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The Need To Decriminalize The Attempt To Suicide, With Special Reference To Indian Context: A Review Of Section 309 Of IPC

Attempt to suicide. This is an act which is considered to be an offence in many countries. Indian law criminalizes this act through Section 309 of its statute- Indian Penal Code, 1860. But why?

Section 309 of the Indian Penal Code, 1860 says:
"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 both".

To understand this section, one will firstly have to know that what the word 'suicide', here, refers to. Suicide means 'to kill oneself'. This term has two parts- 'sui', which means 'of oneself' and 'cide', which means 'to kill'[1]. Subsequently, 'attempt to suicide' means a failed try or effort done in order to kill oneself'.

This section indicates the intentional act (of attempt to suicide) i.e., mens rea is an essential for a person to be held guilty as per section 309 of IPC. Imagine a situation where a person was involuntarily intoxicated. If in this state, he or she goes in middle of road and gets himself or herself hit by a car, then that person won't be held guilty as per this section. The reason behind this is that the person was in an intoxicated state due to which him/ her coming in front of a running car will not be considered an intentional act.

Section 309 of IPC is based on the fact that the lives of people aren't the treasure of the people themselves, but of the country; and the country safeguards those lives.

Coming to relevancy, Section 309 of IPC treats attempt to suicide as an offence and mentions the punishment to be given to persons doing so. The Indian Constitution entrusts the state a duty, which is to protect the lives of its citizens and to safeguard them. And, section 309 of IPC empowers state to punish a person if he or she attempts to commit suicide. It's so because it is believed that life is a gift of nature and hence, should not be taken away by any person in an unnatural way.

But, aren't the people of India having the right to not be interfered into their personal life? Article 21 of the Indian Constitution guarantees the right to life and personal liberty. So, can we here say that this right which the constitution guarantees to us, is not absolute? Section 309 is empowering the state to interfere into the individual's life and personal freedoms.

Review Of Literature
Some state governments contended that section 309 of IPC serves as a tool while convicting survivors of suicide bombers and drug traffickers. In my opinion, this is not a relevant reasoning as to deal with matters like these, India already has separate laws. For example; Narcotic Drugs and Psychotropic Substances Act, 1985; Unlawful Activities Prevention Act, 1967; provisions of IPC like War against the state; etc.

There is an argument against the view of decriminalizing the act of attempting suicide that, if such attempt will be decriminalized, then it will weaken the concerned authorities while dealing with people who go on hunger strike or fasting until death. I disagree with this point too. The reason is that these kinds of protests, in which hunger strike is involved, is to make the government accept the protestor's demands.

The demand may be legitimate or illegitimate. But the question is whether those protestors wanted to commit suicide? No. They want to get their demand fulfilled. Intention to commit suicide is an essential of section 309 of IPC. But here, such intention is absent.

Taking into consideration the views relating to constitutionality of this section, the Bombay High Court and the Andhra Pradesh High Court have held two different opinions.

The question regarding section 309's constitutionality first came up before the Bombay High Court in the case State of Maharastra v. Maruti Sripati Dubal[2]. The court held that the Indian Constitution, through Article 21, guarantees 'Right to Life'. This term i.e., 'right to life' includes the right to die. Conclusively, IPC's section 309 violates the fundamental rights of citizens. Hence, section 309 was struck down and held to be unconstitutional in this case.

In another case, Chenna Jagdeshwar v. State of Andhra Pradesh[3], the Andhra Pradesh High Court held that Article 21 is not being violated by section 309 of IPC and hence, it is not unconstitutional.

So, we can see that these are two different views of respective High Courts. Eventually, in the case P. Rathinam v. Union of India[4], the SC upheld the view of Bombay High Court and said that the term 'right to life' of Article 21 of Indian Constitution includes 'the right to die'. It held section 309 of IPC to be unconstitutional. The court also mentioned that this provision is a cruel and irrational one.

Article 21 of Indian Constitution includes the right to not live a life which is a forced one. The decision of Bombay High Court was approved.

For more clarity, we can consider the case Gian Kaur v. State of Punjab[5], in which it was, by SC, held that 'right to die' under Article 21 of the Indian Constitution does not include 'right to be killed'. In this case, it was observed by Justice J.S. Verma that 'right to life' is our natural right which has been granted to us by our Constitution but, suicide refers to an unnatural termination of life and hence, is inconsistent with the real concept of 'right to life'.

It was made clear that the concept of 'right to life' includes the right to live with dignity. This doesn't imply that right to die with dignity is also included here. The court, at last, held that section 309 of IPC is not violative of Article 21 of Constitution.

Further, the apex court also held this section to be constitutional in P. Rathinam's case and overruled its own judgement.

List Of Cases [6]
  • State v. Sanjaya Kr. Bhatia [7]:
    The accused had attempted to commit suicide but was, acquitted. The Delhi High Court emphasized that Section 309 should be removed from IPC, implying the opinion that it should be decriminalized. The court stated this provision as 'unworthy of society'.
     
  • State of Maharastra v. Maruti Satpati Dubai [8]:
    This is the very first case in which 'right to die' has been viewed to be inclusive under 'right to life'. The Bombay HC, in this case, observed that such individuals who try to end their life in such ways are already in pain. By punishing them, we are torturing them more. What they need is medical attention. Locking behind bars will increase the level of agony, be it mental or physical. The court, hence, held IPC's Section 309 to be violative of Article 21 of Indian Constitution.
     
  • Chenna Jagdeshwar v. State of Andhra Pradesh[9]:
    The Andhra Pradesh HC held IPC's Section 309 to be constitutional and not violative of Article 19 and 21. It stated that 'right to life' doesn't include the aspect of 'right to die'.
     
  • P. Rathinam v. Union of India[10]:
    In this case, the SC of India, upheld the judgements of Bombay HC and Delhi HC. A two- judge bench was present here and they termed Section 309 to be 'cruel and irrational'.
     
  • Smt. Gian Kaur v. State of Punjab[11]:
    The SC said, in this case, that 'right to life' is a natural right whereas suicide is an unnatural way of ending one's life. Hence, the latter is inconsistent with former one. Those aspects which are consistent to add on to life with dignity, can be read with Article 21 and not ones which extinguishes it.
     
Statutes
  • Indian Penal Code, 1860
  • The Constitution of India, 1950
  • Mental Capacity Act, 2005
  • Mental Healthcare Act, 2017

Hypothesis
The hypothesis of the present study is that attempt to suicide is an act which needs to be decriminalised, the reason being that its criminalisation harms the mental health of an individual, as explained in the study.

Research Questions
  1. Whether the principles of self - determination and autonomy outweigh the principle of sanctity of life?
  2. Whether the provision of Section 309 of IPC limits The Mental Health Act, 2017?
  3. How the various developed countries have responded to the principle of self autonomy?
  4. Whether the principle of self - determination allows passive euthanasia?
  5. What problems can arise out of the use of Section 309 of IPC?

Statement Of Problem
In this paper, the author has tried to focus upon the issues related to the criminalization of Section 309 of IPC. With the help of a doctrinal method, the proposed exercise attempted to explain as to why there is a need to decriminalize the mentioned section. What were the factors that criminalized attempt to suicide and now, what are the factors that say that Section 309 of IPC needs to be decriminalized? A systematic probe in to some of these questions has been made in the study.

Besides, the study also endeavoured to find as to what are the key problems if this particular section remains criminalised. The issues have been examined in the light of significant judgments. The perceptions of mental health, of people who attempt to suicide, on several crucial aspects have also been studied to project a comprehensive picture of the issue under study. The study has been geared by the key assumption that without resolving the basic issues and problems, the people who attempt to suicide won't be dealt with fairly.

Process Till Now
If counted, there have been numerous demands in order to decriminalize the attempt to suicide. Many NGOs and persons related to the field of law have put this demand. The reason given by them has been as follows:
The persons who attempt to commit suicide are the ones who come to such point in their life due to stress. By punishing them, we are increasing their pain as it would be like double punishment for them. Hence, we will fail to achieve the required objective. Criminalizing such attempts will not help to reduce their pain or stress. So, if not held unconstitutional, then at least this section should be held to be decriminalized.

There have been few attempts made by the legislature in order to decriminalize Section 309 of IPC but, nothing materialistic has come out, yet. This section is still a criminalized one.
It is also true that passing of Mental Healthcare Act in 2017 has reduced the scope of this section but still, it depends on cases' circumstances, that whether the person who has attempted to end his or her life will be punished or not. The section still considers attempt to suicide a criminal act, for which punishment may be given by the court.

The Mental Healthcare Act, 2017 was given approval by the President on 7th of April in 2017 and was commenced from 2018.After various attempts made, the court took this matter into consideration and has introduced two sections i.e., Section 115 (1) and Section 115 (2), which reduce the scope of Section 309 of IPC. Both these provisions have been mentioned under Mental Healthcare Act, 2017[12].

Section 115 (1)
This section says:
Notwithstanding anything contained in section 309 of IPC any person who attempts suicide shall be presumed unless proved otherwise, to have severe stress and shall not be tried and punished under the same code.

We can infer from this provision that section 309's scope has been limited. Courts, now, can't punish anyone only on the basis that he or she attempted to commit suicide. It has been mentioned that in such cases, severe stress shall be presumed by the court. But if proved otherwise, the court still has the power to punish such individuals, under the same code.

Section 115 (2)
This section states that:
The appropriate government shall have a duty to provide care, treatment, and rehabilitation to a person having severe stress and who attempts to commit suicide, to reduce the risk of re-occurrence of an attempt to commit suicide.

To avoid more incidents to happen again in future, the court made this provision and imposed a duty on government to provide required medical attention to the concerned person.
Many people have a misconception that this act has overpowered Section 309 of IPC and repealed it. But this is so not true. Section 309 has just got limited in its scope. But still attempt to suicide is considered to be a criminal act.

Why Should Section 309 Be Decriminalized?
The person who attempts to commit suicide is already in pain and much stress. It's that stress which made him or her take this step. Now, if they get punished then, it will again create a negative impact on their mind as it will be like double punishment for them. This is so because they are already in a suffering stage and even if in those circumstances, one will get punished, then it will give him or her more stress.

According to psychology, such persons need emotional support. They are already dealing with high level of stress. Are they in such a situation that they will be able to handle another stress like being punished and all? If punished, then what's the guarantee that they will not again attempt such step (of committing suicide)?

The aim of law is to protect us and while protecting us, it sometimes chooses the path of punishment. But punishment is not the aim. It's just a way to achieve some stability. Such persons, who try to commit suicide, should be provided with medical attention and emotional support. It is the time when we need to understand that what that particular person is going through. We need to support that person, instead of punishing them.

Why are such provisions made?
To avoid the happening of such another incident. So, does criminalizing the attempt to commit suicide will avoid the happening of such incidents? No. The correct way to avoid such things to happen again is through the way of providing medical attention to such persons. They need people who will understand them, not punish them. If one will get punished in such a situation, he or she will not be able to handle his or her situation and won't be able to stabilize his or her mind.

Attempt to suicide has been criminalized because it's believed that there will be a kind of fear in such persons that what they are doing is not lawful and also, they can get punished for this. It's believed that this fear will stop them from doing so. But is this the correct way to deal with such persons and such situations?

If that person will get punished, then is there any surety that he or she will not attempt such act again? But if we provide them with proper medical attention and emotional support, then it will improve their mental health. This is the way by which one can be brought to a situation where there will be a kind of surety that such attempts won't be made by that individual again.

Also, if one will have fear in mind that what I am going through or what I am thinking to do is an act which has been labelled as a criminal act, then that person will not be able to share that what he or she is going through. A great way to avoid such incidents is that the person who is in depression or has suicidal thoughts gets supported emotionally and has faith that he or she can share his or her emotions with someone. By criminalizing such acts, we are creating restrictions in mind of individuals to share their emotions. Even if a person will have the willingness to share these kind of thoughts, he/ she will restrict oneself. This is so because a label of a criminal act has been given here.

So, is the provision of Section 309 of IPC really doing what is required? Or is it just a provision which is being followed, even if it should be made unconstitutional?

We have been granted with the right to live our life which includes many sub- concepts like right to not live a life which is a forced one. Every individual has his or her own capabilities and abilities. When one is in depression, then that individual is not able to use his/ her potential fully, due to instability of mind. If that person, for attempt to suicide, will be punished; then his or her mind will become more unstable. Maybe that person will not be able to overcome this all ever. But if dealt in correct way, maybe he/ she will be back to normal life and serve in country's development as per hi/her own potential.

According to a report of Times of India in July 2020; 43% of Indians are in depression. Moreover, if seen with respect to young ones, then one in four of them are in depression. These are the ones who are our country's future. If their potential will be dealt this way, then where are we heading to?

The suicide cases, in India, has risen by 4%. So, can't we even now observe that criminalising such acts won't help. We need to focus on this part as merely reducing the scope of Section 309 will not work. Law is here to guide us, not to punish us. If by punishing, attempts made to commit suicide would have had a negative graph, then the data od rise in number of suicides would not have risen. It is the time, when we need to understand that Section 309 is not working for us.

Criminalizing this section will not reduce the number of people who will commit suicide or attempt to do this. It will only increase it, as they will have a fear that they have none to share their emotions with and due to this, their suffocation will increase. It will do nothing but increase their pain. What effect will be of punishment on person who already has got fed up with life and wants to end it?

The Mental Health Care Act, as mentioned above, limited the scope of Section 309. But still, such attempts are counted to be criminal acts. In my opinion, it should be decriminalized wholly. For the cases where persons perform such acts with a criminal intention, we do have separate provisions for them. For example; if the family members of a criminal are threatening the police to commit suicide in order to save that criminal, then for such situations, we have provisions which provide punishment for persons who hinder in a public servant's duty and for abetment to suicide.

And even if not, then separate provisions shall be taken into consideration to be made. Why to punish innocents in the process of punishing real criminal minded persons?
Now, let us take into consideration the case where a married woman attempts to commit suicide due to the fact that she was being mentally and physically tortured, in order to get dowry. According to S.309, she is has done a criminal act in the eyes of law.

We need to understand that she has suffered a lot already. The suffering was of that much level that it made her commit such act. And after that, if she will be seen as a criminal by the society, what effect will it have on her?

Article 13 of Indian Constitution mentions that if a provision is inconsistent with any of the fundamental rights of Indian citizens, then it shall be treated as void. As explained above, Section 309 is also, in some ways, violating the same.

Status In Other Countries
Almost all the countries, in the world, have declared the act of attempt to suicide to be a decriminalized one. Examples include, England, USA, European Countries, etc.
The United Kingdom, the one which introduced this provision in India, has itself decriminalized this act (Section 1 of the Suicide Act, 1961). Attempt to suicide is no longer a crime there. Germany has been the very first country which decriminalized the act of attempting suicide. It was done in 1751.More examples include- Netherlands, Canada, Sri Lanka, Ireland, Singapore, etc[13].

As per reports, the number of such cases decreased in countries where attempt to suicide was decriminalized. In India, the data has risen by 4%. Isn't it a big proof that criminalizing such attempts won't help?

According to psychologists; decriminalization of attempt to suicide will not increase the graph of suicide data. Such individuals ae not in a state to analyse the circumstances present before him/ her. The person has lost all the expectations from life and doesn't have any faith that life will bring some good to him or her.

Conclusion & Recommendations
With time, mindset changes and with time, we need to accept this. We should try to understand that if a person wants to end his or her own life, then there would be a strong reason behind it. To end one's life is a game for anyone. We need to understand that mental health, of all individuals, plays a big role anywhere- be it in his/ her own development or as a whole, in country's development. Now, people are becoming broad minded and learning to accept people for what they are.

Why should our India back in understanding its own people's need? Isn't it the time when we need to understand each other and that, that mental health should not be ignored? It should be dealt by providing proper medical attention and care to people in need of it? And what we are doing? - Punishing such individuals, instead of providing them with proper care and emotional support.

To think humanly, what kind of life it would be which would not have the presence of dignity in it? The person has already lost expectations from life. Why to put him/ her in such circumstances which will not help him/ her overcome all these, but only drench that person more, be it emotionally or mentally?

Section 309 of IPC was introduced in our country through the way of British. When this statute was introduced, India was not independent. It was under British Raj. After independence, we preferred to continue with this statute. But have we observed that the country which introduced this provision in our country has itself repealed it in their statute?


Law is a dynamic concept which if not changed with developing society and changing time, will become a law which will do unjust with concerned people. From more than 150 years, this provision is being followed, despite of reasonable questions been raised on it in nearly every legal and social aspect.

The victim should be given a second chance to live his or her life by overcoming respective obstacles. For this, rehabilitation's concept is relevant, not the concept of punishment. Punishment will make that individual suffer more and go through rough patch of trial and punishment.

Is this the way to deal with such individuals? Won't it create a negative impact on their mind? Are they or their mind strong enough to go through such trials?

'Mental health' is a concept that still people, in India, don't discuss freely. By decriminalising Section 309 of IPC, a taboo will be broken. People won't be afraid to share their emotion regarding stress and depression. The number of such reported cases will increase and we will be able to help such people to overcome that phase.

Bibliography
Articles Referred:
  • Diganth Raj Sehgal, Decriminalization of Attempt to Commit Suicide: A Guide of 15 Decades, iPleaders (May 7, 2020), https://blog.ipleaders.in/decriminalization-attempt-commit-suicide-guide-15-decades/#Other_Countries
  • Abdsa, Section 309 of IPC, Legal Service India E-Journal, (2020), http://www.legalserviceindia.com/legal/article-3185-section-309-of-ipc.html
  • Siddhi Mehta, Suicide- From A Legal Perspective And Its Legal Repercussions, Medium (July 24 2020), https://medium.com/the-%C3%B3pinion/suicide-from-a-legal-perspective-and-its-legal-repercussions-d43b03c76ea2
  • Gazala Parveen, Decriminalized Crime in India: Suicide, iPleaders, (October 22, 2019), https://blog.ipleaders.in/decriminalized-crime-india-suicide/
  • Mohamed Thaver, Sec 309 IPC: Questions and issues around an archaic Section of the law, The Indian Express, (May 31, 2021), https://indianexpress.com/article/explained/sec-309-ipc-questions-and-issues-around-an-archaic-section-of-the-law-6468338/
  • Akshay Shekhawat & Bhaskar Agarwal, Why Penalization of Attempt to Commit Suicide is Still a Valid Law?, The Criminal Law Blog, (July 13, 2020), https://criminallawstudiesnluj.wordpress.com/2020/07/13/why-penalization-of-attempt-to-commit-suicide-is-still-a-valid-law/
  • Malla, A., Joober, R., & Garcia, "Mental illness is like any other medical illness": a critical examination of the statement and its impact on patient care and society.", Journal of Psychiatry & Neuroscience: JPN, 40(3):147--150, (May, 2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4409431/
  • Stefano Triberti, Mental Health and Well-Being of University Students: A Bibliometric Mapping of the Literature, Frontiers in Psychology, (June 09, 2020, https://www.frontiersin.org/articles/10.3389/fpsyg.2020.01226/full
Case Laws
  • State vs. Sanjay Kumar Bhatia, Crl. L.J. 931 (Del HC: 1985)
  • Maruti Shripati Dubal vs State of Maharashtra, 6 SCC 42 (SC: 1996)
  • Chenna Jagdeshwar v. State of Andhra Pradesh Chenna Jagadeeswar v. State of Andhra Pradesh, Crl. L.J. 549 (AP HC: 1988)
  • P. Rathinam vs. Union of India, 3 SCC 394 (SC: 1994)
  • Smt. Gian Kaur vs. the State of Punjab, 2 SCC 648 (SC: 1996)
Statutes
  • Indian Penal Code, 1860
  • The Constitution of India, 1950
  • Mental Capacity Act, 2005
  • Mental Healthcare Act, 2017
Reports
  • Law Commission of India Report no. 210 on Humanization and Decriminalization of Attempt to Suicide (2008)
End-Notes:
  1. Siddhi Mehta, Suicide- From A Legal Perspective And Its Legal Repercussions, Medium (July 24 2020), https://medium.com/the-%C3%B3pinion/suicide-from-a-legal-perspective-and-its-legal-repercussions-d43b03c76ea2
  2. State of Maharastra v. Maruti Sripati Dubal, 6 SCC 42 (SC: 1996)
  3. Chenna Jagdeshwar v. State of Andhra Pradesh, Crl. L.J. 549 (AP HC: 1988)
  4. P. Rathinam v. Union of India, 3 SCC 394 (SC: 1994)
  5. Gian Kaur V. State of Punjab, 2 SCC 648 (SC: 1996)
  6. Gazala Parveen, Decriminalized Crime in India: Suicide, iPleaders (October 22, 2019), https://blog.ipleaders.in/decriminalized-crime-india-suicide/
  7. State v. Sanjaya Kr. Bhatia, Crl. L.J. 931 (Del HC: 1985)
  8. State of Maharastra v. Maruti Sripati Dubal, 6 SCC 42 (SC: 1996)
  9. Chenna Jagdeshwar v. State of Andhra Pradesh, Crl. L.J. 549 (AP HC: 1988)
  10. P. Rathinam v. Union of India, 3 SCC 394 (SC: 1994)
  11. Gian Kaur V. State of Punjab, 2 SCC 648 (SC: 1996)
  12. Abdsa, Section 309 of IPC, Legal Service India E-Journal, (2020), http://www.legalserviceindia.com/legal/article-3185-section-309-of-ipc.html
  13. Diganth Raj Sehgal, Decriminalization of Attempt to Commit Suicide: A Guide of 15 Decades, iPleaders (May 7, 2020), https://blog.ipleaders.in/decriminalization-attempt-commit-suicide-guide-15-decades/#Other_Countries

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