Report No. 196

Section 309 of the Code makes 'attempt to commit suicide' an offence and it states as follows:

"Section 309: Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both."

Thus, 'attempt to commit suicide' is an offence which may result in imprisonment (for a term which may extend to one year) or with fine or with both.

While dealing with section 309, it is necessary to refer to two important decisions of the Supreme Court of India where, in the first case in P. Rathinam v. Union of India, 1994(3)SCC 394 a two-Judge Bench of the Supreme Court struck down section 309 as unconstitutional and in the second case in Gian Kaur v. State of Punjab, 1996(2)SCC 648 a Constitution Bench overruled the earlier judgment and upheld the validity of section 309.

In both the judgments, the provisions of Article 21 of the Constitution of India which guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law, were interpreted. It was held in both cases, that, in any event, section 309 did not contravene Article 14 of the Constitution of India.

We do not propose to discuss the first case of P. Rathinam which was overruled in the second case, Gian Kaur. But, it is necessary to state that in P. Rathinam, section 309 'attempt to commit suicide' was alone in question whereas in the second case, Gian Kaur, the question was about the validity of both sections 306 (abetment of suicide) as also section 309 (attempt to commit suicide). In Gian Kaur, the appellants who were convicted under section 306 for 'abetment of suicide' contended that if section 309 dealing with 'attempt to commit suicide' was unconstitutional, for the same reasons, section 306 which deals with 'abetment of suicide' must be treated as unconstitutional. But, the Supreme Court upheld the constitutional validity of both section 306 and section 309.

In Gian Kaur, the Supreme Court made it clear that 'Euthanasia' and 'Assisted Suicide' are not lawful in India and the provisions of the Penal Code 1860 get attracted to these acts. But, the question is whether there is anything in Gian Kaur's case upholding sections 306 and 309, which either directly or indirectly deals with 'withdrawal of life support'?

(A) Fortunately, in the context of section 306 (abetment of suicide), there are some useful remarks in Gian Kaur which touch upon the subject of withdrawal of life support. Before the Supreme Court, in the context of an argument dealing with 'abetment' of suicide, the decision of the House of Lords in Airedale N.H.S.Trust v. Bland 1993(1) All ER 821, was cited. The Supreme Court referred to the distinction between withdrawing life support and euthanasia, as follows: (p. 665).

"Airedale N.H.S. Trust v. Bland was a case relating to withdrawal of artificial measures for continuance of life by a physician. Even though it is not necessary to deal with physician assisted suicide or euthanasia case, a brief reference to the decision cited at the Bar may be made. In the context of existence in the persistent vegetative state of no benefit to the patient, the principle of sanctity of life, which is the concern of the State, was stated to be not an absolute one.

In such cases also, the existing crucial distinction between cases in which a physician decides not to provide, or to continue to provide, for his patient, treatment of care which could or might prolong his life, and those in which he decides, for example, by administering a lethal drug, actively to bring his patient's life to an end, was indicated and it was then stated as under."

(emphasis suggested).

and their Lordships quoted the following passage from Airdale:

"But, it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering however great that suffering may be (See R vs. Cox (18.9.1992, unreported per Ognall J in the Crown Court at Winchester). So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and, on the other hand, euthanasia-actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at Common-law.

It is of course well known that there are many responsible members of our societ.- who believe that euthanasia should be made lawful, but that result could, I believe, only be achieved by legislation which expresses the democratic will that so fundamental a change should be made in our law, and can, if enacted, ensure that such legalized killing can only be carried out subject to appropriate supervision and control".(emphasis supplied)