Topic: P.Rathinam v. Union of India

P.Rathinam v. Union of India
Equivalent Citations: 1994 AIR 1844, 1994 SCC (3) 394 - Bench: Hansaria B.L. (J), Sahai, R.M. (J) - Citation: 1994 Air 1844,  1994 Scc  (3) 394,  Jt 1994 (3)   392, 1994 Scale  (2)674 - Date Of Judgment26/04/1994

The Judgment of the Court was delivered dy B. L. HANSARIA,J.--Gandhiji once observed: "Death is our friend, the trust of friends. He delivers us from agony. I do not want to die of a creeping paralyis of my faculties-- a defeated man".

The English poet William Ernest Henley wrote: "I am the master of my fate, I am the captain of my soul."

2. Despite the above, Hamlet's dilemma of "to be or not to be" faces many a soul in times of distress, agony    and suffering, when the question asked is "to die    or not to die". If the decision be to die and the same is implemented to its fructification resulting in death, that is the end of the matter. The dead is relieved of the agony, pain    and suffering and no evil consequences known to our law follow. But if the person concerned be unfortunate to survive,    the attempt    to commit suicide may see him behind bars, as    the same is punishable under Section 309 of our Penal Code.

3. The two petitions at hand have assailed the validity of Section    309 by contending that the same is violative of Articles 14 and 21 of the Constitution and the prayer is to declare    the section void. The additional prayer in    Writ Petition (Crl.) No. 419 of 1987 is to quash the    proceedings initiated against the petitioner (Nagbhusan) under Section


4. The judiciary of this country had occasion to deal with the aforesaid aspect; and we have three reported decisions of the    three High Courts of the country, namely, Delhi, Bombay and Andhra Pradesh on the aforesaid question. There is also an unreported decision of the Delhi High Court. It would be appropriate and profitable to note at the threshold what the aforesaid three High Courts have held in    this regard before we apply our mind to the issue at hand.

5. The first    in point of time is    the decision of a Division Bench of Delhi High Court in State v. Sanjay Kumar Bhatial    in which the Court was seized with the question as to whether the investigation of the case under Section    309 should    be allowed to continue beyond the period fixed by Section 368 CRPC. Some loud thinking was done by the Bench on the    rationale of Section 309. Sachar, J., as he    then was, observed for the Bench:

"It is ironic that Section 309 IPC still continues to be on our Penal Code. ... Strange paradox that in    the age of votaries    of Euthanasia, suicide should be    criminally punishable. Instead of the society hanging its head in shame that there should be    such social strains that a young man (the hope of tomorrow)    should be driven    to suicide compounds    its inadequacy by treating the    boy as a criminal. Instead of sending the young boy to psychiatric clinic it gleefully sends him to    mingle    with    criminals....    The continuance of    Section 309 IPC is    an anachronism unworthy of a human society    like ours. Medical clinics for such social misfits certainly    but police and prisons never.    The very idea is revolting. This concept seeks to meet the challenge of social strains of modem urban and competitive economy    by ruthless suppression of mere symptoms this attempt can only result in failure.    Need is for humane, civilised    and socially oriented    outlook    and penology.... No    wonder so long    as society refuses to face this reality its coercive machinery will 1    1985 Cri LJ 931 :(1985) 2 DMC 153 (Del) invoke the provision like Section 309    IPC which has no justification to    continue to remain on the statute book."
6. Soon came the Division Bench decision of    Bombay    High Court in Maruti Shripati Dubal v. State of Maharashtra2 in which the Bench speaking through Sawant, J., as he then was, on being approached for quashing a prosecution launched against    the petitioner under Section 309 of the Penal    Code on the ground of unconstitutionality of the section,    took the view and    that the section was    ultra    vires being violative of Articles 14 and 21 and was therefore struck down. We would note the reasons for the view taken later.

7. Close on the heels was the decision of a Division Bench of Andhra Pradesh High Court in Chenna Jagadeeswar v. State of A.p.3 in which on the High Court being approached against the conviction of the appellants under Section    309, inter alia, on the    ground of the section    being violative of Articles 14 and 21 of the Constitution, the Bench held    that the section was valid as it did not offend any of these articles. The Bombay view was dissented to; the reasons of which also we shall advert to later.

8. The unreported decision of the Delhi High Court    has been noted in the articles of Shri B.B. Pande, Reader in Law, University of Delhi, as    published in    Islamic    and Comparative Law Quarterly [Vol. VII(1), March 1987 at    pp. 112 to 120] and of Shri Faizan Mustafa, Lecturer, Department of Law, Aligarh Muslim University [(1993) 1 SCJ Journal Section    at pp. 36 to 42]. That decision was rendered in a suo motu proceeding titled as Court on its own Motion v. Yogesh Sharma4. The decision was rendered by Sachar,    C.J. The Court once again pointed out the futility of creating criminal liability in suicide cases, but instead of striking down the section or declaring it invalid, what the learned Chief Justice    did was to quash all the 119    proceedings pending    in the trial courts on the ground that dragging of the prosecutions for years when the victims have had enough of misery and the accused also belonged to poorer section which added further insult to the injury, would be abuse of the process of the court. Being of this view, each of    the accused was directed to be acquitted.

9. Striking down of the section by the Bombay High Court has come to be criticised by the aforesaid Shri Pande    and Shri Mustafa,    so also by Shri D.C. Pande, Research Professor, Indian Law Institute, in his article on "Criminal Law" [of Annual Survey of Indian Law, Vol. 23 (1987) at pp. 260 to 270 of published by the Indian Law Institute].    In the 'Editorial Note' titled 'Taking One's Life' [(1986-87) 91 CWN    (Journal Section) at pp. 37    to 40]    the Bombay decision received some criticism.

10. Before dealing with the points raised in these writings, it would be worthwhile to note that Shri    V.S. Deshpande after his retirement as Chief Justice of Delhi High Court had expressed his view on this question in his 1 1987    Cri LJ 743 (1986) 88 Bom LR 589: 1986    Mah LJ    913 (Bom) 3 1988 Cri LJ 549 (1987) 2 Andh LJ 263 : 1987 APLJ (Cri) 110 (AP) 4 Registered as Cri.    Revision No. 230 of 1985 article titled "To be or not to be" [(1984) 3 SCC (Journal) at pp. 10 to 15] Shri Deshpande, after 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 IPC to apply to such cases?"

11. Sometime afterwards appeared an article of Justice R.A. Jahagirdar of Bombay High Court in the Illustrated Weekly of India (September 29, 1985) 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.

12. Apart from the aforesaid judicial and legal thinking on the subject relating to justification and permissibility of punishing a man for attempting to commit suicide, there    are proponents of the view that euthanasia (mercykilling) should be permitted by law.    We do not propose to refer to    the thinking on this subject, principally because the same is beyond    the scope of the present petitions and also because in euthanasia a third person is either actively or passively involved about whom it may be said that he aids or abets the killing of another person. We propose to make a distinction between    an attempt of a person to take his life and action of some others to bring to an end the life    of a third person.    Such a distinction can be made on principle and is conceptually permissible.

13. Though what we propose to decide in these cases would, therefore, relate to the offence of attempted suicide, it is nonetheless required to be stated that euthanasia is    not much unrelated to the act of committing suicide inasmuch as wherever passive euthanasia has been held to be permissible under the law, one of the requirements insisted upon is consent    of the patient or of his relations in case    the patient be not in a position to give voluntary consent.    The relationship between suicide and euthanasia has come to be highlighted in    a decision of the Supreme Court of Nevada (one of the States of United States of America) in Mckay v. Bergstedt5 where a patient filed a petition to the court for permitting disconnection of his respirator. The district court,    on the facts of the case, granted permission.    The State appealed to the Supreme Court of Nevada which, after balancing the interest of the patient against the relevant State interest, affirmed the district court's judgment.    The court took the view that the desire of the patient for withdrawal of his respirator did not tantamount to suicide the same was rather an exercise of his    constitutional and common law right to discontinue unwanted medical treatment. This was the view taken by the majority. One of the Judges expressed a dissenting view.

14. A    comment has been made on the aforesaid decision    [at pp. 829 to 838 of Suffolk University Law Review, Vol. 25 (1991)] by stating that the distinction made by the majority between    suicide and euthanasia because of differences in motive    and mental attitude,    is not tenable and    the commentator referred to the dissenting opinion in which it was observed that the patient was in fact requesting    the court to sanction affirmative act which was entirely consistent with the court's definition of suicide, inasmuch as the majority had defined suicide as "an act or instance of taking one's own life voluntarily and intentionally;    the deliberate and intentional destruction of his own life by a person    of years of discretion and of sound mind; one    that commits    or attempts his self-murder". (This was indeed    the definition given in Webster's Third    New International Dictionary, 1968.)

15. We    may now note the reasons given by the    Bombay    High Court in Shripati case2 for striking down the    section as violation of Article 21. These reasons are basically three: (1) Article 21 has conferred a positive right to live which carries    with it the negative right not to live. In    this connection it    has been first stated that the    fundamental rights    are to be read together as held in R. C. Cooper v. Union of India6. Mention was then made of freedom of speech and expression, as to which it was observed that the    same includes freedom not    to speak and    to remain silent. Similarly, about the freedom of business and occupation, it was stated that it includes freedom not to do business.    (2) Notice    was then taken of the various    causes    which    lead people    to commit suicide. These being mental diseases    and imbalances, unbearable    physical ailments, affliction by socially-dreaded diseases, decrepit    physical condition disabling the person from taking normal care of his body and performing the normal chores, the loss of all senses or of desire    for the pleasures of any of the senses, extremely cruel or unbearable conditions of life making it painful to live, a sense of shame or disgrace or a need to defend one's honour or a sheer loss of interest in life or disenchantment with it, or a sense of fulfilment of the purpose for which one was born with nothing more left to do or to be achieved and a genuine urge to quit the world at the proper moment. (3) The Bench    thereafter stated that in our country different forms of suicide are known. These being: Johars (mass suicides or self-immolation) of ladies from the royal houses    to avoid being dishonoured by    the enemies;    Sati (self-immolation by the widow on the burning pyre of    her deceased husband); Samadhi (termination of one's life by self-restraint    on breathing); Prayopaveshan (starving    unto death);    and Atmarpana (self-sacrifice). It was    also observed that the saints and savants, social, political    and religious leaders have immolated themselves in the past    and do so even today by one method or the other and society    has not only 6 (1970) 2 SCC 298 : AIR 1970 SC 1318 not disapproved of the practice but    has eulogised    and commemorated the practitioners.    It may be pointed out    that the Bench made a distinction between "suicide" and "mercy- killing"; so also, between suicide and aiding    or abetting the same.

16. The Bombay High Court held Section 309 as violation of Article 14 also mainly because of two reasons.    First, which act or    acts in series of acts will constitute    attempt to suicide, where to draw the line, is not known some attempts may be serious while others non-serious. It was stated that in fact philosophers, moralists and sociologists were    not agreed upon what constituted suicide. The want of plausible definition or even guidelines, made Section 309 arbitrary as per the learned Judges. Another reason given was    that Section    309 treats all attempts to commit suicide by    the same measure without referring to the circumstances in which attempts are made.

17. The first    of the aforesaid reasons is    not sound, according to us,because    whatever differences there may be as to what constitutes suicide,there is no doubt    that suicide is intentional taking of one's life, as stated at p. 1521 of    Encyclopaedia of Crime and Justice, Vol. IV, 1983 Edn. Of course, there still exists difference among suicide researchers as to what constitutes suicidal behaviour, for example, whether narcotic addiction,    chronic    alcoholism, heavy cigarette smoking, reckless driving, other risk-taking behaviours are    suicidal or not. It    may also be    that different methods are adopted for committing suicide,    for example, use of firearms, poisoning especially by drugs, overdoses, hanging, inhalation of gas.    Even so, suicide is capable    of a broad definition, as has been given in    the aforesaid Webster's Dictionary. Further, on a    prosecution being launched it is always open to an accused to take    the plea that his act did not constitute suicide whereupon    the court would decide this aspect also.

18. Insofar as treating of different attempts to commit suicide    by the same measure is concerned, the same    also cannot    be regarded as violative of Article 14, inasmuch as the nature, gravity and extent of attempt may be taken    care of by    tailoring the sentence appropriately. It is worth pointing out that Section 309 has only provided the maximum sentence which    is up    to one year. It provides    for imposition of fine only as a punishment. It is this aspect which weighed with the Division Bench of Andhra Pradesh High Court in its aforesaid decision to disagree with the Bombay view by stating that in certain cases    even Probation of Offenders Act can be pressed into service, whose Section 12 enables    the    court    to ensure that no    stigma    or disqualification is attached to such a person. (See para 32 of the judgment.)

19. We agree with the view taken by the Andhra Pradesh High Court as regards Section 309 qua Article 14. But the Bombay Bench itself was more involved with Article 21 and violation of it by Section 309, the reasons whereof have been noted. Whether    these    are sound and tenable, would be our    real consideration.

20. The Bombay High Court's decision2 led some thinkers to express their own views. We have noted who they were.    The broad points of their objection/criticism were these: (1)    suicide    is an act against religion; (2) it is immoral; (3) it produces adverse sociological effects; (4) it is against public policy (This has also been the main argument of the counsel of Union of India before us.); (5) it damages monopolistic power of    the State,    as State alone can take life;    and (6) it would encourage aiding and abetting of suicide and may even    lead to 'constitutional cannibalism'.

21. We    shall    in due course    see whether the aforesaid objections raised against    the Bombay judgment are valid. Concerned as we are with the broad contention that Section 309 is violative of Article 21, we shall first inform ourselves as to    the content    and reach of this article and then answer in a general    way as to whether a person residing in India has a right to die. Section 309 being a part of our enacted    law, we would desire to know what object a law seeks to achieve. This section having made attempt to    commit    suicide an offence, we shall ask the question as to why is a particular act treated as crime and what acts are so treated. We shall then apply our mind to the purposeful query as to how a crime can be prevented. Being seized with the crime of 'attempted suicide', we shall apprise ourselves as to    why suicides are committed and how can they be really prevented. We would also desire to know what type of persons have    been committing suicides and what had been their motivations. We would then view the    act of    committing suicide in    the background of our accepted social ethos. Having done so, we shall take up the points of criticism noted above one by one and express our views on the same.

22. Having known that the Law Commission of India had in its 42nd Report of 1971 recommended deletion of Section 309, we shall put on record as to why was    this recommendation made and how was the same viewed by the Central    Government; and what steps, if any, were taken by it to implement    the recommendation.    What is the present thinking of the Union of India shall also be taken note of.

23. Finally, we shall open our mental window a little to allow breeze to come from other parts of the world, inter alia, because    Gurudev    (Rabindranath    Tagore,    the Nobel Laureate) wanted us to do so.    Globalisation has, in    any case, been accepted by us in some other fields of    our activities. We have    stated opening    of this window "a little"    because we propose to confine    ourselves to    know whether attempt to commit suicide is presently a crime    only in two    other    countries of the globe they being United Kingdom    and United States of America.    The reasons for    our selecting these two countries shall be indicated when we shall advert to our 'global view' query. It may only be stated here that we are opening the window only a little, as, the little air that would pass    through    the little aperture would be enough, in our view, to enable us to    have broad knowledge of global view on    the subject under consideration.

24. The aforesaid mental odyssey would take us through a long path before we    would reach our destination,    our conclusion. Finale would, however, come after we    have answered or known the following:

(1) Has    Article 21 any positive content or is it merely negative in its reach? (2) Has    a person residing in India a right to die?
(3) Why is a law enacted? What object(s) it seeks to achieve?
         (4)    Why     is  a    particular  act     treated  as
         crime/What acts are so treated?
         (5)    How can crimes be prevented?
         (6)    Why is suicide committed?
         (7)    Who commits suicide?  Secularisation  of
         (8)    How     suicide-prone    persons     should      be
         dealt with?
         (9)    Is suicide a non-religious act?
         (10)   Is suicide immoral?
(11) Does suicide produce adverse sociological effects?
(12) Is suicide against public policy? (13) Does commission of suicide    damage    the monopolistic power of the State to take life? (14) Is    apprehension    of 'constitutional cannibalism' justified?
(15) Recommendation of the Law Commission of India and follow-up steps taken, if any. (16) Global view. What is the legal position in    other    leading countries of    the world regarding the matter at hand?
25. The aforesaid questions, which have been framed keeping in mind the information we thought necessary to enable us to decide    the important matter at hand to our satisfaction, have been listed as above keeping in view their    comparative importance for    our purpose the most important being he first and so on; and we propose to answer them in the    same sequence.

(1) Has Article 21 any positive content or is it merely negative in its reach?

26. This question is no longer res integra inasmuch as a Constitution Bench of this Court in Unnikrishnan v. State of A.p.7 [in which right to receive education up to the primary stage has been held to be a call of Article 1] has virtually answered this question. This would be apparent from    what was stated by Mohan, J. in paragraph 19 and by Jeevan Reddy, J. in    paragraph 170.    In paragraph    30, Mohan, J.    has mentioned about the rights which have been    held to be covered under Article 21. These being:

(1) The    right to go abroad. Satwant Singh Sawhney v. D. Ramarathnam APO, New Delhi8. . (2) The    right to privacy. Gobind v. State of M.P.9 In this case reliance was placed on the American decision    in Griswold    v. Connecticut10.
          7        (1993) 1 SCC 645
          8        (1967) 3 SCR 525 AIR 1967 SC 1836
          9        (1975)  2  SCC 148 1975 SCC     (Cri)    468:
          (1975) 3 SCR 946
          10    381 US 479, 510: 14 L Ed2d 511 (1965)

(3) The right against solitary    confinement. Sunil Batra v. Delhi Admn. 11 (4) The right against bar fetters. Charles Shobraj v. Supdt., Central Jail12. (5) The right to legal aid. M. H. Hoskot v. State of Maharashtra' 3.
(6) The    right to speedy trial.    Hussainara Khatoon(1) v. Home Secretary,    State    of Bihar14.
(7) The    right    against    handcuffing.    Prem Shankar Shukla v. Delhi Admn.15 (8) The right against delayed execution. T. V. Vatheeswaran v. State of T. N. 16 (9) The    right against    custodial violence. Sheela Barse v. State of Maharashtral7. (10) The right against public hanging.    A.G. of India v. Lachma Devil'.
(11) Doctor's assistance. Paramanand Katra v. Union of India19.
(12) Shelter. Shantistar Builders v.    N.K. Totame2O.
27. The aforesaid is enough to state that Article 21    has enough    of positive content in it. As to why the rights mentioned above have been held covered by Article 21    need not be gone into, except stating that the originating    idea in this regard is the view expressed by Field, J. in Munn v. IllinoiS21 in    which it was held that the term    'life'    (as appearing in the 5th and 14th amendments to    the United States Constitution) means something more than 'mere animal existence'. This view was accepted by a Constitution Bench of this Court in Sunil Batra v. Delhi Admn.22 (SCC paras 55 and 226 : AIR paras 56 and 226), to which further leaves were added in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkami23 (SCC para 13 : AIR para

13); Vikram Deo Singh Tomar v. State of Bihar24 (SCC para 5 : AIR    para 5); and Ramsharan Autyanuprasi v. Union of India25 (SCC para 13 : AIR para 13). In these decisions it was held that the word 11 (1978) 4 SCC 494, 545: 1979 SCC (Cri) 155 12 (1978) 4 SCC 104: 1978 SCC (Cri) 542: (1979) 1 SCR 512 13 (1978) 3 SCC 544: 1978 SCC (Cri) 468: (1979) 1 SCR 192 14 (1980) 1 SCC 81 : 1980 SCC (Cri) 23 : (1979) 3 SCR 169 15 (1980) 3 SCC 526: 1980 SCC (Cri) 815 :(1980) 3 SCR 855 16 (1983) 2 SCC 68 : 1983 SCC (Cri) 342: AIR 1983 SC 361 17 (1983) 2 SCC 96: 1983 SCC (Cri) 353 18 1989 Supp (1) SCC 264: 1989 SCC (Cri) 413 : AIR 1986 SC 19 (1989) 4 SCC 286: 1989 SCC (Cri) 721 20 (1990) 1 SCC 520 21 (1877) 94 US 1 13 : 24 L Ed 77 (1877) 22 (1978) 4 SCC 494: 1979 SCC (Cri) 155: AIR 1978 SC 1675 23 (1983) 1 SCC 124: 1983 SCC (L&S) 61 : AIR 1983 SC 109 24 1988 Supp SCC 734: 1989 SCC (Cri) 66: AIR 1988 SC 1782 25 1989 Supp (1) SCC 251 : AIR 1989 SC 549 'life' in Article 21 means right to live with human dignity and the same does not merely connote continued drudgery. It takes within its fold "some of the finer graces of human civilization, which makes life worth living", and that    the expanded concept of life would mean the "tradition, culture and heritage" of the person concerned.

28. It    would be relevant to note the decision in State of H.P. v. Umed    Ram Sharma26.    It was observed there in paragraph 11 that the right to life    embraces not    only physical existence but the quality of life as understood in its richness and fullness by the ambit of the Constitution; and for residents of hilly areas access to road was held to be access to    life itself, and so    necessity of    road communication in a reasonable condition was held to be a part of constitutional imperatives, because of which    the direction given by the Himachal Pradesh High Court to build road in the hilly areas to enable its    residents to    earn livelihood was    upheld. What can be    more positive    and kicking?

29. We may also refer to the article of Dr M. Indira and Dr Alka Dhal under the caption "Meaning of Life, Suffering    and Death"    as read in the International Conference on Health Policy,    Ethics and Human Values held at New Delhi in 1986. This is what the learned authors stated about life in their article:

Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality    the feeling of wholeness with a capacity for continuous    intellectual and spiritual growth.    Physical, social, spiritual    and psychological well-being    are intrinsically interwoven into the fabric of life. According    to Indian philosophy    that which is    born must die.    Death is the    only certain thing in life."
30. May it be said that in C.E.S.C. Ltd. v. Subhash Chandra Bose27    it has    been opined by Ramaswamy, J. (who is, of course,    a minority Judge) that physical and mental health have to be treated as integral part    of right to life, because    without good health the civil and political rights assured by our Constitution cannot be enjoyed. (2) Has a person residing in India right to die?

31. If a person has a right to live, question is whether he has right not to live. The Bombay High Court stated in paragraph 10 of its judgment that as all the    fundamental rights    are to be read together, as held in R.C. Cooper v. Union of India6 what is true of one fundamental right is also true of another fundamental right.    It was then stated that it is not, and cannot be, seriously disputed    that fundamental rights have their positive as well as negative aspects. For    example, freedom of speech and expression includes freedom not to speak.    Similarly, the    freedom of association and movement includes freedom not to join    any association or move anywhere.    So too, freedom of business includes freedom not to do business.    It was, therefore, stated that 26 (1986) 2 SCC 68: AIR 1986 SC 847 27 (1992) 1 SCC 441 :1992 SCC (L&S) 313 logically it must follow that the right to live will include right not to live, i.e., right to die or to terminate one's life.

32. Two of the abovenamed critics of the Bombay judgment have stated that the aforesaid analogy is "misplaced", which could have arisen on account    of superficial comparison between    the freedoms,    ignoring the    inherent difference between    one fundamental right and the other. It has been argued    that the negative aspect of the right to live would mean the end or extinction of the positive aspect, and    so, it is not the suspension as such of the right as is in    the case of 'silence' or 'non-association' and 'no movement'. It has    also been stated that the right to life stands on different footing from other rights as all other rights    are derivable from the right to live.

33. The aforesaid criticism    is only partially correct inasmuch as though the negative aspect may not be inferable on the analogy of the rights conferred by different clauses of Article 19, one may refuse to live, if his life be    not according to the person concerned worth living or if    the richness and fullness of life were not to demand living further. One    may rightly think that having achieved all worldly pleasures or happiness, he has something to achieve beyond    this life. This desire for communion with God    may very rightly lead even a very healthy mind to think that he would forego his right to live and would rather choose    not to live. In any case, a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking.

34. From what    has been stated above, it    may not be understood that according to us the right encompassed or conferred by Article    21 can be waived. Need for    this observation has been felt because it has been    held by a Constitution Bench in    Olga Tellis v. Bombay Municipal Corpn.28 that    a fundamental right cannot be    waived. A perusal of that judgment, however, shows that it dealt    more with the question of estoppel by conduct about which it    can be said that the same is a facet of waiver. In the present cases, we are, however, not on the question of estoppel    but of not taking advantage of the right conferred    by Article


35. Keeping in view all the above, we state that right to live of which Article    21 speaks of can be said to bring in its trail the right not to live a forced life.

36. In this context, reference may be made to what Alan A. Stone,    while serving as Professor of Law and Psychiatry in Harvard    University stated in his 1987 Jonas Robitscher Memorial Lecture in Law and Psychiatry, under    the caption "The Right to Die : New Problems for Law and Medicine and Psychiatry". (This lecture has been printed at pp. 627 to 643 of Emory Law Journal, Vol. 37, 1988). One of the basic theories of the lecture of Professor Stone was that right to die inevitably leads to the right to commit suicide. 28 (1985) 3 SCC 545 : AIR 1986 SC 180 (3) Why is a    law enacted? What object(s) it seeks to serve?

37. Section 309 being a part of our enacted law, let it be known as to why a law is framed or is required to be framed. To put    it differently, what objects    are sought to be achieved by framing laws. For our purpose it would be enough    if what has been stated by Shri M. Ruthnaswamy in Chapters 5 and 6 of his book Legislation: Principles    and Practice (1st    Edn., 1974) (the Chapter headings being "Principles of    Legislation in History" and "Contemporary Principles of Legislation"), is noted.    The learned author has within a    short compass brought    home the different principles which had held sway in different parts of    the world at different points of time. Ruthnaswamy starts in Chapter    5 by    saying    that it is from the time of    the Renaissance and the Reformation when men, as a result of these great revolutionary movements broke away from rule of custom    and tradition, that legislation began its career as an instrument of social and political, and even religious, change.    The readers are then informed as to what Richard Hooker    (15541600) thought on the question of    law Which, according to him, has to be influenced by experience    and supported by reason.

38. The next important thinker of England after Hooker    was the famous Francis Bacon (1561-1626).    In his    Essays    (the most popular of his works) we find his views on    legislators and legislation. Bacon stood out for progress and utility and was of the view that it was not good to try experiments in legislation.    As against Bacon there was Sir Edward Coke, who was a defender of the rights of the Parliament. Mention is then made about John Locke (1632-1704) according to whom the laws made    must respect    the right to    liberty    and property; and laws must be made for the good of the people.

39. Ruthnaswamy then    takes the reader to    France    and mentions about Montesquieu (1689-1755), who in    his famous Spirit of Laws published in 1748, which has been regarded as a great classic of political and legal literature, rendered immemorial service to legislation and legislatures. In this monumental work, he insists that laws and legislation should be in    conformity with the spirit of the people, if    its traditions, its philosophy of life,    even the physical surroundings of the people, including    the climate.    The journey    is then to Germany, where Leibnitz (1646-1717), a philosopher, mathematician and adviser of kings and princes in Germany and Europe, took the view that greatness of    law is proved by the fact that great rulers were also great law- givers.    Names of Augustus, Constantine and Justinian    are mentioned in this regard. The German    philosopher further said that the    law must serve morality, because what is against morals is bad law.

40. Readers then find themselves in Italy and they    are acquainted with Beccaria (1739-1794), who through    his pamphlet under the title Delict and Crimes published in 1766 brought    a revolution    in the theory and practice    of punishment, because, according to him, punishment of crime must be used    only for the defence of the State and    the people and not for retribution and revenge which principles were holding the field then.

41. As    per sequence    of time, the    next writer to be mentioned is    Edmund    Burke    (1727-1797), who was a parliamentarian, statesman and political thinker. According to him the main essential of good    laws and legislation is that the    same should be fit    and equitable, so    that the legislature has a right to demand obedience. He would    say there are two    fundamental principles of legislation equity and utility.

42. Blackstone is a name which is immortal in the world of legal jurisprudence. It is his Commentaries on the Laws of England (1765) which has made him so. He emphasised on    the inviolability    of common law, freedom of persons    and property. After Blackstone, came Bentham (17481832) and the Utilitarians.

43. Ruthnaswamy has also acquainted the readers about    the views of Plato, Aristotle, Cicero and Thomas    Aquinas, so also what Voltaire (16941773) had to say. We do not propose to burden this judgment with their views; but what was    said by Macaulay (1800-1859) has to be noted, because it is he who had drafted our Penal Code. Macaulay believed in    the efficacy of law in improving people and their character. He wrote:

"When a    good system of law and police is established, when justice is    administered cheaply and firmly, when idle technicalities and unreasonable rules of evidence no longer obstruct the search for truth, a great change of the better may be expected which shall produce    a great effect on the national character."
44. In Chapter 6 of the book, Runthnaswamy has stated    that after the principles    of Benthamism and utilitarianism, reason,    utility and    individual liberty had exhausted themselves, humanitarianism occupied the field and it is this principle    which has seen the enactments    of statutes like Workmen's Compensation Act, Factories Act and various other statutes dealing with public health, sanitation    and weaker sections.

45. We do not propose to dive further and would close    this discussion by referring to what was stated by Ihering (1818- 1892) in his "Geist Des Romisches Rechts" (The Spirit of Roman Law), which has been accepted as a legal classic. According to Ihering, law is a means to an end. He    laid down the following general principles of legislation:

"1. Laws should be known to be obeyed.
2. Laws should answer expectations.
3. Laws should be consistent with    one another.
4. Laws should serve    the principle    of Utility.
5. Laws should be methodical.
6. Laws must be certain to be obeyed,    must not become a dead letter.
7. Laws are necessary to ward off    the danger of the operations of egoism or self- interest,    the ordinary    motives of human action.
8. Law and legislation must aim at justice which is that which suits all.
9. Laws are interconnected "laws like human beings lean on one another."
46. That humanitarianism is the throbbing principle of legislation presently has also been highlighted by Kartar Singh Mann in his article "Working of Legislatures in    the matter    of Legislation" appearing at pp. 491 to 495 of    the Journal    of Parliamentary Information, Vol. 33, 1987.    What has been stated by Mann at p. 493 is relevant    for purpose the same being:

Re: P.Rathinam v. Union of India

"In the historical perspective, one can easily appreciate the complexities and intricacies of legislation which the present legislatures are to face.    Besides the ordinary    laws which safeguard    the rights and liberties of    the individual, there are certain fundamental laws which ordinary legislation may not change. In countries like France, Germany and India which are having their written Constitutions their fundamental laws are embodied there itself. The fundamental    principles on    which    the political    life of the people is based    are individuality, equality    and justice. After securing the life and liberty of the State and of the individual, laws and legislations take on the task of serving and promoting the    good life of the State and the people. For good life, morality is necessary and    to maintain morality    legislation is a must. Legislation is the framework which is required to be    made for good life."
47. What was opined by Ian Temy, Q.C., Director of Public Prosecution in his article "Euthanasia Is it murder?"    [as printed    at pp. 2 to 7 of Australian Journal    of Forensic Sciences, Vol. 21 (1), September 1988] is also relevant    for our purpose. That article was concluded at p. 7 in these words:

"I have necessarily spoken about the law as it is. There is nothing immutable about it. To the extent it does not meet social needs and a strong consensus emerges to that effect,    the law can and should be changed......
48. The aforesaid show that law has many promises to    keep including granting of    so much of liberty as would    not jeopardise the interest of another or would affect    him adversely, i.e., allowing of stretching of arm up to    that point where the other fellow's nose does not    begin.    For this purpose, law may have "miles to go". Then, law cannot be cruel, which it would be because of what is being stated later,    if persons attempting suicide are    treated    as criminals and are prosecuted to get them punished, whereas what they need is psychiatric treatment, because suicide basically is a "call for help", as stated by Dr (Mrs) Dastoor, a Bombay Psychiatrist, who heads an    Organisation called    "Suicide Prevent". May it be reminded that a    law which is cruel violates Article 21 of the Constitution, a la, Deena v. Union of India29.

(4) Why is a particular act treated as crime?    What    acts are so treated?

49. Earliest reference to the word "crime" dates back to 14th century when it    conveyed to the mind something reprehensible, wicked or base.    Any conduct which    a sufficiently powerful section of any given community feels 29 (1983) 4 SCC 645 : 1983 SCC (Cri) 879: AIR 1983 SC 1155 to be destructive of its own interest, as endangering    its safety, stability or comfort is usually regarded as heinous and it    is sought to be repressed with severity and    the sovereign power is utilised to prevent the mischief or to punish    anyone who is guilty of it. Very often    crimes    are creations of government policies and the Government in power forbids    a man to bring about results which are against    its policies.

50. In    a way there is no distinction    between crime    and tort, inasmuch as a tort harms an individual whereas a crime is supposed to harm a society.    But then, a society is    made of individuals, harm to an individual is ultimately harm to society.

51. A    crime presents these characteristics: (1) it is a harm, brought    about by human conduct which the sovereign power in the State desires to prevent;

(2) among the measures of prevention selected is the threat of punishment; and (3) legal proceedings of a special    kind are employed to decide whether the person accused did    in fact cause the harm, and is, according to law, to be    held legally punishable for doing so. (See pp. 1 to 5 of Kenny's Outlines of Criminal    Law, 19th Edn., for    the above propositions.)

52. Protection    of society is the basic reason of treating some acts as    crime.    Indeed it is one of the aims of punishment. Where there is no feeling of security, there is no true freedom. What is the effect of the same cannot be described better than what    was stated by    Hobbes    in Leviathan, which is:

"There is no place for industry, because    the fruit thereof is uncertain; and consequently no culture of the earth; no navigation nor use of the commodities that may be    imported by sea; no commodious building; no instrument of moving and removing such things    as require much forces; no knowledge of the face of    the earth; no account of time; no arts,    no letters; no society; and which is worst of all continual fear and danger of violent death; and the    life of a solitary, poor, nasty, brutish and short."
53. As    constitutionality of Section 309 has been assailed as being violative of Article 21 which protects life    and personal liberty, it would be in fitness of things to    note what J.S. Mill had to say about making an act relatable to personal liberty punishable. This is what Mill had said in this connection in his famous tract On Liberty :

"The object of this Essay is to    assert    one very simple principle, as entitled to govern absolutely the dealings of society with    the individual in the way    of compulsion    and control,    whether the means used    be physical force in the form of legal penalties or    the moral coercion    of public opinion.    That principle    is that the sole end for which mankind    are warranted    individually    or collectively, in interfering with the liberty of action of any of their number, is self- protection. That the only purpose for which power can be rightfully exercised over    any member of a civilised community, against his will, is to prevent harm to others. His    own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will    make him happier, because, in the opinions of others to do so would be wise, or even right. These are good reasons for remonstrating    with him or reasoning with him, or persuading    him, or entreating him, but not for compelling him, or visiting him with any evil in case he    does otherwise. To justify that, the conduct    from which it    is desired to deter him must be calculated to produce evil to someone else. The only part of the conduct of    anyone,    for which he is amenable to society is that which concerns    others.    In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his    own body and mind, the individual is    sovereign."
(emphasis supplied)

54. The very definition of 'crime' depends on the values of a given society. To establish this what has been stated by Justice    Krishna Iyer in his book Perspectives    in Criminology, Law and Social Change (1980) at pp. 7 and 8 may be noted:

"What is a sex crime    in India may    be sweetheart virtue in Scandinavia.    What is an offence against    property in a    capitalist society may be    a lawful way of    life in a socialist society. What is permissible in an affluent    economy may be a pernicious vice in an indigent community. Thus, criminologists must have their feet all the time on terra firma."
55. Not only this, crimes can also be created or abolished with the passage of time, as stated at p. 7 of R.S. Cavan's Criminology (2nd Edn.). This has been    elucidated by    the author by stating that in democracy where individual opinion can express itself freely through speaking,    writing    and elections, public opinion becomes the final    arbiter in placing    the opprobrium of crime upon a specific type of behaviour and    when a law is not accepted the    police    may attempt to enforce it against public opinion, but gradually the police yield to the pressure of public opinion, which they perhaps share. The law may remain on the statute books but be    ignored by all. Whereas when    the public opinion supports the law, many pressures of an informal nature    are brought    against the violators to aid and lessen the police action.

(5) How can crimes be prevented ?

56. The aforesaid subject is too wide and cannot be discussed meaningfully within the parameters available to us in this judgment. The treatise on Crime and its Prevention edited by Stephen Lewin, Editor, World Week Magazine, would show how complicated the subject is. At p. 217 of the    3rd printing (1973) mention has been made about seven steps    for combating a crime. We may not go    into the details. Sufficient to    say that the    steps relate to different disciplines.

57. Professor Dr N.V. Paranjape, Professor and Head of    the Department of    Postgraduate and Research in Law and    Dean Faculty    of Law, Jabalpur University, in    his    book Criminiology and Penology has something to say in Chapter VI about causes of crime, knowledge of which is necessary to combat    and prevent the same. Dr Paranjape states that in the absence of a single theory of crime-causation, criminologists    have offered    different explanations    to justify    their    own theory as an explanation of delinquent behaviour. There are, however, some writers who seem to be convinced that no single theory of crime can fully explain the causes of crime.    They therefore prefer a multiple approach    to criminal behaviour which suggests that crime is generated not as a result of one solitary factor but as a    consequence of a combination of such factors.

58. Justice Krishna lyer also in his aforesaid book    has dealt with this aspect in Chapter 2 captioned "The Pathology of Indian Criminology". In his usual inimitable style, he has painted the crime scenario on a broad canvas and    has mentioned about various factors which lead to commission of crimes.

59. Reference may also be made to the White Paper presented to the Parliament by Her Majesty's Government in 1990 on the subject    of "Crime, Justice and Protecting the Public", published as Cm. No. 965. The White Paper has summarised main proposals as below:

"A coherent legislative framework    for sentencing with the severity of the punishment matching    the seriousness of the crime and a sharper distinction in the way the courts deal with violent and non-violent crimes; New powers for    the Crown Court to impose longer sentences for violent    and sexual offences, if this is necessary to protect    the public from serious harm;
New powers for all courts to combine community service and probation and to impose curfews on offenders so that more offenders convicted of property    crimes    can be punished in    the community;
Reducing    the maximum penalties for theft    and burglary, except burglaries of people's homes, which can be a very serious matter; Requiring    the courts to consider a report by the probation    service    before    giving a custodial    sentence and to give    reasons    for imposing a custodial sentence, except for    the most serious offences;
Encouraging more use of financial penalties, especially compensation to victims and fines which take account of offenders' means; Making the time actually served in prison closer to the sentence ordered by the court, replacing the present system of remission    and parole by new arrangements which ensure    that all prisoners serve at least    half their sentences    in custody;    prisoners serving sentences    of 4 years or more would not    get parole if this would put the public at risk; New powers for the courts to return released prisoners    to custody up to the end of their sentence,    if they are convicted of a further imprisonable offence;
All prisoners serving sentences of a year or more to be supervised by the probation service on release, with new national standards    for supervision;
Wider powers for the courts to make parents take more responsibility for crimes committed by their children;
More flexible powers for the courts to    deal with 16 and 17 year old offenders; Changing the juvenile courts to youth courts, to deal with defendants under the age of 18."
60. It    would    be of some interest in    this connection to point out that as late as 1991 a need was felt by    the British Government to issue a Royal Warrant for issuing a commission to    examine the effectiveness of the criminal justice    in England and Wales in securing the conviction of those guilty of criminal offences and the acquittal of those who were innocent. For this purpose,    the Royal Warrant wanted the commission to make its recommendation on various aspects    of the criminal justice. The commission submitted its report in July 1993 and it contains recommendations which number 352 and have been mentioned at pp. 188 and    219 of the Report issued by Her Majesty's Stationery Office.

61. The difficult task of crime prevention would    not therefore permit the    solution to be put into a strait- jacket;    it has to be modulated and moulded as per time    and clime.

Effect of Punishment

62. The aforesaid is not enough for our purpose. We    have also to know as to whether infliction of punishment can be said to have    a direct relation with the reduction of criminal propensity. It would be enough in this context to state that it has been seriously doubted whether imposition of even death sentence has been able to reduce the number of murders. Bhagwati, J. as he then was, in his dissenting judgment in the case of Bachan Singh v. State    of Punjab30 has brought home well this aspect of the matter.

63. While on    the question of sentencing it would be rewarding to note that sentencing has been regarded as a subtle    art of healing, and the legal and political people uninstructed in the humanist strategy of reformation,    fail even on first principles. Justice lyer in his aforesaid book has further stated at p. 47 that it puzzles a Judge or a Home Secretary to be told in Shavian paradox:

"If you are to punish a man retributively, you must injure him.    If you are to    reform him, you must    improve him.    And men are    not improved by injuries."
64. What was said by Victor Hugo in his    Les Miserables is instructive: "We shall look upon crime as a disease. Evil will be treated in charity instead of anger.    The change will be simple and sublime. The cross shall replace the scaffold, reason is on our side, feeling is on our side and experiment is on our side."
65. This is not all.    It would be wrong to think that a person    attempting to commit suicide does not get punished. He does. The agony undergone by him and the ignominy to be undergone is definitely a punishment, though not a corporal punishment; but then,    Section 309 has provided for a sentence 30 (1982) 3 SCC 24: 1982 SCC (Cri) 535 : AIR 1982 SC 1325 of fine also.    Agony and ignominy undergone would be    far more painful and deterrent than a fine which too may    not come to be realised if the person concerned    were to be released on probation.

(6) Why is suicide committed?

66. "Suicide, the intentional    taking    of one's life, has probably been a part of human behaviour    since    pre-history. Many ancient texts including the Bible, the Koran and    the Rig Veda, mention suicide. Because the act of self-destruction represents an attack on some of our presumptions that life is to be lived and death feared    responses to suicide have involved    a variety of    emotionally-charged attitudes. These have ranged from approbation accorded to it by the ancient Greek stoics to, more typically, the fear    and superstitution that led    18th century    Europeans to drive stakes through the hearts of those who    had committed suicide."
[Encyclopaedia of Crime and Justice (1 983), Vol. 4, p. 5 20] The change in social thinking in this regard can be    best illustrated by the view taken by the conservative English society where to start with suicide itself was regarded as a felony    requiring burial in a public highway,    followed by forfeiture of    all the properties of the deceased to    the Crown.    Presently, the Suicide Act, 1961 does not    even regard attempt to suicide as an offence.

67. Various social forces like the economy, religion    and socioeconomic status are responsible for suicides. There are various theories    of suicide, to    wit, sociological, psychological,    biochemical and environmental    (Ibid,    pp. 1523-24).

68. The causes of suicides are many and varying inasmuch as some owe their origin to sentiments of exasperation, fury, frustration and revolution; some are the result of feeling of burden, torture, and sadness. Some are caused by loss of employment, reversal of fortune, misery due    to illness, family    trouble and thwarted love. Sometimes killing is in opposition to    society    and sometimes    in opposition    to particular persons. This happens when the person committing suicide    nurses a feeling of unjust treatment,    maltreatment and cruelty. [See the Causes of Suicide by Maurice Halbwacks (translated by Harold Goldblatt).] The Bombay judgment    has mentioned many causes in paragraph 12 of its judgment which have been noted in paragraph 15 above.    The same may not be repeated.

(7) Who commits suicide? Secularisation of suicide.

69. Suicide knows no barriers of race, religion, caste, age or sex. In a study undertaken in United States, to which reference has    been    made at p. 14 of    Suicidology: Contemporary Developments by E.S. Scheneidman,    (1976), it was found that both Roman Catholics and Protestants    were equally susceptible to commission of suicide. It is because of this that it has been felt in the    United    States that there is "secularisation of suicide".    In our country    also Hindus,    Muslims, Sikhs, Christians, Buddhists, Jains    and Parsis    are known to have been committing or attempting suicides. Though there has been no particular study as to the religious faith of the persons committing suicide    or attempting to commit suicide, it can safely be stated    that there is "secularisation of suicide" in    our country also.

70. While on the question "Who commits suicide?", it would be relevant to state that there has been great increase in the number of commission of suicides. In his aforementioned article, Shri Faizan Mustafa pointed out that the number of suicides by the youths below 18 in 1986 was 7545. But    out of about 60,000 persons who committed suicide in 1990 nearly half of them were aged between 18 to 25, which is generally considered to be the best period of a person's life.

71. As per the report published in Indian Express of 31-10- 1984, in Ahmedabad city 5 suicide cases had occurred during 24 hours immediately preceding 30th October. In a write-up as published in India Today of 15-101984 under the caption "Bangalore: The Suicide City", it has been    stated    that Bangalore which had earned the title of "Boom City" nearly a year ago, could more appropriately be described as "Doom City" by last month. The figures collected for the first half of the    year shocked the members of    the State Legislature because of incredible 664 suicidal deaths over a six-month period, which was higher than the total combined figures for Calcutta and Hyderabad in the last three years. (8) How suicide-prone persons should be dealt with?

72. We    now come to the question relating to the treatment to be given to the persons who attempt to commit suicide. Do they deserve prosecution because they had failed? is the all important question. The answer has to be a bold    NO. The reasons are not far to seek. Let us illustrate    this first by referring to the case of those 20    persons    who committed suicide in Tamil Nadu distressed as they    felt because    of prolonged    illness    of Chief Minister,    M.G. Ramachandran.    That this had happened was published in    the Indian    Express    of 28-10-1984.    Question is whether these persons would have deserved prosecution had they failed in their attempt?    The answer has to be that there can be no justification to prosecute such sacrificers of their lives. Similar approach has to be adopted towards students who jump into wells after having failed in examinations, but survive. The approach cannot be different qua those girls/boys    who resent arranged marriages and prefer to die, but ultimately fail.

73. Let us come to the case of a woman who commits suicide because she had    been raped. Would it not be adding insult    to injury, and insult manifold, to require such a woman in case    of her survival, to face the    ignominy of undergoing an    open trial during the course of which    the sexual violence committed on her which earlier    might    have been known only to a few, would become widely known, making the life of the victim still more intolerable.    Is it    not cruel to prosecute such a person?

74. We    would go further and state that attempt to commit suicide by such a woman is not, cannot be, a crime. What is crime in such a case is to prosecute her with a view to    get her punished. It is entirely a different matter that at the end of the trial, the court may impose a token fine or    even release the convict on probation. That would not take care of    the mental    torture    and torment which the woman    would    have undergone during the    course    of the trial. Such a prosecution is, therefore, par excellence persecution.    And why persecute the already tormented woman? Have we become soulless? We think not. What is required is to reach    the soul to stir    it to make it cease to    be cruel. Let us humanise our laws. It is never late to do so.

75. Suicide, as has already been noted, is a    psychiatric problem    and not a manifestation of criminal instinct.    We are in    agreement with Dr (Mrs) Dastoor that    suicide is really a "call for help" to which we shall add that there is no "call for punishment" in it. Mention may also be    made about what was observed in "The Attitudes of Society towards Suicide", a xerox copy of which is    a part    of written submissions filed on    behalf of Respondent 2 (State of Orissa) in W.P. No. (Crl.) 419 of 1987.    It has been stated in this article at p. 9 that shortly after passing of    the Suicide    Act, 1961 (in England), the    Ministry of Health issued    recommendation advising all doctors and authorities that attempted suicide was to be regarded as a "medical    and social problem", as to which it was stated that the same was "more in keeping with present-day knowledge and sentiment than the purely moralistic and punitive reaction expressed in the old law".

76. So 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.

(9) Is suicide a non-religious act?

77. Every individual enjoys freedom of religion under    our Constitution, vide Article 25.    In a paper which Shri    G.P. Tripathi had presented at the World Congress    on Law    and Medicine held at New Delhi under the caption "Right to die", he stated that every man lives to accomplish four objectives of life: (1) Dharma (religion and moral virtues); (2) Artha (wealth); (3)    Kama (love or desire); and    (4) Moksha (spiritual enjoyment).    All these objectives were said to be earthly, whereas others are to be accomplished beyond life. When the earthly objectives are complete, religion would require    a person not to cling to the body. Shri Tripathi stated    that a man has moral right to terminate his life, because death is simply changing the old body into a new one by the process known as Kayakalp, a therapy    for rejuvenation.

78. Insofar as Christians are concerned, reference may be made to what    Pope John Paul 11 stated when he gave    his approval to the document issued by the sacred    congregation stating:

when inevitably death is imminent in spite of the means used, it is permitted in conscience to take decision to refuse forms of treatment that would only secure precarious    and burdensome prolongation of life, so long as the normal care due to sick person in similar cases is not interrupted......
79. In    the Encyclopaedia of    Religion, Vol. 8 (1987), mention has been made at pp. 541 to 547 as to how "life" has been understood by different religions. After discussing the subject as understood by the primitive societies, Judaism, Christianity, Hinduism and Buddhism, the discussion has been included by stating    that the very act of posing the question "What is life?" produces an initial sense of bafflement and perplexity.    It has    been stated    thereafter that a precise, distinct and universally acceptable concept does not accompany the use of the    word "life";    and that posing of the above query brings in    its wake a sense that life is an "inexhaustible storehouse of mysteries, a realm of endlessly self-perpetuating novelties, in which the solution to any given problem gives rise to a plethora of other questions that beckon the always restless, never contended mind of Homo Sapiens to seek    further    for additional answers or, at least, to search out    more intellectually refined, morally elevating, and    spiritually salutary ways of pursuing the quest". So, life does not end in this world and the quest continues, may be after the    end of this life. Therefore, one who takes life may not really be taken to have put an end to his whole life. There is thus nothing against religion in what he does.

80. Insofar as our country is concerned, mythology    says Lord Rama and his brothers took Jalasamadhi in river Saryu near Ayodhya;    ancient    history says Buddha and Mahavira achieved death by seeking it; modem history of    Independence says about various fasts unto death undertaken by no less a person    than Father of the Nation, whose spiritual disciple Vinoba    Bhave met his end only recently by going on fast, from which act (of suicide) even as strong a Prime Minister as Indira Gandhi could not dissuade the Acharya.

81. The aforesaid persons were our religious and spiritual leaders; they    are eulogised    and worshipped. Even    the allegation against them that    they indulged    in a    non- religious act, would be taken as an act of sacrilege.    So, where is non-religiosity in the act of suicide so far as our social ethos is concerned? And it is this    ethos,    this social mores, which our law has to reflect and respect. (10) Is suicide immoral?

82. Law and morals often intersect and there    can be no doubt that historically at least law and morals were closely related    and that in many areas the law continues to    look upon its function as the enforcement of morals,    the reinforcement of moral standards in    society, and    the punishment of moral depravity, as noted at p. 19 of Burton M. Leiser's Liberty,    Justice    and Morals (1973).    The Constitution of United States contains a    number    of provisions embodying moral judgments, one of which is prohibition against 'cruel and unusual punishment". As to due process clause, it was stated by Justice Frankfurter in Solesbee v. Balkcom31 that it "embodies a system of rights based on moral principles ... which    comports with    the deepest notions of what is fair and right and just".

83. If, however, the law be unjust would a person not be entitled to Hisobey it? The civil disobedience movement organised by leaders like Gandhiji shows that there can be clash of law and morality, which can be on 94LEd 604:339US9(1949) the battlefield of man's conscience.    It is this which agitated the mind of Socrates when he was in jail. He    was advised    to escape and was assured that it would be a    safe escape.    He refused saying that having devoted his life to teach the importance of doing justice and respecting    the laws, it would be rank hypocrisy for him to    violate his principles when the laws had been turned against him. Being of this view, instead of breaking law, he took poison.    But then, at times an individual would be between two horns of dilemma when confronted with the question of    obeying an unjust    and pernicious law. The theories of Divine Law    and Natural    Law were evolved to take care of this    dilemma    and French Declaration of Rights of Men and American Declaration of Independence are based on these laws.

84. In    the aforesaid work of Burton, this aspect of    the matter has been concluded at p. 353 by stating as below:

"It is right to be law-abiding. But there may be times    when it is not wrong to break    the law. There are no easy rules or    recipes to guide us in making our choices. Some people, who allow themselves to be governed    by expediency and narrow self-interest when    they choose to disobey traffic, are indignant    when their neighbours violate laws because their religious and moral convictions do not permit them to do otherwise. Anarchy is a terrible thing. It is all that Hobbes said it was. It is more likely to come from motives like those of the speeder, the drunken driver, and    the one who cheats on his income tax, rather    than from those of men like Gandhi, King (meaning Martin Luther King)......
(emphasis supplied)

85. Though the question of morality normally    arises    with laws relating to sex and acts evincing moral depravity    like cheating, but as the question of birth and death has    also moral significance, as opined by Mary Warnock, whose views in this regard have been noted at p. 86 of Simon Lee's Laws and Morals (1986), we may briefly advert to the moral aspect as well relating to suicide. It is the sanctity of human life which is said to be defaced when one commits suicide and the question of morality, therefore, arises. We would have occasion    later to refer to the enactment    of Suicide Act, 1961 by the British Parliament, when the related    Bill was taken up for consideration in the House of    Lords,    the Lord Bishop of Carlisle had raised objection on the ground of morality by saying that sanctity of human life was being destroyed. But the Bill was passed, nonetheless.

86. A reference to Simon Lee's above work shows there is no unanimity regarding the moral object which law should try to achieve. Simon Lee has mentioned at p. 90    about three theories prevalent in England in this regard, one of whose propounder was Mill, according to whom "harm-to-others" is what ought to be prevented by law. Devlin would have liked that law should aim to establish minimum and    not maximum standards of behaviour showing respect for tolerance    and privacy. Hart's approach was that only "the universal values" merited legal support and not those which fluctuate according to fashion, unless harm is caused to others.    [See H.L.P. Hart's    Law, Liberty    and Morality (1982)    also particularly pp. 30 and 3 1.]

87. It    would    be apposite, while on the question    of morality, to refer to the Constitution Bench decision of this Court in Ranjit D. Udeshi v. State of Maharashtra32 in which the question examined was whether the novel of    D.H. Lawrence Lady    Chatterley's Lover could be    regarded as "obscene" within the meaning of Section 292 of the Penal Code. The Constitution Bench speaking through Hidayatullah, J., as he then was, stated in paragraph 9 that the question of obscenity depends upon the mores of the people and it is always    a question of degree and where the line is to be drawn.    After going through the case law and what Lawrence might have had in mind in writing the book, the Bench unanimously came to the conclusion    that Lawrence    was probably unfolding his philosophy of life and the urges of the unconscious, which caused no loss to the society if there was a message in the book. After examining    the contents of the book from this standard it was held it contained no obscenity.    The importance of this decision for our purpose is that the aforesaid book was    regarded as morally objectionable at one point of time even in England, where moral standard    relating to sex is on a lower    key compared to ours.

88. The above shows that morality has no defined contours and it    would    be too hazardous to make a bold and    bald statement that commission of suicide is per se    an immoral act. If human beings can be treated inhumanly, as a    very large segment of our population is, which in a significant measure may be due to wrong (immoral) acts of others, charge of immorality    cannot be, and in any case should not    be, levied, if such human beings or like of them, feel and think that it would be better to end the wretched life instead of allowing further humiliation or torture. Those who demand virtue must do virtue and should see that others too do    the same.

(11) Does suicide produce adverse sociological effects?

89. One of the points raised against suicide is that    the person who had so done might have been the sole bread-earner of the    family, say a husband, a father, because of whose death the entire family might have been left in lurch or doldrums, bringing in    its wake untold miseries to    the members of his family.    It is therefore stated that suicide has adverse effects on the social setup. No    doubt,    the effects    of suicide in such cases are    quite hurting;    but then, it is a matter of extreme doubt whether by booking a person    who had attempted to    commit    suicide to trial, suicides can be taken care of. Even imposition of death sentences has not been able to take care of commission of murders, as mentioned earlier.

90. Further, the aforesaid adverse sociological effects are caused by the death of the person concerned, and not by    one who had tried to commit suicide. Indeed, those who fail in their attempts become available to be more or less as useful to the family as they were. So the person to be punished is one who had committed suicide; but, he is beyond the reach of law and cannot be punished.    This can provide no reason to punish a person who should not be punished. 32 AIR 1965 SC 881 : (1965) 1 SCR 65 : (1965) 2 Cri LJ 8 (12) Is suicide against public policy?

91. The basic argument of Shri Sharma, learned counsel    for the Union of India, was that allowing persons to commit suicide would be against public policy.    Though which public policy would be so affected was not spelt out by the learned counsel, we presume that the public policy to be so jeopardised is    one which requires preservation of human life. One of the objects of punishment to be inflicted when an offence is committed is protection of society from    the depredations of dangerous persons, as mentioned at p. 198 of Burton M. Leiser's Liberty, Justice and Morals.    But insofar as suicide is concerned, this object does not get attracted because    there is no question of protection of    the society from depredation of dangerous persons, who by the    very nature    of things have to be those who cause harm to others and not to themselves.    Of course, we would concede that one of the    interests of the State has to    be preservation of human life.

92. The concept of public policy is,    however, illusive, varying    and uncertain. It has also    been described as "untrustworthy    guide",    "unruly horse"    etc.    The leading judgment describing the doctrine of public policy has    been accepted to be that of Parke, B. in Egerton v. Brownlow 33 in which it was stated as below at p. 123, as quoted in paragraph 22 of Gherulal Parakh    v. Mahadeodas Maiya34:

"Public policy' is a vague and unsatisfactory term, and calculated to lead to    uncertainty and error, when applied to the    decision of legal rights;    it is    capable    of being understood in different senses; it may,    and does, in its ordinary sense, mean 'political expedience' or that which is best for    the common good of the community; and in    that sense there may be every variety of opinion, according    to education habits,    talents    and dispositions of each person, who is to decide whether an act is against public policy or not. To allow this to be a ground of judicial decision,    would    lead    to the greatest uncertainty and confusion. It is the province of the statesman and not the    lawyer, to discuss,    and of the Legislature to determine what is    best for the public good and to provide for it by proper enactments. It is the province of the judge to expound the    law only; the written from    the statutes;    the unwritten or common law from the decisions of our predecessors and of our existing courts, from text writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is the best, in his opinion,    for the advantage of the community.
Some of these decisions may have no doubt bee n founded upon the prevailing and just opinions of the    public    good; for instance,    the illegality of covenants in restraint    of marriage or trade. They have become a part of the recognised law, and we are therefore bound by them, but we are not thereby authorised to establish as law everything 33 (1853) 4 HLC 121 34 AIR 1959 SC 781 : 1959 Supp (2) SCR 406 which we may think for the public good,    and prohibit everything which we think otherwise."

93. In the aforesaid case a three-Judge Bench of this Court summarised the doctrine of public policy by stating at p. 795 that public policy or policy of law is    an illusive concept; it has been described as "untrustworthy guide", "variable quality", "uncertain one", "unruly horse" etc.

94. Different    High Courts of the country have had    also occasion to express their views on this concept in their judgments in Bhagwant Genuji Girme v. Gangabisan Ramgopal35; Mafizuddin Khan Choudhury v. Habibuddin Shekh36; Kolaparti Venkatareddi v. Kolaparti    Peda Venkatachalam37    and Ratanchand Hirachand v. Askar Nawaz Jung38. In Kolaparti case37    it was stated that the term public policy is    not capable    of a    precise definition and    whatever tends to injustice of operation, restraint of liberty, commerce    and natural    or legal rights; whatever tends to the    obstruction of justice or to the violation of a statute and whatever is against good morals can be said to be against public policy. These decisions have also pointed out that the    concept of public policy is capable of expansion and modification.    In Ratanchand case38 a Bench of Andhra Pradesh    High Court speaking through Chinnappa Reddy, J. as he then was, quoted at p.    117 a significant passage from    Professor Winfield, "Essay    on Public Policy in the English Common Law"    (42 Harvard Law Review 76).    The same is as below:

"Public policy is necessarily variable.    It may be variable not only from one century to another,    not only from    one generation to another but even in the same    generation. Further it may vary not merely with respect to the particular topics which may be included in it, but    also with respect to    the rules relating to any one particular topic.... This variability of public policy is a stone in the edifice of the doctrine and not a missile to be flung at it. Public policy would be almost useless without it."
95. As to how the    "unruly    horse"    of public policy influenced English law    has been narrated by W. Friedman in his Legal Theory (5th Edn.) at p. 479    et seq in Part    111, Section    2 titled as "Legal Theory, Public Policy and Legal Evaluation". As to the description of public policy as "unruly horse", it may be stated that there have been judges not to shy away from unmanageable horses. Lord Denning is one of them. What this noble judge stated in Enderby    Town Football Club Ltd. v. Football Association Ltd.39 at p.    606 is "With a good man in the saddle, the unruly horse can be kept in control. It can take jump over obstacles."    (See para 93 of Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly40.) But how many judges can be anywhere near Lord Denning ? He is sui generis.

35 AIR 1940 Bom 369: 42 BLR 750: 191 IC 806 36 AIR 1957 Cal 336 37 AIR 1964 AP 465: (1964) 1 Andh WR 248 38 AIR 1976 AP 112: ILR (1975) AP 843 :(1975) 1 APLJ (HC) 39 (1971) Ch 591, 606 40 (1986) 3 SCC 156: 1986 SCC (L&S) 429: (1986) 1 ATC    103 : AIR 1986 SC 1571

96. The magnitude and complexity of what is    or is    not public    policy or can be a part of public policy, would be apparent from    bird's    eye view of what has    been stated regarding this    at pp. 454 to 539 of    Words    and Phrases (Permanent Edn., Vol. 35, 1963). To bring home this a    few excerpts would be enough. It has been first stated under the sub-heading "In general" as below at pp. 455 and 456:

"    'Public policy' imports something that is uncertain    and fluctuating, varying with    the changing    economic needs, social customs,    and moral aspirations, of the people. Barwin v. Reidy41.
'Public policy' is in its nature so uncertain and fluctuating, varying with the habits    and fashions    of the    day, with the growth of commerce    and the usages of trade, that it is difficult    to determine its limits with    any degree of exactness. It has    never    been defined by the courts, but has been let loose and free from definition in the same manner as fraud. Pendeleton v. Greever42. 'Public policy' is a term that is not always easy to define and it may vary as the habits, opinions and welfare of a people may vary, and what may be the public policy of one State or country may not be so in    another. Franklin Fire Ins.    Co. V. Moll 43.
97. In the aforesaid work under the sub-heading "Government by Constitution, laws or judicial decisions", the following finds place at p. 481 under the further sub-heading    "In general":

"'Public policy' is a variable quantity and is manifested by public acts, legislative    and judicial, and courts will not hold a contract void. Draughton v. Fox Pelletir Corpn.44 In a judicial sense, public policy does    not mean simply sound policy, or good policy, but it means the policy of a State established for the public weal, either by law, by courts, or general consent.    Clough v. Gardiner45."
98. From the above, it can safely be said that it would be an uninformed man in law who would say with any degree of definiteness that commission of suicide is against public policy; and, as such, a person attempting to commit it    acts against public policy.

(13) Does commission of suicide damage the    monopolistic power of the State to take life?

99. The aforesaid point is not required to be gone    into detail,    because nobody can claim to have monopoly over a human life. It is God alone who can claim such a power. If a person takes his life, he is taking his own life, and    not the life of anybody else; and so, the argument that State's 41 307 P 2d 175, 181 : 62 N.M. 183 42 j 193 p. 885, 887, j 80 Ok 1, 35 : 17 ALR 317 43 58 NE 2nd 947, 950, 951': 115 Ind.    App. 289 44 126 SW 2d 329, 333 : 174 Tenn 457 45 182 NYS 804, 806: III Mis. 244 monopolistic power of    taking life is taken away by    the person    who attempts to commit suicide has no legs to stand on.

(14) Is    apprehension    of "constitutional    cannibalism" justified?

100.    This    is one    of the criticisms which has    been advanced in one of the aforesaid articles relating to    the Bombay judgment2. This contention has been advanced because if the negative aspect of right to life, i.e., to destroy it can be read in Article 21, the State can "easily embark upon a policy to encourage genocide on the plea    that proper management of    resources are vital and    necessary for    the upkeep    of life with vigour and dignity in the wake of geometrical progression of population growth".    The critic has stretched    this argument    so much to come to    the conclusion of "constitutional    cannibalism" that we    may almost leave it unanswered, as there is a gulf of difference between    taking of one's own life and allowing the State to go in for genocide. They are not only poles apart but miles apart.

101.    The Editor of Calcutta Weekly Notes in    his comments at pp. 37 to 40 [of (1986-87) 91 CWN (Journal Section)] has    observed that the distinction made by    the Bombay High Court between "suicide" and "euthanasia" appears logically inconsistent. According to the Editor,    the rationale of the judgment    would    necessarily permit euthanasia as    legal.    This comment    may not be quite incorrect, because in passive euthanasia, wherever it    has been accepted    as legally permissible, consent of    the patient, if he be in a sound mental condition, has    been regarded as one of the prerequisites.    So, if one could legally    commit suicide, he could also give consent for    his being allowed    to die. But then, the legal and other questions relatable to euthanasia are in many ways different from those raised by suicide.    One would, therefore, be right in making a distinction logically and in principle between    suicide and euthanasia, though it may be that if suicide is held to be legal, the persons pleading for legal acceptance of passive euthanasia would have a winning point. For the cases at hand, we would remain content by saying that the justification for allowing persons to commit suicide    is not required to be played    down or cut    down because    of any encouragement    to persons pleading    for legalisation of mercy-killing.

102. May we hasten to observe that as regards    the persons aiding    and/or    abetting suicide, the law can    be entirely different, as indeed it is even under the Suicide Act,    1961 of England.    Bombay judgment2 has    rightly    made    this distinction. It is for this reason that the    apprehension raised    by the Andhra Pradesh High Court in its judgment in Jagadeeswar3 does not seem to be justified. We do not agree with the view of the Andhra Pradesh High Court in that if Section    309 were to be held bad, it    is highly doubtful whether    Section 306 could survive,    as self-killing is conceptually different from    abetting others to    kill themselves. They stand on different footing, because in one case a person takes his own life, and in the other a third person is abetted to take his life.

(15)Recommendation of    the Law Commission of India    and follow-up steps taken, if any.

103.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"    (see paragraph 16.33 of the Report). In taking this view,    the Law Commission quoted the following observations made by H. Romilly Fedden in Suicide (London, 1938) at page 42:

"It seems a monstrous procedure    to inflict further suffering on even a single individual who has already found life so unbearable,    his chances of happiness so slender, that he has been willing to face pain and death in order to cease living.    That those for whom life is altogether bitter should be subjected    to further    bitterness and    degradation seems perverse legislation."
104.After the    aforesaid Law    Commission's Report became available, the recommendation was accepted by the Government of India and the Indian Penal Code (Amendment)    Bill,    1972 was introduced    in the Rajya Sabha to repeal Section    309. The Bill was    referred to a Joint Committee of both    the Houses and after receipt of its report, the Bill was passed with some changes by the Rajya Sabha in November 1978.    The Bill so passed was pending in the Sixth Lok Sabha when it was dissolved in 1979, because of which the Bill lapsed.

105. In the counter-affidavit filed by the Union of India in Writ Petition (Crl.) No. 409 of 1986, it has been further stated    that a proposal for reintroducing legislation in Parliament on    the lines of the lapsed Bill is under consideration.    It has been admitted in this affidavit    that Section    309 is harsh, and so, the    intention of    the Government is more or less to repeal that section. (16)Global view: What is the legal position in other leading countries of the world regarding the matter at hand?

106.We    propose    to refer to two leading countries only in this regard they being United Kingdom and United States of America. We have selected them because the    first is a conservative country and the second a radical; the first is first in point of time as regards democratic functioning and the second is being regarded as a serious human rights' protagonist. At English Common Law suicide was taken as felony    as much so that a person who had met his end after committing suicide was not allowed Christian    burial,    but would have to be so done in a public    highway. Not only this, the property of the person concerned used to    get forfeited to the Crown. [See pages 290 to 207 of Law    and Morality edited by Louis Bloom Cooper    and Gravin Drewry (1976),    which pages also contain the speeches made by    the Lord Bishop of Carlisle and Lord Denning in the House of Lords during second reading of The Suicide Bill, 1961.]

107.Times changed, notions changed and presently,    even attempt    to commit suicide is not a criminal    offence, as would appear from Suicide Act, 1961. Though Section 1 of this Act has only stated that the "rule of law whereby it is a crime for a person to commit suicide is hereby abrogated", it has been made clear in the second para of 'General Note' below this section, as finding place in the xerox copy of this Act enclosed with the written submissions filed on behalf of the State of Orissa, Respondent 2 in Writ Petition (Crl.)    No. 419 of 1987 that attempted suicide is not a crime.    This note reads as below:

"Attempted Suicide An attempt to commit suicide was a common    law misdemeanour. Section 1 does not specifically say that    attempted suicide is no longer a crime, but it must follow irresistibly    from the fact that the completed act is no longer a crime......
In the    United States by early 1970's    comparatively small number of States (9) listed suicide as a crime, although no penalties (such as mutilation of bodies or forfeiture of estates) were exacted. In such States suicide attempts were either    felonies or misdemeanours and could result in    ail sentences, although    such laws were selectively    or indifferently enforced. Two of such States repealed    such laws, stating in effect that although suicide is "a grave social    wrong",    there    is no way to punish it. Eighteen States    had no    laws against    either    suicide    or suicide attempts, but    they specified    that to aid,    advise    or encourage another person to commit suicide is a felony.    In more than 20 other States, there were    no penal statutes referring to suicide. [See pp. 16 and 17 of Suicidology: Contemporary Developments by E.S. Scheneidman (1976).]

108. The latest American position has    been mentioned as below at p. 348 of Columbia Law Review, 1986:

"Suicide is not a crime under the statutes of any State in the United States. Nor does any State, by statute, make attempting suicide a crime. In twenty-two States and three United States territories, however, assisting suicide is a crime. If    an assistant participates affirmatively in the suicide, for instance by pulling the trigger or administering a fatal dose of    drugs, courts agree    that    the appropriate charge is murder."

109. On the basis of what has been held and noted above, we state that 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.

110.    We, therefore, hold that Section 309 violates Article    21, and so, it is void. May it be said that the view taken by    us would advance not    only the cause of humanisation,    which is a need of    the day, but    of globalisation also, as by effacing Section 309, we would be attuning this    part of our criminal    law to    the global wavelength.

111.    The writ petitions stand allowed by declaring Section 309 of the Penal Code as unconstitutional and hence void. The proceedings in GR Case No. 177 of 1984 (State v. Nagbhushan Patnaik) pending in the Court of Sub-Judge, Gunpur in the District of Koraput, Orissa stands quashed.

112. Before parting, we should like to observe that what we have sought to do through this judgment may be said to be an attempt to "search for the social dynamics of criminal    law, the functional    theory of sentencing and the    therapeutic reach of punitive arts, to catch up with social sciences relevant to criminal    justice and to link    up prison jurisprudence with constitutional roots", of which Justice Krishna    Iyer has mentioned in his preface (styled Krishna Iyerishly as 'A Word in Confidence') to his aforementioned book. Whether we have succeeded or not; and, if so, to what extent is for others to judge.

113. 1    desire    to place on record (though it    would sound unusual to some and may be to many) my appreciation for    the assistance I had received from Shri Satish Chandra, Joint Registrar (Library) of the Court, in supplying me promptly very useful and varied materials for preparing    this judgment, as and how required by me.