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Report No. 156

Section 309: Attempt to Commit Suicide

8.04. Section 309 of I.P.C. punishes attempt to commit suicide with simple imprisonment for a term which may extend to one year or with fine or with both.

8.05. The Law Commission in its Forty-second Report had examined whether attempt to commit suicide be retained as a penal offence. The Commission referred to the Dharma Sastras which legitimised the practice of taking one's life in certain situations1 and also referred to the provisions of Suicide Act, 1961 in Britain which decriminalised the offence of attempt to commit suicide.2After examining these views, the Commission recommended that section 309 is harsh and unjustifiable and it should be repealed.

1. Law Commission, Forty-second Report, para. 16.31.

2. Law Commission, Forty-second Report, paras. 16.31, 16.32.

8.06. In pursuance of the recommendations of the Law Commission, clause 131 of the Bill omits section 309 from I.P.C..

8.07. Subsequently, there have been significant judicial developments. The Delhi High Court in State v Sanjay Kumar Bhatia, 1985 Cr LJ 931 speaking through Sachar, J. as he then was, for the Division Bench observed that the continuance of section 309 is an anachronism and it should not be on the statute book. However, the question of its constitutional validity was not considered in that case.

8.08. Soon thereafter the Bombay High Court in Maruti V. Shripati Dubal v. State of Maharashtra, 1987 Cr LJ 743 speaking through Sawant, J., as he then was, examined the constitutional validity of section 309 and held that the section is violative of Article 14 as well as Article 21 of the Constitution. The section was held to be discriminatory in nature and also arbitrary and violated equality guaranteed by Article 14. Article 21 was interpreted to include the right to die or to take away one's life. Consequently it was held to be violative of Article 21.

8.09. The Andhra Pradesh High Court also considered the constitutional validity of section 309 in Chenna Jagadeeswar v. State of Andhra Pradesh, 1988 Cr LJ 549 Amareshwari, J., speaking for the Division Bench, rejected the argument that Article 21 includes the right to die. The court also held that the courts have adequate power to ensure that "unwarranted harsh treatment or prejudice is not meted out to those who need care and attention". The court also negatived the violation of Article 14.

8.10. The Supreme Court examined the constitutional validity of section 309 in P. Rathinam v. Union of India, (1994) 3 SCC 394 with reference to Articles 14 and 21. The Court considered the decisions of the Delhi, Bombay, and Andhra Pradesh High Courts and disagreed with the view taken by Andhra Pradesh High Court on the question of violation of Article 21. Agreeing with views of the Bombay High Court, the Supreme Court observed:1

"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 penal laws. It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. 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.

Further, 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 called for. 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 criminal law to the global wavelength."

1. Ibid., at 429.

8.11. But this view of Supreme Court was overruled by a larger Bench in Gian Kaur v. State of Punjab, 1996 (2) SCAE 881 wherein Verma, J., (as he then was) speaking for the Court, held that P. Rathinam's case was wrongly decided. The Court observed:1

"When a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within the protection of the 'right to life' under Article 21. The significant aspect of 'sanctity of life' is also not to be overlooked. Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of Imagination can 'extinction of life' be read to be included in 'protection of life'.

Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, we find it difficult to construe Article 21 to include within it the 'right to die' as a part of the fundamental right guaranteed therein. Right to life is a natural right embodied In Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of 'right to life'.

With respect and in all humility, we find no similarity in the nature of the other rights, such as the right to 'freedom of speech' etc. to provide a comparable basis to hold that the 'right to life' also includes the 'right to die'. With respect, the comparison is inapposite, for the reason indicated in the context of Article 21. The decisions relating to other fundamental rights wherein the absence of compulsion to exercise a right was held to be included within the exercise of that right, are not available to support the view taken in P. Rathinam qua Article 21.

To give meaning and content to the word 'life' in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself. The 'right to die' if any, is inherently inconsistent with the 'right to life' as is 'death with life'."

1. Ibid., at 888.

8.12. On the question of violation of Article 14, the Court agreed with the view taken by Hansaria, J. in P. Rathinam's case.

8.13. Verma, J. further observed that the arguments "on the desirability of retaining such a penal provision of punishing attempted suicide, including the recommendation for its deletion by the Law Commission are not sufficient to indicate that the provision is unconstitutional being violative of Article 14. Even if those facts are to weigh the severity of the provision is mitigated by the wide discretion in the matter of sentencing since there is no requirement of awarding any minimum sentence and the sentence of imprisonment is not even compulsory.

There is also no minimum fine prescribed as sentence, which alone may be the punishment awarded on conviction under section 309, I.P.C.. This aspect is noticed in P. Rathinam for holding that Article 14 is not violated".1

1. 1996 (2) SCALE 881 (890).

8.14. The Supreme Court's decision in Smt. Gian Kaur has thus categorically affirmed that right to life in Article 21 does not include the right to die. Consequently section 309 which penalises attempt to commit suicide is not unconstitutional.

8.15. There is a school of thought which advocates the decriminalisation of the offence of attempt to commit suicide. They plead for a compassionate and sympathetic treatment for those who fail in their attempt to put an end to their lives. They argue that deletion of section 309 is not an invitation or encouragement to attempt to commit suicide. A person indulges in the act of attempt to commit suicide for various reasons some of which at times are beyond his control.1

1. Justice R.A. Jahagirdar (Retd.) Attempt at Suicide - A Crime or a Cry, (1996).

8.16. On the other hand, certain developments such as rise in narcotic drug-trafficking offences, terrorism indifferent parts of the country, the phenomenon of human bombs, etc. have led to a rethinking on the need to keep attempt to commit suicide an offence.

For instance, a terrorist or drug trafficker who fails in his/her attempt to consume the cyanide pill and the human bomb who fails in the attempt to kill himself or herself along with the targets of attack, have to be charged under section 309 and investigations be carried out to prove the offence. These groups of offenders under section 309 stand under a different category than those, who due to psychological and religious reasons, attempt to commit suicide.

8.17. Accordingly, we recommend that section 309 should continue to be an offence under the Indian Penal Code and clause 131 of the Bill be deleted.



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