We the human are most civilized species on earth and yet we are civilizing our-self every day. With every passing day we are understanding basic human need. We are realizing human pain and suffering; we are learning the catastrophe of once life. The understanding of human life, human right and human sufferings is changing with time and with the evolution of society our legislations also need to evolve and upgrade for more civilizing and humanizing our penal provisions.

The law which were correct 100 years ago might not stand as per the requirement of humans in today's time. The section 309 of the IPC is one such provision. The Section 309 of the IPC need to be eliminated from our statute to make the approach towards the mentally ill people more humanize. This provision is very cruel and irrational in nature which might lead to punish someone who is already in pain, and suffering agony at such extend that he is willing to commit suicide and end his life. Our penal provisions are expected to punish someone who has committed something against religion, morality or public policy, attempting suicide stand against none of these.

In the case of Excel wear v. Union of India[1] the court observed that right to live also include right not to live or not to be forced to live, taking it positively. It means right to live also means right to die or to terminate one's life as well. Right for ending one's life or right to die is not something new our civilization talking about. Religion like Hindu and Jain have allowed self-killing or ending once life by once act, at some extend under certain circumstance, even Buddhism allows suicide in certain matter of religion and country.

Smritis also allowed the suicide except for the purpose of penance or at holy place. According to Apararka (page 536), who is citing the works of Brahmagarbha, Vivasvat, and Gargya, a householder "who is suffering from serious illness and cannot live, or who is very old and who has no desire left for the pleasures of any of the senses and who has carried out his tasks, may bring about his death at his pleasure by resorting to mahaprasthana, by entering fire or water or boy falling from a precipice."

Because of this, he does not do any fault, and his passing away is preferable to tapas; hence, one should not aspire to live in vain (without being able to perform the duties laid down by the sastra).Apararka (page 877) and Par. M. (I. part 2, page 228) quote several verses from Adipurana about dying by fasting, by entering fire or deep water or by falling from a precipice, or by going on mahaprasthana in the Himalayas or by giving up life from the branch of the vata trees at Prayaga, with the verses declaring that not only does such a man not incur sin, but he also attains the world In Chapter 9 of the Aranya Parva of the Ramayana, it is said that Sarabhanga went into the flames.

It has come to our attention that the Mrcchakatika (I.4) describes King Sudraka as having been immersed in flames. According to the Gupta inscriptions number 42, the great monarch Kumaragupta is shown as having entered a fire that contained cow dung cakes that had dried out. The editor makes the observation that there must inevitably be no allusion to the fact that the emperor knowingly accepted his own death by being burned alive. However, if all that is intended by the description is that the emperor's body was burned with karisa, then it would appear that there is not a great deal of propriety in the statement.

Among Jains, a rule very much similar like that is predominated. In Chapter 5 of the Ratnakarandasravakacara, which was written by Samantabhadra about the 2nd century A.D., he elaborates on Sallekhana, which entails giving up one's physical form in order to amass merit in the face of tragedies, famines, severe old age, and diseases that cannot be cured. In the year 1389 of the Samvat calendar, members of a Jain congregation committed mass suicide by starving themselves, as documented in the Kalandri (Sirohi State) Inscription (E.I. Vol. XX, Appending p. 98 No. 691).

The perspective of the Hindu and Jain religions, as depicted in the aforementioned writings of the Dharmashastrakaras, demonstrates that even though suicide was generally frowned upon, in certain situations it was tolerated, condoned, connived at, accepted, and even acclaimed depending on the person and the particular circumstances. This praise was given in recognition of the sacrifice that the individual was making for their religion.

In India, acts of extreme self-sacrifice, such as the Johars (mass suicides or self-immolations) of ladies from royal houses in order to avoid being dishonoured by 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 into death), and Atmarpana. Even after the practise of Sati was made illegal in 1868, incidences of it continued to occur.

These incidents are still reported even today, despite the fact that their frequency is extremely low. Without the approval of society, these kinds of events would never take place. Not only has society not condemned the practise of self-immolation, but it has also praised and honoured those who have engaged in it in the past and continues to do so even now, including saints and savants, political and religious leaders, and other prominent members of society.

Because of this, the act of suicide or the attempt to commit suicide has never been regarded as something to be reviled or condemned, which would be the case if life in and of itself were revered. It is the reason for its termination or the circumstance in which it is terminated that has always and everywhere established the attitude that society maintains toward it.

Some people believe in the fact that the only reason to go through life is to seek out pleasure, while others subscribe to the equal-wise pragmatism school of thought, which holds that the purpose of life is to seek out and realise one's own divinity, and not the divinity of others, because that is the only place where one can truly feel their own self-identity.

According to the Dharmaraja Yudhishthira in the Mahabharata, "even though man realises that death takes place every instant, still he feels that the silence of death would not disturb him, and nothing could be more shocking than the said notion." Others believe that one should never worry about the unpredictability of death and instead should live their life to the fullest, embracing hedonism up until the moment they die.

An ancient thinker named Charvaka disapproves of the idea of reincarnation and encourages people to seize every opportunity to enjoy their lives. Therefore, death is a difficult process, and life is a phenomenon that may have as one of its goals the avoidance of negatives that attempt to assault the virtue and vigour of life from any perspective.

In spite of all the assertions, references, and utterances, whether they be mystical, philosophical, or psychological, the fact remains, at least on the basis of a conceptual majority, that people love to live - whether they are eighty or eighteen - and do not, in fact, intend to treat life like an "autumn leaf." This is the case regardless of whether the statements, references, and utterances are mystical, philosophical, or psychological. According to a quote attributed to Alfred Tennyson, "No life that breathes with human breath has ever sincerely longed for death."

At each successive level, one does not necessarily get the same impression. There comes a time in everyone's life when the spring of life is frozen, the rain of circulation becomes dry, the movement of the body becomes motionless, the rainbow of life becomes colorless, and the word "life," which one calls a dance in space and time, becomes still and blurry. At this point, the inevitable death is drawing near to grab hold of it like an octopus would, firmly grasping it with its tentacles so that the person "shall rise up never."

Justice P Sawant of Bombay High Court in Maruti Shripati Dubal v. State of Maharashtra[2], observed that section 309 of the IPC is violative of Article 21 of the Constitution of India. Article 21 of the Constitution of India which talks about right to live also includes in its trail the right not to live a forced life. If a person is in a permanent vegetative state or terminally ill in case of dying, allowing premature extinction of his life would not amount to an offence.

If a person is committing suicide, he is ending his own life and not the life of others. So, the issue that monopolistic power of state regarding taking life is stripped away by the person who commits suicide has no point to stand on. No one has monopoly over anyone's life. It is only the God who has such a power.

Therefore, a person who is already in a situation in which he has decided to commit suicide do not deserve prosecution if he fails in his attempt. Suicide is not a demonstration of criminal instinct rather it is a psychiatric problem. Suicide is not a "call for punishment" but it is a "call for help" by a person committing it. If a person is attempting to commit suicide, the agony and the ignominy undergone by him is already a punishment for him.

Although the punishment is not corporal, but it is more deterrent and painful for the person which he may not have been realised if he was to be released on probation. That's why, what is required to keep in mind is that a suicide-prone person need wise counselling and soft words and not the harsh treatment by the jailor or the prosecutor and not even by the society. so, let's humanize our provisions because it is never too late to do so.

From the perspective of society, the more humane and sensitive way to deal with this problem is decriminalization rather than the prosecution. This will also improve the generation of more accurate epidemiological data and reporting of suicidality. In most of the cases, the suicidal nature of a person is basically an act of psychological distress or symptom of psychiatric illness which ultimately indicates that the person needs assistance or help in his psychological as well as personal life and not the punishment whether it is in the form of fine or imprisonment.

Wendo C. in his survey report titled "Suicide cases on the rise" collected the data which indicates that[3] -

"As many as 93% of suicide attempters were found to be psychiatrically ill at the time of commission of the act, though a psychiatric contact was established by only 33-50% of them. Penal sanctions will only serve to exacerbate suicidal persons' risk for depression, anxiety, and repetitive suicidal behavior.[4] The criminalization of suicidal acts causes the problem of suicide to go underground, making it difficult for suicidal persons to receive necessary assistance."

We as a nation stand with world in all aspect including the giving people their right, we align with world in providing the human rights and with same aim and ambition we signed a convention "the convention on right of person with disabilities and its optional protocol" which along with 83 countries was signed by India on 1 Oct 2007, this convention was adopted on 13th December 2006 at UN headquarter in the New York.

Which come into force on 13thMay 2008. The Mental Health Care Act 2017 is the outcome of signing of convention by India which convention made it necessary for our legislation to align and harmonise the existing laws with the said convention. The Mental Health Care Act was enacted by Parliament in the sixty-eight years of the republic of India. Part I of Section 115 of Mental Health Care Act, 2017 states that "Notwithstanding anything contained in Section 309 of the IPC, any person who attempts to die by suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code."

The Mental Health Care act 2017 and the case of Paschim Banga Khet Mazdoor Samity v. State of West Bengal[5], in which this court widened the scope of Article 21 and said that government is responsible for the medical aid of everyone and to strive for the welfare of the public at large, it can be said that instead of punishing the one who is attempting the suicide it is duty of government to look after and rehabilitate the person. Along with this, the supreme court of India in matter of Bandhua Mukti Morcha v. Union of India & Ors[6] included the "right to health" under article 21 of the Constitution of India, which guarantees the right to life.

Similarly, in State of Punjab & Ors v. Mohinder Singh Chawla[7], this court observed that the right to life also includes the right to health and should be noted that the government had a constitutional obligation to provide the health services. Also, in the State of Punjab & Ors v. Ram Lubhaya Bagga[8], this court cleared that its duty of state to maintain health services. Here health also includes mental health.

The aforesaid section 115 of the Mental Health Care Act 2017 specifically states that attempts to die by suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the IPC, thus the Mental Health Care Act is a special legislation and the IPC being general legislation the provision of the Mental Health Care Act should prevail

Therefore, when we punish someone who is already going through a lot of pain that he is ready to end up his own life, we are again disturbing his mental health, and mental health is matter of right of individual along with the right to life provided in article 21 of the Constitution of India and hence it is obligation of state of look after the mental health of individual and instead of punishing someone who is already in such condition to punish himself to death. The state is supposed to put that person in rehabilitation state instead of in prison.

Section 309 of the IPC which talks about the person who attempt to commit suicide, is unsatisfactory as well as discriminatory. It states that "Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year or with fine or with both."

This section is a monstrous act that caused even more misery for those who had already found life to be so difficult and unbearable, with less opportunities of happiness, that the individual resolved to embrace death to terminate his life. Thus, torture and degradation through punishment would be illogical and unjust to the person who failed in their attempt to commit suicide. Such person, in fact, deserve to be treated with compassion and sympathetic treatment.

In the case of State vs. Sanjay Kumar Bhatia[9], the Delhi High Court observed that "The continuance of Section 309 of the IPC is an anachronism unworthy of a human society like ours. The provision like Section 309 of the IPC which has no justification has no right to continue to remain on the statute book."

The Two Judges bench of this court in P. Rathinam and Nagbhushan Patnaik, decided on the question of the constitutional validity of section 309 of the IPC. The Petitioners claimed that said section is violative of Article 14 and 21 of constitution of India.

In this case various questions were put forth such as:
"Has Article 21 any positive content or is it merely negative in its reach?" and has a person residing in India a right to die? etc. In the said case the court relied on the judgement of State of Himachal Pradesh and Another v. Umed Ram Sharma[10] and others and Maruti Shripati Dubal v. State of Maharashtra[11] that placed reliance on R.C. Cooper v. Union of India[12].

And held that what applies to one fundamental right equally applies to all other fundamental rights, and based on the aforementioned assumption, it is impossible to substantially contest the fact that fundamental rights both have their positive and their negative aspects. It had stated, for instance, that the freedom of speech and expression includes the freedom not to speak; similarly, the freedom of association and movement includes the freedom not to join any association or move anywhere; and consequently, it had stated that logically it must follow that the right to live would include the right not to live, also known as the right to die or the right to terminate one's life.

And with this reasoning The Supreme Court also drew a parallel between the other fundamental rights. In the same way that the right to freedom of speech under Article 19 gives the right to speak but also includes the right to not speak, the Supreme Court drew a parallel between the right to live under Article 21 and the right to die under Article 21. As a result, Section 309 of the IPC was deemed to be in violation of the Constitution of India.

A life without human rights is mere animal subsistence, other than capacity to know and understand it is "the rights" which separates "we" human from animals, anything which hampers our rights takes us a step back to the age of apes. We humans have travelled a long way from tribes to civilized societies, from fighting for food to fighting for peace, from fighting with other to fighting with self. Human rights should be considered above everything, one cannot exchange or compromise with rights of an individual. Every human has right over his life and can live in any way he wants providing that it does not violets the right of anyone else. Article 21 of the Constitution guarantees "right to life" as fundamental right and as interpreted in plethora of cases this right to life includes "right to die".

The Constitution as well as Criminal Procedure Code grants right not to be prosecuted twice for the same offence. Punishing someone who attempts to end his own life is violation of the principle of Double Jeopardy. If an individual is punished again and again for the same offence it is going to affect his or her mental faculties, and right to mental health is a fundamental right as interpreted by this court in plethora of cases, it is obligation upon the state machinery to protect the fundamental rights of the its citizen instead of punishing someone who has have already been denied.

In the view of the above discussion, we are clearly of the opinion that section 309 of the IPC is liable to be struck down on the grounds that it is violative of Article 21 of the Constitution of India and also it is inconsistent with the provisions of the Mental Health Care Act, 2017, which must prevail.

End-Notes:

1. Excel wear v. Union of India, A.I.R. 1979 S.C.R. 25
2. Maruti Shripati Dubal v. State of Maharashtra, (1987) 1 BomCR 499
3. Wendo Suicide cases on the rise-Survey. The New Vision, Aug 31, 2007, http://www.newvision.co.ug/PA/8/12/584299.
4. Adinkrah Criminal prosecution of suicide attempt survivors in Ghana. Int J Offender Ther Comp Criminol. 2013; 57:1477-97.
5. Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37
6. Bandhua Mukti Morcha v. Union of India &Ors, A.I.R. 1984 SCR 802
7. State of Punjab &Ors v. Mohinder Singh Chawla, (1996) 113 PLR 499
8. State of Punjab &Ors v. Ram Lubhaya Bagga, (1998) 1 SCR 1120
9. State v. Sanjay Kumar Bhatia, (1986) 10 DRJ 31
10. Himachal Pradesh and Another v. Umed Ram Sharma, A.I.R. 1986 SCR 251
11. Maruti Shripati Dubal v. State of Maharashtra, (1987) 1 BomCR 499
12. R.C. Cooper v. Union of India, A.I.R. 1970 SCR 564

Award Winning Article Is Written By: Ms.Simran Bhargav

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