Vs. Union of India  INSC 264 (26 April 1994)
B.L. (J) Hansaria B.L. (J) Sahai, R.M. (J)
1994 AIR 1844 1994 SCC (3) 394 JT 1994 (3) 392 1994 SCALE (2)674
Judgment of the Court was delivered dy B. L. HANSARIA,J.--Gandhiji once
is our friend, the trust of friends. He delivers us from agony. I do not want
to die of a creeping paralyis of my faculties-- a defeated man".
The English poet William Ernest Henley wrote:
am the master of my fate, I am the captain of my soul."
Despite the above, Hamlet's dilemma of "to be or not to be" faces
many a soul in times of distress, agony and suffering, when the question asked
is "to die or not to die". If the decision be to die and the same is
implemented to its fructification resulting in death, that is the end of the
matter. The dead is relieved of the agony, pain and suffering and no evil
consequences known to our law follow.
the person concerned be unfortunate to survive, the attempt to commit suicide
may see him behind bars, as the same is punishable under Section 309 of our
two petitions at hand have assailed the validity of Section 309 by contending
that the same is violative of Articles 14 and 21 of the Constitution and the
prayer is to declare the section void. The additional prayer in Writ Petition (Crl.)
No. 419 of 1987 is to quash the proceedings initiated against the petitioner (Nagbhusan)
under Section 309.
judiciary of this country had occasion to deal with the aforesaid aspect; and
we have three reported decisions of the three High Courts of the country,
namely, Delhi, Bombay and Andhra Pradesh on the aforesaid question. There is also
an unreported decision of the Delhi High Court. It would be appropriate and
profitable to note at the threshold what the aforesaid three High Courts have
held in this regard before we apply our mind to the issue at hand.
first in point of time is the decision of a Division Bench of Delhi High Court
in State v. Sanjay Kumar Bhatial in which the Court was seized with the
question as to whether the investigation of the case under Section 309 should
be allowed to continue beyond the period fixed by Section 368 CRPC. Some loud
thinking was done by the Bench on the rationale of Section 309. Sachar, J., as
he then was, observed for the Bench:
is ironic that Section 309 IPC still continues to be on our Penal Code. ... Strange
paradox that in the age of votaries of Euthanasia, suicide should be criminally
punishable. Instead of the society hanging its head in shame that there should
be such social strains that a young man (the hope of tomorrow) should be driven
to suicide compounds its inadequacy by treating the boy as a criminal. Instead
of sending the young boy to psychiatric clinic it gleefully sends him to mingle
with criminals.... The continuance of Section 309 IPC is an anachronism
unworthy of a human society like ours. Medical clinics for such social misfits
certainly but police and prisons never. The very idea is revolting. This
concept seeks to meet the challenge of social strains of modem urban and
competitive economy by ruthless suppression of mere symptoms this attempt can
only result in failure. Need is for humane, civilised and socially oriented outlook
and penology.... No wonder so long as society refuses to face this reality its
coercive machinery will 1 1985 Cri LJ 931 :(1985) 2 DMC 153 (Del) 402 invoke
the provision like Section 309 IPC which has no justification to continue to
remain on the statute book."
Soon came the Division Bench decision of Bombay High Court in Maruti Shripati Dubal
v. State of Maharashtra2 in which the Bench speaking through Sawant, J., as he
then was, on being approached for quashing a prosecution launched against the
petitioner under Section 309 of the Penal Code on the ground of
unconstitutionality of the section, took the view and that the section was
ultra vires being violative of Articles 14 and 21 and was therefore struck
down. We would note the reasons for the view taken later.
Close on the heels was the decision of a Division Bench of Andhra Pradesh High
Court in Chenna Jagadeeswar v. State of A.p.3 in which on the High Court being
approached against the conviction of the appellants under Section 309, inter alia,
on the ground of the section being violative of Articles 14 and 21 of the
Constitution, the Bench held that the section was valid as it did not offend
any of these articles. The Bombay view was dissented to; the reasons of which
also we shall advert to later.
unreported decision of the Delhi High Court has been noted in the articles of Shri
B.B. Pande, Reader in Law, University of Delhi, as published in Islamic and
Comparative Law Quarterly [Vol. VII(1), March 1987 at pp. 112 to 120] and of Shri
Faizan Mustafa, Lecturer, Department of Law, Aligarh Muslim University [(1993)
1 SCJ Journal Section at pp. 36 to 42]. That decision was rendered in a suo motu
proceeding titled as Court on its own Motion v. Yogesh Sharma4. The decision
was rendered by Sachar, C.J.
Court once again pointed out the futility of creating criminal liability in
suicide cases, but instead of striking down the section or declaring it
invalid, what the learned Chief Justice did was to quash all the 119
proceedings pending in the trial courts on the ground that dragging of the
prosecutions for years when the victims have had enough of misery and the
accused also belonged to poorer section which added further insult to the
injury, would be abuse of the process of the court. Being of this view, each of
the accused was directed to be acquitted.
Striking down of the section by the Bombay High Court has come to be criticised
by the aforesaid Shri Pande and Shri Mustafa, so also by Shri D.C. Pande,
Research Professor, Indian Law Institute, in his article on "Criminal
Law" [of Annual Survey of Indian Law, Vol. 23 (1987) at pp.
270 of published by the Indian Law Institute]. In the 'Editorial Note' titled
'Taking One's Life' [(1986-87) 91 CWN (Journal Section) at pp. 37 to 40] the Bombay decision received some criticism.
Before dealing with the points raised in these writings, it would be worthwhile
to note that Shri V.S. Deshpande after his retirement as Chief Justice of Delhi
High Court had expressed his view on this question in his 1 1987 Cri LJ 743
(1986) 88 Bom LR 589: 1986 Mah LJ 913 (Bom) 3 1988 Cri LJ 549 (1987) 2 Andh LJ 263
: 1987 APLJ (Cri) 110 (AP) 4 Registered as Cri. Revision No. 230 of 1985 403
article titled "To be or not to be" [(1984) 3 SCC (Journal) at pp. 10
to 15] Shri Deshpande, after referring to what had been held by this Court
regarding the scope of Article 21, took the view that if Section 309 is
restricted in its application to attempts to commit suicide which are cowardly
and which are unworthy, then only this section would be in consonance with
Article 21, because, if a person having had no duties to perform to himself or
to others when he is terminally ill, decides to end his life and relieve
himself from the pain of living and the others from the burden of looking after
him, prosecution of such a person would be adding insult to injury and it was
asked : "Should a Court construe Section 309 IPC to apply to such
Sometime afterwards appeared an article of Justice R.A. Jahagirdar of Bombay
High Court in the Illustrated Weekly of India (September 29, 1985) in which the
learned Judge took the view that Section 309 was unconstitutional for four
academicians nor jurists are agreed on what constitutes suicide, much less
rea, without which no offence can be sustained, is not clearly discernible in
insanity is the ultimate reason of such acts which is a valid defence even in
driven to suicide require psychiatric care.
Apart from the aforesaid judicial and legal thinking on the subject relating to
justification and permissibility of punishing a man for attempting to commit
suicide, there are proponents of the view that euthanasia (mercykilling) should
be permitted by law. We do not propose to refer to the thinking on this
subject, principally because the same is beyond the scope of the present
petitions and also because in euthanasia a third person is either actively or
passively involved about whom it may be said that he aids or abets the killing
of another person. We propose to make a distinction between an attempt of a
person to take his life and action of some others to bring to an end the life
of a third person. Such a distinction can be made on principle and is
Though what we propose to decide in these cases would, therefore, relate to the
offence of attempted suicide, it is nonetheless required to be stated that
euthanasia is not much unrelated to the act of committing suicide inasmuch as
wherever passive euthanasia has been held to be permissible under the law, one
of the requirements insisted upon is consent of the patient or of his relations
in case the patient be not in a position to give voluntary consent. The
relationship between suicide and euthanasia has come to be highlighted in a
decision of the Supreme Court of Nevada (one of the States of United States of
America) in Mckay v. Bergstedt5 where a patient filed a petition to the court
for permitting disconnection of his respirator. The district court, on the
facts of the case, granted permission. The State appealed to the Supreme Court
of Nevada which, after balancing the interest of the patient against the
relevant State interest, affirmed the district court's judgment. The court took
the view that the desire of the patient for 404 withdrawal of his respirator
did not tantamount to suicide the same was rather an exercise of his
constitutional and common law right to discontinue unwanted medical treatment.
was the view taken by the majority. One of the Judges expressed a dissenting
comment has been made on the aforesaid decision [at pp. 829 to 838 of Suffolk
University Law Review, Vol. 25 (1991)] by stating that the distinction made by
the majority between suicide and euthanasia because of differences in motive
and mental attitude, is not tenable and the commentator referred to the
dissenting opinion in which it was observed that the patient was in fact
requesting the court to sanction affirmative act which was entirely consistent
with the court's definition of suicide, inasmuch as the majority had defined
suicide as "an act or instance of taking one's own life voluntarily and
intentionally; the deliberate and intentional destruction of his own life by a
person of years of discretion and of sound mind; one that commits or attempts
his self-murder". (This was indeed the definition given in Webster's Third
New International Dictionary, 1968.)
may now note the reasons given by the Bombay High Court in Shripati case2 for
striking down the section as violation of Article 21. These reasons are
Article 21 has conferred a positive right to live which carries with it the
negative right not to live. In this connection it has been first stated that
the fundamental rights are to be read together as held in R. C. Cooper v. Union
of India6. Mention was then made of freedom of speech and expression, as to
which it was observed that the same includes freedom not to speak and to remain
about the freedom of business and occupation, it was stated that it includes
freedom not to do business.
Notice was then taken of the various causes which lead people to commit
suicide. These being mental diseases and imbalances, unbearable physical
ailments, affliction by socially-dreaded diseases, decrepit physical condition
disabling the person from taking normal care of his body and performing the
normal chores, the loss of all senses or of desire for the pleasures of any of
the senses, extremely cruel or unbearable conditions of life making it painful
to live, a sense of shame or disgrace or a need to defend one's honour or a
sheer loss of interest in life or disenchantment with it, or a sense of fulfilment
of the purpose for which one was born with nothing more left to do or to be
achieved and a genuine urge to quit the world at the proper moment.
The Bench thereafter stated that in our country different forms of suicide are
known. These being: Johars (mass suicides or self-immolation) of ladies from
the royal houses to avoid being dishonoured by the enemies; Sati
(self-immolation by the widow on the burning pyre of her deceased husband);
Samadhi (termination of one's life by self-restraint on breathing); Prayopaveshan
(starving unto death); and Atmarpana (self-sacrifice). It was also observed
that the saints and savants, social, political and religious leaders have
immolated themselves in the past and do so even today by one method or the
other and society has not only 6 (1970) 2 SCC 298 : AIR 1970 SC 1318 405 not
disapproved of the practice but has eulogised and commemorated the
practitioners. It may be pointed out that the Bench made a distinction between
"suicide" and "mercy- killing"; so also, between suicide
and aiding or abetting the same.
The Bombay High Court held Section 309 as violation of Article 14 also mainly
because of two reasons. First, which act or acts in series of acts will
constitute attempt to suicide, where to draw the line, is not known some
attempts may be serious while others non-serious. It was stated that in fact
philosophers, moralists and sociologists were not agreed upon what constituted
suicide. The want of plausible definition or even guidelines, made Section 309
arbitrary as per the learned Judges. Another reason given was that Section 309
treats all attempts to commit suicide by the same measure without referring to
the circumstances in which attempts are made.
The first of the aforesaid reasons is not sound, according to us,because
whatever differences there may be as to what constitutes suicide,there is no
doubt that suicide is intentional taking of one's life, as stated at p. 1521 of
Encyclopaedia of Crime and Justice, Vol. IV, 1983 Edn. Of course, there still
exists difference among suicide researchers as to what constitutes suicidal behaviour,
for example, whether narcotic addiction, chronic alcoholism, heavy cigarette
smoking, reckless driving, other risk-taking behaviours are suicidal or not. It
may also be that different methods are adopted for committing suicide, for
example, use of firearms, poisoning especially by drugs, overdoses, hanging, inhalation
of gas. Even so, suicide is capable of a broad definition, as has been given in
the aforesaid Webster's Dictionary. Further, on a prosecution being launched it
is always open to an accused to take the plea that his act did not constitute
suicide whereupon the court would decide this aspect also.
Insofar as treating of different attempts to commit suicide by the same measure
is concerned, the same also cannot be regarded as violative of Article 14,
inasmuch as the nature, gravity and extent of attempt may be taken care of by
tailoring the sentence appropriately. It is worth pointing out that Section 309
has only provided the maximum sentence which is up to one year. It provides for
imposition of fine only as a punishment. It is this aspect which weighed with
the Division Bench of Andhra Pradesh High Court in its aforesaid decision to
disagree with the Bombay view by stating that in certain cases even Probation
of Offenders Act can be pressed into service, whose Section 12 enables the
court to ensure that no stigma or disqualification is attached to such a
person. (See para 32 of the judgment.)
agree with the view taken by the Andhra Pradesh High Court as regards Section
309 qua Article 14. But the Bombay Bench itself was more involved with Article
21 and violation of it by Section 309, the reasons whereof have been noted.
these are sound and tenable, would be our real consideration.
The Bombay High Court's decision2 led some thinkers to express their own views.
We have noted who they were. The broad points of their 406 objection/criticism
is an act against religion;
produces adverse sociological effects;
is against public policy (This has also been the main argument of the counsel
of Union of India before us.);
damages monopolistic power of the State, as State alone can take life; and
would encourage aiding and abetting of suicide and may even lead to
shall in due course see whether the aforesaid objections raised against the
Bombay judgment are valid. Concerned as we are with the broad contention that
Section 309 is violative of Article 21, we shall first inform ourselves as to
the content and reach of this article and then answer in a general way as to
whether a person residing in India has a right to die. Section 309 being a part
of our enacted law, we would desire to know what object a law seeks to achieve.
section having made attempt to commit suicide an offence, we shall ask the
question as to why is a particular act treated as crime and what acts are so
treated. We shall then apply our mind to the purposeful query as to how a crime
can be prevented. Being seized with the crime of 'attempted suicide', we shall
apprise ourselves as to why suicides are committed and how can they be really
would also desire to know what type of persons have been committing suicides
and what had been their motivations. We would then view the act of committing
suicide in the background of our accepted social ethos. Having done so, we
shall take up the points of criticism noted above one by one and express our
views on the same.
Having known that the Law Commission of India had in its 42nd Report of 1971
recommended deletion of Section 309, we shall put on record as to why was this
recommendation made and how was the same viewed by the Central Government; and
what steps, if any, were taken by it to implement the recommendation. What is
the present thinking of the Union of India shall also be taken note of.
Finally, we shall open our mental window a little to allow breeze to come from
other parts of the world, inter alia, because Gurudev (Rabindranath Tagore, the
Nobel Laureate) wanted us to do so. Globalisation has, in any case, been
accepted by us in some other fields of our activities. We have stated opening
of this window "a little" because we propose to confine ourselves to
know whether attempt to commit suicide is presently a crime only in two other
countries of the globe they being United Kingdom and United States of America.
The reasons for our selecting these two countries shall be indicated when we
shall advert to our 'global view' query. It may only be stated here that we are
opening the window only a little, as, the little air that would pass through
the little aperture would be enough, in our view, to enable us to have broad
knowledge of global view on the subject under consideration.
The aforesaid mental odyssey would take us through a long path before we would
reach our destination, our conclusion. Finale would, however, come after we
have answered or known the following:
Has Article 21 any positive content or is it merely negative in its reach?
Has a person residing in India a right to die?
Why is a law enacted? What object(s) it seeks to achieve?
Why is a particular act treated as crime/What acts are so treated?
How can crimes be prevented?
Why is suicide committed?
Who commits suicide? Secularisation of suicide.
How suicide-prone persons should be dealt with?
suicide a non-religious act?
Is suicide immoral?
Does suicide produce adverse sociological effects?
Is suicide against public policy?
Does commission of suicide damage the monopolistic power of the State to take
Is apprehension of 'constitutional cannibalism' justified?
Recommendation of the Law Commission of India and follow-up steps taken, if
Global view. What is the legal position in other leading countries of the world
regarding the matter at hand?
The aforesaid questions, which have been framed keeping in mind the information
we thought necessary to enable us to decide the important matter at hand to our
satisfaction, have been listed as above keeping in view their comparative
importance for our purpose the most important being he first and so on; and we
propose to answer them in the same sequence.
Has Article 21 any positive content or is it merely negative in its reach?
This question is no longer res integra inasmuch as a Constitution Bench of this
Court in Unnikrishnan v. State of A.p.7 [in which right to receive education up
to the primary stage has been held to be a call of Article 1] has virtually
answered this question. This would be apparent from what was stated by Mohan,
J. in paragraph 19 and by Jeevan Reddy, J. in paragraph 170. In paragraph 30,
Mohan, J. has mentioned about the rights which have been held to be covered
under Article 21. These being:
The right to go abroad. Satwant Singh Sawhney v. D. Ramarathnam APO, New
The right to privacy. Gobind v. State of M.P.9 In this case reliance was placed on the American decision in Griswold
v. Connecticut10. 7 (1993) 1 SCC 645 8 (1967) 3 SCR 525 AIR 1967 SC 1836 9
(1975) 2 SCC 148 1975 SCC (Cri) 468: (1975) 3 SCR 946 10 381 US 479, 510: 14 L Ed2d 511 (1965) 408
The right against solitary confinement. Sunil Batra v. Delhi Admn. 11
The right against bar fetters. Charles Shobraj v. Supdt., Central Jail12.
The right to legal aid. M. H. Hoskot v. State of Maharashtra' 3.
The right to speedy trial. Hussainara Khatoon(1) v. Home Secretary, State of
The right against handcuffing. Prem Shankar Shukla v. Delhi Admn.15
The right against delayed execution. T. V. Vatheeswaran v. State of T. N. 16
The right against custodial violence. Sheela Barse v. State of Maharashtral7.
The right against public hanging. A.G. of India v. Lachma Devil'.
Doctor's assistance. Paramanand Katra v. Union of India19.
Shelter. Shantistar Builders v. N.K. Totame2O.
The aforesaid is enough to state that Article 21 has enough of positive content
in it. As to why the rights mentioned above have been held covered by Article
21 need not be gone into, except stating that the originating idea in this
regard is the view expressed by Field, J. in Munn v.
in which it was held that the term 'life' (as appearing in the 5th and 14th
amendments to the United States Constitution) means something more than 'mere
animal existence'. This view was accepted by a Constitution Bench of this Court
in Sunil Batra v. Delhi Admn.22 (SCC paras 55 and 226 : AIR paras 56 and 226),
to which further leaves were added in Board of Trustees of the Port of Bombay
v. Dilipkumar Raghavendranath Nadkami23 (SCC para 13 : AIR para 13); Vikram Deo
Singh Tomar v. State of Bihar24 (SCC para 5 : AIR para 5); and Ramsharan Autyanuprasi
v. Union of India25 (SCC para 13 : AIR para 13). In these decisions it was held
that the word 11 (1978) 4 SCC 494, 545: 1979 SCC (Cri) 155 12 (1978) 4 SCC 104:
1978 SCC (Cri) 542: (1979) 1 SCR 512 13 (1978) 3 SCC 544: 1978 SCC (Cri) 468:
(1979) 1 SCR 192 14 (1980) 1 SCC 81 : 1980 SCC (Cri) 23 : (1979) 3 SCR 169 15
(1980) 3 SCC 526: 1980 SCC (Cri) 815 :(1980) 3 SCR 855 16 (1983) 2 SCC 68 :
1983 SCC (Cri) 342: AIR 1983 SC 361 17 (1983) 2 SCC 96: 1983 SCC (Cri) 353 18
1989 Supp (1) SCC 264: 1989 SCC (Cri) 413 : AIR 1986 SC 467 19 (1989) 4 SCC
286: 1989 SCC (Cri) 721 20 (1990) 1 SCC 520 21 (1877) 94 US 1 13 : 24 L Ed 77
(1877) 22 (1978) 4 SCC 494: 1979 SCC (Cri) 155: AIR 1978 SC 1675 23 (1983) 1
SCC 124: 1983 SCC (L&S) 61 : AIR 1983 SC 109 24 1988 Supp SCC 734: 1989 SCC
(Cri) 66: AIR 1988 SC 1782 25 1989 Supp (1) SCC 251 : AIR 1989 SC 549 409
'life' in Article 21 means right to live with human dignity and the same does
not merely connote continued drudgery. It takes within its fold "some of
the finer graces of human civilization, which makes life worth living",
and that the expanded concept of life would mean the "tradition, culture
and heritage" of the person concerned.
would be relevant to note the decision in State of H.P. v. Umed Ram Sharma26.
It was observed there in paragraph 11 that the right to life embraces not only
physical existence but the quality of life as understood in its richness and
fullness by the ambit of the Constitution;
for residents of hilly areas access to road was held to be access to life
itself, and so necessity of road communication in a reasonable condition was
held to be a part of constitutional imperatives, because of which the direction
given by the Himachal Pradesh High Court to build road in the hilly areas to
enable its residents to earn livelihood was upheld. What can be more positive
may also refer to the article of Dr M. Indira and Dr Alka Dhal under the
caption "Meaning of Life, Suffering and Death" as read in the
International Conference on Health Policy, Ethics and Human Values held at New
Delhi in 1986.
is what the learned authors stated about life in their article:
is not mere living but living in health.
is not the absence of illness but a glowing vitality the feeling of wholeness
with a capacity for continuous intellectual and spiritual growth. Physical,
social, spiritual and psychological well-being are intrinsically interwoven
into the fabric of life. According to Indian philosophy that which is born must
die. Death is the only certain thing in life."
May it be said that in C.E.S.C. Ltd. v. Subhash Chandra Bose27 it has been
opined by Ramaswamy, J. (who is, of course, a minority Judge) that physical and
mental health have to be treated as integral part of right to life, because
without good health the civil and political rights assured by our Constitution
cannot be enjoyed.
Has a person residing in India right to die?
a person has a right to live, question is whether he has right not to live. The
Bombay High Court stated in paragraph 10 of its judgment that as all the
fundamental rights are to be read together, as held in R.C. Cooper v. Union of
India6 what is true of one fundamental right is also true of another
fundamental right. It was then stated that it is not, and cannot be, seriously
disputed that fundamental rights have their positive as well as negative
aspects. For example, freedom of speech and expression includes freedom not to
speak. Similarly, the freedom of association and movement includes freedom not
to join any association or move anywhere. So too, freedom of business includes
freedom not to do business. It was, therefore, stated that 26 (1986) 2 SCC 68:
AIR 1986 SC 847 27 (1992) 1 SCC 441 :1992 SCC (L&S) 313 410 logically it
must follow that the right to live will include right not to live, i.e., right
to die or to terminate one's life.
Two of the abovenamed critics of the Bombay judgment have stated that the aforesaid
analogy is "misplaced", which could have arisen on account of
superficial comparison between the freedoms, ignoring the inherent difference
between one fundamental right and the other. It has been argued that the
negative aspect of the right to live would mean the end or extinction of the
positive aspect, and so, it is not the suspension as such of the right as is in
the case of 'silence' or 'non-association' and 'no movement'.
also been stated that the right to life stands on different footing from other
rights as all other rights are derivable from the right to live.
The aforesaid criticism is only partially correct inasmuch as though the
negative aspect may not be inferable on the analogy of the rights conferred by
different clauses of Article 19, one may refuse to live, if his life be not
according to the person concerned worth living or if the richness and fullness
of life were not to demand living further. One may rightly think that having
achieved all worldly pleasures or happiness, he has something to achieve beyond
this life. This desire for communion with God may very rightly lead even a very
healthy mind to think that he would forego his right to live and would rather
choose not to live. In any case, a person cannot be forced to enjoy right to
life to his detriment, disadvantage or disliking.
From what has been stated above, it may not be understood that according to us
the right encompassed or conferred by Article 21 can be waived. Need for this
observation has been felt because it has been held by a Constitution Bench in
Olga Tellis v. Bombay Municipal Corpn.28 that a fundamental right cannot be
waived. A perusal of that judgment, however, shows that it dealt more with the
question of estoppel by conduct about which it can be said that the same is a
facet of waiver. In the present cases, we are, however, not on the question of estoppel
but of not taking advantage of the right conferred by Article 21.
Keeping in view all the above, we state that right to live of which Article 21
speaks of can be said to bring in its trail the right not to live a forced
this context, reference may be made to what Alan A. Stone, while serving as
Professor of Law and Psychiatry in Harvard University stated in his 1987 Jonas Robitscher
Memorial Lecture in Law and Psychiatry, under the caption "The Right to
Die : New Problems for Law and Medicine and Psychiatry". (This lecture has
been printed at pp. 627 to 643 of Emory Law Journal, Vol. 37, 1988). One of the
basic theories of the lecture of Professor Stone was that right to die
inevitably leads to the right to commit suicide.
(1985) 3 SCC 545 : AIR 1986 SC 180 411 (3) Why is a law enacted? What object(s)
it seeks to serve?
Section 309 being a part of our enacted law, let it be known as to why a law is
framed or is required to be framed.
it differently, what objects are sought to be achieved by framing laws. For our
purpose it would be enough if what has been stated by Shri M. Ruthnaswamy in
Chapters 5 and 6 of his book Legislation: Principles and Practice (1st Edn.,
1974) (the Chapter headings being "Principles of Legislation in
History" and "Contemporary Principles of Legislation"), is
noted. The learned author has within a short compass brought home the different
principles which had held sway in different parts of the world at different
points of time. Ruthnaswamy starts in Chapter 5 by saying that it is from the
time of the Renaissance and the Reformation when men, as a result of these
great revolutionary movements broke away from rule of custom and tradition,
that legislation began its career as an instrument of social and political, and
even religious, change. The readers are then informed as to what Richard Hooker
(15541600) thought on the question of law Which, according to him, has to be
influenced by experience and supported by reason.
The next important thinker of England after Hooker was the famous Francis Bacon
(1561-1626). In his Essays (the most popular of his works) we find his views on
legislators and legislation. Bacon stood out for progress and utility and was
of the view that it was not good to try experiments in legislation. As against
Bacon there was Sir Edward Coke, who was a defender of the rights of the
Parliament. Mention is then made about John Locke (1632-1704) according to whom
the laws made must respect the right to liberty and property; and laws must be
made for the good of the people.
then takes the reader to France and mentions about Montesquieu (1689-1755), who
in his famous Spirit of Laws published in 1748, which has been regarded as a
great classic of political and legal literature, rendered immemorial service to
legislation and legislatures. In this monumental work, he insists that laws and
legislation should be in conformity with the spirit of the people, if its
traditions, its philosophy of life, even the physical surroundings of the
people, including the climate. The journey is then to Germany, where Leibnitz
(1646-1717), a philosopher, mathematician and adviser of kings and princes in
Germany and Europe, took the view that greatness of law is proved by the fact
that great rulers were also great law- givers. Names of Augustus, Constantine
and Justinian are mentioned in this regard. The German philosopher further said
that the law must serve morality, because what is against morals is bad law.
Readers then find themselves in Italy and they are acquainted with Beccaria
(1739-1794), who through his pamphlet under the title Delict and Crimes
published in 1766 brought a revolution in the theory and practice of
punishment, because, according to him, punishment of crime must be used only
for the defence of the State and the people and not for retribution and revenge
which principles were holding the field then.
per sequence of time, the next writer to be mentioned is Edmund Burke
(1727-1797), who was a parliamentarian, statesman and political 412 thinker.
According to him the main essential of good laws and legislation is that the
same should be fit and equitable, so that the legislature has a right to demand
obedience. He would say there are two fundamental principles of legislation
equity and utility.
Blackstone is a name which is immortal in the world of legal jurisprudence. It
is his Commentaries on the Laws of England (1765) which has made him so. He emphasised
on the inviolability of common law, freedom of persons and property. After
Blackstone, came Bentham (17481832) and the Utilitarians.
has also acquainted the readers about the views of Plato, Aristotle, Cicero and
Thomas Aquinas, so also what Voltaire (16941773) had to say. We do not propose
to burden this judgment with their views; but what was said by Macaulay
(1800-1859) has to be noted, because it is he who had drafted our Penal Code.
Macaulay believed in the efficacy of law in improving people and their
character. He wrote:
a good system of law and police is established, when justice is administered
cheaply and firmly, when idle technicalities and unreasonable rules of evidence
no longer obstruct the search for truth, a great change of the better may be
expected which shall produce a great effect on the national character."
Chapter 6 of the book, Runthnaswamy has stated that after the principles of Benthamism
and utilitarianism, reason, utility and individual liberty had exhausted
themselves, humanitarianism occupied the field and it is this principle which
has seen the enactments of statutes like Workmen's Compensation Act, Factories
Act and various other statutes dealing with public health, sanitation and
do not propose to dive further and would close this discussion by referring to
what was stated by Ihering (1818- 1892) in his "Geist Des Romisches Rechts"
(The Spirit of Roman Law), which has been accepted as a legal classic.
to Ihering, law is a means to an end. He laid down the following general
principles of legislation:
Laws should be known to be obeyed.
Laws should answer expectations.
Laws should be consistent with one another.
Laws should serve the principle of Utility.
Laws should be methodical.
Laws must be certain to be obeyed, must not become a dead letter.
Laws are necessary to ward off the danger of the operations of egoism or self-
interest, the ordinary motives of human action.
and legislation must aim at justice which is that which suits all.
Laws are interconnected "laws like human beings lean on one another."
That humanitarianism is the throbbing principle of legislation presently has
also been highlighted by Kartar Singh Mann in his article "Working of
Legislatures in the matter of Legislation" appearing at pp. 491 to 495 of
the Journal of Parliamentary Information, Vol. 33, 1987. What has been stated
by Mann at p. 493 is relevant for purpose the same being:
the historical perspective, one can easily appreciate the complexities and
intricacies of legislation which the present legislatures are to face. Besides
the ordinary laws which safeguard the rights and liberties of the individual,
there are certain fundamental laws which ordinary legislation may not change.
In countries like France, Germany and India which are having their written
Constitutions their fundamental laws are embodied there itself.
fundamental principles on which the political life of the people is based are
individuality, equality and justice. After securing the life and liberty of the
State and of the individual, laws and legislations take on the task of serving
and promoting the good life of the State and the people. For good life,
morality is necessary and to maintain morality legislation is a must.
Legislation is the framework which is required to be made for good life."
What was opined by Ian Temy, Q.C., Director of Public Prosecution in his
article "Euthanasia Is it murder?" [as printed at pp. 2 to 7 of
Australian Journal of Forensic Sciences, Vol. 21 (1), September 1988] is also
relevant for our purpose. That article was concluded at p. 7 in these words:
have necessarily spoken about the law as it is. There is nothing immutable
about it. To the extent it does not meet social needs and a strong consensus
emerges to that effect, the law can and should be changed......
The aforesaid show that law has many promises to keep including granting of so
much of liberty as would not jeopardise the interest of another or would affect
him adversely, i.e., allowing of stretching of arm up to that point where the
other fellow's nose does not begin. For this purpose, law may have "miles
to go". Then, law cannot be cruel, which it would be because of what is
being stated later, if persons attempting suicide are treated as criminals and
are prosecuted to get them punished, whereas what they need is psychiatric
treatment, because suicide basically is a "call for help", as stated
by Dr (Mrs) Dastoor, a Bombay Psychiatrist, who heads an Organisation called
"Suicide Prevent". May it be reminded that a law which is cruel
violates Article 21 of the Constitution, a la, Deena v. Union of India29.
is a particular act treated as crime? What acts are so treated?
Earliest reference to the word "crime" dates back to 14th century
when it conveyed to the mind something reprehensible, wicked or base. Any
conduct which a sufficiently powerful section of any given community feels 29
(1983) 4 SCC 645 : 1983 SCC (Cri) 879: AIR 1983 SC 1155 414 to be destructive
of its own interest, as endangering its safety, stability or comfort is usually
regarded as heinous and it is sought to be repressed with severity and the
sovereign power is utilised to prevent the mischief or to punish anyone who is
guilty of it. Very often crimes are creations of government policies and the
Government in power forbids a man to bring about results which are against its
a way there is no distinction between crime and tort, inasmuch as a tort harms
an individual whereas a crime is supposed to harm a society. But then, a
society is made of individuals, harm to an individual is ultimately harm to
crime presents these characteristics: (1) it is a harm, brought about by human
conduct which the sovereign power in the State desires to prevent;
among the measures of prevention selected is the threat of punishment; and (3)
legal proceedings of a special kind are employed to decide whether the person
accused did in fact cause the harm, and is, according to law, to be held
legally punishable for doing so. (See pp. 1 to 5 of Kenny's Outlines of
Criminal Law, 19th Edn., for the above propositions.)
Protection of society is the basic reason of treating some acts as crime.
Indeed it is one of the aims of punishment. Where there is no feeling of
security, there is no true freedom. What is the effect of the same cannot be
described better than what was stated by Hobbes in Leviathan, which is:
is no place for industry, because the fruit thereof is uncertain; and
consequently no culture of the earth; no navigation nor use of the commodities
that may be imported by sea; no commodious building; no instrument of moving
and removing such things as require much forces; no knowledge of the face of
the earth; no account of time; no arts, no letters; no society; and which is
worst of all continual fear and danger of violent death;
the life of a solitary, poor, nasty, brutish and short."
constitutionality of Section 309 has been assailed as being violative of
Article 21 which protects life and personal liberty, it would be in fitness of
things to note what J.S. Mill had to say about making an act relatable to
personal liberty punishable. This is what Mill had said in this connection in
his famous tract On Liberty :
object of this Essay is to assert one very simple principle, as entitled to
govern absolutely the dealings of society with the individual in the way of
compulsion and control, whether the means used be physical force in the form of
legal penalties or the moral coercion of public opinion. That principle is that
the sole end for which mankind are warranted individually or collectively, in
interfering with the liberty of action of any of their number, is self-
protection. That the only purpose for which power can be rightfully exercised
over any member of a civilised community, against his will, is to prevent harm
to others. His own good, either physical or moral, is not a sufficient warrant.
He cannot rightfully be compelled to do or forbear because it will be better
for him to do so, because it will make him happier, because, in the opinions of
415 others to do so would be wise, or even right.
are good reasons for remonstrating with him or reasoning with him, or
persuading him, or entreating him, but not for compelling him, or visiting him
with any evil in case he does otherwise. To justify that, the conduct from
which it is desired to deter him must be calculated to produce evil to someone
only part of the conduct of anyone, for which he is amenable to society is that
which concerns others. In the part which merely concerns himself, his
independence is, of right, absolute. Over himself, over his own body and mind,
the individual is sovereign." (emphasis supplied)
The very definition of 'crime' depends on the values of a given society. To
establish this what has been stated by Justice Krishna Iyer in his book
Perspectives in Criminology, Law and Social Change (1980) at pp. 7 and 8 may be
is a sex crime in India may be sweetheart virtue in Scandinavia. What is an
offence against property in a capitalist society may be a lawful way of life in
a socialist society. What is permissible in an affluent economy may be a
pernicious vice in an indigent community. Thus, criminologists must have their
feet all the time on terra firma."
Not only this, crimes can also be created or abolished with the passage of time,
as stated at p. 7 of R.S. Cavan's Criminology (2nd Edn.). This has been
elucidated by the author by stating that in democracy where individual opinion
can express itself freely through speaking, writing and elections, public
opinion becomes the final arbiter in placing the opprobrium of crime upon a
specific type of behaviour and when a law is not accepted the police may
attempt to enforce it against public opinion, but gradually the police yield to
the pressure of public opinion, which they perhaps share. The law may remain on
the statute books but be ignored by all. Whereas when the public opinion
supports the law, many pressures of an informal nature are brought against the
violators to aid and lessen the police action.
How can crimes be prevented ?
The aforesaid subject is too wide and cannot be discussed meaningfully within
the parameters available to us in this judgment. The treatise on Crime and its
Prevention edited by Stephen Lewin, Editor, World Week Magazine, would show how
complicated the subject is. At p. 217 of the 3rd printing (1973) mention has
been made about seven steps for combating a crime. We may not go into the
to say that the steps relate to different disciplines.
Professor Dr N.V. Paranjape, Professor and Head of the Department of
Postgraduate and Research in Law and Dean Faculty of Law, Jabalpur University,
in his book Criminiology and Penology has something to say in Chapter VI about
causes of crime, knowledge of which is necessary to combat and prevent the
same. Dr Paranjape states that in the absence of a single theory of
crime-causation, criminologists have offered different explanations to justify
their own theory as an explanation of delinquent behaviour. There are, however,
some writers who seem to be convinced that 416 no single theory of crime can
fully explain the causes of crime. They therefore prefer a multiple approach to
criminal behaviour which suggests that crime is generated not as a result of
one solitary factor but as a consequence of a combination of such factors.
Justice Krishna lyer also in his aforesaid book has dealt with this aspect in
Chapter 2 captioned "The Pathology of Indian Criminology". In his
usual inimitable style, he has painted the crime scenario on a broad canvas and
has mentioned about various factors which lead to commission of crimes.
Reference may also be made to the White Paper presented to the Parliament by
Her Majesty's Government in 1990 on the subject of "Crime, Justice and
Protecting the Public", published as Cm. No. 965. The White Paper has summarised
main proposals as below:
coherent legislative framework for sentencing with the severity of the
punishment matching the seriousness of the crime and a sharper distinction in
the way the courts deal with violent and non-violent crimes;
powers for the Crown Court to impose longer sentences for violent and sexual
offences, if this is necessary to protect the public from serious harm;
powers for all courts to combine community service and probation and to impose
curfews on offenders so that more offenders convicted of property crimes can be
punished in the community;
the maximum penalties for theft and burglary, except burglaries of people's
homes, which can be a very serious matter;
the courts to consider a report by the probation service before giving a
custodial sentence and to give reasons for imposing a custodial sentence,
except for the most serious offences;
more use of financial penalties, especially compensation to victims and fines
which take account of offenders' means;
the time actually served in prison closer to the sentence ordered by the court,
replacing the present system of remission and parole by new arrangements which
ensure that all prisoners serve at least half their sentences in custody;
prisoners serving sentences of 4 years or more would not get parole if this
would put the public at risk;
powers for the courts to return released prisoners to custody up to the end of
their sentence, if they are convicted of a further imprisonable offence;
prisoners serving sentences of a year or more to be supervised by the probation
service on release, with new national standards for supervision;
powers for the courts to make parents take more responsibility for crimes
committed by their children;
More flexible powers for the courts to deal with 16 and 17 year old offenders;
the juvenile courts to youth courts, to deal with defendants under the age of
would be of some interest in this connection to point out that as late as 1991
a need was felt by the British Government to issue a Royal Warrant for issuing
a commission to examine the effectiveness of the criminal justice in England
and Wales in securing the conviction of those guilty of criminal offences and
the acquittal of those who were innocent. For this purpose, the Royal Warrant
wanted the commission to make its recommendation on various aspects of the
criminal justice. The commission submitted its report in July 1993 and it
contains recommendations which number 352 and have been mentioned at pp. 188
and 219 of the Report issued by Her Majesty's Stationery Office.
The difficult task of crime prevention would not therefore permit the solution
to be put into a strait- jacket; it has to be modulated and moulded as per time
The aforesaid is not enough for our purpose. We have also to know as to whether
infliction of punishment can be said to have a direct relation with the
reduction of criminal propensity. It would be enough in this context to state
that it has been seriously doubted whether imposition of even death sentence
has been able to reduce the number of murders. Bhagwati, J. as he then was, in
his dissenting judgment in the case of Bachan Singh v. State of Punjab30 has brought home well this aspect
of the matter.
While on the question of sentencing it would be rewarding to note that
sentencing has been regarded as a subtle art of healing, and the legal and
political people uninstructed in the humanist strategy of reformation, fail
even on first principles. Justice lyer in his aforesaid book has further stated
at p. 47 that it puzzles a Judge or a Home Secretary to be told in Shavian
you are to punish a man retributively, you must injure him. If you are to
reform him, you must improve him. And men are not improved by injuries."
What was said by Victor Hugo in his Les Miserables is instructive: "We
shall look upon crime as a disease. Evil will be treated in charity instead of
anger. The change will be simple and sublime. The cross shall replace the
scaffold, reason is on our side, feeling is on our side and experiment is on
This is not all. It would be wrong to think that a person attempting to commit
suicide does not get punished.
does. The agony undergone by him and the ignominy to be undergone is definitely
a punishment, though not a corporal punishment; but then, Section 309 has
provided for a sentence 30 (1982) 3 SCC 24: 1982 SCC (Cri) 535 : AIR 1982 SC
1325 418 of fine also. Agony and ignominy undergone would be far more painful
and deterrent than a fine which too may not come to be realised if the person
concerned were to be released on probation.
Why is suicide committed?
"Suicide, the intentional taking of one's life, has probably been a part
of human behaviour since pre-history. Many ancient texts including the Bible,
the Koran and the Rig Veda, mention suicide. Because the act of
self-destruction represents an attack on some of our presumptions that life is
to be lived and death feared responses to suicide have involved a variety of
emotionally-charged attitudes. These have ranged from approbation accorded to
it by the ancient Greek stoics to, more typically, the fear and superstitution
that led 18th century Europeans to drive stakes through the hearts of those who
had committed suicide." [Encyclopaedia of Crime and Justice (1 983), Vol.
4, p. 5 20] The change in social thinking in this regard can be best
illustrated by the view taken by the conservative English society where to
start with suicide itself was regarded as a felony requiring burial in a public
highway, followed by forfeiture of all the properties of the deceased to the
Crown. Presently, the Suicide Act, 1961 does not even regard attempt to suicide
as an offence.
Various social forces like the economy, religion and socioeconomic status are
responsible for suicides. There are various theories of suicide, to wit,
sociological, psychological, biochemical and environmental (Ibid, pp. 1523-24).
The causes of suicides are many and varying inasmuch as some owe their origin
to sentiments of exasperation, fury, frustration and revolution; some are the
result of feeling of burden, torture, and sadness. Some are caused by loss of
employment, reversal of fortune, misery due to illness, family trouble and
thwarted love. Sometimes killing is in opposition to society and sometimes in
opposition to particular persons. This happens when the person committing
suicide nurses a feeling of unjust treatment, maltreatment and cruelty. [See
the Causes of Suicide by Maurice Halbwacks (translated by Harold Goldblatt).]
The Bombay judgment has mentioned many causes
in paragraph 12 of its judgment which have been noted in paragraph 15 above.
The same may not be repeated.
Who commits suicide? Secularisation of suicide.
Suicide knows no barriers of race, religion, caste, age or sex. In a study
undertaken in United
States, to which
reference has been made at p. 14 of Suicidology:
Developments by E.S. Scheneidman, (1976), it was found that both Roman
Catholics and Protestants were equally susceptible to commission of suicide. It
is because of this that it has been felt in the United States that there is "secularisation of suicide". In our
country also Hindus, Muslims, Sikhs, Christians, Buddhists, Jains and Parsis
are known to have been committing or attempting suicides. Though there has been
no particular study as to the religious faith of the persons committing 419 suicide
or attempting to commit suicide, it can safely be stated that there is "secularisation
of suicide" in our country also.
While on the question "Who commits suicide?", it would be relevant to
state that there has been great increase in the number of commission of
suicides. In his aforementioned article, Shri Faizan Mustafa pointed out that
the number of suicides by the youths below 18 in 1986 was 7545. But out of
about 60,000 persons who committed suicide in 1990 nearly half of them were
aged between 18 to 25, which is generally considered to be the best period of a
per the report published in Indian Express of 31-10- 1984, in Ahmedabad city 5
suicide cases had occurred during 24 hours immediately preceding 30th October.
In a write-up as published in India Today of 15-101984 under the caption
"Bangalore: The Suicide City", it has been stated that Bangalore
which had earned the title of "Boom City" nearly a year ago, could
more appropriately be described as "Doom City" by last month. The
figures collected for the first half of the year shocked the members of the
State Legislature because of incredible 664 suicidal deaths over a six-month
period, which was higher than the total combined figures for Calcutta and Hyderabad in the last three years.
How suicide-prone persons should be dealt with?
now come to the question relating to the treatment to be given to the persons
who attempt to commit suicide.
they deserve prosecution because they had failed? is the all important
question. The answer has to be a bold NO.
reasons are not far to seek. Let us illustrate this first by referring to the
case of those 20 persons who committed suicide in Tamil Nadu distressed as they
felt because of prolonged illness of Chief Minister, M.G. Ramachandran. That
this had happened was published in the Indian Express of 28-10-1984. Question is whether these persons would have
deserved prosecution had they failed in their attempt? The answer has to be
that there can be no justification to prosecute such sacrificers of their
approach has to be adopted towards students who jump into wells after having
failed in examinations, but survive.
approach cannot be different qua those girls/boys who resent arranged marriages
and prefer to die, but ultimately fail.
Let us come to the case of a woman who commits suicide because she had been
raped. Would it not be adding insult to injury, and insult manifold, to require
such a woman in case of her survival, to face the ignominy of undergoing an
open trial during the course of which the sexual violence committed on her
which earlier might have been known only to a few, would become widely known,
making the life of the victim still more intolerable. Is it not cruel to
prosecute such a person?
would go further and state that attempt to commit suicide by such a woman is
not, cannot be, a crime. What is crime in such a case is to prosecute her with
a view to get her punished. It is entirely a different matter that at the end
of the trial, the court may impose a token fine or even release 420 the convict
on probation. That would not take care of the mental torture and torment which
the woman would have undergone during the course of the trial. Such a prosecution
is, therefore, par excellence persecution. And why persecute the already
tormented woman? Have we become soulless? We think not. What is required is to
reach the soul to stir it to make it cease to be cruel. Let us humanise our
laws. It is never late to do so.
Suicide, as has already been noted, is a psychiatric problem and not a
manifestation of criminal instinct. We are in agreement with Dr (Mrs) Dastoor
that suicide is really a "call for help" to which we shall add that
there is no "call for punishment" in it. Mention may also be made
about what was observed in "The Attitudes of Society towards
Suicide", a xerox copy of which is a part of written submissions filed on
behalf of Respondent 2 (State of Orissa) in W.P. No. (Crl.) 419 of 1987. It has been stated in this article at
p. 9 that shortly after passing of the Suicide Act, 1961 (in England), the
Ministry of Health issued recommendation advising all doctors and authorities
that attempted suicide was to be regarded as a "medical and social problem",
as to which it was stated that the same was "more in keeping with
present-day knowledge and sentiment than the purely moralistic and punitive
reaction expressed in the old law".
what is needed to take care of suicide-prone persons are soft words and wise counselling
(of a psychiatrist) and not stony dealing by a jailor following harsh treatment
meted out by a heartless prosecutor.
suicide a non-religious act?
Every individual enjoys freedom of religion under our Constitution, vide
Article 25. In a paper which Shri G.P. Tripathi had presented at the World
Congress on Law and Medicine held at New Delhi under the caption "Right to die", he stated that every man
lives to accomplish four objectives of life:
Dharma (religion and moral virtues);
(3) Kama (love or desire); and
these objectives were said to be earthly, whereas others are to be accomplished
the earthly objectives are complete, religion would require a person not to
cling to the body. Shri Tripathi stated that a man has moral right to terminate
his life, because death is simply changing the old body into a new one by the
process known as Kayakalp, a therapy for rejuvenation.
Insofar as Christians are concerned, reference may be made to what Pope John
Paul 11 stated when he gave his approval to the document issued by the sacred
inevitably death is imminent in spite of the means used, it is permitted in
conscience to take decision to refuse forms of treatment that would only secure
precarious and burdensome prolongation of life, so long as the normal care due
to sick person in similar cases is not interrupted......
the Encyclopaedia of Religion, Vol. 8 (1987), mention has been made at pp. 541
to 547 as to how "life" has been understood by different 421
religions. After discussing the subject as understood by the primitive
societies, Judaism, Christianity, Hinduism and Buddhism, the discussion has
been included by stating that the very act of posing the question "What is
life?" produces an initial sense of bafflement and perplexity. It has been
stated thereafter that a precise, distinct and universally acceptable concept
does not accompany the use of the word "life"; and that posing of the
above query brings in its wake a sense that life is an "inexhaustible
storehouse of mysteries, a realm of endlessly self-perpetuating novelties, in
which the solution to any given problem gives rise to a plethora of other
questions that beckon the always restless, never contended mind of Homo Sapiens
to seek further for additional answers or, at least, to search out more
intellectually refined, morally elevating, and spiritually salutary ways of
pursuing the quest". So, life does not end in this world and the quest
continues, may be after the end of this life. Therefore, one who takes life may
not really be taken to have put an end to his whole life. There is thus nothing
against religion in what he does.
Insofar as our country is concerned, mythology says Lord Rama and his brothers
took Jalasamadhi in river Saryu near Ayodhya; ancient history says Buddha and Mahavira
achieved death by seeking it; modem history of Independence says about various
fasts unto death undertaken by no less a person than Father of the Nation,
whose spiritual disciple Vinoba Bhave met his end only recently by going on
fast, from which act (of suicide) even as strong a Prime Minister as Indira
Gandhi could not dissuade the Acharya.
The aforesaid persons were our religious and spiritual leaders; they are eulogised
and worshipped. Even the allegation against them that they indulged in a non-
religious act, would be taken as an act of sacrilege. So, where is
non-religiosity in the act of suicide so far as our social ethos is concerned?
And it is this ethos, this social mores, which our law has to reflect and
Is suicide immoral?
Law and morals often intersect and there can be no doubt that historically at
least law and morals were closely related and that in many areas the law
continues to look upon its function as the enforcement of morals, the
reinforcement of moral standards in society, and the punishment of moral
depravity, as noted at p. 19 of Burton M. Leiser's Liberty, Justice and Morals
(1973). The Constitution of United States contains a number of provisions
embodying moral judgments, one of which is prohibition against 'cruel and
unusual punishment". As to due process clause, it was stated by Justice
Frankfurter in Solesbee v. Balkcom31 that it "embodies a system of rights
based on moral principles ... which comports with the deepest notions of what
is fair and right and just".
If, however, the law be unjust would a person not be entitled to Hisobey it?
The civil disobedience movement organised by leaders like Gandhiji shows that
there can be clash of law and morality, which can be on 94LEd 604:339US9(1949)
422 the battlefield of man's conscience. It is this which agitated the mind of
Socrates when he was in jail. He was advised to escape and was assured that it
would be a safe escape. He refused saying that having devoted his life to teach
the importance of doing justice and respecting the laws, it would be rank
hypocrisy for him to violate his principles when the laws had been turned
against him. Being of this view, instead of breaking law, he took poison. But
then, at times an individual would be between two horns of dilemma when
confronted with the question of obeying an unjust and pernicious law. The
theories of Divine Law and Natural Law were evolved to take care of this
dilemma and French Declaration of Rights of Men and American Declaration of
Independence are based on these laws.
the aforesaid work of Burton, this aspect of the matter has been
concluded at p. 353 by stating as below:
is right to be law-abiding. But there may be times when it is not wrong to
break the law. There are no easy rules or recipes to guide us in making our
choices. Some people, who allow themselves to be governed by expediency and
narrow self-interest when they choose to disobey traffic, are indignant when
their neighbours violate laws because their religious and moral convictions do
not permit them to do otherwise. Anarchy is a terrible thing. It is all that
Hobbes said it was. It is more likely to come from motives like those of the
speeder, the drunken driver, and the one who cheats on his income tax, rather
than from those of men like Gandhi, King (meaning Martin Luther King)......
Though the question of morality normally arises with laws relating to sex and
acts evincing moral depravity like cheating, but as the question of birth and
death has also moral significance, as opined by Mary Warnock, whose views in
this regard have been noted at p. 86 of Simon Lee's Laws and Morals (1986), we
may briefly advert to the moral aspect as well relating to suicide. It is the
sanctity of human life which is said to be defaced when one commits suicide and
the question of morality, therefore, arises. We would have occasion later to
refer to the enactment of Suicide Act, 1961 by the British Parliament, when the
related Bill was taken up for consideration in the House of Lords, the Lord
Bishop of Carlisle had raised objection on the ground of morality by saying that
sanctity of human life was being destroyed. But the Bill was passed,
reference to Simon Lee's above work shows there is no unanimity regarding the
moral object which law should try to achieve. Simon Lee has mentioned at p. 90
about three theories prevalent in England in this regard, one of whose propounder was Mill, according to whom
"harm-to-others" is what ought to be prevented by law. Devlin would
have liked that law should aim to establish minimum and not maximum standards
of behaviour showing respect for tolerance and privacy. Hart's approach was
that only "the universal values" merited legal support and not those
which fluctuate according to fashion, unless harm is caused to others. [See
H.L.P. Hart's Law, Liberty and Morality (1982) also
particularly pp. 30 and 3 1.] 423
would be apposite, while on the question of morality, to refer to the
Constitution Bench decision of this Court in Ranjit D. Udeshi v. State of Maharashtra32 in which the question examined was
whether the novel of D.H. Lawrence Lady Chatterley's Lover could be regarded as
"obscene" within the meaning of Section 292 of the Penal Code. The
Constitution Bench speaking through Hidayatullah, J., as he then was, stated in
paragraph 9 that the question of obscenity depends upon the mores of the people
and it is always a question of degree and where the line is to be drawn. After
going through the case law and what Lawrence might have had in mind in writing
the book, the Bench unanimously came to the conclusion that Lawrence was
probably unfolding his philosophy of life and the urges of the unconscious,
which caused no loss to the society if there was a message in the book. After
examining the contents of the book from this standard it was held it contained
no obscenity. The importance of this decision for our purpose is that the
aforesaid book was regarded as morally objectionable at one point of time even
in England, where moral standard relating to
sex is on a lower key compared to ours.
The above shows that morality has no defined contours and it would be too
hazardous to make a bold and bald statement that commission of suicide is per
se an immoral act. If human beings can be treated inhumanly, as a very large
segment of our population is, which in a significant measure may be due to
wrong (immoral) acts of others, charge of immorality cannot be, and in any case
should not be, levied, if such human beings or like of them, feel and think
that it would be better to end the wretched life instead of allowing further
humiliation or torture. Those who demand virtue must do virtue and should see
that others too do the same.
Does suicide produce adverse sociological effects?
One of the points raised against suicide is that the person who had so done
might have been the sole bread-earner of the family, say a husband, a father,
because of whose death the entire family might have been left in lurch or
doldrums, bringing in its wake untold miseries to the members of his family. It
is therefore stated that suicide has adverse effects on the social setup. No
doubt, the effects of suicide in such cases are quite hurting; but then, it is
a matter of extreme doubt whether by booking a person who had attempted to
commit suicide to trial, suicides can be taken care of. Even imposition of
death sentences has not been able to take care of commission of murders, as
Further, the aforesaid adverse sociological effects are caused by the death of
the person concerned, and not by one who had tried to commit suicide. Indeed,
those who fail in their attempts become available to be more or less as useful
to the family as they were. So the person to be punished is one who had
committed suicide; but, he is beyond the reach of law and cannot be punished.
This can provide no reason to punish a person who should not be punished.
1965 SC 881 : (1965) 1 SCR 65 : (1965) 2 Cri LJ 8 424 (12) Is suicide against
The basic argument of Shri Sharma, learned counsel for the Union of India, was
that allowing persons to commit suicide would be against public policy. Though
which public policy would be so affected was not spelt out by the learned
counsel, we presume that the public policy to be so jeopardised is one which
requires preservation of human life. One of the objects of punishment to be
inflicted when an offence is committed is protection of society from the
depredations of dangerous persons, as mentioned at p. 198 of Burton M. Leiser's
Liberty, Justice and Morals. But insofar as
suicide is concerned, this object does not get attracted because there is no
question of protection of the society from depredation of dangerous persons,
who by the very nature of things have to be those who cause harm to others and
not to themselves. Of course, we would concede that one of the interests of the
State has to be preservation of human life.
The concept of public policy is, however, illusive, varying and uncertain. It
has also been described as "untrustworthy guide", "unruly
horse" etc. The leading judgment describing the doctrine of public policy
has been accepted to be that of Parke, B. in Egerton v. Brownlow 33 in which it
was stated as below at p. 123, as quoted in paragraph 22 of Gherulal Parakh v. Mahadeodas
policy' is a vague and unsatisfactory term, and calculated to lead to
uncertainty and error, when applied to the decision of legal rights; it is
capable of being understood in different senses; it may, and does, in its
ordinary sense, mean 'political expedience' or that which is best for the
common good of the community; and in that sense there may be every variety of
opinion, according to education habits, talents and dispositions of each
person, who is to decide whether an act is against public policy or not. To
allow this to be a ground of judicial decision, would lead to the greatest
uncertainty and confusion. It is the province of the statesman and not the
lawyer, to discuss, and of the Legislature to determine what is best for the
public good and to provide for it by proper enactments. It is the province of
the judge to expound the law only; the written from the statutes; the unwritten
or common law from the decisions of our predecessors and of our existing
courts, from text writers of acknowledged authority, and upon the principles to
be clearly deduced from them by sound reason and just inference; not to
speculate upon what is the best, in his opinion, for the advantage of the
of these decisions may have no doubt bee n founded upon the prevailing and just
opinions of the public good; for instance, the illegality of covenants in
restraint of marriage or trade. They have become a part of the recognised law,
and we are therefore bound by them, but we are not thereby authorised to
establish as law everything 33 (1853) 4 HLC 121 34 AIR 1959 SC 781 : 1959 Supp
(2) SCR 406 425 which we may think for the public good, and prohibit everything
which we think otherwise."
the aforesaid case a three-Judge Bench of this Court summarised the doctrine of
public policy by stating at p. 795 that public policy or policy of law is an
illusive concept; it has been described as "untrustworthy guide",
"variable quality", "uncertain one", "unruly
Different High Courts of the country have had also occasion to express their
views on this concept in their judgments in Bhagwant Genuji Girme v. Gangabisan
Khan Choudhury v. Habibuddin Shekh36; Kolaparti Venkatareddi v. Kolaparti Peda
Venkatachalam37 and Ratanchand Hirachand v. Askar Nawaz Jung38. In Kolaparti
case37 it was stated that the term public policy is not capable of a precise
definition and whatever tends to injustice of operation, restraint of liberty,
commerce and natural or legal rights; whatever tends to the obstruction of
justice or to the violation of a statute and whatever is against good morals
can be said to be against public policy.
decisions have also pointed out that the concept of public policy is capable of
expansion and modification. In Ratanchand case38 a Bench of Andhra Pradesh High
Court speaking through Chinnappa Reddy, J. as he then was, quoted at p. 117 a
significant passage from Professor Winfield, "Essay on Public Policy in
the English Common Law" (42 Harvard Law Review 76). The same is as below:
policy is necessarily variable. It may be variable not only from one century to
another, not only from one generation to another but even in the same
it may vary not merely with respect to the particular topics which may be
included in it, but also with respect to the rules relating to any one
particular topic.... This variability of public policy is a stone in the
edifice of the doctrine and not a missile to be flung at it. Public policy
would be almost useless without it."
to how the "unruly horse" of public policy influenced English law has
been narrated by W. Friedman in his Legal Theory (5th Edn.) at p. 479 et seq in
Part 111, Section 2 titled as "Legal Theory, Public Policy and Legal
Evaluation". As to the description of public policy as "unruly
horse", it may be stated that there have been judges not to shy away from
unmanageable horses. Lord Denning is one of them. What this noble judge stated
in Enderby Town Football Club Ltd. v. Football Association Ltd.39 at p. 606 is
"With a good man in the saddle, the unruly horse can be kept in control.
It can take jump over obstacles." (See para 93 of Central Inland Water
Transport Corpn. Ltd. v. Brojo Nath Ganguly40.) But how many judges can be
anywhere near Lord Denning ? He is sui generis.
1940 Bom 369: 42 BLR 750: 191 IC 806 36 AIR 1957 Cal 336 37 AIR 1964 AP 465:
(1964) 1 Andh WR 248 38 AIR 1976 AP 112: ILR (1975) AP 843 :(1975) 1 APLJ (HC)
344 39 (1971) Ch 591, 606 40 (1986) 3 SCC 156: 1986 SCC (L&S) 429: (1986) 1
ATC 103 : AIR 1986 SC 1571 426
The magnitude and complexity of what is or is not public policy or can be a
part of public policy, would be apparent from bird's eye view of what has been
stated regarding this at pp. 454 to 539 of Words and Phrases (Permanent Edn.,
Vol. 35, 1963). To bring home this a few excerpts would be enough. It has been
first stated under the sub-heading "In general" as below at pp. 455
'Public policy' imports something that is uncertain and fluctuating, varying
with the changing economic needs, social customs, and moral aspirations, of the
people. Barwin v. Reidy41.
policy' is in its nature so uncertain and fluctuating, varying with the habits
and fashions of the day, with the growth of commerce and the usages of trade,
that it is difficult to determine its limits with any degree of exactness. It
has never been defined by the courts, but has been let loose and free from
definition in the same manner as fraud. Pendeleton v. Greever42.
policy' is a term that is not always easy to define and it may vary as the
habits, opinions and welfare of a people may vary, and what may be the public
policy of one State or country may not be so in another. Franklin Fire Ins. Co.
V. Moll 43.
the aforesaid work under the sub-heading "Government by Constitution, laws
or judicial decisions", the following finds place at p. 481 under the
further sub-heading "In general":
policy' is a variable quantity and is manifested by public acts, legislative
and judicial, and courts will not hold a contract void. Draughton v. Fox Pelletir
Corpn.44 In a judicial sense, public policy does not mean simply sound policy,
or good policy, but it means the policy of a State established for the public
weal, either by law, by courts, or general consent. Clough v. Gardiner45."
From the above, it can safely be said that it would be an uninformed man in law
who would say with any degree of definiteness that commission of suicide is
against public policy; and, as such, a person attempting to commit it acts
against public policy.
Does commission of suicide damage the monopolistic power of the State to take
The aforesaid point is not required to be gone into detail, because nobody can
claim to have monopoly over a human life. It is God alone who can claim such a
power. If a person takes his life, he is taking his own life, and not the life
of anybody else; and so, the argument that State's 41 307 P 2d 175, 181 : 62
N.M. 183 42 j 193 p. 885, 887, j 80 Ok 1, 35 : 17 ALR 317 43 58 NE 2nd 947,
950, 951': 115 Ind. App. 289 44 126 SW 2d 329, 333 : 174 Tenn 457 45 182 NYS
804, 806: III Mis. 244 427 monopolistic power of taking life is taken away by
the person who attempts to commit suicide has no legs to stand on.
Is apprehension of "constitutional cannibalism" justified? 100. This
is one of the criticisms which has been advanced in one of the aforesaid
articles relating to the Bombay judgment2. This contention has been advanced
because if the negative aspect of right to life, i.e., to destroy it can be
read in Article 21, the State can "easily embark upon a policy to
encourage genocide on the plea that proper management of resources are vital
and necessary for the upkeep of life with vigour and dignity in the wake of
geometrical progression of population growth". The critic has stretched
this argument so much to come to the conclusion of "constitutional
cannibalism" that we may almost leave it unanswered, as there is a gulf of
difference between taking of one's own life and allowing the State to go in for
genocide. They are not only poles apart but miles apart.
The Editor of Calcutta Weekly Notes in his comments at pp. 37 to 40 [of
(1986-87) 91 CWN (Journal Section)] has observed that the distinction made by
the Bombay High Court between "suicide" and "euthanasia"
appears logically inconsistent. According to the Editor, the rationale of the
judgment would necessarily permit euthanasia as legal. This comment may not be
quite incorrect, because in passive euthanasia, wherever it has been accepted
as legally permissible, consent of the patient, if he be in a sound mental
condition, has been regarded as one of the prerequisites. So, if one could
legally commit suicide, he could also give consent for his being allowed to
die. But then, the legal and other questions relatable to euthanasia are in
many ways different from those raised by suicide. One would, therefore, be
right in making a distinction logically and in principle between suicide and
euthanasia, though it may be that if suicide is held to be legal, the persons
pleading for legal acceptance of passive euthanasia would have a winning point.
the cases at hand, we would remain content by saying that the justification for
allowing persons to commit suicide is not required to be played down or cut
down because of any encouragement to persons pleading for legalisation of
May we hasten to observe that as regards the persons aiding and/or abetting
suicide, the law can be entirely different, as indeed it is even under the
Suicide Act, 1961 of England. Bombay judgment2 has rightly made this
distinction. It is for this reason that the apprehension raised by the Andhra
Pradesh High Court in its judgment in Jagadeeswar3 does not seem to be
justified. We do not agree with the view of the Andhra Pradesh High Court in
that if Section 309 were to be held bad, it is highly doubtful whether Section
306 could survive, as self-killing is conceptually different from abetting
others to kill themselves. They stand on different footing, because in one case
a person takes his own life, and in the other a third person is abetted to take
(15)Recommendation of the Law Commission of India and follow-up steps taken, if
Law Commission of India in its 42nd Report (1971) recommended repeal of Section
309 being of the view that this penal provision is "harsh and
unjustifiable" (see paragraph 16.33 of the Report). In taking this view,
the Law Commission quoted the following observations made by H. Romilly Fedden
in Suicide (London, 1938) at page 42:
seems a monstrous procedure to inflict further suffering on even a single
individual who has already found life so unbearable, his chances of happiness
so slender, that he has been willing to face pain and death in order to cease
living. That those for whom life is altogether bitter should be subjected to
further bitterness and degradation seems perverse legislation." 104.After
the aforesaid Law Commission's Report became available, the recommendation was
accepted by the Government of India and the Indian Penal Code (Amendment) Bill,
1972 was introduced in the Rajya Sabha to repeal Section 309.
Bill was referred to a Joint Committee of both the Houses and after receipt of
its report, the Bill was passed with some changes by the Rajya Sabha in
November 1978. The Bill so passed was pending in the Sixth Lok Sabha when it
was dissolved in 1979, because of which the Bill lapsed.
In the counter-affidavit filed by the Union of India in Writ Petition (Crl.)
No. 409 of 1986, it has been further stated that a proposal for reintroducing
legislation in Parliament on the lines of the lapsed Bill is under
consideration. It has been admitted in this affidavit that Section 309 is
harsh, and so, the intention of the Government is more or less to repeal that
view: What is the legal position in other leading countries of the world
regarding the matter at hand? 106.We propose to refer to two leading countries
only in this regard they being United Kingdom
and United States of
America. We have
selected them because the first is a conservative country and the second a
radical; the first is first in point of time as regards democratic functioning
and the second is being regarded as a serious human rights' protagonist. At
English Common Law suicide was taken as felony as much so that a person who had
met his end after committing suicide was not allowed Christian burial, but
would have to be so done in a public highway. Not only this, the property of
the person concerned used to get forfeited to the Crown. [See pages 290 to 207
of Law and Morality edited by Louis Bloom Cooper and Gravin Drewry (1976),
which pages also contain the speeches made by the Lord Bishop of Carlisle and Lord Denning in the House of
Lords during second reading of The Suicide Bill, 1961.] 107.Times changed,
notions changed and presently, even attempt to commit suicide is not a criminal
offence, as would appear from Suicide Act, 1961. Though Section 1 of this Act
has only stated that the "rule of law whereby it is a crime for a person
to commit suicide is hereby abrogated", it 429 has been made clear in the
second para of 'General Note' below this section, as finding place in the xerox
copy of this Act enclosed with the written submissions filed on behalf of the
State of Orissa, Respondent 2 in Writ Petition (Crl.) No. 419 of 1987 that
attempted suicide is not a crime. This note reads as below:
Suicide An attempt to commit suicide was a common law misdemeanour. Section 1
does not specifically say that attempted suicide is no longer a crime, but it
must follow irresistibly from the fact that the completed act is no longer a
United States by early 1970's comparatively small
number of States (9) listed suicide as a crime, although no penalties (such as
mutilation of bodies or forfeiture of estates) were exacted. In such States suicide
attempts were either felonies or misdemeanours and could result in ail
sentences, although such laws were selectively or indifferently enforced. Two
of such States repealed such laws, stating in effect that although suicide is
"a grave social wrong", there is no way to punish it. Eighteen States
had no laws against either suicide or suicide attempts, but they specified that
to aid, advise or encourage another person to commit suicide is a felony. In
more than 20 other States, there were no penal statutes referring to suicide.
[See pp. 16 and 17 of Suicidology:
Developments by E.S. Scheneidman (1976).] 108. The latest American position has
been mentioned as below at p. 348 of Columbia Law Review, 1986:
is not a crime under the statutes of any State in the United States. Nor does any State, by statute,
make attempting suicide a crime. In twenty-two States and three United States territories, however, assisting
suicide is a crime. If an assistant participates affirmatively in the suicide,
for instance by pulling the trigger or administering a fatal dose of drugs,
courts agree that the appropriate charge is murder."
On the basis of what has been held and noted above, we state that Section 309
of the Penal Code deserves to be effaced from the statute book to humanise our
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. Then an act of suicide cannot be said to be against
religion, morality or public policy, and an act of attempted suicide has no
baneful effect on society.
suicide or attempt to commit it causes no harm to others, because of which
State's interference with the personal liberty of the persons concerned is not
We, therefore, hold that Section 309 violates Article 21, and so, it is void.
May it be said that the view taken by us would advance not only the cause of humanisation,
which is a need of the day, but of globalisation also, as by effacing Section
309, we would be attuning this part of our criminal law to the global
The writ petitions stand allowed by declaring Section 309 of the Penal Code as
unconstitutional and hence void. The proceedings in GR Case No. 177 of 1984
(State v. Nagbhushan Patnaik) pending in the Court of Sub-Judge, Gunpur in the
District of Koraput, Orissa stands quashed.
Before parting, we should like to observe that what we have sought to do
through this judgment may be said to be an attempt to "search for the
social dynamics of criminal law, the functional theory of sentencing and the
therapeutic reach of punitive arts, to catch up with social sciences relevant
to criminal justice and to link up prison jurisprudence with constitutional
roots", of which Justice Krishna Iyer has mentioned in his preface (styled
Krishna Iyerishly as 'A Word in Confidence') to his aforementioned book. Whether
we have succeeded or not; and, if so, to what extent is for others to judge.
desire to place on record (though it would sound unusual to some and may be to
many) my appreciation for the assistance I had received from Shri Satish
Chandra, Joint Registrar (Library) of the Court, in supplying me promptly very
useful and varied materials for preparing this judgment, as and how required by