Author: Shreya Sahoo
Introduction
Suicide is an act in which a person intentionally claims his/her own life with his circumspection and compos mentis. Each and every suicide which takes place is a catastrophe that prematurely ends the life of a person and emphatically affects his lives of kith and kin, and community. Even an attempt to commit suicide may persistently have ripple effects on that very individual and the close ones. The National Crime Records Bureau recorded a total of 1,33,623 suicides in India in the year 2015.[1] The population of India has increased by 14.2% during the decade while the rate of suicides has slightly increased by 2.9%.
In ancient India suicide was permissible in some circumstances. Hereunder is a small piece of Manu’s work from one of the Chapters named “The hermit in the forest”, in Manu’s Code:
“31. Or let him walk, fully determined and going straight on, in a north-easterly direction, subsisting on water and air, until his body sinks to rest.
32. A Brahmana having got rid of his body by one of those modes (i.e. drowning, precipitating burning or starving) practiced by the great sages, is exalted in the world of Brahmana, free from sorrow and fear.”
It was Durkheim’s pioneering work which paved the way for de-stigmatization of suicide. According to him majorly it is the societal pressure or external stress which contributes to an individual’s suicidal behavior. Then it was Sigmund Freud who proposed the idea of psychosis and suggested that mental disorders could, in fact, be mental conditions for emotional distress.
But in contemporary time, attempt to commit suicide constitutes an offence in India punishable under Section 309 of the Indian Penal Code, (from herein IPC). Nonetheless, penalizing under Section 309, IPC can be regarded as a strange paradox and perpetuation of the same is an anachronism unworthy of human society like ours.[2]
Ingredients[3]
Hereunder are the ingredients to make a person punishable under Section 309,IPC:
- Accused must do any act towards commission of suicide;
- Act must amount to an attempt;
- The presence of satisfactory evidence of suicidal intent is always necessary. It is required so as to establish suicide as a cause of death.[4]
Presence of Intention to Kill One’s Self
Section 309 of the Indian Penal Code states:
“Whoever attempts to commit suicide and dies any act towards the commission of such offence shall be punished with simple imprisonment for a term which may extend to 1 year.”
From a bare reading of the Section, it can be inferred that the word “attempt” in Section 309 involves conscious effort. And this act must be done in course of the attempt, or else no offence is considered to have taken place. For instance – Where a woman was stopped by a person while she was running towards a well with an intention to commit suicide by jumping into a well, the court ruled that her act simply amounted to preparation. It was observed that unless the accused is rescued from the well or mid air after she has jumped there cannot be an attempt.
In the case of Emperor vs Dhirajia[5] a woman was threatened by her husband that he would beat her after a quarrel took place between them. Fearing this, the woman fled with her 6 months old baby. She heard someone following them and as she turned she saw that it was her husband pursuing them. In a fit of panic, the woman along with her baby jumped into a well as a result of which the baby died but she survived. She was accused of attempt to commit suicide. The court held that for conviction to take place under this section the “attempt” must be in furtherance of a conscious effort or an intent to kill one’s self.
In a case where a woman after undergoing a severe labor pain delivered a stillborn baby was mentally infuriated to an extent that she jumped into a well to kill herself. The woman was found guilty under the Section 309, IPC.
In cases of hunger strike, a person can be held guilty for attempting to commit suicide, if the person overtly declares that he will fast to death and in pursuance of this pronouncement refuses all nourishment until the stage when there is an imminent danger of death due to starvation.[6]
Constitutionality of Section 309, IPC
The Constitution of India postulates that no person shall be bereaved of his personal liberty or life except on the basis of procedure established by law.[7]
In Maruti Sripati Dubal v State of Maharashtra[8] the Bombay High Court pronounced Section 309, IPC as ultra vires vide Article 21 of Constitution. The honorable court ruled that the “right to live” hypothesizes the existence of “right to not live” or in other words “right to die” and this must be treated as a fundamental right. The indiscriminate interdiction on the right to die on pain penalty, was found unreasonable. 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 disorders require psychiatric treatment and not confinement in the prison cells where their condition is bound to worsen leading to further mental derangement… Thus, in no case does the punishment serve the purpose and in sometimes is bound to prove self-defeating and counter-productive.”
This stance was endorsed by the High Court of Delhi in the case of State v Sanjaya Kumar[9] where the court acquitted a young boy who’d consumed poison attempting to commit suicide. The court advocated the scrapping of Section 309, IPC. It observed that:
“The continuance of Section 309 of the Indian Penal Code is an anachronism unworthy of a 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.”
The challenge to constitutional validity of Section 309 was dismissed by Andhra High Court wherein Justice Amareshwari has observed that[10]:
“Courts have sufficient power to see that unwarranted harsh treatment or prejudice is not meted out to those who need care and attention.”
In the landmark judgment rendered by the Apex Court in P.Rathinam v Union of India[11], the constitutional validity of Section 309, IPC was disputed by the petitioner. The court held that the provision penalizing the “attempt to commit suicide” is “cruel” and “irrational” and violates Article 21 of the Constitution of India and must be removed to humanize the penal laws. While endorsing the view that the individual must have a right to die the court dealt with two conflicting notions regarding the impugned Section i.e. law should give importance to sanctity of human life or accentuate the necessity for providing autonomy to individuals. Notwithstanding this visionary leap by the highest court of the country the judgment was overruled in the case Gian Kaur vs State of Punjab[12]. In the instant case the court also ruled that Article 21 which provides for “right to life” does not comprise “right to die” or extinction of life, and thus, upholding Section 306 and Section 309 of IPC.
In a criminal appeal, the Apex Court in its judgment said that Section 309 does not violate Article 14 because of the integral flexibility in Section 309, IPC. Furthermore, Section 309 is protected from the vice of being arbitrary and unconscionably harsh because it is always the discretion of the courts to award suitable punishment which will be commensurate with the gravity of the offence committed. In the instant case, the court after taking into consideration the serious ailment of the respondent ruled that he deserves to be treated with sympathy and a lenient penalty of fine was imposed on him as punishment for attempting to commit suicide.[13]
Culmination of a Change
The period, after the Delhi High Court criticized Section 309, IPC and described it as “unworthy of society”, in 1985, a change in perception towards attempt to suicide in India was conspicuous.[14]
The Law Commission in its 42nd report[15], had recommended that the impugned Section must be repealed. Rajya Sabha following the recommendation issued by the Law Commission had also passed the Indian Penal Code (Amendment) Bill, 1978. Unfortunately, the bill lapsed as the Lok Sabha was dissolved before the bill could be passed to the lower house. However, the Law Commission constituted in 1997 recommended the retention of Section 309.
The Law Commission in its 210th report[16] was of the view that:
“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…..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.”
Section 115(1) of Mental Healthcare Act, 2017: Presumption of severe stress in case of attempt to commit suicide:
“(1)Notwithstanding anything contained in section 309 of the Indian Penal Code ((45 of 1860)) 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.”
To abate the possibility of recurrence of attempt to commit suicide, Section 115(2) of the Mental Healthcare directs the govt to provide rehabilitation, care and therapy to a person, having acute anxiety. The Act withdraws an element of culpability attached to Section 309, IPC making attempt to commit suicide an offense. Unless the contrary is proved, the Mental Healthcare Act, 2017 considers every person who attempts to commit suicide as a victim of circumstance and not as a wrongdoer. The onus to prove that the alleged crime has taken place lies with the prosecution.
The Apex Court in 2018 has rendered a remarkable judgment in the Common Cause[17] case in which it has legalized passive euthanasia. Further the court also went on to make recommendations that there is a need to legislate a law which will protect the patients who are terminally ill, when they decline medical treatment, including hydration and artificial nutrition, so that they are saved from being punished for the act of ‘attempt to commit suicide’ under Section 309, IPC.
Why not decriminalize Section 309, IPC?
In the contemporary period certain circumstances, such as terrorism in different parts of the country, rise in narcotic trafficking offences, the incidents involving human bombs etc has compelled to rethink the need to keep an “attempt to commit suicide” actionable under Section 309, IPC. For example- an individual who is a drug trafficker or a terrorist attempts to commit suicide by consuming poison or a human bomb who fails to detonate the bomb, have to be made guilty under Section 309 for attempting to commit suicide.
Although these offenders should be categorized under a different umbrella and not be made equivalent to the people who are distressed due to psychological reasons.[18]
Conclusion
Section 309 which penalizes any person for attempting to commit suicide must not be effaced and be amended taking into consideration the suggestions of the Law Commission in its 210th report. From the above discussions, effacing an “attempt to commit suicide” from the penal laws is not being proposed. Nevertheless, Section 309, IPC must be effective against a separate category of individuals who attempt to commit suicide in furtherance of an act which is against the human morality or will be destructive for the society at large. The Section can be made conducive to instances where judiciary commiserates over the circumstances of a case. In fact, in one of such cases the Apex Court had emancipated a person who was accused under Section 309 and 307 of IPC after rebuking him.[19]
In the view of the author, two submissions can be made pertinent to Section 309, IPC while discussing Euthanasia:
- Any “act” amounting to “attempt” by a terminally ill patient who has an intention to end his/her life, must not be actionable since right to live with dignity has been enshrined in Article 21 of Indian Constitution.
- Any person having failed in his/her attempt to commit suicide and reduced to a vegetative state must not be punished for the offence and instead must be granted passive euthanasia after availing the consent of the relatives or the medical expert in case of absence of kin.
In the end, the prime aim of legislation must be to develop a humanitarian and consensual model of laws without compromising on the human rights. Germany had decriminalized attempted suicide as far back as 1751. Therefore, the author would like to stress that amendments and revocation of laws must be in consonance with the current time and societal situation prevailing in India.
[2]State (Delhi) v Sanjay Bhatia, 1985 CrLJ 931.
[3]Ratanlal and Dhirajlal, “The Indian Penal Code”(34thEdn, LexisNexis).
[4]R. v Cardiff Coroner, ex p Thomas, [1970] 3 All ER 469 , [1970] 1 WLR 1475.
[5]Emperor v Dhirajia (1940 ) All 647.
[6]Satish Nirankari v State, AIR 1962 All 262.
[7]Maneka Gandhi v Union of India, 1978 AIR 597.
[8]MarutiSripatiDubal v State of Maharashtra, 1987 CrLJ 743.
[9]State v Sanjaya Kumar,1986 ( 10 ) DRJ 31.
[10]ChennaJagadeeswar v State of Andhra Pradesh, 1988 Crl. L.J. 549.
[11]P.Rathinam v Union of India,1994 3 SCC 394.
[12]Gian Kaur vs State of Punjab,19962SCC648.
[13]Gian Kaur vs State of Punjab, 1996 CrLJ 1660 SC: AIR 1997 SC 411:1996 2 SCC 648.
[14] State (Delhi) v Sanjay Bhatia, 1985 CrLJ 931.
[15] 42nd Law Commission Report: Indian Penal Code, 1971.
[16]210th Law Commission Report: Humanization and Decriminalization of Attempt to Suicide, 2008.
[17]Common Cause(A Regd. Society) v Union of India, AIR 2018 SC 1665.
[18]210th Law Commission Report : Humanization and Decriminalization of Attempt to Suicide.
[19] Radharani v State of MP, 1982 SCC (Cri) 470.
About the Author: Shreya is a 2017-22 Batch student at National Law University, Odisha.
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Criminal Law Research & Review 
Very informative ! Careful usage of terms !
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