suicide project

8/12/2019 Suicide Project

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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

2ndSemester

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 IndianPenal 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 onJanuary23

rd,2014)

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

Cases:

Maruti Shripati Dubalv. State of Maharashtra(1987) Cr LJ 473 (Bom.) Statev. Sanjaya Kumar Bhatia(1985) Cr LJ 931 (Del). P. Rathinamv. Union of India, AIR (1994) SC 1844.
http://www.ijra.in/uploads/41587.1617588889FULL%20PAPER%20PREETI.pdfhttp://wizardlegal.in/blog/de-criminalization-of-section-309-ipc/http://wizardlegal.in/blog/de-criminalization-of-section-309-ipc/http://www.ijra.in/uploads/41587.1617588889FULL%20PAPER%20PREETI.pdf


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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 Indiarecommended 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 ones 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, socio-

economic factors and even stress etc.

Attempt must be intentional-

The 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 committingsuicide, we immediately come up with a conclusion that these people are depressed, dissatisfied,

and unhappy with their lives.1

1Gour, 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


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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


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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 shouldbestows 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

states 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 OFPUNISHMENT 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 as-

1. Deterrent2. Preventive3. Reformative4. 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 makingevery 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, toprevent 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 sinneris 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 its 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

2Gour, 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. Emperor

4

, the accused jumped into a well to avoid and escape from thepolice 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.

3Hogan, Smith, Criminal Law, (Oxford University Press Inc., New York, 2011)

4[14 Bom LR 146]


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Suicide of course implies total deprivation of life. Mutilation of ones 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 1789criminal 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


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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.Creads 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 its 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


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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.

Itsbetter 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.Nozicks 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 Nozicks 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 Nozicks minimal state also speaks that no paternalism and no morals legislation.

No paternalism means dont 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 nothingwrong in it . Itsthe 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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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 OFINDIAN PENAL CODE, 1860

The states 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 Maharashtra7This 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 rightto end ones 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 Ifthe 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 theircondition 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 Bhatia8In 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 India9The 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.

8(1985) Cr LJ 931 (Del)

9AIR 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 ones

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 states 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 Punjab10In 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 Section306 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

10AIR 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. Rathinams 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. Its 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 peoples power for peoples

benefit. Constitution is a social document. It is the society in its political aspect. We cant

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 personshould 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 thisprovision 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


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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 isto be

done is rightly stated by the decision given inP. Rathinamscase-What is neededto 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 inIndia in Section 309of 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 andPublic 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

isnt it?

Compensation for life or the failure to successfully commit suicide? Implementation of section

309 in theIndian 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.
http://indiankanoon.org/doc/1501595/http://indiankanoon.org/doc/1501595/http://indiankanoon.org/doc/1501595/http://en.wikipedia.org/wiki/Public-interest_litigation_(India)http://en.wikipedia.org/wiki/Public-interest_litigation_(India)http://en.wikipedia.org/wiki/Public-interest_litigation_(India)http://en.wikipedia.org/wiki/Indian_Penal_Codehttp://en.wikipedia.org/wiki/Indian_Penal_Codehttp://en.wikipedia.org/wiki/Public-interest_litigation_(India)http://en.wikipedia.org/wiki/Public-interest_litigation_(India)http://indiankanoon.org/doc/1501595/


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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 organizationof 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 de-

criminalization 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 therarest 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 lifes 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
http://en.wikipedia.org/wiki/Suicide_in_Indiahttp://en.wikipedia.org/wiki/Suicide_in_India


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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.

suicide project

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