Section 309 of IPC: It's Constitutionality and decriminalization
There is a lot of confusion regarding section 309 of the IPC among the general
public and few think that this section has been repealed by the apex court of
India and as well as by the legislature. Some term this section as
unconstitutional. Some demand that this section must be decriminalized. In this
column, the writer will try to clear the air regarding section 309 of the IPC,
Constitutionality of Section 309, and why in the view of the author this section
should not be decriminalized.
First, let's see what is suicide
Suicide is a combination of two words sui
meaning self andcide
killing, In short, a person committing suicide, must commit by themself,
irrespective of the means employed by him in achieving his object of
Section 309 of the IPC: Attempt to commit Suicide
Whoever attempts to commit suicide and does any act towards the commission of
such offense shall be punished with simple imprisonment for a term which may
extend to one year or with fine or with both
The language of section 309 is very simple and it implies that if someone
attempts to commit suicide and if he/she is not successful in achieving his/her
object, then he/she may face simple imprisonment which may extend to one year or
with fine or with both.
Section 309: Constitutional or Unconstitutional?
There have been different views regarding the constitutionality of section 309
of the IPC. The Bombay High court and the Andhra Pradesh High court has held a
different opinion regarding the constitutionality of section 309 of the IPC
Constitutionality of section 309 Of Indian Penal Code first came up for
consideration before the Bombay High Court in State of Maharashtra V. Maruti
(1986) 88 Bom LR 589. In this case the Bombay High Court held that
right to die
is included under 'right to life ' enshrined under Article 21 of
the constitution and hence section 309 violates the Fundamental Rights of the
citizens, so the court struck down section 309 of the IPC and held section 309
to be unconstitutional.
The Andhra Pradesh High court in Chenna Jagdeshwar V. State of Andhra Pradesh
(1988) cr LJ 549 held that right to die is not a fundamental right within the
meaning of Article 21 of the Indian Constitution and hence section 309 of the
IPC is not unconstitutional.
These two different views of the High courts was settled by a division bench of
the apex court in P. Rathinam V. Union of India
(1994) 3 SCC 394, The Supreme
court held that views expressed by the Bombay High Court in State of Maharashtra
V. Maruti Sripati Dubal
(1986) 88 Bom LR 589 is right and stated that a person
has a right to die
and declared section 309 unconstitutional. In the case, the
petitioner challenged the validity of section 309 on the ground that it was violative of Article 14 and 21 of the constitution.
The court held that section
309 of the IPC was a cruel and irrational provision
. It was held that Article
21 also includes 'right not to live a forced life and hence court approved the
decision of the Bombay High court in State of Maharashtra V. Maruti Sripati
(1986) 88 Bom LR 589.
The decision of the apex court in P. Rathinam's case and the judgment of the
Bombay high court in Maruti Sripati Dubal's case raises many questions:
- This ruling will impact the young and immature minds that tend to act or
react in haste.
- Right to die an unnatural death should not be included under
Article 21 of the Constitution.
- What about those people who in the disguise of protest threatens to kill
themselves if their demands are not meet, in front of government offices.
- Suicide owing to frustration in love, failure in examinations, and
failure to get a job is not a solution and should not be encouraged. This
would raise many social problems.
- Even different religions across the globe be it, Hinduism Islam,
Christianity, Jainism or Buddhism treats Suicide as a negative act.
To provide some clarity regarding the right to die and constitutionality of
section 309 of the IPC, The constitution bench of the Supreme Court in Gian
Kaur V. State of Punjab
(1996) 2 SCC 648 held that right to die
under Article 21 of the constitution does not include right to die
to be killed
Justice J.S Verma observed: Right to life
is a natural right embodied in
Article 21 but suicide is an unnatural termination or extinction of life and
incompatible and inconsistent with the concept of right to life
The court held made it clear that the right to life
including the right to
live with human dignity would mean the existence of such a right up to the end
of natural life. Right to die with dignity at the end of life is not to be
confused with the right to die an unnatural death curtailing the natural span
of life. The court accordingly held that section 309 of IPC is not violative of
Article 21 of the constitution.
The apex court overruled its own judgment in P.Rathinam's case
aside the Bombay High Court order in State of Maharashtra V. Maruti Sripati
(1986) 88 Bom LR 589 and upheld the judgment of the Andhra Pradesh
High court in Chenna Jagdeshwar V. State of Andhra Pradesh
(1988) cr LJ
549, which declared section 309 of the IPC constitutional.
So it is finally settled that Section 309 of the IPC is constitutional and it
does not violate Article 14 and 21 of the Indian Constitution.
Decriminalization of section 309 of IPC
There have been calls for decriminalization of section 309 of the IPC from some
NGOs and from the persons related to the legal field. Their point is that a
person who suffers from stress due to various reasons attempts to commit
suicide. By punishing them when they fail to achieve their objective is like
giving them double punishment. This only increases their pain and agony. The
criminalization of section 309 of the IPC does not help in reducing the pain. So
even if it is not unconstitutional, this section should be decriminalized.
Legislature tried to decriminalize this section a few times but nothing has
materialized in the decriminalization of this section.
People tend to think that Section 309 of the IPC has been repealed or
decriminalized after the passing of Mental healthcare Act,2017. But this act has
not repealed section 309 of the IPC, it has just reduced the scope for the use
of section 309.
Section 115 (1) of the Mental Healthcare Act, 2017 states that:
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.
This section clearly states that if a person attempts to commit suicide, it will
be presumed that he/she was suffering from severe stress and he\she cannot be
tried and punished under section 309 of the IPC.
Section 115(2) of the Mental Healthcare Act, 2017 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
So these two sub-sections of section 115 of the Mental Healthcare Act, 2017
clearly lays down guidelines regarding cases relating to attempt to suicide and
it clearly reduces the scope of section 309. It will be presumed that a person
is suffering from severe stress if a person attempts to commit suicide and the
government should provide treatment and rehabilitation to such persons so that
this attempt to commit suicide should not occur again.
In my view, the legislature should not decriminalize section 309 of the IPC and
after the enactment of Mental Healthcare Act, 2017, there is no the way this
section can be used to increase the pain and agony of a person who attempts to
commit suicide. One of the important observation of the Supreme Court is not
widely known to the public at large is that while delivering judgment in Gian
Kaur V. State of Punjab
(1996) 2 SCC 648 the Supreme court held that there
is no requirement of awarding any minimum sentence. The sentence of imprisonment
or fine is not compulsory but discretionary.
The contents of Mental Healthcare Act, 2017 is not known to the public at large,
even some of the police officers at junior level do not have any idea about this
act and that is why it is necessary to run some campaign which will enable
police officers and people to know about the Mental Healthcare Act, 2017.
While it is also important to note that many times when the police arrest a
person of any alleged crime, their family member threatens to commit suicide in
front of the government office. These people are not suffering from severe
stress, they are just trying to disrupt law and order and for these people, this
section needs to stay and certain modifications can be done so that section 309
can deal with persons alleged of an attempt to commit suicide which falls
outside the scope of section 115(1) of the Mental Healthcare Act, 2017.
- Section 309 of IPC
- State of Maharashtra V. Maruti Sripati Dubal (1986) 88 Bom LR 589.
- Chenna Jagdeshwar V. State of Andhra Pradesh (1988) cr LJ 549
- P. Rathinam V. Union of India (1994) 3 SCC 394
- Gian Kaur V. State of Punjab (1996) 2 SCC 648
- Section 115 (1) and 115(2) of the Mental Healthcare Act, 2017