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Whether Section 309 of IPC is violative of Article 21 of Constitution?

Section 309 of IPC lays down the provisions relating to 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 (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. (AIR 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. Rathinam's case.

Mr. Justice J.S. Verma delivering the unanimous judgment held that, Right to life 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.

Analysis:
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 threatening.

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 is painful.

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 being that:
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 authority.

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 Article 21
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 committed.

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.

Fundamental 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 against state.

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 fellow citizens.

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.

The 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 offences.

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.

Hence the 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 offence.

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
Awarded certificate of Excellence
Authentication No: OT127467370254-01-1021

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