Introduction
I want to live! not die, not hide, live! - Margaret Peterson Haddix
A very basic human instinct is to survive. Unfortunately, sometimes persons finish their own lives by themselves. The act is termed "Suicide". Honorable Indian judiciary has nowhere defined suicide per se. Anyway, it may be defined as death caused by self-directed injurious behavior with any intent to die as a result of the behavior. A Suicide attempt, on the other hand, is a nonfatal self-directed potentially injurious behavior with any intent to die as a result of the behavior. A suicide attempt may or may not result in injury. According to World Health Organization (WHO), worldwide one suicide takes place every forty seconds and forty attempts to commit suicide are to be counted if one suicide happens. Similarly in India, a total of 1,39,123 suicides have been reported in 2019, of which 2,851 were due to unemployment.
In addition to that, according to National Crime Record Bureau (NCRB) data, 2075 cases of suicide attempts were recorded. Indian Penal Code (IPC) deals with this issue under Section 309. As per Section 309, Suicide is not considered as a crime but an attempt to commit suicide is an offense: Whoever attempts to commit suicide and does any act towards the commission of such offense, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both. Abetment to suicide is mentioned in the IPC 306 as follows: If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. However, The Mental Healthcare Act (MHCA), 2017, has significantly revised the scope for the application of Section 309 IPC. Now, the attempt to commit suicide is punishable only as an exception. The world has been suffering from one of the worst pandemics ever. It is Corona Virus Disease (COVID-19). This infectious disease has shattered civilization with its contagiousness. Most of the countries had to opt for a locked-down condition to restrict community spread. In such isolated conditions, the socio-economic scenario has become too critical. Several psychiatric issues are playing in relation to thanatophobia, joblessness, and insecurities. Mental depression is prevailing. Suicidal vulnerability inevitably is increasing worldwide, so also in India. A strict penal approach to the attempt of suicide may indulge the person as well as the family members to suppress the fact. This tendency ultimately results in delayed diagnosis and treatment of the psychiatric pathology. From this point of view, the article is going to discuss the present scope for IPC Section 309.
Brief History
The law was enacted in British India in the 19th century. It reflected the socio-religious thinking of the time. Killing or attempting to kill oneself was considered a crime against the state, as well as against religion. In 1860, the Indian penal code was drafted on the recommendations of the first law commission of India. The commission was formed in 1834 according to the Charter Act of 1833. Thomas Babington Macaulay chaired the commission. This code had successfully survived for over a hundred and fifty years with and without amendments in several jurisdictions. As per the Indian penal code, 1860, chapter XVI of offenses affecting the human body and of offenses affecting life, section 309 deals with attempt to commit suicide. It states that whoever attempts to commit suicide and does any act toward the commission of such offense, shall be punished with simple imprisonment for a term which may extend to 1-year". This law has remained without amendment for the past hundred and fifty-five years since it came into force. With the advancement of modern medicine, as per today's scientific understanding of the subject and societal attitude, this Section demanded a rethinking of the legal outlook.
The Journey towards Decriminalization
Destigmatization of the act of suicide started with the pioneering work of Durkheim. His theory was that external pressure or societal stress may contribute to suicidal behavior and increase awareness about suicide. Sigmund Freud proposed the concept of psychosis. He suggested that mental disorders are medical conditions. He suggested that psychological and emotional distress could be due to so many natural and physical factors of biological origin. This concept facilitated changes in legal perspectives related to suicide.
Icebreaking observation from Hon’ble Indian judiciary:
Several judgments of the Honorable High Courts and Supreme Court of India provided the major breakthroughs in the journey of decriminalization of attempts to suicide.
1. State v. Sanjay Kumar Bhatia, 1985 Criminal Law Journal (CriLJ) 931.
The Hon'ble Delhi High Court, in this case, opined in favor of decriminalization of Section 309 and it further held that;
“A young man was allegedly tried to commit suicide, because of over emotionalism... young boy driven to such frustration so as to seek his life would have escaped human punishment if he had succeeded but is to be hounded by the police because an attempt has failed. Instead of sending the young boy to a psychiatric clinic it gleefully sends him to mingle with criminals, as if trying its best to see that in the future he does fall foul of the punitive sections of the Penal Code. The continuance of Section 309 I.P.C. is an anachronism unworthy of human society like ours. 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 to remain on the statute book".
2. Maruti Shripati Dubal v. the State of Maharashtra, 1987 CriLJ 743.
The Hon'ble Bombay High Court opined that Section 309 of the IPC contradicts the ideals of Equality before Law and Right to Life which are enshrined under articles 14 and 21 of the Constitution of India respectively. The court ruled that the Right to Life under Article 21 also contains the Right NOT to live. The observation was, those who make the suicide attempt on account of the mental disorders require psychiatric treatment and not confinement in the prison cells where their condition is bound to worsen leading to further mental derangement. Those on the other hand who make the suicide attempt on account of acute physical ailments, incurable diseases, torture or decrepit physical state induced by old age or disablement need nursing homes and not prisons to prevent them from making the attempts again.
3. Gian Kaur v. the State of Punjab, All India Reporter (AIR) 1996 Supreme Court (SC) 946
A five-judge constitutional bench of the Hon'ble Supreme Court, in this case, overruled the judgment given by the High Court of Delhi and Mumbai in the above-stated cases. According to the view taken by the apex court, ‘Right to Life’ could not be stretched to the extent of including the Right to die under the ambit of article 21.
4. Chenna Jagadeeswar v. the State of Andhra Pradesh.
In this case, the Hon'ble High Court of Andhra Pradesh again upheld the constitutional validity of Section 309 of IPC.
5. Recommendations in the reports of the Law Commission
- 42nd Report: In the year 1971, the fifth Law Commission under the chairmanship of Mr. K.V.K. Sundaram prepared the 42nd report. In its report, the Commission proposed to repeal section 309 and substitute it with new penal provisions to punish those who compel a person to take the extreme steps of suicide.
The commission stated several socio-religious practices of India including Manu Samhita in favor of the commission of suicide especially in the case of the person living under miserable and unfortunate conditions. The report went on to describe the view to decriminalize the act of attempted suicide and repeal the harsh and unjustifiable provision. The addition of a new provision to punish those, who by their persistent acts of cruelty force a family member to commit suicide, with imprisonment of up to 3 years and a fine, was recommended. - 156th Report of the Law Commission: The 156th report of the Law Commission, in the year 1997, recommended retention of criminalization and favored punishment for suicide attempt commit suicide. This report further argued to charge the activities of narcotic- drug trafficking and terrorism under section 306 for disturbing the law and order situation in the society.
- 210th Law Commission Report: The 210th report of the law commission was chaired by Dr. Justice AR. Lakshmanan and presented on October 17, 2008, titled Humanization and Decriminalization of Attempt to Suicide. Recommendations were as follows in the context of repealing Section 309;
Life is a gift from God. He alone can take it. A person attempts to take his life out of unbearable circumstances. Therefore, it would not be just and fair to aggravate such a person's pain by punishing him.
In case any law is ineffective in curing the intended evil, it should not exist. Section 309 of IPC is a stumbling block in the prevention of suicide. Rather, in such a case, the unfortunate person deserves counseling, sympathy, and treatment. Section 309 is inhuman, irrespective of whether it is constitutional or unconstitutional. Therefore, this commission suggested decriminalization of attempts to suicide.
6. Amendment proposal:
The Indian Penal Code (Amendment) Bill, 1972 was passed in the upper house of parliament i.e. the Rajya Sabha in the year 1978. Keeping in mind the recommendations made by the 42nd Law Commission, this bill intended to decriminalize attempt to commit suicide. However, this bill was not passed by the Lower House i.e. the Lok Sabha.
Mind and Law; The Mental Healthcare Act, 2017
The Mental Healthcare Bill of 2016 achieved the assent of the Hon'ble President of India on 27th March 2017. This act repealed the Mental Healthcare Act 1987 and de-criminalized Section 309 of the IPC, 1860. A mentally ill person as defined in the parent act of 1987 meant a person who is in need of treatment by reason of any mental disorder other than mental retardation. This definition was not definite or distinct and hence the new act defined mental illness as;
A substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behavioral, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, especially characterized by subnormality of intelligence.
Section 115 of this act describes; Notwithstanding anything contained in Section 309 of the IPC, any person who attempts to commit suicide shall be presumed to have severe stress and shall not be tried and punished under this Code; and the government is duty-bound to provide care, treatment and rehabilitation to such a person in order to reduce the risk of recurrence of attempt to commit suicide.
Some Black & White Facts
However, a few alarming points demand consideration too. Decriminalizing attempts to suicide may handicap law enforcement agencies in dealing with persons who resort to fast unto death or self-immolation to put ethical pressure on the government or authorities to fulfill their illegitimate demands. Such persons may no longer be booked for an attempt to commit suicide or be force-fed. The cases of suicide bombers who fail to blow themselves up or terrorists who consume cyanide pills to wipe out evidence are supposed to be covered by separate legislation.
Conclusion
The Indian judiciary system is not a mere argument between the plaintiff and defending sides. Rather it is one of the strongest pillars of democracy. It thus deals the legal issues with deep insight and empathy in relation to social, religious, and psychological relevance. Suicide is a multidimensional problem. It is not only the hormonal interplay of dopamine serotonin but also, related to so many issues like personality type and social upbringing. Hence multidisciplinary sectors will have to work together keeping a hand in hand as suggested by the theme of World Suicide Prevention Day, 2019 and 2020. Sound teamwork of legislation, administration, social workers, psychiatrists, and psychological motivators is the need of the hour to prevent suicide especially during these tough days of the COVID-19 pandemic.