Suicide Project

DUTY OF STATE TO PROTECT LIFE AND PUNISHMENT FOR ATTEMPT TO COMMIT SUICIDE

(Project towards fulfillment of the assessment in the subject of Jurisprudence)

Submitted By:

Submitted To:

Krati Chouhan

Dr. V. S. Shasthri

BBA, LL.B (Hons.)

(Faculty of Law)

Roll No. – 1061 2nd Semester

NATIONAL LAW UNIVERSITY, JODHPUR WINTER SESSION (JANUARY-MAY 2014)

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ACKNOWLEDGEMENT I owe a great many thanks to a great many people who helped and supported me during the writing of this project. My deepest thanks to Lecturer, Prof. V. S. Shasthri, the Guide of the project for guiding and correcting various documents of mine with attention and care. He has taken pain to go through the project and make necessary correction as and when needed. I would also thank my Institution and my faculty members without whom this project would have been a distant reality. I also extend my heartfelt thanks to my family and well wishers.

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TABLE OF CONTENTS 1. Introduction……………………………………………………………………………………..5 2. Suicide…………………………………………………………………………………………..6 3. Suicide and Kant………………………………………………………………………………..7 4. Whether Right to Life includes Right to Die? ............................................................................8 5. Administration of Justice (Theories of Punishment) by Salmon……………………………...10 6. Philosophical Analysis of Law Commission Report : 210th Report…………………………..14 7. Section 309 of IPC…………………………………………………………………………….15 8. Section 305 of IPC…………………………………………………………………………….17 9. Judicial approach towards interpretation of Section 309 of Indian Penal Code, 1860………..18 10. Conclusion…………………………………………………………………………………...22

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INDEX OF AUTHORITIES Statutes: 

Section 306, Indian Penal Code , 1860



Section 309, Indian Penal Code , 1860



Article 21, Indian Constitution, 1950



The Suicide Act, 1961

Books: 

Gour, Singh, Hari, “The Penal Law of India: Analytical Commentary on The Indian Penal Code”(Law Publishers (India) Pvt. Ltd, 2003)



Hogan, Smith, “Criminal Law”, (Oxford University Press Inc., New York, 2011)

Websites: 

Singh , Preeti, Should attempt to commit suicide be decriminalized, (Last visited on January23rd,2014)



Admin, De-criminalization of section 309 of I.P.C, (Last visited on January 23rd , 2014)

Cases: 

Maruti Shripati Dubal v. State of Maharashtra (1987) Cr LJ 473 (Bom.)



State v. Sanjaya Kumar Bhatia (1985) Cr LJ 931 (Del).



P. Rathinam v. Union of India, AIR (1994) SC 1844.

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INTRODUCTION To talk about suicide is not an easy task, even in a modern and open society. It is even more difficult for a judge to deal with this issue. More difficult still is the task of deciding such a case on an international level, far from the realities of the facts and the sufferings of the people concerned. The moral and ethical considerations may vary considerably from one country to another. The judge may face a broad range of situations, from cases where she must decide whether the authorities did enough to prevent a fragile person from committing suicide, to cases where she must decide whether the authorities were entitled, or even obliged, to facilitate the suicide of a person willing to die. Attempt to commit suicide is a last step of an aggrieved person. Such person struggles in the society for his existence. The Parliament of England enacted The Suicide Act, 1961. In that Act they treat the attempt to commit suicide as a psychological and social problem, but not as a criminal problem. Hence by the above Act, England Parliament abolished the punishment for attempt to commit suicide. In 1971, the Law Commission of India recommended to remove Sec. 309 from the Indian Penal Code. The Bill was introduced in the Parliament for removal of Sec. 309 from I.P.C. However the Bill was not passed keeping in view of peculiar circumstances in India.

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SUICIDE: Suicide (Latin suicidium, from sui caedere, which means “to kill oneself”) is the act of intentionally causing one‟s own death. Suicide is enigmatic and disconcerting phenomenon. Right from ancient to modern times, the events of suicide have been a distressing phenomenon among all the human societies, in one way or the other. The mystery of suicide is do dominant factor, or an event, that does not leave anyone, either a group or a class, to be out of this vicious circle. The problem of suicide is the most ticklish and tedious one to deal with. When certain force human or natural it becomes so dominating that the one feels dying better than living. In the process of suicide, there is a lot of self-realization but no self-pity and self-condemnation. Typically, a number of social and individual factors compel a person to commit suicide, such as bankruptcy, family dishonor, divorce, dowry, failed relationships, cancellation or inability to get married to a person whom you love, loss of job, failure in exams, cultural factors, socioeconomic factors and even stress etc. Attempt must be intentionalThe essence of suicide is an intentional self destruction of life. Thus, if a person takes an overdose of poison by mistake or in a state of intoxication, or in order to evade capture by his pursuers he is not guilty under this section. Similarly, if a person because of family discord, destruction, loss of a near and dear relation or other cause of a like nature overcomes the instinct of self- preservation and decides to take his life, he should not be held guilty for attempt to suicide. In such a case, the unfortunate man deserves indulgence, sympathy and consolation instead of punishment. It is under very compelling adverse circumstances that a person resorts to taking the extreme step of attempting to commit suicide. It can be on account of depressive illness, schizophrenic attitude, physical illness which is intolerable, poverty, unemployment, frustration, disappointment, dowry problems etc. But it is difficult to generalize any and conceptualize particular theory because whenever we hear news about individuals committing suicide, we immediately come up with a conclusion that these people are depressed, dissatisfied, and unhappy with their lives. 1 1

Gour, Singh, Hari, “The Penal Law of India: Analytical Commentary on The Indian Penal Code”(Law Publishers

(India) Pvt. Ltd, 2003)

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However, when popular and rich people commit suicide, we are left in confusion. Why would someone who is loved and idolized by many decide to kill himself? Depression may be the main culprit, but there are a lot of things to consider as well. These include overwhelming pain, grief, and stress; some use it as an escape for their failure and shortcomings like criminals who are about to be sentenced or caught. Now focusing on the Kantian philosophical aspect on suicide that whether suicide is morally correct act or not? If not, then why?? SUICIDE AND KANT According to Kant, the action of suicide violates owns moral duty. The contention that „I owe myself‟ so I am free to kill myself when there is much pain than pleasure in my life and to prevent future pain I make myself a mean is contradicted by Kant. Kant says, “The greatest moral rule is that you should only behave as you like everyone to behave” or “that you should only account policy that every rationale person can simultaneously adopt”, and the suicide is somewhat contradictory so every rationale person cannot adopt it so if anyone kills himself is seriously irrational and immoral act. One of the basic reasons in favors of suicide attempt is that it is mean to get rid of their grief. Kant raises objection here, you cannot treat your body as a mean to fulfill yours interest or motive i.e. it mean that you are not respecting yours humanity as an end in itself. Kant argues that, "He who contemplates suicide should ask himself whether his action can be consistent with the idea of humanity as an end in itself". Kant keeps the murder and suicide on the same footing. If one is committing murder it means that he is using that person as a mean to fulfill its interest or desire i.e. he is not respecting the humanity of that person as an end in itself. Likewise, for Kant the suicide is just same as murder here the difference is only that in suicide one is disrespecting his own humanity as an end in itself. The categorical imperative test of Kant treat person as an end is related in this respect. For Kant, there is only one reason to do the right thing, is that it is right. This means that people should do right things, not as a means to an end, but just because it is right in and of itself. Would killing himself/herself be doing the right thing in and of itself? Under the Kantian philosophy, I don't think so. Although the motivation for going through with suicide would be to -7-

get rid of the suffering, the act itself would be done as a means to an end, in a consequentiality fashion under the hypothetical imperative. This contradicts Kantian ethics. Hypothetical imperatives are reliant upon the circumstance of the situation. They are contingent. Hypothetical imperatives are framed to come with certain result (consequence), and have no concern with morality. Kant favors categorical imperative not hypothetical imperative. Only decisions formed under the categorical imperative are moral. Categorical Imperatives are not dependent on the context of a situation. They are universal (can be applied in all situations). In making a decision, if one cannot universalize the behavior (can everyone do it and still be right?) without contradiction, then the behavior/act should not be done. I think that a Kantian would say that killing yourself (under any circumstances, for any reason), cannot be universalized, so suicide should not be allowed. Kant says, “A man reduced to despair by a series of misfortunes feels sick of life, but is still so far in possession of his reason that he can ask himself whether taking his own life would not be contrary to his duty to himself. Now he asks whether the maxim of his action could become a universal law of nature. But his maxim is this: from self-love I make as my principle to shorten my life when its continued duration threatens more evil than it promises satisfaction. There only remains the question as to whether this principle of self-love can become a universal law of nature. One sees at once that a contradiction in a system of nature whose law would destroy life by means of the very same feeling that acts so as to stimulate the furtherance of life, and hence there could be no existence as a system of nature. Therefore, such a maxim cannot possibly hold as a universal law of nature and is, consequently, wholly opposed to the supreme principle of all duty.”If according to Kant, suicide is morally and rationally wrong, now question arises whether the person who has attempted suicide shall be punished for committing this moral and rationale wrong?  WHETHER RIGHT TO LIFE INCLUDE RIGHT TO DIE? The Indian constitution under article 21 confers the right to Life as the fundamental right of every citizen. The Right to Life enriched in Article 21 has been liberally interpreted so as to mean something more than mere survival and mere animal existence. The Supreme Court has asserted that Article 21 is the heart of the fundamental Rights provided under part III of the -8-

constitution. The Supreme Court has clearly stated that in order to treat a right as a fundamental it is not mandatory that it should be expressly stated as a fundamental right. In India “The right to life" under article 21 of the constitution has received the widest possible interpretation under the able hands of the judiciary and rightly so. On the grounds as mentioned, article 21 does not have a restrictive meaning and needs to be interpreted broadly. This affirms that if article 21 confers on a person the right to live a dignified life, it should bestows the “Right to Die” also, but the inclusion of Right to die under article 21 contradict the provision of Indian Penal Code under section 309. As according to section 309 of the Indian Penal Code “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”. This section is based on the principle that lives of men are not only valuable to them but also to the state which protects them. By considering both the laws the provision of Indian Penal Code under section 309 is contradictory to the fundamental right guaranteed under article 21 of the Indian constitution. The state‟s power under section 309, Indian Penal Code to punish a man for attempt to commit a suicide is questioned not only on the grounds of morality, but also on the constitutionality of the said provision. A very fascinating development in the Indian constitutional jurisprudence is the extended dimension given to article 21 by the Supreme Court in the post-Maneka era. Since then, article 21 has proved to be multi-dimensional. This aspect of Article 21 is brought up by many judicial pronouncements. This right is inalienable and is inherent in us. It cannot and is not conferred upon us. This vital point seems to elude all those who keep on clamoring for the "Right to die”. That means that every individual has a fundamental freedom to choose not to live. On this issue the stance taken by the judiciary is unquestionable. The main question arises is that whether right to life include right to death. When a man commits suicide, he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to or to be included within the protection of right to life under the article 21. The significant aspect of sanctity of life is also not to be overlooked.

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 ADMINISTRATION OF JUSTICE THROUGH THE THEORIES OF PUNISHMENT BY SALMON Punishment according to dictionary- involves the infliction of pain or forfeiture, it is infliction of penalty. Chastisement or castigation by the judicial arm of the state. If the sole purpose behind punishment is to cause physical pain to the wrongdoer, it serves little purpose. However, if punishment is such as leads him to realize the gravity of the offence committed by him, and to repent at once for it, it may be said to have achieved its desired effect. As SALMON observes, the ends of criminal justice are four in number, and in respect of the purpose so served by it, punishment may be distinguished as1. Deterrent 2. Preventive 3. Reformative 4. Retributive 1. Deterrent theory- punishment is before all things deterrent and the chief end of the law of crime is to make the evil-doer an example and warning to all who are like minded with him. According to this theory, offences are result of a conflict between the interests of the wrong-doer and those of society. The aim of punishment is to dissolve the conflict of interests by making every offence. “Avail has vargain to the offender” (famous words of Corne). This theory has been critiqued on the ground that it is ineffective in cases where crime is committed under severe mental stress. In such cases to punish the wrongdoer to deter him is meaningless. 2. Preventive theory- punishment is, preventive or disabling. Its primary and general purpose being to deter by fear, its secondary and special purpose is wherever possible and expedient, to prevent a repetition by wrongdoer by the disablement of the offender. The most effective mode of disablement is the death penalty, which in practice, in time of peace, is confined to the crime of murder, though it is legally possible for treason and certain form of piracy and arson.

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A similar secondary purpose exists in sub penalties as imprisonment and forfeiture of office, the suspension of driving licenses and in the old penalty of exile. The aim of this theory is not to repeat the crime the crime but this theory takes no note of criminal. It prefers to disable the wrong-doer from committing any more crime but it ignores one of the basic objects of the criminal law, i.e. to reform the criminal. 3. Reformative theory- A crime is committed as a result of the conflict between the character and the motive of the criminal. One may commit a crime either because the temptation of the motive is stronger or because the restrain imposed by character is weaker. The deterrent theory by showing that crime never pays separates the motive. While the reformative theory seems to strengthen the character of the man so that he may not become victim of his own temptation. This theory would consider punishment to be curative or to perform the function of medicine. According to this theory crime is like a disease. . This theory maintains that you can cure by killing. The ultimate aim of reformists is to try to bring about a change in the personality and character of the offender, so as to make him a useful member of society. 4. Retributive theory- retributive punishment, in the only sense in which it is admissible in any rational system of administering justice, is that which serves for the satisfaction of that emotion of retributive indignation which in all healthy communities is strived up by injustice. This was formerly based on theory of revenge.-“tooth for tooth” and “eye for eye”. Today, on the other hand, this theory is based on the idea that punishment is the necessary alkali to neutralize the evil effects of crime. The idea behind the retributive punishment is that of the restoration of the moral character, the appraisement of the disturbed conscience of society itself and the maintenance of the sovereign power of the state which becomes aggrieved when a crime is committed and inflicts punishment to set matters of right. Though the system of private revenge has been suppressed, the instincts and emotion that lay at the root of these feelings are

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yet present in human nature. Therefore, according to this moral satisfaction that the society obtains from punishment cannot be ignored. On the other hand, if the criminal is treated very leniently or even in the midst of luxury, as the reformative theory would have it, the spirit of vengeance would not be satisfied and it might find its way through private vengeance. According to this theory eye for eye and tooth for tooth is deemed to be a complete and really sufficient rule of natural justice. In the last, we can easily say that the only logical inference from the reformative theory, if taken itself, is that they should be abandoned in despairs as no fit subject for penal discipline. The deterrent and disabling theories on the other hand, regard such offenders as being pre-eminently those with whom the criminal law is called upon to deal. The application of purely reformative theory, therefore would lead to astonishing and inadmissible results. The perfect idea of criminal justice is based on neither reformative nor the deterrent principle exclusively, but the result of comprise between them. In this it is the deterrent principal which possesses predominant influence. It will not be out of place to mention here that Gandhi ji “hate the sin and not the sinner” is merely a philosophical assertion and cannot furnish a practical guide in the administration of justice. Therefore, Attempt to suicide may result into two circumstances firstly, when suicide attempt get successful that is person ends his life and secondly, when suicide attempt is rescued and surviving. In the first circumstances it is impossible to punish the person who has committed suicide because

suicide leaves no person whom to be prosecuted, so it‟s impossible to make

suicide as crime. In the second circumstances the person who has attempted suicide and is rescued. Now the question arises whether he shall be punished? I would analyze this question in the philosophical light of different jurists concerning the law commission report.2

2

Gour, Singh, Hari, “The Penal Law of India: Analytical Commentary on The Indian Penal Code”(Law Publishers

(India) Pvt. Ltd, 2003)

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„Suicide‟ is no crime under IPC. Its attempt alone is punishable under Section 309. The fact that an attempt to commit suicide is made a crime shows that in the eye of the law suicide is not necessarily the outcome of deranged intellect, but it may be a crime committed by a person in his sober sense. There can be no doubt but that persons are often driven to commit suicide owing to poverty or distress, failure of love, loss of honor and fortune, loss in business, while others are driven to self-effacement under the impulse of religion, as is witnessed in the case of sati and of those who starve or torture themselves to death to attain nirvana or a supreme; beatitude by absorption in the Divine essence. A person who feels moody and melancholy and threatens to commit suicide may have the intention, but he cannot be convicted of an attempt. An attempt implies at least an act towards the commission of suicide, such as drowning or poisoning or shooting oneself. If a person throws himself into a well with a view to drowning himself, and is rescued, he is guilty of such an attempt as is punishable under Section 309. But if he runs to well with a view to drown himself, but is rescued before he throws himself into it, he could not be convicted of an attempt for his act was a mere preparation to commit an act, and before committing which he might have changed his mind. Mens rea is one of the essential elements of the offence of attempt to commit suicide. If, therefore, a person takes an overdose of poison by mistake, or in a state of intoxication, or in order to evade his arrest by his pursuers, he could not be held accountable for his action. But if there was an intention to commit suicide, and an attempt for that purpose was made, the accused could not escape responsibility for his action except, on the ground of insanity. 3 In Dwarka Poonja v. Emperor4, the accused jumped into a well to avoid and escape from the police and came out of the well of his own accord. He was convicted of this offence but his conviction was quashed by the High Court on the ground that he had no intention to commit suicide. 3 4

Hogan, Smith, “Criminal Law”, (Oxford University Press Inc., New York, 2011) [14 Bom LR 146]

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Suicide of course implies total deprivation of life. Mutilation of one‟s person is not suicide. So a person could not be convicted under Section 309 for the offence for emasculating himself. When a person commences for fast-unto-death or hunger strike to pressurize some authority to concede demands, the intention of a person on a hunger strike is not to kill himself, but, on the contrary very often it is done for improvement, advancement or amelioration of some situation. In view of this, the essential requirement of the offence, namely the intention to kill oneself, is absent and hence, it cannot amount to an offence under Section 309.

PHILOSOPHICAL ANALYSIS OF LAW COMMISSION REPORT: 210TH REPORT Throughout history, suicide has been both condemned and commended by various societies. Since the middle Ages, society has used first the canonic and later the criminal law to combat suicide. Following the French Revolution of 1789 criminal penalties for attempting to commit suicide were abolished in European countries, England being the last to follow suit in 1961. Most of the countries have decriminalize the suicide and only a handful of countries in the world, like Pakistan, Bangladesh, Malaysia, Singapore and India have persisted with this undesirable law. The Law Commission of India in its 42ndReport (1971) recommended repeal of Section 309 being of the view that this penal provision is “harsh and unjustifiable”. The apprehension that the repeal of the law criminalizing attempted suicide would result in increase in suicide is betrayed by the fact that Sri Lanka repealed the law four years ago and the suicide rate is showing a trend in reduction. On the contrary, in Singapore suicide rates have been increasing in recent years despite their having suicide as a punishable offence. The 18th Law Commission has in its 210th report has recommended Humanization and Decriminalization of Attempt to Suicide. The report was forwarded by the Chairman of the Commission, Dr. Justice AR. Lakshmanan, and former Supreme Court Judge to the Union Law Minister, Dr. Hans Raj Bhardwaj. According to report- “Section 309 provides double punishment for a person who has already got fed up with his life and desires to end it. Section 309 is also a stumbling block to prevention of suicides and improving the access of medical care to those who have attempted suicide.” The Commission also added, “It is unreasonable to inflict - 14 -

punishment upon a person who, on account of family discord, destitution, loss of a dear relation or cause of a like nature, overcomes the instinct of self-preservation and decides to take his own life. In such a case, the unfortunate person deserves sympathy, counseling and appropriate treatment, and certainly not the prison. Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional.” Section 309 of the I.P.C reads as follows: 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.”The law recommendation was based upon world health organization reports, international association for suicide prevention, decriminalization of attempted suicide by all countries in Europe and North America, the opinion of the Indian Psychiatric Society, and the representations received by the Commission from various persons, that it would relieve the distressed of suffering of the person who has attempted suicide. The person who has attempted the suicide inspite of putting him with in bars and adding more darkness in his misery world it‟s better to provide the medical treatment and counseling the person so that he can comes out from the trauma of depression from where he choose death over life. The object of keeping such act may be the utilitarian the deterrence punishment by punishing the person attempting suicide bringing fear in minds of others will prevent the other from committing similar crime but on the other hand, it is also becoming the reason of hard committing suicide where the rescue chances lowers, because person might think if his/her suicide attempt is unsuccessfulness then he/she would be prosecuted so to go with hard suicide attempt. While, utilitarian also might view the act of suicide is somewhat negative act and its leaving negative psychological impact in the society so as it is harming society in majority so the person committing suicide(minority) shall be prosecuted so that suicidal impact on society is reduced and there may be welfare of the majority. Basically, no law can be made to prevent suicide attempt but policies can be made such where no person thinks to commit suicide. If the philosophy of the Kantian is inbuilt in all human being than no one would use its body as mean to eradicate its grief and suffering, and categorical - 15 -

imperative that treat person as an end, and universalization policies of Kant is such that would cease the person from giving his life due to pain and suffering. For Kant every individual is rationale being. Kant has described suicide as morally wrong and irrational but nowhere mentions that the person attempting suicide shall be punished. It‟s better to make reformative and preventive measure than punishing person in jail and keeping him/her with hardened criminals where he may undergo more depression or may turn into criminal so the consequences may be more worsen. Whereas punishing the person who attempts to commit suicide serves no purpose. Nozick‟s concept of Minimal state: Libertarian argues that a „minimal state‟ is quintessential for liberty and freedom in a society. By „minimal state‟ it means the state which concerns only with enforcing contract, protecting private property and keeping peace. Thus for libertarian, state cannot engage in either paternalism or moral legislation. Now applying, the Nozick‟s minimal state concept on the law commission recommendation. As the law commission has also recommended that the section 309 of the Indian penal code shall be repealed and Nozick‟s minimal state also speaks that no paternalism and no morals legislation. No paternalism means don‟t make law to protect people from harming themselves. No moral legislation means the libertarian oppose using the coercive force of law to promote notions of virtue or to express the moral convictions of the majority. The statistical data of suicide rate in India shows inspite of having law against suicide attempt the number of suicide attempt has increased, it mean that the law against suicide attempt serves no purpose. It is impossible to make any law which could prevent any person from committing suicide. So making law for the person who has attempted suicide and rescued and punishing him in jail is not worthful. So one who want to commit suicide because he feels life is full of darkness has attempted suicide so the state is nothing to do with it as the person is not violating the right of another so nothing wrong in it . It‟s the liberty of the person to live its life on its own terms, and every individual knows where he finds pleasure and pain so state should not come with the law where the person attempting suicide shall be punished. But state intervention should be such to make reformative policy which would eliminate the reasons because of what the persons are committing suicides.

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As engaging law to suicide attempt is having no beneficial consequences even it‟s adding more misery to the life of the person so it‟s better that there would be the minimal state concept. Abetment of Suicide of Child or Insane Person Sec. 305 explains and prescribes the punishment for abetment of suicide of child or insane person. Nature of offence under this Section is cognizable, non-bailable, non-compoundable and triable by Court of Session. Sec. 305. Abetment of suicide of child or insane person: If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine.5 THE SUICIDE ACT 1961 Suicide is ceased to be a crime by virtue of the Suicide Act 1961 which simply provides that: „The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated.‟6 There were very sound reasons for the abolition of the felony of suicide. The „felon‟ was dead and thus beyond the reach of punishment. The legal sanction was not an effective deterrent- there were some 5000 suicides a year; and the effect was merely to add to the distress and pain of the bereaved relatives. The most important practical effect of the Act however was its repeal by implication of the crime of attempted suicide. If it was not a crime to commit suicide, it could not be a crime to attempt it. This also recognized the realities of the situation for it had been the practice for many years to institute proceedings only where it was necessary for the attempter‟s prosecution, for example, because no relatives and friends were willing to give help. Thus, in 1959, of a total of 4,980 5

Gour, Singh, Hari, “The Penal Law of India: Analytical Commentary on The Indian Penal Code”(Law Publishers

(India) Pvt. Ltd, 2003) 6

Hogan, Smith, “Criminal Law”, (Oxford University Press Inc., New York, 2011)

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suicide attempts known to the police (and an estimated actual total of 25,000 concealed from the police) only 518 prosecutions were brought. The prosecution of the attempter may now be secured under the Mental Health Act 1983.

 JUDICIAL APPROACH TOWARDS INTERPRETATION OF SECTION 309 OF INDIAN PENAL CODE, 1860 The state‟s power under section 309, Indian Penal Code is questioned not only on grounds of morality, but also on the constitutionality of the provision in the following cases as such:  Maruti Shripati Dubal v. State of Maharashtra7 This is the case in which first time it came for the consideration before the court that whether a person has a right to die. The petitioner, a police constable, who became mentally ill after a road accident attempted to commit suicide by dousing himself with kerosene and then trying to light a match was prevented and prosecuted under section 309 of Indian Penal Code. In 1987, the Division Bench of Bombay High Court struck down section 309 of Indian Penal Code as ultra vires vide article 14 and 21 of the constitution

which guarantees „right to life and personal

liberty‟. The court said the „right to life‟ includes „right to live‟ as well as „right to end one‟s life‟ if one so desires. It was pointed out that that Fundamental Rights have positive as well as negative aspects. For example: Freedom of Speech and Expression also includes freedom not to speak and to remain silent. If this is so, logically it must follow that right to live as recognized by article 21 of the constitution also includes a right not to live or not to be forced to live. Justice P.B. Sawant says that “If the purpose of the prescribed punishment is to prevent the prospective suicides by deterrence, it is difficult to understand how the same can be achieved by punishing those who have made the attempts. Those who make the suicide attempt on account of mental disorder requires psychiatric treatment and not confinement in the prison cells where their condition is bound to be worsen leading to further mental derangement. Those on the other hand, who makes a suicide attempt on account of actual physical ailments, incurable disease, torture (broken down by illness), and deceit physical state induced by old age or disablement, need

7

(1987) Cr LJ 473 (Bom.)

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nursing home and not prison to prevent them from making the attempts again. No deterrence is going to hold back those who want to die for a special or political cause or to leave the world either because of the loss of interest in life or for self- deliverance. Thus in no case does the punishment serve the purpose and in some cases it is bound to prove self defeating and counter productive.”  State v. Sanjaya Kumar Bhatia8 In 1985, the Division Bench of Delhi High Court while acquitting a young boy who attempted to commit suicide by consuming „Tik Twenty‟ strongly advocated for deletion of section 309, I.P.C. from the statue book and held that “the continuance of section 309 of the Indian Penal Code is an anachronism unworthy of human society like ours, instead of sending the young boy to a psychiatric clinic society, gleefully (happily) sends him to mingle with criminals. Medical clinics are needed for such social misfits; but police and prison never.” The Delhi High Court observed that: “Many penal offences are the offshoots of an unjust society and socially decadent outlook of love between young people being frustrated by false consideration of code, community or social pretensions. No wonder so long as society refuses to face this reality its coercive machinery will invoke the provision like Section 309 I.P.C. which has no justification right to continue remain on the statute book.”

 P. Rathinam v. Union of India9 The two petitioners assailed the validity of Section 309 by contending the same to be violative of Articles 14 and 21of the Constitution and the prayer was to declare the section as void. The additional prayer was to quash the proceedings initiated against the latter petitioner under sec 309. In 1994, the Division Bench of Supreme Court comprising of Justices R.M. Sahai and B.L. Hansaria, approved the Judgment of Bombay and Delhi High Courts, but overruled the Andhra Pradesh High Court Judgment by contending that the Section 309 is violative of Articles 14 and 21 of the constitution.

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(1985) Cr LJ 931 (Del) AIR 1994 SC 1844.

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While striking down Section 309, Indian Penal Code, the Apex Court said „it is cruel and irrational provision violative of Article 21 of the constitution.‟ Expanding the scope of Article 21, the court upheld that, „right to life‟ include „right not to live a forced life‟; i.e., to end one‟s life if one so desires. The court went on to say that--“...it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy (humiliation) because of his failure to commit suicide...An act of suicide cannot be said to be against religion, morality or public policy and an act of attempted suicide has not baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which state‟s interference with a personal liberty of the concerned person is called for.” The Court further said a person who attempts to commit suicide does not deserve prosecution because he has failed. There can be no justification to prosecute sacrifices of their lives. For instance, students who jump into the well after having failed in examination but survive; girls and boys who resent arranged marriage and prefer to die, but ultimately fail, do not deserve punishment; rather soft words, wise counseling of a psychiatrist and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor.

 Gyan Kaur v. State of Punjab10 In 1996, a five judge Constitutional Bench of the Apex Court comprising of Justices J.S. Verma, G.N. Ray, N.P. Singh, Faizauddin and G.T. Nanawati overruled its decisions of 1994 in P. Rathinam/ Naghbhusan Patnaik and upheld the constitutionality of Section 309.The appellant and her husband were convicted by the Trial Court under Section 306, Indian Penal Code for abetting the commission of suicide by Kulwant Kaur. In special leave before the Apex Court the conviction of the appellant has been assailed (challenged), inter alia on the ground that Section 306 of Indian Penal Code is unconstitutional in view of Judgment in 1944; wherein Section 309 of Indian Penal Code has been held to be unconstitutional as violative of Article 21 of the Constitution. The Court while dismissing the petition held that the „right to life‟ is inherently

10

AIR 1996 SC 1257

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inconsistent with the „right to die‟ as is „death‟ with „life‟. In furtherance, the right to life, which includes right to live with human dignity, would mean the existence of such a right up to the natural end of life. It may further include „death with dignity‟ but such existence should not be confused with unnatural existence of life curtailing natural span of life. In progression of the above, the constitutionality of section 309 of the Indian Penal Code which makes “attempt to suicide” an offence, was upheld, overruling the judgment in P. Rathinam‟s case. The Apex Court further held that Section 306, Indian Penal Code as constitutional and said that „right to life‟ does not include „right to die‟. Extinction of life is not included in protection of life. The Court further went on to say that Section 306 constitute a distinct offence and can exist independently of Section 309, Indian Penal Code. As regards Section 309, Indian Penal Code is concerned, the court said that the‟ right to life‟ guaranteed under Article 21 of the Constitution did not include the „right to die‟ or „right to be killed‟ and therefore an attempt to commit suicide under section 309, I.P.C. or even abetment of suicide under section 306, Indian Penal Code, are well within the constitutional mandated, and are not void or ultra vires. The Court said –“Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can „extinction of life‟ be read to be included in „protection of life‟ whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, it is difficult to construe Article 21 to include within its ambit the „right to die‟ as a part of the Fundamental Right guaranteed therein. „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‟.” Finally the Supreme Court upheld the retention of Sec. 309 in the Code. The Chief Justice of the Supreme Court opined: “Attempt to commit suicide deserves treatment rather than punishment.”

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CONCLUSION: If we observe our penal laws which are nothing but the handiwork of Britishers have by and large remained untouched even after more than 60 years of independence. It‟s very pathetic that Britishers have themselves amended their penal laws and decriminalized attempt to suicide way back in 1961 but we are yet to even deliberate on taking any action on this decisive issue which subjects an already tormented person to further punishment and ignominy. Are we still waiting only to be the last country in the world to decriminalize attempt to suicide? Ours is a democracy which means that it is by the people, of the people and for the people. Constitution locates power that resides in the people. It is the people‟s power for people‟s benefit. Constitution is a social document. It is the society in its political aspect. We can‟t understand its nature without understanding the chief characteristics of the society. If the constitution is such that it has taken into its consideration, the social set up, then only will it stand the test of time. Constitution and society grows, develops together and gets intertwined in each other. So, the constitution has to take into account the changes and developments in the society. Therefore, it is wrong to say that the Indian penal code is a modern code in every possible sense. Laws are made for the people and it should be change to meet the aims and aspiration of the changing society. Ultimately, the aim should be to evolve a consensual and conceptual model effectively handling the evils without sacrificing human rights. Therefore section 309 should be deleted from the Indian penal Code because as mentioned in Maruti Shripati Dubal that “No deterrence is going to hold back those who want to die for a special or political cause or to leave the world either because of the loss of interest in life or for self- deliverance. Thus in no case does the punishment serve the purpose and in some cases it is bound to prove self defeating and counter - productive”. In any case a person should not be forced to enjoy the right to live to his detriment, disadvantage, and disliking. Further, the “Right to life” under Article 21 should not include “right to die” because this provision might increase the rates of suicides in the country and moreover the “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”. Although the judgment given by Supreme Court in Gyan Kaur is - 22 -

followed but according to me this should be scrapped from the I.P.C. but the „right to die‟ should not be expressively included in the “right to life”, because “Life is a gift given by God and He alone can take it”. It is premature termination cannot be approved by any society. Neither should it be penalized. Attempt to commit suicide is a „manifestation of diseased mind‟. So what is to be done is rightly stated by the decision given in P. Rathinam‟s case-“What is needed to take care of suicide prone persons are soft words and wise counseling (of a psychiatrist), and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor. 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, and 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.” The desirability for deletion of Section 309 of I.P.C. is also the view supported by the majority of states in India. Twenty five Indian states except Madhya Pradesh, Bihar and Sikkim have favored striking down I.P.C. Section 309 that criminalizes attempt to commit suicide by making it punishable with imprisonment. Suicide or attempt to commit suicide is a crime in India in Section 309 of Indian law book. However, time and again there have been petitions by the lawyers of various states to decriminalize suicide. There is frequent submission on health bills and Public Interest Litigation (PIL) submitted to the Law Commission to decriminalize the attempt to suicide. The recent submission was by the Mental Health Organization in their bill for the same.

Suicide could be committed on sudden impulse. It is when a person has lost hope in life. What makes the makers of law and order so vindictive and callous that they are keen to punish the people who have already tried to take away their own life once. The victim who tried to die is punishable by either putting behind the bars for a year or pays the compensation fine. Ironical isn‟t it? Compensation for life or the failure to successfully commit suicide? Implementation of section 309 in the Indian Penal Code to deal with the person who commits suicide is not only unsatisfactory but also discriminatory. Time has been testimony to the fact that many political and religious leaders have opposed this act by resorting to hunger strike until death.

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Isn't it unjust to inflict additional legal punishment on a person who has already suffered agony and discomfiture in his failure to commit suicide? When a tormented soul tries to end his life, it would be entirely cruel to order further punishment just because he failed in ending in life.

The question that arises here is that wouldn't this act of punishing a troubled person further provide incentive to end his life again. It is disgraceful that the Central government has been denying the request to decriminalize suicide. I would agree that ending one's own life is certainly not a solution to leave all tribulations behind. Therefore, I would suggest that the youth needs to be sensitized regarding themselves and peers that life is precious. There has been a huge rise in the suicide rates in the recent times. There is lack of confidence in people. The moral build up of the coming generation is very important. According to an article in the premier journal lancet for medical science. Suicide death rates in India are among the highest in the world. Adult suicide deaths occur primarily between the age of 15 to 29 years. Reasons for suicide are a combination of social problems, financial problems, and lack of mental strength, depression or failure.

Instead of punishing the victim, there should be rehabilitation centers for counseling of the individuals. Everybody should be vigilant and careful towards their loved ones. Parents should give freedom to their children but they should be watchful towards their reactions to situations. Schools and colleges should conduct regular seminars on moral science for motivation and positive attitude of the students. The petition submitted by Mental Health organization of India that instead of punishing the victim who commits suicide, they deserve empathy. It further submitted that the Supreme Court, the Law Commission and several High Courts recommend decriminalization of the offence, describing it 'anachronistic on the victim. In conclusion, it can be said that to resolve this debate, the conflict between the principle of sanctity of life and the rights of self determination and dignity of an individual is to be resolved first and right to die should not be generalized but should be exercised as an exception in the “rarest of rare cases” like Death Penalty in India. Thus life is sacred and one should not waste time in planning about their death but planning about how to enjoy life. Terminating life is not an answer to pain. All along life‟s journey man will suffer pain whether it is physical or mental or emotional or psychological. When life is woe and hope is dumb, the world says go! The grave says, come! Whose voice will you hear? Will you be a faint heart and say that I want the right to - 24 -

die or will you in your sorrow and misery and pain be a brave heart and say, dear God give me two more precious moments because I want to cherish the precious gift of life.

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