By Pooja Meena, National Law University, Jodhpur.

The word suicide has not been defined in the Indian Penal Code. The Black’s Law Dictionary defines suicide as “The act of taking one’s own life. It is also termed as self-killing, self-destruction, self-slaughter, self-murder, felony-de-se or death by one’s own hand.[1]

In India, not only abetment of suicide is an offence[2], but also attempt to commit suicide is an offence punishable[3]. Section 309 reads thus:

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.”[4]

The constitutionality of S. 309 of the Indian Penal Code, 1860 has been the subject matter of challenge several times before the Supreme Court and High Courts. It has been argued that this Section violates the fundamental right to life as guaranteed by the Indian Constitution under Article 21[5].

The 5th Law Commission of India had undertaken revision of the Indian Penal Code. Headed by K.V.K. Sundaram, it submitted the 42nd Law Commission Report.[6] The Commission referred to the Dharma Sastras which legitimized the practice of taking one’s life in certain situations[7] and also referred to the provisions of Suicide Act, 1961[8] in Britain which decriminalized the offence of attempt to commit suicide. After examining these views, the Commission recommended that Section 309 is harsh and unjustifiable and it should be repealed and recommended, inter alia, repeal of section 309[9]. A Bill[10] was passed by the Rajya Sabha, accordingly provided for omission of section 309. However, before the Lok Sabha could have passed this bill, the Lok Sabha was dissolved and the Bill lapsed.[11]

In the case of State v. Sanjay Kumar Bhatia (1986 (10) DRJ 31), the Delhi High Court observed that the continuance of Section 309, I.P.C. is an anachronism unworthy of a human society like ours. The Court also observed that, need is for humane, civilized and socially oriented outlook and penology. The court further observed that a man, who is driven to such frustration, that he is willing to take his own life, should be sent to a psychiatric clinic rather than a jail to mingle with criminals.

In the case of P. Rathinam v. Union of India (1994 AIR 1844),a Division Bench of the Hon’ble Supreme Court of India also held that section 309, IPC violates Article 21, as the right to live of which the said Article speaks of, can be said to bring in its trail the right to not live a forced life. It further observed that, “Section 309 of the Indian 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.”

These judicial decisions were highly instrumental in challenging the constitutional validity of Section 309, but they were overruled by the Hon’ble Supreme Court of India through its landmark judgment in Gian Kaur v. State of Punjab ((1996) AIR 946). In this case, the Hon’ble Supreme Court of India held that Article 21 cannot be construed to include within it, the ‘right to die’ as a part of the fundamental right guaranteed therein, and therefore, section 309, I.P.C. cannot be considered as violative of Article 21. The Supreme Court’s decision in Smt. Gian Kaur has thus categorically affirmed that right to life in Article 21 does not include the right to die. Consequently section 309 which penalises attempt to commit suicide is not unconstitutional.[12]

However, it is significant to note that the Supreme Court in Gian Kaur (Supra) took into consideration, only the constitutional validity of Section 309 and not the wisdom of retaining or continuing the said provision in the statute. The Court did not consider the fact that a person attempts to commit suicide for various reasons, which at times, are not in his control and therefore, the deletion of section 309 is not an invitation or encouragement to commit suicide.[13]

The 18th Law Commission, headed by A.R. Lakshmanan, submitted the 210th Law Commission Report titled “Humanization and Decriminalization of Attempt to Suicide[14]. It contained a detailed analysis about the issue and again recommended repeal of Section 309 from the Indian Penal Code. The report also said that it was very important to understand that suicide is a not a manifestation of criminal instinct since there is no mens rea.[15] It suggested that to take care of suicide-prone persons, wise counseling of a psychiatrist is needed and not harsh treatment by a jailor. It further stated that Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional.

Subsequent to this report, the Ministry of Health in August 2013, introduced the Mental Health Care Bill, 2013[16] in the Rajya Sabha. Section 124 of the Bill aims to decriminalize attempt to suicide and lays down certain duties to be followed by the Government in such cases.

Section 124 of the Mental Health Care Bill, 2013[17] reads thus:

  1. Notwithstanding anything contained in section 309 of the Indian Penal Code, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to be suffering from mental illness at the time of attempting suicide and shall not be liable to punishment under the said section.
  2. The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having mental illness and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.

The Bill seeks to fill this gap in the mental health law in India after it ratified the UN Convention on the Rights of Persons with Disabilities[18] requiring it to harmonize its laws with those prevalent worldwide. India had signed the convention on October 1, 2007 and it came into force on May 3, 2008[19].

In conclusion, attempted suicide should be decriminalized since it is based on archaic legal principles. However, in a country like India, with such a huge population, there are diverse public opinions on all matters. Therefore, it is very essential that the lawmakers of this country should deal with the subject in a very cautious manner after considering in detail its future implications. A person who is willing to take his own life has to be mentally, emotionally or financially instable. Sending him to a prison would mean that he would interact with criminals, most of whom would have committed crimes due to similar reasons. This in fact, would act as fuel to fire and the individual might commit an even more serious crime after being released from jail. Therefore, instead of jail time, such a person should be provided with psychiatric care and a calm environment instead of a jail full of criminals.

Punishing attempted suicide, in my view, is illogical because it becomes a crime for which the law can’t punish you if you are successful, but can, if you are not. Besides being illogical, it is also insensitive to treat attempted suicide as a crime because it inflicts further punishment on a person when he or she is in need of support and encouragement. Therefore, I strongly believe that, the law should be amended to decriminalize attempted suicide.

[1] Black’s Law Dictionary 9th ed. (West Group, 2009), edited by Bryan A. Garner, 1571

[2] Section 306, Indian Penal Code, 1860.

[3] Section 309 of Indian Penal Code 1860.

[4] Indian Penal Code, 1860, available at www.indianbareacts.com, (Last visited on 6th April, 2015).

[5]No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[6] 42nd Law Commission of India Report, Indian Penal Code, (1971), available at http://lawcommissionofindia.nic.in/1-50/Report42.pdf , (Last visited on 6th April, 2015).

[7] Ibid at para 8.05.

[8] 9 & 10 Eliz 2 c 60.

[9] Supra note 6 at para 8.05.

[10] Indian Penal Code (Amendment) Bill, 1978, available at www.prsindia.org (Last visited on 6th April, 2015).

[11] Supra note 6 at p. 7.

[12] Gian Kaur v. State of Punjab ((1996) AIR 946) at para 42.

[13] Gian Kaur v. State of Punjab ((1996) AIR 946)

[14] 210th Law Commission of India Report, Humanization and Decriminalization of Attempt to Suicide, (2008), available at http://lawcommissionofindia.nic.in/reports/report210.pdf , (Last seen on 04/04/2015).

[15] mensrea: [Law Latin “guilty mind”]; The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness. < Black’s Law Dictionary 9th ed. (West Group, 2009), edited by Bryan A. Garner, 1075>.

[16] Available at http://www.prsindia.org/billtrack/the-mental-health-care-bill-2013-2864/ , (Last visited on 06/04/2015).

[17] Id.

[18] Available at http://templatelab.com/convention-on-the-rights-of-persons-with-disabilities/ , (Last visited on 20/04/2018).

[19] “Government introduces Rights of Persons with Disabilities Bill in Rajya Sabha”, available at http://timesofindia.indiatimes.com/india/Government-introduces-Rights-of-Persons-with-Disabilities-Bill-in-Rajya-Sabha/articleshow/30007941.cms , (Last accessed on 06/06/2015).