Gian Kaur v. State of Punjab 1996 2 SCC 648
Bench
| Judges |
|---|
| J.S. Verma; G.N. Ray; N.P. Singh; Faizan Uddin; G.T. Nanawati; JJ. |
Facts Of The Case
In the Present case[2], Gian Kaur and her husband Harbans Singh have been convicted by the trial court for abetting the commission of suicide by Kulwant Kaur under section 306 of the Indian PENAL Code, 1860 (herein after referred as IPC) and were subsequently sentenced to rigorous imprisonment of Six years each along with a fine of 2000 Rupees and in default of which anther sentence of nine month rigorous imprisonment.
In appeal to the High Court of State of Punjab, their conviction has been upheld however The Honorable High Court has reduced the sentence of the Gian Kaur to three years of rigorous imprisonment. Aggrieved by this Special leave to appeal has been filed by them challenging their conviction under section 306 of IPC on the ground that Section 306 is unconstitutional which flows from the analogy, since as per decision of the court in P. Rathinam v. Union of India[3] Right to life includes Right to die therefore they are merely enabling individual in the exercise of their right thus can’t be penalized for abetment of suicide.
Issues Involved Before The Court
Following are the issues before the Court:
- Whether Article 21(Right to Life) of the Constitution of India includes in itself “Right to die” and whether section 309 is violative of article 21?
- Whether section 309 of the Indian Penal Code, 1860 is unconstitutional for being of violative of article 14 of the Constitution of India?
- Whether Section 306 of the Indian Penal Code, 1860 is unconstitutional?
Arguments Raised Before The Court
Shri Ujagar Singh and BS Malik For the Appellants
The counsels appearing for the appellant argues that since right to life under article 21 includes in itself the right to die as held in P rathinam[4] therefore any person assisting another in the commission of suicide is merely enabling another to realize is right guaranteed under article 21 and therefore cannot be an offence. Therefore section 309 of the IPC (attempt to commit suicide) is unconstitutional for grounds raised in the P rathinam, he further argues that since section 309 is unconstitutional, section 306 (abetment to suicide) which merely enable in the exercise of article 21 is also unconstitutional for the reason alone.[5]
Learned Attorney General Shri Fali S Nariman
He argued that the article 21 does not includes in itself the right to die therefore does not support P Rathinam on which appellant largely relied. He further argues that the Section 306 (abetment to suicide) is in itself a distinct offence and is completely independent of the Section 309 (attempt to suicide) of IPC for its existence. On the issue of Constitutionality of section 309, he contended that the undesirability of a section cannot be a ground to declare it unconstitutional and the debate of euthanasia cannot be in any manner regulate the section 309 of the IPC.[6]
Shri Soli J Sorabjee
He argued that Right to life does not include in itself the right to die and therefore he oppose the decision made in P rathinam[7], he however instead argues that section 309 is unconstitutional not on ground raised of being violative of Article 21 but because of being violative of Article 14 of the Constitution since section 309 which penalizes attempted suicide is “monstrous and barbaric” and should not have any place in today’s civil society. On issue of constitutionality of section 306 he argued that it is a distinct offence and can survive independently of section 309 constitutionality.[8]
Analysis
Whether Article 21 (Right to Life) of the Constitution of India includes in itself “Right to die”?
The issue has been earlier discussed in the case of P rathinam[9] wherein the court held that the right to life includes in itself the right to die. On this aspect Court had relied on the case of RC Cooper[10] wherein it was held that, “what is true for one fundamental right is also true with respect to another fundamental right” and that the “fundamental rights have their positive as well as negative aspects”.
Examples of Negative Aspects of Positive Rights
- The Freedom of speech and expression[11] constitutionally protected includes in itself freedom not to speak[12]
- The freedom to form an association[13] also includes freedom not to be part of any association
- The freedom to do business and trade[14] also includes in itself freedom not to do trade
Drawing analogy from the same the Court held that the Right to life under article 21 therefore includes in itself the Right not to live.
However Court in the present Case does not agree with the analogy drawn by comparing two fundamentals rights, argues that the Fundamental right from which analogy has been drawn to arrive at a conclusion are all positive rights which includes in itself Negative aspect of rights i.e. Right to do act also includes right not to do an act.
It is worth mentioning that the freedoms discussed to draw analogy has negative aspect in it, for the exercise of which no overt act is required to be done by the right holder. On the other hand when a man commits suicide he does an overt act, genesis of which cannot be traced to be included within the meaning of Right to Life.
Article 21 guarantees the protection of life and allowing it to include within itself right not to live will destroy the very subject matter of article 21 i.e. life itself which article 21 aims to protect. Right to life as enshrined in Fundamental right is a natural right and therefor by no stretch of imagination it can be deemed to include in itself right to die i.e. suicide which is in itself an unnatural termination of life and is therefore incompatible with Right to Life.
It is therefore, while the freedom aspect discussed such as freedom to form association, to do business, etc. all have negative aspects which does not extinguishes the right itself on the other hand Right to life if extended to include in itself right to die will extinguishes the very right itself which article 21 aims to protect.
Therefore it is because of this difference in the nature of rights itself that the analogy of interpretation of one Fundamental right cannot be extended to interpretation of other right i.e. Right to life thus this analogy cannot be used to support P Rathinam decision i.e. Right to life includes Right To Die based on RC Cooper[15]
Issue of Terminally Ill Patients or Persistent Vegetative State (PVS)
- In PVS or terminal illness — death is certain
- Natural death process has already begun
- It is an acceleration of natural termination, not an unnatural self-extinguishment
Thus argument in support of PVS cannot be used to expand the ambit of Right to life for the reason mentioned above.
From the above discussion it can be concluded that the Court in P rathinam[16] has erred in holding that right to life includes right to die, which is the only ground on which section 309 has been held as unconstitutional for being violative of Article 21. Therefore Right to Life under article 21 does not include Right to die and as a necessary corollary Section 309 constitutional validity is upheld.
Whether Section 309 of the Indian Penal Code, 1860 is unconstitutional for being of violative of article 14 of the Constitution of India?
The same issue has been discussed by the Bombay High Court[17] wherein Section 309 has been held as unconstitutional for two reason viz
| Ground | Description |
|---|---|
| Ambiguity in word “suicide” | Uncertainty where the line should be drawn |
| Uniform treatment | Treats every attempt of suicide equally regardless of circumstances[18] |
The above arguments have been dealt by the Court in P rathinam itself wherein addressing to issue as to uncertainty in the meaning of the word suicide, court observed that it is certainly clear that suicide involves intentional taking of life needless to mention the accused can always argue that his act does not amount to suicide before the Court.
As far as the issues as to treating all the suicide cases on same footing is concerned, it is important to note that the same can be addressed by Court by lessen the sentence as per the nature gravity and the extent of suicide and in appropriate cases accused can be given benefit of probation.[19]
Therefore it has been held that the same is not a ground to held section 309 violative of article 14, the same issue has also been addressed by the Andra Pradesh High Court[20] on similar reasoning.
So far as the issue as to the desirability and recommendation of Law commission[21] on removal of section 309 is considered wherein section 309 is referred as inhuman, unjust, unfair and the accused deserved cure and treatment not punishment, the same report ipso facto cannot be a reason for this Court to held section unconstitutional for being violative of article 14.
It is therefore on the basis of above discussion it can be concluded that the section 309 of the IPC is not violative of article 14, thus constitutionally valid.
Whether Section 306 of the Indian Penal Code, 1860 is unconstitutional?
| Section | Provision (Exact Text) |
|---|---|
| Section 306 | “Abetment of suicide —if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”. |
| Section 309 | “Attempt to commit suicide —whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both”. |
It is worth mentioning here that in the case of Naresh Marotrao Sakhre v. Union of India[22] the court has upheld the constitutional validity of section 306 of IPC. It is important to note that Section 306 is in itself a distinct offence and has its existence independent of section 309 IPC.
- Abetment of attempt to suicide is not punishable under Section 306
- But punishable under Section 309 read with Section 109 IPC
- Abettor aids extinguishing another’s life → must be penalized
The above distinction has been put forth by court in Rodriguez v. B.C. (A.G.)[23] wherein Court held that:
“Sanctity of life, as we will see, has been understood historically as excluding freedom of choice in the self- infliction of death and certainly in the involvement of others in carrying out that choice. At the very least, no new consensus has emerged in society opposing the right of the state to regulate the involvement of others in exercising power over individuals ending their lives”.
therefore it cant be a valid argument to excape penalty by arguing that the accused is merely helping other in realizing his right to die.
On the issue of Section 306 being undesirable in today democratic setup and the desirability to bring in a change, the same cannot be done through the Courts but it is for the legislature to deal with and come up with law.
On the basis of above discussion, it can be logically inferred that 306 of IPC is constitutionally valid and has distinct and separate existence from section 309 Of the IPC.
Conclusion
The Right to life as enshrined under article 21[24] was earlier held to include right to die in the case of P Rathinam. As a result of which section 309[25] was held as unconstitutional for being violative of article 21 since it penalizes attempted suicide i.e. taking of one’s own life.
In the recent case the honorable Court has overturned the decision rendered in P Rathinam observing that Right to life does not include in itself right to die and therefore section 309 is unconstitutional observing including right to die within right to life will efface the very right itself.
As far as the constitutionality of section 306 is concerned Court observed that it has distinct and separate existence from the section 309 of the IPC moreover it is necessary to prevent the danger to the civil society due to misuse because of absence of such a penal provision.
In concluding remarks both section 306 and section 309 has been held as constitutionally valid and neither of them is violative of article 14 and article 21 consecutively.
Therefore the decision in the case of P Rathinam v. Union of India[26] are overruled and the decision in the case of Chena Jagadeshwar v. State of A.P.[27] is approved wherein the constitutionality of section 309 has been upheld and the challenge to it on the ground of being violative of article 14 and article 21 is rejected.
As per Hindu mythology, it is written that the soul attains life in human form after wandering for nearly 84 lakhs life forms, it’s our pious obligation to respect this soul and not to commit suicide. It is true sometimes life throws at us problems which are unbearable , unimaginable and at the same time unprecedented and we think of giving up of life, but as aptly “Suicide is a permanent solution to a temporary problem”[28] therefore we should always try to work on finding solutions to the temporary problem as the saying goes , “this too shall pass” and therefore keep on making right effort and do our duty at last everything will be at ease. This is what Buddha said in eight fold path and Lord Krishan said in Mahabharata to arjun. Balance is always important in life.
“However bad life may seem, there is always something you can do, and succeed at. While there’s life, there is hope”[29]
NOTE – Any inadvertent omission in citation is unintentional. The author welcomes communication from rightful claimants for due acknowledgement.References:
- Advocate, MP High Court, LLM-National Law University Delhi.
- Gian Kaur v. State of Punjab 1994 3 SCC
- 1994 3 SCC 394
- Ibid 3
- Gian Kaur v. State of Punjab 1994 3 SCC 394 , p.653 para 8
- Ibid SCC p. 654 para 9
- 1994 3 SCC 394
- Ibid SCC P. 654 para 9
- 1994 3 SCC 394
- RC Cooper v. Union Of India 1970 SCC 1 248
- Constitution of India, Article 19 (1) (a)
- Nandini Satpati v. P L Dani, 1978 2 SCC 424
- Constitution of India, Article 19 (1) (c)
- Constitution of India, Article 19 (1) (g)
- RC Cooper v. Union Of India 1970 SCC 1 248
- 1994 3 SCC 394
- Maruti Shripati Dubal v. State of Maharashtra 1986 SCC Online Bom 278
- Ibid SCC p. 405, paras 16–19
- Probation of Offenders Act 1958, Section 12
- Chenna Jagdeshwar v. State of Andhra Pradesh 1988 Cr LJ 549
- Law Commission of India, 210 Report 2008
- 1995 Cri LJ 96 (Bom)
- 107 DLR (4th Series) 342
- Constitution of India, Article 21 Protection of Life and Personal Liberty
- Indian Penal Code 1860, Section 309 Attempt to commit suicide
- 1994 3 SCC 394
- 1988 Cr LJ 549
- Phil Bonahue
- Stephen Hawking
Written By: Anurag Yadav
