Author: Anshika Chadha
Introduction
Bullying is described as aggressive behaviour involving repetitive unwanted and negative actions which creates an imbalance of power between the perpetrator(s) and the victim.[1] Bullying encompasses threats of physical harm, actual physical harm, taunting, name-calling, racist or homophobic remarks and other ways of humiliation. In India itself, on average, approximately 29.7% of students are victimized by bullying.[2]
Since bullying is mostly prevalent in schools, it has been easier for people to dismiss it as “teenage drama”. However, we now see that bullying – be it physical, verbal, cyber or bullying – has become a menace that plagues both students and adults alike, and is increasingly becoming a cause of suicides.[3] People who are bullied are 2 to 9 times more likely to consider suicide than non-victims.[4] Bullying has come to light as the cause of death by suicide of a 15-year-old boy,[5] a 23-year-old resident doctor,[6] and a 26-year-old engineer,[7] among others.[8]
Current Legal Framework
Bullying in itself is not a crime in India. Anti-bullying regulations and policies have been brought in for schools and colleges, however, these have not borne any fruit. The problem arises when the victims of bullying end up committing suicide due to the abuse they have suffered over time because currently there is no sure-shot formula for dealing with such situations. The demography of these victims is not restricted to students only and thus the anti-bullying or anti-ragging regulations are not be enough to tackle or resolve this problem.
In India, a charge under section 306 of the Indian Penal Code[9] [“IPC”], concerning abetment of suicide, may be brought against a bully if the victim commits suicide. Section 306 seeks to punish those who abet the commission of suicide of others. The parameters of this “abetment” have been stated in section 107 of IPC,[10] which says that abetment constitutes instigating a person to commit an offence, or engaging in a conspiracy or intentionally aiding a person to commit it. However, there has hardly been any conviction of “bullies” under section 306, which is worrying in light of the need for effective anti-bullying laws in the country today.
Inadequacy of The Law
One reason for this dearth of convictions is the way section 306 has been interpreted by courts in India. The current position (of law) is that clear mens rea on the part of the accused, which caused him to incite the deceased to commit suicide, must necessarily exist for application of section 306.[11] In other words, some positive act, which abetted the suicide of that person, must have been done with the intention of leading that person to commit suicide. Generally, when courts apply this provision, they look for some final act, such as utterance of the words, for instance “had there been any other person in his place, he would have certainly committed suicide”[12] with the corresponding mens rea. The courts have maintained that such an act without the requisite intention will not attract section 306. The implication of this is that it must be proved in court that if the words “you don’t deserve to live” are uttered by the accused towards the victim, then the accused intended for the victim to commit suicide after listening to those words. It is fair to say that practically, it is a very difficult to establish these facts in a court of law.
It must be understood that the requirement of mens rea in itself is not an issue. The issue relates to how mens rea needs to be inferred in cases where victims suffering from the mental torture i.e., bullying end their lives.
In such cases of bullying, a continuous and repetitive aggressive behaviour towards the victim, the application of section 306 has to be different. Courts do not accept that there was mens rea if the accused, at that very particular moment, did not necessarily intend by his act for his victim to actually commit suicide. Perpetrators of bullying can put up the defence of lack of mens rea in such cases.
It may be a case that a bully tells his victim to kill himself, but did not intend for that victim to actually act upon it. However, this will not change the fact that the victim was driven to suicide, not merely by those words, but by a summation of such acts which constitute bullying. Looking from the perspective of the victim, he who has been consistently tormented by the perpetrator, might not know what the intention behind those words are. Hence, in these cases, focusing on what the bully intended to happen with that final act is detrimental to the justice that the victim deserves.
Need For a New Perspective
Out of the three elements mentioned in section 107 is instigation, which is of greater importance in the present context. The word “instigate” literally means to goad, to urge forward, provoke, or incite to do an act.[13] A person is said to instigate another person when he actively suggests or stimulates him to do an act. It includes acts and the language used by a person, both direct and indirect. It could also be an express solicitation or mere hints and insinuation. Instigation can thus be in express words or be by implied conduct.[14]
To satisfy the requirement of instigation, it is not necessary that what constitutes instigation must necessarily and specifically suggest a particular consequence. However, there must be a reasonable certainty that it would lead to that consequence.[15] In line with this reasoning, courts have held that to prove abetment, it can be shown that the accused kept on urging or annoying the deceased by words and taunts repeatedly, to the extent that the deceased found himself totally helpless to face such situations and in some case, might even commit suicide or attempt to commit .[16] This situation is identical to one between bullies and their victims. Courts could also take a stand that facts and circumstances of each case should be assessed to find out whether the cruelty meted out to the victims had in fact induced them to end their lives by committing suicide.[17]
Where a person, by his “acts or continued course of conduct”,[18] creates circumstances which left the deceased with no other option except to commit suicide, then “instigation” is a fair conclusion to be drawn.[19] A long duration of constant bullying, constant humiliation, abusing a person and saying words such as “you should kill yourself” must then be considered as as an act of instigation under section 306 of the Indian Penal Code. Accordingly, mens rea should not be deduced by focusing the last positive act the person did to the suicide victim.
Furthermore, it can be reasonably construed that if you physically or mentally torture a person, constantly humiliate them, tell them that they should end their lives, while harassing them and creating a hostile environment for them, which is exactly what bullies do, then the probability of such victims committing suicide increases. This is why in cases of suicide committed by victims of bullying, the act of abetment has to be considered as a series of acts, actions or continues conduct, and not one final act which should have direct nexus with the suicide committed. This is because it is the long period of continual bullying leading to frustration and helplessness that drives the victims of bullying to end their misery, which is directly attributable to their bullies.
One line of argument that can be ordinarily expected from the other side revolves around concern for those falsely accused of such an offence. But there is hardly a reason for such concern when the abetment is being proved by establishing a series of acts. False accusations based on one single hurtful action of a person will be filtered out in this system. Accusations made with a retributive mentality will also fail because ultimately, such a case would not be proved if the court is not satisfied by the gravity of the conduct of the accused.
Conclusion
Changing the outlook on how law can be used to hold perpetrators accountable is incredibly important in today’s time where suicides due to bullying are rampant. These people need to be apprehended for their actions, especially to create a deterrent effect in society. In the current scenario, it is very easy to get away with such actions. Section 306 becomes significant due to absence of any other legislation that concerns itself with suicides caused by bullying. Considering that bullying is not restricted to adolescent school students only anymore, but adults too, the use of this section will bring perpetrators of bullying to the books of law and do justice to the families of the victims.
[1] Behind the Numbers: Ending School Violence and Bullying (2019), https://reliefweb.int/sites/reliefweb.int/files/resources/366483eng.pdf
[2] Sushma Sosha Philip, Anti-bullying Laws In India: What Parents Should Know, Parent Circle (Jan. 25, 2018), https://www.parentcircle.com/article/antibullying-laws-in-india-what-parents-should-know/
[3] Bullying and Suicide, Bullying Statistics, http://www.bullyingstatistics.org/content/bullying-and-suicide.html
[4] Id.
[5] Priyanka Thirumurthy, 15 Year Old Boy Kills Self In TN: Blames Bullying Classmates In Suicide Note, The News Minute, (Feb. 09, 2018) https://www.thenewsminute.com/article/15-year-old-boy-kills-self-tn-blames-bullying-classmates-suicide-note-76219
[6] Pooja Biraia Jaiswal, One Arrested In Mumbai Resident Doctor Suicide Case, The Week (May 28, 2019), https://www.theweek.in/news/india/2019/05/28/one-arrested-in-mumbai-resident-doctor-suicide-case.html
[7] Narayan Namboodiri, Powai Suicide: Abetment Case Filed Against Colleagues, TNN, (Jul. 25, 2019), https://timesofindia.indiatimes.com/city/mumbai/powai-suicide-abetment-case-filed-against-colleagues/articleshow/70368550.cms
[8] Girl Kills Self Over Facebook Harassment, TNN, (June 26, 2014), https://timesofindia.indiatimes.com/city/kolkata/Girl-kills-self-over-Facebook-harassment/articleshow/37211521.cms
[9] Indian Penal Code, 1860, § 306.
[10] Indian Penal Code, 1860, § 107.
[11] State of West Bengal v Orilal Jaiswal & Another, [1994] 1 SCC 73; Pramod Shriram Telgote v. State of Maharashtra, 2018 SCC OnLine Bom 1456.
[12] Praveen Pradhan v. State of Uttranchal, (2012) 9 SCC 734.
[13] https://en.oxforddictionaries.com/definition/instigate.
[14] Praveen Pradhan v. State of Uttranchal, (2012) 9 SCC 734.
[15] Ramesh Kumar v. State of Chhattisgarh, AIR 2001 SC 3837.
[16] Chitresh Kumar Chopra v. State (Government of NCT of Delhi) AIR 2010 SC 1446.
[17] State of West Bengal v Orilal Jaiswal & Another, [1994] 1 SCC 73.
[18] Id. note 16.
[19] Id. note 18.
About the Author: Anshika is a 2018-23 Batch student at National Law University, Jodhpur.
Disclaimer: Although we try to ensure that the information provided, whether in relation to the products, services, or offering or otherwise provided (hereinafter mentioned as “INFORMATION”) on the website is correct at the time of publishing, we or any third parties do not provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements. Neither the website nor any person/organization acting on its behalf may accept any legal liability/responsibility
Criminal Law Research & Review 