DECRIMINALIZATION OF ATTEMPTED SUICIDE IN INDIA
Authored by: A. Sahitya Veena
Death is a fact of life. As they say, god has gifted us this life with beautiful body and soul and only God can take it away from us. Unnatural ending of one’s own life is considered as a heinous act by various religion. So, is a person who is suffering mental agony or is not happy with his life, forced to live? If no, then why is there still a provision in the statute, and if yes, then what social interest is being served by holding the person liable for attempting suicide?
In India attempt to suicide or any abetment of it is punishable under the law. It is pretty debatable among the people on criminalisation of suicide. One set of people are of the view that Constitution under Article 21 guarantees the protection of life and personal dignity and by no means it can ignore an act of attempting suicide. By criminalising attempt to suicide state is upholding the dignity of human. Another set of people are of the view that section 309 of Indian penal code is ferocious, cruel and harsh as it provide double punishment to a person who has already suffered agony, depression and ignominy in his failure to commit suicide.
According to WHO repot, suicide takes a high toll. Over 8, 00,000 people die due to suicide and worldwide, for every 40 seconds a life is lost. It is the second leading cause of death in 15-29year olds.
Suicide is a self-inflicted death with evidence (either explicit or implicit) that the person intended to die. It is one of the major cause of premature and unnatural end of a precious human life. suicide is a global problem and World Health Organization has in regards to attempted suicide expressed the view that inflicting punishment for an act which is the result of mental agony or social difficulties gives completely wrong message to the society and that it encourages the prevention of suicide and not the punishment.
De-stigmatization of the act of suicide started with the pioneering work of Durkheim. He believed that suicide is not an individual act nor a personal achievement, it is produced by some power which is over and above the individual and by this he meant that societal stressors or external pressures leads to suicidal behaviour, and increased awareness about suicide and helped to begin De-stigmatization. Another major theory of psychosis was proposed by Sigmund Freud. He suggested that mental disorders were, in fact, medical conditions. Thus, acceptance of the concept that mental or emotional distress could be due to natural and physical factors that is, biological in origin, facilitated changes in civil, criminal and religious laws related to society.
At the beginning of 19th century, most countries around the world had laws that provided punishment for attempting suicide. However, following the French Revolution of 1789 criminal penalties for punishing attempt to suicide was abolished in many European countries. England, The suicide Act 1961 abrogated the laws laying down that attempt to suicide is a crime. Ireland decriminalized the offence of attempt to suicide in 1993, making it the last western European country to do so. Although suicide is no longer a criminal offence, aiding, abetting, or procuring another’s suicide is guilty of an offence and is liable to punishment.
However, in countries like Pakistan, Malaysia, Bangladesh, Singapore and India, it is still a crime to attempt suicide and offender is liable for punishment of imprisonment for a term which may extend to one year or with fine or both.
- Section 309, IPC:- Attempt to commit suicide.—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 1[or with fine, or with both].
Suicide is a serious problem requiring mental health intervention, but it continue to be treated as a crime under section 309, IPC. Although it is not a crime, if completed. Surprisingly, failure of it made punishable. A person whose attempt got failed will have to bear the punitive action for his failure. It is monstrous to punish a person who attempted suicide to escape punishment which he think society is inflicting upon him. Sending a person gleefully to mingle with criminals, for an act which cannot be said to be against any religion or which has no pernicious effect on the society serves no good to anyone, rather it hurt the victim more.
Shri Justice Jahagirdar has expressed his view in his article entitled Attempt At suicide – A Crime or A Cry” in the following words:
“The attempt to commit suicide cannot and should not be regarded as an offence. It is not committed by a person who wants to hurt anyone; it is not resorted to by one with criminal intention. suicide and attempted suicide are difficult to define. An act which cannot be defined precisely cannot be punished. suicide is attempted by people for reasons beyond their control. They need sympathy, care, love and treatment. By branding such people as ‘criminals’, treatment is rendered difficult. punishment for attempted suicide is unsupportable by any recognised theory of punishment. What the ‘abolitionists’ of Section 309 are asking for is a fair treatment for those unfortunate, hapless people who fail in their attempts to commit suicide. The deletion of Section 309 is not an Invitation or encouragement to attempt to commit suicide. Do not punish the helpless; help the helpless.”
III) MATRIX OF CAUSATION OF SUICIDE
The reason for suicide varies from case to case. However, Divorce, dowry, love affairs, cancellation or the inability to get married (according to the system of arranged marriages in India), illegitimate pregnancy, extra-marital affairs and such conflicts relating to the issue of marriage, play a crucial role, particularly in the suicide of women in India. Further, Poverty, unemployment, debts and educational problems are also associated with suicide. Most of the studies found that 90% of those who died by suicide have a mental disorder.
The Supreme Court in P. Rathiram vs. Union of India observed that suicide, the intentional taking of one’s life has probably been a part of human behaviour since prehistory. Various social forces, like the economy, religion and socio-economic status are responsible for suicides. There are various theories of suicide, to wit, sociological, psychological, biochemical and environmental. suicide knows no barrier of race, religion, caste, age or sex. There is secularization of suicide.
IV) THE INDIAN PENAL CODE, 1860
What if a person instigated the survivor/deceased to commit suicide? In India not only the person who attempted suicide is punishable but also the one who abet, assist or procures another person death is guilty and liable to punishment. Attempting suicide is the result of severe stress or depression but the person who is abetting or aiding such person is not necessarily going through any stress. It is his ill intension which requires punishment.
Section 306, IPC reads as under:
Abetment of suicide.—if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
A person is said to be charged under this section if:
- He instigates someone to commit suicide
- He is part of a conspiracy to make a person commit suicide
- He intentionally helps the victim to commit suicide by doing an act or by not doing something that he was bound to do.
Law Commission Reports
The law commission earlier had recommend repeal of section 309, IPC in its 42nd report submitted in 1971. The IPC (amendment) bill was passed in 1978 by Rajya Sabha,but before it could passed by lok sabha, lower house was dissolved and the bill was lapsed. The commission then submitted its 156th report in 1997 after the Gian kaur judgement about the retention of section 309. However the law commission in its 210th report recommended that attempt to suicide warranted medical and psychiatric care and not punishment. In view of the opinions expressed by the WHO, International Association for suicide Prevention, the Indian Psychiatric Society and the representations received by the commission from various person, the commission resolved to recommend the government of India to initiate steps for repeal of the anachronistic law contained in section 309, IPC.
The Bombay High Court in Maruti Shripati Dubal vs. State of Maharashtra held that section 309, IPC is ultra vires the Constitution being violative of Articles 14 and 21 thereof and must be struck down. It was pointed out that the fundamental rights have their positive as well as negative aspects. For example, the freedom of speech and expression includes freedom not to speak and to remain silent. The freedom of association and movement likewise includes the freedom not to join any association or to move anywhere. The freedom of business and occupation includes freedom not to do business and to close down the existing business. If this is so, logically it must follow that right to live as recognized by Article 21 of the Constitution will include also a right not to live or not to be forced to live.
In P. Rathinam v. Union of India , a Division Bench of the Supreme Court also held that section 309, IPC violates Article 21, as the right to live of which the said Article speaks of can be said to bring in its trail the right not to live a forced life. However the Supreme Court disagreed with the view of the Bombay High Court that section 309 is also violative of Article 14. The Supreme Court expressed the view that section 309 of the Penal Code deserves to be effaced from the statute book to humanize our penal laws. It is a cruel and irrational provision, as it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide.
However, in Gian Kaur v. State of Punjab, however, a Constitution Bench of the Supreme Court overruled the decisions in Maruti Shripati Dubal and P. Rathinam, holding that Article 21 cannot be construed to include within it the ‘right to die’ as a part of the fundamental right guaranteed therein, and therefore, it cannot be said that section 309, IPC is violative of Article 21. It was observed that when a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within the protection of the ‘right to life’ under Article 21. ‘ Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of ‘right to life’. The comparison with other rights, such as the right to ‘freedom of speech’, etc., is inapposite. To give meaning and content to the word ‘life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself. The ‘right to die’, if any, is inherently inconsistent with the ‘right to life’, as is death with life.
VI) MENTAL HEALTH CARE ACT, 2017
In India, the mental Health Care Act 2017 was passed on 7 April 2017 and came into force from 7 July 2018. It aims to provide for mental healthcare and services for persons with mental illness and ensure that these persons have the right to live a life with dignity by not being discriminated against or harassed.
Now the immediate question which arises is that, what if a survivor actually suffered mental illness or depression and the other survivor who for an illogical reason like to force someone to accept their love or to experience a near death moment etc. attempted suicide? Are they both to be treated alike? No, all thanks to the mental Health Care Act which inserted a provision that provide for the person who is suffering from mental illness or depression with healthcare and services to protect his right.
Section 115 of the Act reads as under:
(1) Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.
(2) The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.
This section raises a presumption that a person who attempted suicide is either suffering from severe stress or mental illness . But if it is proved that such survivor was not undergoing any such stress or depression than he will be dealt under section 309 of IPC.
New laws comes up with the new challenges. suicide is multidimensional which requires team work to assess and tackle the problem. A national suicide prevention strategies should be developed and make a multi sectorial priority which not only involves health care sector but also education, police department, judiciary, employment and others. Health care sector must involve suicide prevention as an important component and provide a proper care that people need. suicides are preventable, says WHO. So, we can also put our hand forward and help the vulnerable individual of our society.
This disclaimer informs readers that the views, thoughts, and opinions expressed in the text belong solely to the author, and not necessarily to the author’s employer, organization, committee or other group or individual.
Indian Penal Code, 1860
Mental Health Care Act, 2017
Law Commission 210th Report
 Page No.12: WHO report, available at https://www.who.int/mental_health/prevention/suicide/suicideprevent/en/
 Bare Act
 Report No. 210, Law Commission of India
 1987 CriLJ 743
 AIR 1994 SC 1844
 AIR 1996 SC 946