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Two Steps Forward, One Step Back : The Constitutional Validity of Attempt to Suicide

- Vatsala Toprani

Attempt to commit suicide or doing an act towards the commission of suicide is penalized by Section 309 of the Indian Penal Code, 1860 which provides for simple imprisonment up to one year or fine or both of the above.

The question arises as to whether an individual is entitled to take their own life.

Article 21 of the Constitution of India is the most cherished guarantee in the world and dictates that no person shall be deprived of his life or personal liberty except according to procedure established by law. Therefore, Article 21 covers the right to life, but whether that is inclusive of one’s right to die[1] can be understood with the help of the following landmark decisions.

In the case of P. Rathinam v. Union of India[2], a division bench of the Apex Court declared Section 309 of the Indian Penal Code to violate Article 21.

Fundamental rights were said to have positive as well as negative rights, for instance, the freedom of speech was inclusive of the freedom to remain silent. Following this logic, Article 21, the individual’s right to live with dignity also included their right to die with dignity.

The Court believed that suicide was more a psychiatric problem rather than a malicious development. The person attempting to commit suicide would already be undergoing severe pressure and therefore would require words of encouragement or counselling rather than harsh punishments.

Punishing an individual who has failed to take their own life is as good as kicking a person while they are down. Depending on the psyche of the person, it further encourages them to try once again to escape punishment by the sweet release of death.

Additionally, the Bench observed that there were several factors behind a person’s intention to commit suicide such as economy, religion, socio-economic status, etc. and thereby stated that since Section 309 treats all attempts to commit suicide by the same measure disregarding the circumstances in which the attempts are made, the section cannot be held as violative of Article 14 as it is not discriminatory.

However, in Gian Kaur v. State of Punjab[3]a Constitution Bench of the Supreme Court overruled its previous judgment by holding that Article 21 cannot be construed to include the ‘right to die’ as a part of the fundamental right, and therefore, Section 309 of the Indian Penal Code is violative of Article 21.

‘Right to life’ is a natural right but the act of suicide is an unnatural termination of the same life thereby making it inconsistent with the concept of the right itself. By means of the positive and negative rights as included in the other fundamental rights, ‘life’ in Article 21 was construed to be a life led with human dignity, therefore any aspect which affects the dignity could be included but suicide that extinguishes the said dignity, results in effacing the right itself ,and therefore is inconsistent with Article 21.

Another form of unnatural termination of life is euthanasia which is described as the act of intentionally ending one’s life to relieve medical suffering. While it is not legal in India, the Supreme Court in Aruna Ramchandra Shanbaug v. Union of India[4], allowed for passive euthanasia for the Petitioner who had been in a vegetative state for more than 30 years. The Court further opined that Section 309 should be deleted as it has become anachronistic, that a person attempts suicide in depression, and hence needs help not punishment.

Enactment of the Mental Healthcare Act, 2017

The Mental Healthcare Act, 2017 came into force on July 7th, 2018 ,and imposes an obligation on the government to provide care, treatment and rehabilitation to persons with severe stress who attempt to commit suicide[5]. The object of the act is to provide mental healthcare services for persons with mental illness, and ensure that they have a right to live life with dignity by not being discriminated against or harassed.

Section 115 of the act states that:

(1) Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.

(2) The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of an attempt to commit suicide.

While this Section attempts to decriminalise the attempt to suicide, it makes a broad presumption that all persons attempting suicide undergo severe stress. It does not account for factors such as religion, socio-economic problems, etc. which are prevalent in the Indian society.

Despite being deemed inhumane[6], the fact that Section 309 of IPC is still existing and is not struck down or even given a bare reading to determine its extent, results in a conflicting situation with a complete lack of clarity.

Vatsala Toprani is a third year law student at Pravin Gandhi College of Law, Mumbai


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