Section 309 of IPC lays down the provisions relating to Attempt to
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 (Sec.309)
There had been great controversy surrounding the constitutional validity of
Sec.309 I.P.C. by virtue of decisions of High Courts and Supreme Court. The
Andhra Pradesh High Court in Chenna Jagadeeshwar Vs. State of A.P.
1988) held that Section 309 IPC is constitutionally valid. In this case, the
accused a doctor attempted to commit suicide alongwith his wife after killing
his 4 children. He was convicted for murder (under S.302) and attempt to
suicide under S.309.
Later, Division Bench of Supreme Court in P. Rathinam V. Union of India
(1994 Cr.LJ 1605) held that a person has 'Right to die' therefore Section 309 of
the Indian Penal code is unconstitutional and violative of Article 21 of the
Constitution. But later a 5 Judge Bench (Constitution Bench) of the Supreme
Court in Gian Kaur vs. State of Punjab
(1996) 2 SCC 649 upheld the
constitutional validity of Section 309 of IPC and overruled the ratio of P.
Mr. Justice J.S. Verma delivering the unanimous judgment held that, Right to
Is a natural right embodied in Article 21 but suicide is an unnatural
termination of life and incompatible and inconsistent with the concept of
Right to life
. In 1971, the Law Commission of India recommended to remove
Section 309 from the Indian Penal Code. The Bill was introduced in Parliament
for removal of Section 309 from IPC. However the Bill was not passed keeping
the peculiar circumstances of India in view.
Right to life as enshrined in Constitution of India under Article 21 primarily
means Right not to end life. Right to life is a gift of nature unlike other
Constitutional and Fundamental rights which are Civil rights. Right to life is
neither claimed nor remembered in daily routine because it is part and parcel of
our existence. Only when there are circumstances that unduly or unfavorably
influence the individual's right to life, the importance of Right to Life comes
to play to mitigate those unfavorable circumstances, which may be life
That is why Right to Life is primarily a right that is pressed
into service to mitigate circumstances that are life-threatening and that cause
peril to life of a human being forcing him towards death. In this view of the
matter, Right to Life cannot be viewed as an affirmative right.
It is a negative right aimed to negative those factors that force a human being
towards death which is unnatural. Premature death is always unnatural. When
there is possibility to live, the natural tendency of a human being is to live.
Death is unnatural because it is an option chosen by a mind that forces itself
and convinces about the comfort given by the consequence of death though death
The act of reconciling with the idea of death is drawn by
application of force to do something that the human being does not naturally
tend to do. Any living being naturally shows tendency to survive. Such tendency
to survive can be recognized as a natural right. But no living being shows a
tendency to die except those seeking euthanasia due to hopeless and painful
survival. Therefore tendency to die is not a natural urge and hence it cannot
be recognized as a right.
When it is said that Right to Life is a negative right and it is aimed at
mitigating those circumstances that force a human being to die, that in itself
conveys that it does not include the Right to Die, because in saying that a
human being has a Right to life, the Constitution conveys a message to human
There is no need to end life, you have a right to Life
. Hence the
State and Society have a responsibility to mitigate all those circumstances that
endanger the life of a human being including the factors that force him to think
of a suicide. That is why it is not an individual choice to make within four
walls of a room without negotiating it with State and Society.
Death cannot be left to an individual's choice because the State and Society's
duty to mitigate the life-threatening circumstances and duty to know and
negotiate with the individual making choice of suicide is mandated by
Constitution in the form of Article 21. One's Right to life and death are not
the concern of the individual alone, the concern of people related, society and
state is also involved in it. That is why a Habeas Corpus petition can be filed
even by third parties.
However the idea of relating Section 309 of IPC with Article 21 of Constitution
is not comfortable idea. How far Section 309 of IPC is relatable to Article 21
is a moot point. Indian Penal Code was drafted by Lord Macaulay much before
Constitution of India was drafted. Constitution defines the relationship
between State and its Citizens in Part III. In view of the foregoing discussion
one can understand one's right to life is guaranteed by Constitution more to
curtail State's Authority over a Citizen's life than to encourage citizens to
fight for Right to Life.
Hence it imposes a mandate on the State to strive to mitigate those
circumstances that lead to cause the death of a Citizen and it is in this
context of those mitigating circumstances the Right to Life is guaranteed.
However those mitigating circumstances cannot be in the form of punishment. In
view of this, the logic leading to relationship between Section 309 of IPC and
Article 21 of Constitution appears paradoxical.
Article 21 is a claim of Citizen against the State. Section 309 is claim of
State against undesirable act of a Citizen. There is no plausible linkage
between these two claims. It is called an undesirable act rather than a crime
because a crime has a bearing on the rights of others not on the rights of
self. Can an act that does not infringe on the rights of others be construed a
crime?- is a better moot point to discuss to keep Section 309 in IPC or not,
rather than relating Section 309 of IPC to Article 21 of Constitution. Whose
rights a person attempting suicide had offended to call it an Offence?
It is a settled legal principle that there is no right without a remedy. When
the Court rules that there is a Right to die, it goes without saying that it is
a right without a remedy, because the choice is mandated to be exercised in
isolation. It closes the windows of negotiation with world. Such a sweeping
right without a remedy cannot be placed in the disposal of a citizen. In the
same vein, when the Courts rule that there is no right to die and hence Section
309 of IPC is legal - as it involves punishment, it means to convey that the
State has a right over the Life of a citizen and no obligation to mitigate
circumstances leading to his death other than aggravating them by adding one
more stigma to already burdened soul by accusing to be/proving him a criminal.
Also the Constitutional mandate for the State is only to guarantee the Right to
life of its Citizens not to exercise control over it by force or legal
Part III of Constitution gives rights to citizens against the State, it does not
give Right to State against Citizens. Whenever State exercised right over the
fundamental rights of citizens through the Penal Code or other penal provisions
they have flown from the 'reasonable restrictions imposed on fundamental
rights'. Article 21 does not have any reasonable restrictions it is an absolute
right guaranteed without any restrictions. That is why it is not correct to take
shelter under Article 21 to perpetuate Section 309 of IPC.
Hence there is nothing constitutional about State pursuing Rights against
Citizens claiming that Section 309 is not ultravires Article 21 of the
Constitution. Every right creates a corresponding duty on the person/(state in
the case of Fundamental rights) that infringes on that right. Hence the State
only has a duty towards the life of its citizens not a Right, in so far as
Article 21 is concerned. And that duty envisaged under Article 21 of
Constitution is to protect not to punish.
Difference between reasonable restrictions in Article 19 and exception in
There is subtle difference between the reasonable restrictions imposed in
Article 19 and exception in Article 21 of the Constitution. Restriction is
imposed on a Citizen exercising right by making a law against unbridled use of
Fundamental right to the detriment of society, fellow citizens or state.
Exception is imposed on State to create machinery required to protect the
Fundamental right (say, of life) of the citizen. Otherwise, it can be easily
said that - No person can be deprived of his right to freedom of speech and
expression except according to the procedure established by law in place of
Article 19(1)(a) and 19(2). A machinery cannot be created to protect the right
to freedom of speech and expression of people. But a machinery must be created
to protect the right to life and personal liberty of the citizen otherwise,
anyone can kill anyone without fear of any law or law enforcing agency.
It often goes unnoticed, in Constitution part III, there are certain sentences
which start saying � 'the State shall not' as in Article 15 (1). And the very
next sentence, i.e., in Article 15(2) starts saying � 'No person shall'. What
is noticeable here is, the word State is not there in Article 15(2). It means
that it is a general direction not only to State but also to Citizens. Even
Article 21 does not say, The State shall not deprive right to life and personal
liberty of its citizens except according to the procedure established by law.
It says, No person shall be deprived of its right to life and personal
liberty�.and so on., which means it is not only a direction to the State but
also to the Citizens as well. Fundamental aim of Article 21 is to give a
constitutional mandate to imprison the convicted people and then to hang the
people convicted with capital punishment. Otherwise, it would not be possible
for state to imprison people and hang them when courts award sentence.
The exception imposed on State is about the procedure of Trial and affording
reasonable opportunity to the accused and protecting his right to be heard
before he is deprived of his right to life by hanging or his right to personal
liberty by imprisonment. The exception is about the principles of natural
justice that the law enforcing agencies to follow before depriving any citizen
of his right to life and personal liberty on the ground of any offence
When the Constitution says that No person can be deprived of his
right to life and personal liberty except according to the procedure established
by law, the natural corollary to it is that A person can be deprived of his
right to life and personal liberty by following the procedure established by
law. It is not only the state which can do it by following principles of
natural justice but also fellow citizens by exercising the right of Private defence in times of unavoidable exigencies.
That is why it is not restricted to
State by saying, State shall not deprive�.. Even citizens can deprive the
right to life and personal liberty of fellow citizen if that fellow citizen is
threatening his life or property and putting his life in danger. In such
instances the citizen whose life is threatened can deprive the right to life of
another citizen by exercising his right of private defence.
It is not known whether the Courts have noticed this distinction and if they
have noticed they would not have mulled over issues like whether a Corporate is
State under Article 12 of Constitution etc in famous environmental cases like
M.C. Mehta vs Union of India
and R.C. Cooper Vs. Union of India
rights are protected not only from the State but also from fellow citizens and
artificial persons like corporations, that is why the framers of Constitution
have made these distinctions in these sentences by quoting the word state in
some sentences and by avoiding the same in other sentences. Right to life under
Article 21 is not only a remedy against the State but also against fellow
citizens and other artificial persons like corporates which are creatures of
law. That is why it does not contain the word State in it. Where the clause
specifically uses the word state in it, then Writ jurisdiction operates only
That is why, courts not only have a duty to protect the fundamental rights of
citizens against State but also against fellow citizens and artificial persons
like corporates, firms etc wherever the mandate or direction in Clauses is not
state specific. In other words, Writ jurisdiction can be exercised against
Citizens and Corporates as well when they violate the Fundamental rights of the
Now coming back to the point of distinction between Restriction and Exception,
the restrictions in Article 19 empower the State to make laws to curtail or
abridge the fundamental rights of its citizens whereas the exception obliges the
State to create a machinery to ensure that no Citizen is deprived of his right
to life and personal liberty except according to the procedure established by
law. Which means, if a gang of policemen take away a citizen in a remote
village from his house and he is detained for several days or months, his
relatives should be able to go to a court within a reasonable distance to file a
Habeas corpus petition. State is obliged to create a High court for villages.
That is the kind of machinery Article 21 aims to be created to protect the
citizen's right to life and personal liberty. These are the mitigating
circumstances that were discussed in the introductory part. Constitution gives
a mandate to State saying, No person shall be deprived of his right to life and
personal liberty except according to the procedure established by law. What is
the procedure established by law? Follow principles of natural justice before
depriving him of his right to life and personal liberty. How it is followed? By
establishing courts to hear appeals from people and by allowing people to have a
reasonable opportunity to defend themselves when they are accused of any offence
by the law enforcing agencies.
Article 21 aims at creating laws that are in the nature of obligation on State
to hear people and afford them a reasonable opportunity to represent their case
when their right to life is put to peril by themselves or by others or by State
in pursuit of enforcing the law of land. On the other hand, in Article 19(1)(a)
Freedom of speech and expression is given to citizens but restriction is imposed
in Article 19(2) and it is imposed on Citizens. When a restriction is imposed
on citizens it creates a fertile ground to legislate a penal law.
difference between the restriction in Article 19(2) and exception in Article 21
is that the restriction is directed against Citizen exercising his right
arbitrarily to the detriment of public interest whereas the exception in Article
21 is directed towards the State to protect the life and liberty of the citizen
by making necessary legislations and creating suitable machinery so that his
voice is heard and his defence is considered before he is deprived of his life
and liberty for any offence committed.
That is why there is no correlation between Section 309 and Article 21 because
it is not the mandate of Article 21 strictly to legislate a penal provision.
One may argue that if Article 21 is a general mandate not a state specific
mandate and a suit in the nature of writ is maintainable against fellow
citizens, then for taking away the right to life of fellow citizens the state
has a right to legislate to penalize the crime of murder and therefore Section
302 fits into the scheme of Article 21 of the Constitution. Certainly true. It
is a collateral mandate but the larger purpose is to protect the life and
liberty of the citizens from State machinery than from fellow citizens. As a
matter of principle and inference, it goes well with the scheme of Constitution
to make a penal provision against the crime of murder which operates as a
violation of right to life. In that sense, the exception in Article 21 also
operates as a restriction imposed on citizens.
Article 21 contains two directions. One against State and one against
Citizens. The direction against State is � you have no right to deprive the
right to life and personal liberty of citizens without procedure established by
law�hence make necessary procedures in your substantive and procedural laws to
safeguard the principles of natural justice while convicting people for
The direction against Citizens is � you cannot deprive the right to
life and personal liberty of citizens, if you do so, you are liable for
prosecution by the State. In pursuit of first direction the State is obliged to
make laws in procedure code to include and implement principles of natural
justice and in pursuit of second direction the State is empowered to make penal
laws in the nature of Section 302. In other words it addresses to the State and
possible offenders not to the victims or claimants of right to life.
question of whether the victim or claimant of right to life has right to life
does not arise in the context of Article 21. Right to life is not given by the
State it accrues to citizen by birth. It is an absolute right guaranteed by
nature itself. There is no need to mull over whether one has right to life or
not. Only in the context of deprivation of that absolute right of a citizen
Article 21 comes into picture by directing the State and possible offenders as
to what it expects from them.
Some Mr.A, by attempting to commit suicide (and failing in such attempt) has not
violated anybody's right to life. And so he offended nobody. An offence
literally is an offence only if someone else is hurt. Hurting oneself is not an
So far as infringement to his own right to life, a writ may be allowed to hear
the circumstances leading him to make a decision to deprive himself of his right
to life. However it should be in the nature of civil suit because it is not an
offence against public interest to decide to deprive oneself of one's right to
life. A disease suitable for lending a remedy cannot be aggravated by
inflicting punishment. A sick person needs a pill not a whip.
Award Winning Article Is Written By: Mr.Anjuru Chandra Sekhar
, Assistant Professor at Pendekanti Law College, Chikkadpalli, Hyderabad
Authentication No: OT127467370254-01-1021