India – Penalizing Attempt To Suicide: Provision Replete With Paradox.

12 May, 2021

 

“When people kill themselves, they think they're ending the pain, but all they're doing is passing it on to those they leave behind[1]”

 

People throughout the world have vehemently condemned the act of committing suicide. It is often labelled as an ‘escape route’ from the harsh realities of life and treated as a sign of weakness or mental illness. It is, however, seldom that the society tries to delve into the reasons behind such acts. Instead, the family members and acquaintances of the dead are subjected to rigorous probe and often stigmatized, ridiculed and shamed. Situation is equally grave where any such attempt to end life, fails, leading to the invocation of the legal machinery and penal provisions. Unfortunately, existing Law provides for penalizing the attempt to commit suicide, instead of determining the reasons behind the same and providing the survivor with much needed psychiatric assistance. It in fact becomes extremely ironical at this stage that when a person survives from his attempt to end his life, is reprimanded and punished for his failure to do so.

 

Under the Indian Penal Code, 1860 (“IPC”), Section 309[2], penalizes the attempt to commit suicide and provides for a punishment of simple imprisonment for a term, which may extent to one year or with fine or with both. Pertinently, the term, “suicide” is not defined under IPC. However, in common parlance, suicide connotes[3] an, “act or an instance of taking one's own life voluntarily and intentionally” The vires of Section 309 IPC was tested on the rigours of Constitutional provisions, especially in terms of the provisions of Article 21[4] of the Constitution of India (“Constitution”), by a division bench of the Hon’ble Supreme Court in P. Rathinam v. Union of India, AIR 1994 SC 1844. In this case, the Hon’ble Court vehemetly held that the provisions of Section 309 IPC violate the provisions of Article 21 of the Constitution. The Hon’ble Apex Court, while holding that right to live under Article 21 of the Constitution would also include right not to live, i.e., a right to die or to terminate one's life, opined/ suggested, “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. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State's interference with the personal liberty of the persons concerned is not called for.”

 

However, subsequently, taking a completely contrary view, a Constitutional Bench of the Hon’ble Supreme Court[5] dismissed and overruled its previous decision in P. Rathinam v. Union of India[6] by holding that the provisions of Article 21 of the Constitution cannot be constructed in a manner, so as to include therein, “right to die”. As per the Hon’ble Apex Court, “there is no ground to hold that Section 309, IPC is constitutionally invalid. The contrary view taken in P. Rathinam on the basis of the construction made of Article 21 to include therein the right to die' cannot be accepted by us to be correct. That decision cannot be supported even on the basis of Article 14” Pertinently, quite recently, the Hon’ble Supreme Court[7], in a slight relatable, however, different context gave sanction to passive euthanasia on a living will by, inter alia, observing, “Gian Kaur has neither given any definite opinion with regard to euthanasia nor has it stated that the same can be conceived of only by a legislation.”

 

The Law Commission of India (“Law Commission”), time and again, carried out a review and analysis of the provision of Section 309 IPC. As early, as the year 1971, in its 42^nd Report[8], the Law Commission recommended the repeal of the said Section with the observation, “We are, however, definitely   of   the   view   that   the   penal   provision   is   harsh   and unjustifiable and it should be repealed.” However, subsequently, the Law Commission in 156^th Report[9] recommended that the provisions of Section 309 IPC must continue to exist under IPC. The reasoning behind the same was based on the decision of the Hon’ble Supreme Court in Gian Kaur v. State of Punjab, AIR 1996 SC 946. Law Commission, simultaneously, observed that there was a rise in narcotic drug-trafficking offences, terrorism in different parts of the country, the phenomenon of human bombs etc. and that it was necessary to retain the said provision for the reasons that such, “terrorist or drug trafficker who fails in his/ her attempt to consume the cyanide pill and the human bomb who fails in the attempt to kill himself or herself along with the targets of attack, have to be charged under  section  309 and  investigations be carried out to prove the offence. These groups of offenders under section 309 stand under a different category than those, who due to psychological and religious reasons, attempt to commit suicide.”

 

Quite recently, the Law Commission embarked on an exhaustive study of the provisions of Section 309 IPC and similar provisions in various parts of the world. Based on such review and analysis of past and present provisions, judicial decisions and examples, the Law Commission submitted its recommendations in the form of a Report[10]. The Law Commission in the said report opined that attempt to suicide, be regarded more as a manifestation of a diseased condition of mind, deserving treatment and care, rather than an offence to be visited with punishment. The Law Commission, further, inter alia, opined; 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 of IPC provides double punishment fora person who has already got fed up with his own life and desires to end it; Section 309 of IPC acts as a stumbling block in prevention of suicides and improving the access of medical care to those who have attempted suicide; 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; etc. Accordingly, the Law Commission recommended that though abetment to attempt to suicide be penalized and continue to do so provisions under, “Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional.”

 

The recently enacted[11] Mental HealthCare Act, 2017 provides for several Sections to deal with the deplorable state of mind of the person with suicidal tendencies. Under Section 29(2) of the said Act, a duty is cast on the appropriate government[12], to plan, design and implement public health programmes to reduce suicides and attempted suicides in the country. Significantly, Section 115(1) of the Mental HealthCare Act, 2017 provides for raising of a presumption that any person who attempts to commit suicide, unless it is proved otherwise, has severe stress. Further, this provision has been made “[n]otwithstanding anything contained in section 309 of the Indian Penal Code”, ensuring that in such a case, person attempting suicide, shall not be tried and punished under IPC. At the same, time, under Section 115(2) of the said Act, a duty is case upon the appropriate  government  to  provide  care,  treatment  and rehabilitation  to  a  person,  having  severe  stress  and  who  attempted  to  commit  suicide,  to reduce the risk of recurrence of attempt to commit  suicide. Clearly, the said provisions provide a much-needed ray of hope to the survivors of attempted suicide by enabling them a right to dignified life and treatment, rather, than being penalized under law. Acceptance of such incidents are relatable to mental heath issues further acts as an acknowledgment, acceptability and assist in reducing social stigma.

 

It is universally recognized that a majority of incidents of suicide and attempts thereto have a direct nexus with states of severe mental depression, loneliness, trauma, etc. Further, with the increased dependency on technology and reduced human interaction, it is experienced that there is a gradual escalation in such incidents. Unfortunately, under such circumstances, the penal provisions under Section 309 IPC result in adding the agony of the victims of mental trauma/ distress. Fortunately, Section 115(1) of the Mental HealthCare Act, 2017 provide for a presumption. However, the same being a rebuttable presumption and the fact that the provisions under Section 309 IPC have not been obliterated in entirety, there remains a tendency of misuse of the existing penal laws. Time is ripe to sympathize with the agony of attempted suicide survivors, treating them more as victims than the perpetrators of offence(s). Understandably, the vires of this provision may stand justified on the Constitutional parameters, as the Law Commission in its 156^th Report suggested, humanly approach demands that the provision of Section 309 IPC be effaced from the statute books. Someone once said, “Anybody can look at you. It's quite rare to find someone who sees the same world you see[13].” Accordingly, it is imminently required to have a sympathetic approach, both, by and individuals alike; visualizing the realities of such survivors and extinguishing the irony inherent in the provisions of Section 309 IPC.

 

Disclaimer: This publication is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to herein. This publication has been prepared for information purposes only and should not be construed as a legal advice. Although reasonable care has been taken to ensure that the information in this publication is true and accurate, such information is provided ‘as is’, without any warranty, express or implied, as to the accuracy or completeness of any such information.

 

 

For further information, please contact:

 

Varun Sharma, Associate Partner, Clasis Law

varun.sharma@clasislaw.com

 

[1] Jeannette Walls