination of one’s life was not equivalent to committing suicide. The Kerala High
Court held that no distinction can be made between suicide as ordinarily understood and the right
to voluntarily put an end to one’s life. Voluntary termination of one’s life for whatever reason
would amount to suicide within the meaning of Sections 306 and 309, I.P.C. No distinction can
be made between suicide committed by a person who is either frustrated or defeated in life and
that by a person like the petitioner. The question as to whether suicide was committed
impulsively or whether it was committed after prolonged deliberation is wholly irrelevant.

6. Is it morally right to punish an ‘Attempt to Commit Suicide’?

As a normal rule, every human being has to live and continue to enjoy the fruits of life till nature
intervenes to end it. Death is certain. It is a fact of life. Suicide is not a feature of normal life. It is
an abnormal situation. But if a person has right to enjoy his life, he cannot also be forced to live
that life to his detriment, disadvantage or disliking. If a person is living a miserable life or is
seriously sick or having incurable disease, it is improper as well as immoral to ask him to live a
painful life and to suffer agony. It is an insult to humanity. Right to life means right to live
peacefully as an ordinary human being. One can appreciate the theory that an individual may not
be permitted to die with a view to avoiding his social obligations. He should perform all duties
towards fellow citizens. At the same time, however, if he is unable to take normal care of his
body or has lost all the senses and if his real desire is to quit the world, he cannot be compelled to
continue with torture and painful life. In such cases, it will indeed be cruel not to permit him to
die. There are people who though see suicide as morally wrong, still create obligatory grounds to
commit suicide and advanced some arguments with moral backups in favour of suicide. Thus
giving us the chance of raising the question whether man has the moral right to die or take his or
her life.

Argument in favour of criminalization of attempting suicide[16]:

Moral right to die on account of terminal illness- Suicide is one of the ways in which people can
exercise a right to die. Burn victims having severe injuries resort to and claim that they have a
right to die of which any prevention of their intention to die is seen as a breach of their right to
die because it seems impossible to recover from their suffering.

Losses and shameful acts- Suicide is morally right in the instance of losses or shameful acts like
loss of limb or of physical beauty and the person is not in a position to give any meaning to his
life, i.e., he is under the high level of depression, as no relief can be procured.

Liberty- To those who see man as a free agent, suicide is morally right. Man’s life belongs to
him, hence he is at liberty to take it without denial; and no other person has the right to force their
own ideals that life must be lived. Rather, only the individual involved can make such decision
and whatever decision he or she does make, should be respected.

To save the life of more people- When a person refuses to give information to an enemy camp in
order not to endanger the lives of other; killing himself is morally right.

Argument against decriminalization of attempting suicide[17]:

Suicide is unhealthy approach to the problems of life- Most people who opt to die are somehow
begging for help in order to solve the problems of life. “If a man really does not wish to live, then
we think he must be insane, and unfit therefore, to decide his own fate. It becomes our duty to
save him first to save his life and then to cure his melancholy.” The depressive situations
occasioned by frustration, losses, shame, fear etc. are not enough to warrant ones to commit
suicide. After all there are societal approved means of coping with human problems not suicide.

Suicide degrades human worth- Kant and Mappes argue on the immoral nature of suicide, also
that it degrades human worth. Granted that man is an image of God, he occupies a very special
place in creation and to commit suicide reduces his nature below the level of animal nature hence
man should abhor suicide.

Suicide is against the law of self-preservation- This argument proceeds from man’s natural
instinct of self-preservation so; killing oneself is a direct negation of this natural law of self.
Hence, suicide is always contrary to the natural law and to charity whereby every man should
love himself. Suicide is a terrible aberration which is diametrically opposed to a well ordered
self-love and the natural instinct of self-preservation.Suicide seen as an escape from
overwhelming personal disaster, evil, life misery, frustration, or dishonour, far from an act of
fortitude, is an act of cowardice.

Suicide destroys the basis of morality- Kant observes that suicide destroys the basis of morality.
He adds, when the subject of morality in one’s person is destroyed, it means that morality itself is
rooted out of existence.
Suicide violates God’s supremacy- This argument proceeds from the fact that God is the creator
and Lord of life. Man is placed on Earth under certain conditions and for specific purposes. The
act of suicide therefore opposes the very purpose of the creator. To St. Augustine and others, God
prohibits suicide and that we are under obligation to obey a divine command.

Utilitarianism- The theory of Utilitarianism given by Bentham based on ‘Pleasure and Pain’
concept also make ‘suicide an evil’ because the pleasure is obtained only by one person who
commits suicide to escape from the life full of sufferings but the pain is caused to many members
of society who all are dependent on the person who has committed suicide.

Views by eminent persons regarding Section 309 I.P.C.

In this regard eminent lawyer Ram Jethmalani says “The right to die is a part of a wider concept
of liberty. The whole nation of the state controlling your life and death is grotesque”. Equally
radical is Dr Appa Ghatate, Supreme Court lawyer who agrees, “The right to die should be
included in the Indian Constitution as a fundamental right. The very idea of the state controlling
your life is absurd.”

Mr. V. S. Deshpande, after his retirement as Chief Justice of Delhi High Court, referring to what
had been held by this Court regarding the scope of Article 21, took the view that if Section 309 is
restricted in its application to attempts to commit suicide which are cowardly and which are
unworthy, then only this section would be in consonance with Article 21, because, if a person
having had no duties to perform to himself or to others when he is terminally ill, decides to end
his life and relieve himself from the pain of living and the others from the burden of looking after
him, prosecution of such a person would be adding insult to injury and it was asked : “Should a
Court construe Section 309 I.P.C. to apply to such cases ?”

Sometime afterwards appeared an article of Justice R.A. Jahagirdar of Bombay High Court in
which the learned Judge took the view that Section 309 was unconstitutional for four reasons:

(1) Neither academicians nor jurists are agreed on what constitutes suicide, much less attempted
suicide;

(2) Mens rea, without which no offence can be sustained, is not clearly discernible in such acts;

(3) Temporary insanity is the ultimate reason of such acts which is a valid defence even in
homicides; and

(4) Individuals driven to suicide require psychiatric care not the prison cells.

While dealing with issues pertaining to euthanasia, the bench of justices Markandey Katju and
Gyan Sudha Mishra observed, “We are of the opinion that although Section 309 of I.P.C. (attempt
to suicide) has been held to be constitutionally valid in Gyan Kaur’s case by Supreme Court, the
time has come when it should be deleted by Parliament as it has become anachronistic”.[18]

Fali S. Nariman, a senior Supreme Court Advocate, “It is time for India to take consideration of
the International hue and cry which has been going on and take a humane step towards mankind
and his existence with dignity.”

7. Contemporary Scenario & Position in Other Jurisdictions

The Supreme Court of India overruled the Judgement given by Bombay High Court in Maruti
Shripati Dubalv. State of Maharashtra and also its earlier decision given in P. Rathinam v. Union
of India cases wherein Section 309 of Indian Penal Code, 1860 was held to be unconstitutional. It
upheld the Judgement of the Andhra Pradesh High Court in Chenna Jagadishwarv. State of
Andhra Pradesh holding that Section 309 of the I.P.C. was not violative of Articles 21 and 14 of
the Indian Constitution and therefore, it cannot be declared null and void. Presently the verdict
given in Gyan Kaur v. State of Punjab is followed, in which the Supreme Court upheld the
validity of Section 309 and states that it is within the constitutional mandates and is not violative
of any fundamental rights.

England- Laws against suicide and attempted suicide prevailed in English common law until
1961.Suicide ceased to be a legal offence with the passing of the Suicide Act 1961which states
that “the rule of law where it is a crime for a person to commit suicide is hereby abrogated.”
Australia -Assisted suicide was legal in Australia for a period, but now is not. In 1995, the
world’s first euthanasia legislation, the Rights of the Terminally Ill Act 1995, was passed in the
Northern Territory of Australia. Four patients died under the Act, using a euthanasia device
designed by Dr Philip Nitschke. The legislation was overturned by Australia’s Federal Parliament
in 1997. In response to the overturning of the Act, Dr Nitschke founded Exit International.

Ireland-Attempted suicide is not a criminal offence in Ireland, and under Irish law self-harm is
not generally seen as a form of attempted suicide. Assisted suicide and euthanasia are, however,
illegal.

Netherlands–In the Netherlands, being present and giving moral support during someone’s
suicide is not a crime; neither is supplying general information on suicide techniques. However, it
is a crime to participate in the preparation for or execution of a suicide, including supplying lethal
means or instruction in their use. Physician-assisted suicide may be an exception.

North Korea–North Korea has a peculiar deterrent for suicides. Although law cannot punish a
dead person, in North Korea relatives of a criminal (including a suicide victim) might be
penalized, as a form of collective punishment.

Russia–In Russia, inciting someone to suicide by threats, cruel treatment, or systematic

humiliation is punishable by up to 5 years in prison. (Article 110 of the Criminal Code of the
Russian Federation).

Scotland–There was no legislation on this topic until 1961 when the Suicide Act was passed.
Suicide is not currently an offence under Scots Law. However, the offence of attempting suicide
is a Breach of the peace. A person who assists a suicide might be charged with murder, culpable
homicide, or no offence depending upon the facts of each case.

Singapore–In Singapore, a person who attempts to commit suicide can be imprisoned for up to
one year.

United States- Historically, various states listed the act of suicide as a felony, but these policies
were sparsely enforced. In the late 1960s, eighteen U.S. states lacked laws against suicide. By the
late 1980s, thirty of the fifty states had no laws against suicide or suicide attempts but every state
had laws declaring it to be felony to aid, advice or encourage another person to commit suicide.
By the early 1990s only two states still listed suicide as a crime, and these have since removed
that classification. In some U.S. states, suicide is still considered an unwritten “common law
crime,” as stated in Blackstone’s Commentaries. As a common law crime, suicide can bar
recovery for the late suicidal person’s family in a lawsuit unless the suicidal person can be proven
to have been “of unsound mind.” That is, the suicide must be proven to have been an involuntary
act of the victim in order for the family to be awarded monetary damages by the court. This can
occur when the family of the deceased sues the caregiver (perhaps a jail or hospital) for
negligence in failing to provide appropriate care.

8. Law Commission of India Reports

Law Commission 42nd Report. [19]

The Law Commission of India in its 42nd Report (1971) recommended repeal of Section 309
being of the view that this penal provision is “harsh and unjustifiable”. The apprehension that the
repeal of the law criminalizing attempted suicide would result in increase in suicide is betrayed
by the fact that Sri Lanka repealed the law four years ago and the suicide rate is showing a trend
in reduction. On the contrary, in Singapore suicide rates have been increasing in recent years
despite their having suicide as a punishable offence.

Law Commission 210th Report[20]

The 18th Law Commission in its 210th Report titled ‘Humanization and Decriminalization of
Attempt to Suicide’ submitted on October 17, 2008 gave the following recommendations:-

Suicide occurs in all ages. Life is a gift given by God and He alone can take it. Its premature
termination cannot be approved by any society. But when a troubled individual tries to end his
life, it would be cruel and irrational to visit him with punishment on his failure to die. It is his
deep unhappiness which causes him to try to end his life. Attempt to suicide is more a
manifestation of a diseased condition of mind deserving of treatment and care rather than
punishment. It would not be just and fair to inflict additional legal punishment on a person who
has already suffered agony and ignominy in his failure to commit suicide.
The criminal law must not act with misplaced overzeal and it is only where it can prove to be apt
and effective machinery to cure the intended evil that it should come into the picture.

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. Section 309 is also a stumbling block in
prevention of suicides and improving the access of medical care to those who have attempted
suicide. It is unreasonable to inflict punishment upon a person who on account of family discord,
destitution, loss of a dear relation or other cause of a like nature overcomes the instinct of self-
preservation and decides to take his own life. In such a case, the unfortunate person deserves
sympathy, counselling and appropriate treatment, and certainly not the prison.

Section 309 needs to be effaced from the statute book because the provision is inhuman,
irrespective of whether it is constitutional or unconstitutional. The repeal of the anachronistic law
contained in section 309 of the Indian Penal Code would save many lives and relieve the
distressed of his suffering.

The Commission is of the view that while assisting or encouraging another person to (attempt to)
commit suicide must not go unpunished, the offence of attempt to commit suicide under section
309 needs to be omitted from the Indian Penal Code.

9. Conclusion

It is most intriguing and frustrating to observe that our penal laws which are nothing but the
handiwork of Britishers have by and large remained untouched even after more than 60 years of
independence. What a pity that Britishers have themselves amended their penal laws and
decriminalised attempt to suicide way back in 1961 but we are yet to even deliberate on taking
any action on this decisive issue which subjects an already tormented person to further
punishment and ignominy!

Certainly, we should not be the copycat of Britishers but can we deny that increasingly more and
more countries like Netherlands, Belgium, Luxembourg, Switzerland, Oregon and Washington in
USA and Thailand are even legalising euthanasia or mercy killing for terminally ill persons? Can
we deny the decriminalization of attempted suicide by all countries in Europe, North America and
Canada? Can we deny that it is only a handful of countries in the world like Pakistan,
Bangladesh, Malaysia, Singapore and India who still punish attempt to suicide under their penal
laws? Are we still waiting only to be the last country in the world to decriminalise attempt to
suicide? Let us not forget that Section 309 of I.P.C. tantamount to brazenly punishing a person
who is already suffering endlessly by not only sending him/her to prison for one year but also
imposing fine which only serves to make their life more miserable by further compounding their
endless problems. How can this grave injustice be ever justified? Can an ordinary person even
dream to commit suicide? It is under very compelling adverse circumstances that a person resorts
to taking the extreme step of attempting to commit suicide which must be fully taken into
account. Such people suffering from severe depression need the company of good doctors and not
jailors which we all must also now realise and appreciate

Ours is a democracy which means that it is by the people, of the people and for the people.
Constitution locates power that resides in the people. It is the people’s power for people’s benefit.
Constitution creates rights and duties. All most all our demands get converted into rights-even our
feelings, emotions is governed by the rights and duties we have. As we have got the right to live
life with all dignity so we should also have right to die as when it is necessary by law in certain
situation. Constitution is a social document. It is the society in its political aspect. We can’t
understand its nature without understanding the chief characteristics of the society. If the
constitution is such that it has taken into its consideration, the social set up, then only will it stand
the test of time. Constitution and society grows, develops together and gets intertwined in each
other. The constitution takes into account change and developments in the society.

Therefore, it is wrong to say that the Indian penal code is a modern code in every possible sense.
Laws are made for the people and it should be change to meet the aims and aspiration of the
changing society. Ultimately, the aim should be to evolve a consensual and conceptual model
effectively handling the evils without sacrificing human rights. Therefore section 309 should be
deleted from the Indian penal Code because as mentioned in Maruti Shripati Dubal that “No
deterrence is going to hold back those who want to die for a special or political cause or to leave
the world either because of the loss of interest in life or for self- deliverance. Thus in no case does
the punishment serve the purpose and in some cases it is bound to prove self defeating and
counter – productive”. In any case a person should not be forced to enjoy the right to live to his
detriment, disadvantage, and disliking. Further, the “Right to life” under Article 21 should not
include “right to die” because this provision might increase the rates of suicides in the country
and moreover the “Right to life’ is a natural right embodied in Article 21 but suicide is an
unnatural termination or extinction of life and, therefore incompatible and inconsistent with the
concept of “right to life”.

Although the judgement given by Supreme Court in Gyan Kaur is followed but according to me
this
should be scrapped from the I.P.C. but the ‘right to die’ should not be expressively included in
the “right to life”, because “Life is a gift given by God and He alone can take it”. Its premature
termination cannot be approved by any society. Neither it should be penalised. Attempt to
commit suicide is a ‘manifestation of diseased mind’. So what is to be done is rightly stated by
the decision given in P. Rathinam’s case-“What is needed to take care of suicide prone persons
are soft words and wise counselling (of a psychiatrist), and not stony dealing by a jailor following
harsh treatment meted out by a heartless prosecutor. Section 309 of the Penal Code deserves to be
effaced from the statute book to humanise our penal laws. It is a cruel and irrational provision,
and it may result in punishing a person again (doubly) who has suffered agony and would be
undergoing ignominy because of his failure to commit suicide.”

The desirability for deletion of Section 309 of I.P.C. is also the view supported by the majority of
states in India. Twenty five Indian states except Madhya Pradesh, Bihar and Sikkim have
favoured striking down I.P.C. Section 309 that criminalises attempt to commit suicide by making
it punishable with imprisonment.

In conclusion, it can be said that to resolve this debate, the conflict between the principle of
sanctity of life and the rights of self determination and dignity of an individual is to be resolved
first and right to die should not be generalized but should be exercised as an exception in the
“RAREST OF RARE CASES” like Death Penalty in India.

Edited by Saksham Dwivedi

[1] “Sec 309-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”

[2] Encyclopaedia Britannica, (1973) at p. 383.

[3] The Social Meaning of Suicide(1967): Jack D. Donglas, Princeton Univ. Press, New Jersey.

[4] AIR 1950 SC 27.

[5] AIR 1978 SC 97.

[6] AIR 1981 SC 746.

[7] AIR 1986 SC 180.

[8] AIR 1978 SC 97.

[9] (1987) Cr LJ 473 (Bom.)

[10] (1985) Cr LJ 931 (Del)

[11] (1988) Cr LJ 549 (AP)

[12] AIR 1994 SC 1844

[13] AIR 1996 SC 1257

[14] Varun Kumar, Right to Die and constitutionality of Section 309 IPC: a global perspective,
Referred
Research Journal,July, 2011,ISSN-0975-3486,RNI: RAJBIL 2009/30097,VOL-II*ISSUE 22

[15] 2000 Cri LJ 3729

[16] http://forums.philosophyforums.com/threads/convincing-arguments-for-suicide-
40130.html(last visited on 3rd of april 2014)

[17]www.nhs.uk/Conditions/Euthanasiaandassistedsuicide/…/Arguments.aspx(last visited on 3rd

of april 2014 )

[18]http://news.oneindia.in/2011/03/08/supreme-court-india-suicide-euthanasia-aid0120.html

[19]http://lawcommissionofindia.nic.in/reports/report210.pdf

[20Ibid.