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Decriminalization of Attempt to Commit

Suicide
July 24, 2014 by admin Leave a Comment
By Naveen Kumar Gautam, RMLNLU
Editors Note: It is really unfortunate that Attempt to Commit Suicide continues to find
mention as an offence under our Penal Statute notwithstanding the fact that when a
distressed or frustrated person decides to terminate his/her previous life prematurely, it is
indeed irrational and unfair to visit him with punishment on his failure to do so. Such hapless
individuals rather require sympathy, counselling and appropriate treatment and not the
prison in any case. Suicide means the destruction of the self by the self or the intentional
destruction of ones self. Suicide as such is no crime under the Indian Penal Code (IPC) for
obvious reasons. It is only attempt to commit suicide that is punishable under the section 309
IPC. The researcher has drawn the attention towards the ongoing debate of retaining or
deleting section 309 by testing its validity on the ground of article 21 of the constitution of
India which provides right to life as a fundamental right. As per present scenario, right to
die is not included within the meaning of right to life as held by the Supreme Court in the
case of Gian Kaur v. State of Punjab[i]. The paper is concerned with the legality of Section
309 I.P.C. vis a vis Article 21 of Indian Constitution. All the fundamental rights
guaranteed to the citizens of India reflects our needs, our aspirations, our right to be able to
do something and by defining its boundaries this right is curtailed which in turn curtails our
desires. The issue of suicide has generated heated and controvertible argument as many are
inclined to recommend suicide on certain grounds while others spoke vehemently against
suicide.

1.

Introduction

Life is a stage with one entrance but many exits. Among those, suicide is one exit having a long
ancestry. In 1968, the World Health Organisation defined suicidal act as the injury with varying
degree of lethal intent and that suicide may be defined as a suicidal act with fatal outcome.
Suicidal acts with non fatal outcome are labelled by World Health Organisation as attempted
suicide. In recent times, attempted suicide, though a failed act, has gained more importance than
the suicide which is the successful act because for this there is no offender who can be brought
within the purview of law. In India, attempt to suicide is made punishable under section 309[1] of
Indian Penal Code, 1860. A lot of conflicting opinions have generated on the desirability of
retaining or deleting Section 309 of Indian Penal Code because of some contrasting judgments
given by our Courts about whether right to life includes right to die within the meaning of article
21 of the Constitution of India.
One set of people are of the opinion that Article 21 of the Constitution of India is a provision
guaranteeing protection of life and personal liberty and by no stretch of the imagination can
extinction of life be read to be included in protection of life. By declaring an attempt to commit

suicide a crime, the Indian Penal Code upholds the dignity of human life, because human life is as
precious to the State as it is, to its holder and the State cannot turn a blind eye to a person in
attempting to kill himself. Another set of people are of the opinion that the Section 309 of Indian
Penal Code is cruel and irrational because it provides double punishment for a troubled individual
whose deep unhappiness had caused him to try and end his life. It is cruel to inflict additional legal
punishment on a person who has already suffered agony and ignominy in his failure to commit
suicide.

2.

Section 309 of Indian Penal Code, 1860

Suicide has not been defined anywhere in the IPC. However briefly defined, suicide is the human
act of self-inflicted, self-intentioned cessation.[2] It has been defined by various sociologists and
psychologists in different ways. Some of the definitions are suicide is the initiation of an act
leading to ones own death. It is synonymous with destruction of the self by the self or the
intentional destruction of ones self.[3] Thus, suicide is killing oneself intentionally so as to
extinguish ones life and to leave this world. The Oxford Companion to Law, explains it as self
killing or taking ones own life.
Suicide as such is no crime under the code. It is only attempt to commit suicide that is punishable
under this section, i.e., code is attracted only when a person is unsuccessful in committing the
suicide. If the person succeeds, there is no offender who could be brought within the purview of
law. The section is based on the principle that the lives of men are not only valuable to them but
also to the state which protects them.
S. 309 Attempt to commit suicide: 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.
Attempt must be intentional- The essence of suicide is an intentional self destruction of life.
Thus, if a person takes an overdose of poison by mistake or in a state of intoxication, or in order
to evade capture by his pursuers he is not guilty under this section. Similarly, if a person because
of family discord, destruction, loss of a near and dear relation or other cause of a like nature
overcomes the instinct of self- preservation and decides to take his life, he should not be held guilty
for attempt to suicide. In such a case, the unfortunate man deserves indulgence, sympathy and
consolation instead of punishment. It is under very compelling adverse circumstances that a person
resorts to taking the extreme step of attempting to commit suicide. Some of them are depressive
illness, schizophrenic attitude, physical illness which is intolerable, poverty, unemployment,
frustration, disappointment, dowry problems etc. There are many ways in which suicide can be
committed. The known methods are by drowning, hanging, poisoning, cutting throat, burning,
shooting oneself, hunger strike etc. But it is difficult to generalize any and conceptualize particular
theory because whenever we hear news about individuals committing suicide, we immediately
come up with a conclusion that these people are depressed, dissatisfied, and unhappy with their
lives. However, when popular and rich people commit suicide, we are left in confusion. Why
would someone who is loved and idolized by many decide to kill himself? Depression may be the
main culprit, but there are a lot of things to consider as well. These include overwhelming pain,
grief, and stress; some use it as an escape for their failure and shortcomings like criminals who are

about to be sentenced or caught. However, there are cases where suicide is an option that is
mandatory or required. Thus, most people end up sacrificing themselves to save the lives of others
in unbelievable circumstances. Heroes during the wartime generally belong to this category.

3.

Article 21 of Indian Constitution

The Constitution of India provides a long list of fundamental rights under Part-III. Article 21 of
our Constitution is one of the important fundamental rights among those rights.
Article 21 Protection of Life and Personal Liberty: No person shall be deprived of his life
or personal liberty except according to procedure established by law.
Though the phraseology of Article 21 starts with negative word but the word No has been used in
relation to the word deprived. The object of the fundamental right under Article 21 is to prevent
encroachment upon personal liberty and deprivation of life except according to procedure
established by law. It clearly means that this fundamental right has been provided against state
only. If an act of private individual amounts to encroachment upon the personal liberty or
deprivation of life of other person, such violation would not fall under the parameters set for the
Article 21; in such a case the remedy for aggrieved person would be either under Article 226 of
the constitution or under general law. But, where an act of private individual supported by the state
infringes the personal liberty or life of another person, the act will certainly come under the ambit
of Article 21. Article 21 of the Constitution deals with prevention of encroachment upon personal
liberty or deprivation of life of a person.The state cannot be defined in a restricted sense. It includes
Government Departments, Legislature, Administration, Local Authorities exercising statutory
powers and so on so forth, but it does not include non-statutory or private bodies having no
statutory powers.
Right to Life means the right to lead meaningful, complete and dignified life. It does not have
restricted meaning. It is something more than surviving or animal existence. The meaning of the
word life cannot be narrowed down. As far as Personal Liberty is concerned, it means freedom
from physical restraint of the person by personal incarceration or otherwise and it includes all the
varieties of rights other than those provided under Article 19 of the Constitution. Procedure
established by Law means the law enacted by the State. Deprived has also wide range of meaning
under the Constitution. These ingredients are the soul of this provision. The fundamental right
under Article 21 is one of the most important rights provided under the Constitution which has
been described as heart of fundamental rights by the Apex Court.
The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in A.K.Gopalan
v. State of Madras [4] that the contents and subject matter of Article 21 and 19 (1) (d) are not
identical and they proceed on total principles. In this case the word deprivation was construed in a
narrow sense and it was held that the deprivation does not restrict upon the right to move freely
which came under Article 19 (1) (d). At that time Gopalans case was the leading case in respect
of Article 21 along with some other Articles of the Constitution, but post Gopalan case the scenario
in respect of scope of Article 21 has been expanded or modified gradually through different
decisions of the Apex Court and it was held that interference with the freedom of a person at home
or restriction imposed on a person while in jail would require authority of law.

Whether the reasonableness of a penal law can be examined with reference to Article 19, was the
point in issue after Gopalans case in the case of Maneka Gandhi v. Union of India[5] , the Apex
Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or
unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure
for depriving a person of his life or personal liberty. This view has been further relied upon in a
case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others[6] as
follows: Article 21 requires that no one shall be deprived of his life or personal liberty except by
procedure established by law and this procedure must be reasonable, fair and just and not arbitrary,
whimsical or fanciful. The law of preventive detention has therefore now to pass the test not only
for Article 22, but also of Article 21 and if the constitutional validity of any such law is challenged,
the court would have to decide whether the procedure laid down by such law for depriving a person
of his personal liberty is reasonable, fair and just.
In the same case Bhagwati J. held: We think that the right to life includes the right to live with
human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate
nutrition, clothing, and shelter over the head and facilities for reading, writing and expressing
oneself in diverse forms, freely moving about and mixing and commingle with fellow human
beings. The Judge conceded that the magnitude and content of the components of this right
would depend upon the extent of the economic development of the country, but emphasised that
it must, in any view of the matter, include the right to the basic necessities of life and also the
right to carry on such functions and activities as constitute the bare minimum expression of the
human self.
In another case of Olga Tellis and others v. Bombay Municipal Corporation and others[7] , it was
further observed: Just as a mala fide act has no existence in the eye of law, even so,
unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure
prescribed by law for depriving a person of his fundamental right must conform the norms of
justice and fair play. Procedure, which is unfair in the circumstances of a case, attracts the vice of
unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the
action taken under it.
The interpretation which has been given to the words life and personal liberty in various decisions
of the Apex Court, it can be said that the protection of life and personal liberty has got multi
dimensional meaning and any arbitrary, whimsical and fanciful act of the State which deprived the
life or personal liberty of a person would be against the provision of Article 21 of the Constitution.
The expression personal liberty in Article 21 is of widest in nature and it covers a bundle of rights
which go to constitute the personal liberty of man and some of them have raised to the status of
distinct fundamental rights and given additional protection under Article 19.
Supreme Court again and again after Maneka Gandhi[8] underlined the theme that Article 14, 19
and 21 are not mutually exclusive, but they sustain, strengthen and nourish each other. To any
civilized society there can be no attributes more valuable than the life and personal liberty of its
members. This is why the Supreme Court has now given pride of place to Article 21.

Thus, Article 21 provides right to live with dignity as well as right against cruel and
unusual punishment and Due process of law laid down in Article 21 has became the source
of many substantive rights and procedural safeguards to the process.

4.

Whether Right to life include Right to die?

The Indian constitution under Article 21 confers the right to Life as the fundamental right of every
citizen. The Right to Life enriched in Article 21 have been liberally interpreted so as to mean
something more than mere survival and mere animal existence. The Supreme Court has asserted
that Article 21 is the heart of the fundamental Rights provided under part III of the constitution.
The Supreme Court has clearly stated that in order to treat a right as a fundamental it is not
mandatory that it should be expressly stated as a fundamental right. In India The right to life
under Article 21 of the Constitution has received the widest possible interpretation under the able
hands of the judiciary and rightly so. On the grounds as mentioned, Article 21 does not have a
restrictive meaning and needs to be interpreted broadly. This affirms that if Article 21 confers on
a person the right to live a dignified life, it should bestows the Right to Die also, but the inclusion
of Right to die under Article 21 contradict the provision of Indian Penal Code under section 309.
As according to section 309 of the I.P.C. 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. This section is based on the principle
that lives of men are not only valuable to them but also to the state which protects them. By
considering both the laws the provision of I.P.C. under section 309 is contradictory to the
fundamental right guaranteed under Article 21 of the Indian Constitution. The states power under
section 309, I.P.C. to punish a man for attempt to commit a suicide is questioned not only on the
grounds of morality, but also on the constitutionality of the said provision. A lot of conflicting
opinions have been given on desirability of retaining or abolishing section 309 of Indian Penal
Code because of some contrasting judgement given by the courts.
A very fascinating development in the Indian constitutional jurisprudence is the extended
dimension given to Article 21 by the Supreme Court in the post-Maneka era. Since then, Article
21 has proved to be multi-dimensional. This aspect of Article 21 is brought up by many judicial
pronouncements. This right is inalienable and is inherent in us. It cannot and is not conferred upon
us. This vital point seems to elude all those who keep on clamoring for the Right to die. That
means that every individual has a fundamental freedom to choose not to live. On this issue the
stance taken by the judiciary is unquestionable. The main question arises is that whether right to
life include right to death.

5.

Constitutional validity of Section 309 I.P.C.

The states power under section 309, I.P.C. is questioned not only on grounds of morality, but also
on the constitutionality of the provision.
1. Maruti Shripati Dubal v. State of Maharashtra[9]

This is the case in which first time it came for the consideration before the court that whether a
person has a right to die. The petitioner, a police constable, who became mentally ill after a road
accident attempted to commit suicide by dousing himself with kerosene and then trying to light a
match was prevented and prosecuted under section 309 of I.P.C. In 1987, the Division Bench
of Bombay High Court stuck down sec 309, I.P.C., as ultra vires vide article 14 and 21 of the
constitution which guarantees right to life and personal liberty. The court said the right to life
includes right to live as well as right to end ones life if one so desires.It was pointed out that
that Fundamental Rights have positive as well as negative aspects. For example: Freedom of
Speech and Expression also includes freedom not to speak and to remain silent. If this is so,
logically it must follow that right to live as recognised by article 21 of the constitution also includes
a right not to live or not to be forced to live.
Justice P.B. Sawant: If the purpose of the prescribed punishment is to prevent the prospective
suicides by deterrence, it is difficult to understand how the same can be achieved by punishing
those who have made the attempts. Those who make the suicide attempt on account of mental
disorder requires psychiatric treatment and not confinement in the prison cells where their
condition is bound to be worsen leading to further mental derangement. Those on the other hand,
who makes a suicide attempt on account of actual physical ailments, incurable disease, torture
(broken down by illness), and deceit physical state induced by old age or disablement, need
nursing home and not prison to prevent them from making the attempts again. No deterrence is
going to hold back those who want to die for a special or political cause or to leave the world
either because of the loss of interest in life or for self- deliverance. Thus in no case does the
punishment serve the purpose and in some cases it is bound to prove self defeating and counter
productive.
2. State v. Sanjaya Kumar Bhatia[10]
In 1985, the Division Bench of Delhi High Court while acquitting a young boy who attempted to
commit suicide by consuming Tik Twenty strongly advocated for deletion of section 309, I.P.C.
from the statue book and held that the continuance of section 309 of the Indian Penal Code is an
anachronism unworthy of human society like ours. Instead of sending the young boy to a
psychiatric clinic society, gleefully (happily) sends him to mingle with criminals. Medical clinics
are needed for such social misfits; but police and prison never.
3. Chenna Jagadishwar v. State of A.P.[11]
The Division Bench of Andhra High court upheld the constitutionality of section 309, I.P.C., and
remarked that right to life does not necessarily signify a right to die which is an offence and
therefore section 309 is not violative of Articles 19 and 21 of the constitution. It was also pointed
out that the courts have sufficient power to see that unwarranted harsh treatment or prejudice is
not meted out to those who need care and attention. This, therefore does not violative of article 14.
4. P. Rathinam v. Union of India[12]
The two petitioners assailed the validity of Section 309 by contending the same to be violative of
Articles 14 and 21of the Constitution and the prayer was to declare the section as void. The

additional prayer was to quash the proceedings initiated against the latter petitioner under sec 309.
In 1994, the Division Bench of Supreme Court comprising of Justices R.M. Sahai and B.L.
Hansaria, approved the Judgment of Bombay and Delhi High Courts, but overruled the Andhra
Pradesh High Court Judgment by contending that the Section 309 is violative of Articles 14 and
21 of the constitution.
While striking down Section 309, I.P.C., the Apex Court said it is cruel and irrational provision
violative of Article 21 of the constitution. Expanding the scope of Article 21, the court upheld
that, right to life include right not to live a forced life; i.e., to end ones life if one so desires.
The court went on to say that-it may result in punishing a person again (doubly) who has
suffered agony and would be undergoing ignominy (humiliation) because of his failure to commit
suicideAn act of suicide cannot be said to be against religion, morality or public policy and an
act of attempted suicide has not baneful effect on society. Further, suicide or attempt to commit it
causes no harm to others, because of which states interference with a personal liberty of the
concerned person is called for. The Court further said a person who attempts to commit suicide
does not deserve prosecution because he has failed. There can be no justification to prosecute
sacrificers of their lives. For instance, students who jump into the well after having failed in
examination but survive; girls and boys who resent arranged marriage and prefer to die, but
ultimately fail, do not deserve punishment; rather soft words, wise counselling of a psychiatrist
and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor.
5. Gian Kaur v. State of Punjab[13]
In 1996, a five judge Constitutional Bench of the Apex Court comprising of Justices J.S. Verma,
G.N. Ray, N.P. Singh, Faizauddin and G.T. Nanawati overruled its decisions of 1994 in P.
Rathinam/ Naghbhusan Patnaik and upheld the constitutionality of Section 309.
The appellant and her husband were convicted by the Trial Court under Section 306, I.P.C. for
abetting the commission of suicide by Kulwant Kaur. In special leave before the Apex Court the
conviction of the appellant has been assailed (challenged), inter alia on the ground that Section
306 I.P.C.is unconstitutional in view of Judgment in 1944; wherein Section 309 I.P.C. has been
held to be unconstitutional as violative of Article 21 of the Constitution. The Court while
dismissing the petition held that the right to life is inherently inconsistent with the right to die
as is death with life. In furtherance, the right to life, which includes right to live with human
dignity, would mean the existence of such a right up to the natural end of life. It may further
include death with dignity but such existence should not be confused with unnatural existence of
life curtailing natural span of life. In progression of the above, the constitutionality of section 309
of the I.P.C. which makes attempt to suicide an offence, was upheld, overruling the judgment in
P. Rathinams case.
The Apex Court further held that Section 306, I.P.C. as constitutional and said that right to life
does not include right to die. Extinction of life is not included in protection of life. The Court
further went on to say that Section 306 constitute a distinct offence and can exist independently of
Section 309, I.P.C. As regards Section 309, I.P.C. is concerned, the court said that the right to
life guaranteed under Article 21 of the Constitution did not include the right to die or right to
be killed and therefore an attempt to commit suicide under section 309, I.P.C. or even abetment

of suicide under section 306, I.P.C., are well within the constitutional mandated, and are not void
or ultra vires. [14]
The Court said 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, it is difficult to construe Article 21 to include within its ambit 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.
6. C. A. Thomas Master v. Union of India[15]
The accused, a retired teacher of 80 years, wanted tovoluntarily put an end to his life after having
had a successful, contented andhappy life. He stated that his mission in life had ended and argued
thatvoluntary termination of ones life was not equivalent to committing suicide. The Kerala High
Court held that no distinction can be made between suicide as ordinarily understood and the right
to voluntarily put an end to ones life. Voluntary termination of ones life for whatever reason
would amount to suicide within the meaning of Sections 306 and 309, I.P.C. No distinction can
be made between suicide committed by a person who is either frustrated or defeated in life and
that by a person like the petitioner. The question as to whether suicide was committed impulsively
or whether it was committed after prolonged deliberation is wholly irrelevant.

6. Is it morally right to punish an Attempt to Commit


Suicide?
As a normal rule, every human being has to live and continue to enjoy the fruits of life till nature
intervenes to end it. Death is certain. It is a fact of life. Suicide is not a feature of normal life. It is
an abnormal situation. But if a person has right to enjoy his life, he cannot also be forced to live
that life to his detriment, disadvantage or disliking. If a person is living a miserable life or is
seriously sick or having incurable disease, it is improper as well as immoral to ask him to live a
painful life and to suffer agony. It is an insult to humanity. Right to life means right to live
peacefully as an ordinary human being. One can appreciate the theory that an individual may not
be permitted to die with a view to avoiding his social obligations. He should perform all duties
towards fellow citizens. At the same time, however, if he is unable to take normal care of his body
or has lost all the senses and if his real desire is to quit the world, he cannot be compelled to
continue with torture and painful life. In such cases, it will indeed be cruel not to permit him to
die. There are people who though see suicide as morally wrong, still create obligatory grounds to
commit suicide and advanced some arguments with moral backups in favour of suicide. Thus
giving us the chance of raising the question whether man has the moral right to die or take his or
her life.
Argument in favour of criminalization of attempting suicide[16]:

Moral right to die on account of terminal illness- Suicide is one of the ways in which
people can exercise a right to die. Burn victims having severe injuries resort to and claim
that they have a right to die of which any prevention of their intention to die is seen as a
breach of their right to die because it seems impossible to recover from their suffering.
Losses and shameful acts- Suicide is morally right in the instance of losses or shameful
acts like loss of limb or of physical beauty and the person is not in a position to give any
meaning to his life, i.e., he is under the high level of depression, as no relief can be
procured.
Liberty- To those who see man as a free agent, suicide is morally right. Mans life belongs
to him, hence he is at liberty to take it without denial; and no other person has the right to
force their own ideals that life must be lived. Rather, only the individual involved can make
such decision and whatever decision he or she does make, should be respected.
To save the life of more people- When a person refuses to give information to an enemy
camp in order not to endanger the lives of other; killing himself is morally right.

Argument against decriminalization of attempting suicide[17]:

Suicide is unhealthy approach to the problems of life- Most people who opt to die are
somehow begging for help in order to solve the problems of life. If a man really does not
wish to live, then we think he must be insane, and unfit therefore, to decide his own fate.
It becomes our duty to save him first to save his life and then to cure his melancholy. The
depressive situations occasioned by frustration, losses, shame, fear etc. are not enough to
warrant ones to commit suicide. After all there are societal approved means of coping with
human problems not suicide.
Suicide degrades human worth- Kant and Mappes argue on the immoral nature of
suicide, also that it degrades human worth. Granted that man is an image of God, he
occupies a very special place in creation and to commit suicide reduces his nature below
the level of animal nature hence man should abhor suicide.
Suicide is against the law of self-preservation- This argument proceeds from mans
natural instinct of self-preservation so; killing oneself is a direct negation of this natural
law of self. Hence, suicide is always contrary to the natural law and to charity whereby
every man should love himself. Suicide is a terrible aberration which is diametrically
opposed to a well ordered self-love and the natural instinct of self-preservation.Suicide
seen as an escape from overwhelming personal disaster, evil, life misery, frustration, or
dishonour, far from an act of fortitude, is an act of cowardice.
Suicide destroys the basis of morality- Kant observes that suicide destroys the basis of
morality. He adds, when the subject of morality in ones person is destroyed, it means that
morality itself is rooted out of existence.
Suicide violates Gods supremacy- This argument proceeds from the fact that God is the
creator and Lord of life. Man is placed on Earth under certain conditions and for specific
purposes. The act of suicide therefore opposes the very purpose of the creator. To St.
Augustine and others, God prohibits suicide and that we are under obligation to obey a
divine command.
Utilitarianism- The theory of Utilitarianism given by Bentham based on Pleasure and
Pain concept also make suicide an evil because the pleasure is obtained only by one
person who commits suicide to escape from the life full of sufferings but the pain is caused

to many members of society who all are dependent on the person who has committed
suicide.

Views by eminent persons regarding Section 309 I.P.C.


In this regard eminent lawyer Ram Jethmalani says The right to die is a part of a wider
concept of liberty. The whole nation of the state controlling your life and death is
grotesque. Equally radical is Dr Appa Ghatate, Supreme Court lawyer who agrees, The
right to die should be included in the Indian Constitution as a fundamental right. The very
idea of the state controlling your life is absurd.

Mr. V. S. Deshpande, after his retirement as Chief Justice of Delhi High Court, 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 I.P.C. to apply to
such cases ?

Sometime afterwards appeared an article of Justice R.A. Jahagirdar of Bombay High Court
in which the learned Judge took the view that Section 309 was unconstitutional for four
reasons:

(1) Neither academicians nor jurists are agreed on what constitutes suicide, much less attempted
suicide;
(2) Mens rea, without which no offence can be sustained, is not clearly discernible in such acts;
(3) Temporary insanity is the ultimate reason of such acts which is a valid defence even in
homicides; and
(4) Individuals driven to suicide require psychiatric care not the prison cells.

While dealing with issues pertaining to euthanasia, the bench of justices Markandey Katju
and Gyan Sudha Mishra observed, We are of the opinion that although Section 309 of
I.P.C. (attempt to suicide) has been held to be constitutionally valid in Gyan Kaurs case
by Supreme Court, the time has come when it should be deleted by Parliament as it has
become anachronistic.[18]
Fali S. Nariman, a senior Supreme Court Advocate, It is time for India to take
consideration of the International hue and cry which has been going on and take a humane
step towards mankind and his existence with dignity.

7.
Contemporary
Jurisdictions

Scenario

&

Position

in

Other

The Supreme Court of India overruled the Judgement given by Bombay High Court in Maruti
Shripati Dubalv. State of Maharashtra and also its earlier decision given in P. Rathinam v. Union
of India cases wherein Section 309 of Indian Penal Code, 1860 was held to be unconstitutional. It
upheld the Judgement of the Andhra Pradesh High Court in Chenna Jagadishwarv. State of Andhra
Pradesh holding that Section 309 of the I.P.C. was not violative of Articles 21 and 14 of the Indian
Constitution and therefore, it cannot be declared null and void. Presently the verdict given in Gyan
Kaur v. State of Punjab is followed, in which the Supreme Court upheld the validity of Section
309 and states that it is within the constitutional mandates and is not violative of any fundamental
rights.
England- Laws against suicide and attempted suicide prevailed in English common law until
1961.Suicide ceased to be a legal offence with the passing of the Suicide Act 1961which states
that the rule of law where it is a crime for a person to commit suicide is hereby abrogated.
Australia -Assisted suicide was legal in Australia for a period, but now is not. In 1995, the worlds
first euthanasia legislation, the Rights of the Terminally Ill Act 1995, was passed in the Northern
Territory of Australia. Four patients died under the Act, using a euthanasia device designed by Dr
Philip Nitschke. The legislation was overturned by Australias Federal Parliament in 1997. In
response to the overturning of the Act, Dr Nitschke founded Exit International.
Ireland-Attempted suicide is not a criminal offence in Ireland, and under Irish law self-harm is
not generally seen as a form of attempted suicide. Assisted suicide and euthanasia are, however,
illegal.
Netherlands-In the Netherlands, being present and giving moral support during someones suicide
is not a crime; neither is supplying general information on suicide techniques. However, it is a
crime to participate in the preparation for or execution of a suicide, including supplying lethal
means or instruction in their use. Physician-assisted suicide may be an exception.
North Korea-North Korea has a peculiar deterrent for suicides. Although law cannot punish a
dead person, in North Korea relatives of a criminal (including a suicide victim) might be penalized,
as a form of collective punishment.
Russia-In Russia, inciting someone to suicide by threats, cruel treatment, or systematic humiliation
is punishable by up to 5 years in prison. (Article 110 of the Criminal Code of the Russian
Federation).
Scotland-There was no legislation on this topic until 1961 when the Suicide Act was passed.
Suicide is not currently an offence under Scots Law. However, the offence of attempting suicide
is a Breach of the peace. A person who assists a suicide might be charged with murder, culpable
homicide, or no offence depending upon the facts of each case.
Singapore-In Singapore, a person who attempts to commit suicide can be imprisoned for up to
one year.

United States- Historically, various states listed the act of suicide as a felony, but these policies
were sparsely enforced. In the late 1960s, eighteen U.S. states lacked laws against suicide. By the
late 1980s, thirty of the fifty states had no laws against suicide or suicide attempts but every state
had laws declaring it to be felony to aid, advice or encourage another person to commit suicide.
By the early 1990s only two states still listed suicide as a crime, and these have since removed that
classification. In some U.S. states, suicide is still considered an unwritten common law crime,
as stated in Blackstones Commentaries. As a common law crime, suicide can bar recovery for the
late suicidal persons family in a lawsuit unless the suicidal person can be proven to have been of
unsound mind. That is, the suicide must be proven to have been an involuntary act of the victim
in order for the family to be awarded monetary damages by the court. This can occur when the
family of the deceased sues the caregiver (perhaps a jail or hospital) for negligence in failing to
provide appropriate care.

8.

Law Commission of India Reports

Law Commission 42th Report. [19]


The 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. The apprehension that the repeal
of the law criminalizing attempted suicide would result in increase in suicide is betrayed by the
fact that Sri Lanka repealed the law four years ago and the suicide rate is showing a trend in
reduction. On the contrary, in Singapore suicide rates have been increasing in recent years despite
their having suicide as a punishable offence.
Law Commission 210th Report[20]
The 18th Law Commission in its 210th Report titled Humanization and Decriminalization of
Attempt to Suicide submitted on October 17, 2008 gave the following recommendations:1. Suicide occurs in all ages. Life is a gift given by God and He alone can take it. Its premature
termination cannot be approved by any society. But when a troubled individual tries to end
his life, it would be cruel and irrational to visit him with punishment on his failure to die.
It is his deep unhappiness which causes him to try to end his life. Attempt to suicide is
more a manifestation of a diseased condition of mind deserving of treatment and care rather
than punishment. It would not be just and fair to inflict additional legal punishment on a
person who has already suffered agony and ignominy in his failure to commit suicide.
2. The criminal law must not act with misplaced overzeal and it is only where it can prove to
be apt and effective machinery to cure the intended evil that it should come into the picture.
3. Section 309 of the Indian Penal Code provides double punishment for a person who has
already got fed up with his own life and desires to end it. Section 309 is also a stumbling
block in prevention of suicides and improving the access of medical care to those who have
attempted suicide. It is unreasonable to inflict punishment upon a person who on account
of family discord, destitution, loss of a dear relation or other cause of a like nature
overcomes the instinct of self-preservation and decides to take his own life. In such a case,
the unfortunate person deserves sympathy, counselling and appropriate treatment, and
certainly not the prison.

4. Section 309 needs to be effaced from the statute book because the provision is inhuman,
irrespective of whether it is constitutional or unconstitutional. The repeal of the
anachronistic law contained in section 309 of the Indian Penal Code would save many lives
and relieve the distressed of his suffering.
5. The Commission is of the view that while assisting or encouraging another person to
(attempt to) commit suicide must not go unpunished, the offence of attempt to commit
suicide under section 309 needs to be omitted from the Indian Penal Code.

9.

Conclusion

It is most intriguing and frustrating to observe that our penal laws which are nothing but the
handiwork of Britishers have by and large remained untouched even after more than 60 years of
independence. What a pity that Britishers have themselves amended their penal laws and
decriminalised attempt to suicide way back in 1961 but we are yet to even deliberate on taking any
action on this decisive issue which subjects an already tormented person to further punishment and
ignominy!
Certainly, we should not be the copycat of Britishers but can we deny that increasingly more and
more countries like Netherlands, Belgium, Luxembourg, Switzerland, Oregon and Washington in
USA and Thailand are even legalising euthanasia or mercy killing for terminally ill persons? Can
we deny the decriminalization of attempted suicide by all countries in Europe, North America and
Canada? Can we deny that it is only a handful of countries in the world like Pakistan, Bangladesh,
Malaysia, Singapore and India who still punish attempt to suicide under their penal laws? Are we
still waiting only to be the last country in the world to decriminalise attempt to suicide? Let us not
forget that Section 309 of I.P.C. tantamount to brazenly punishing a person who is already
suffering endlessly by not only sending him/her to prison for one year but also imposing fine which
only serves to make their life more miserable by further compounding their endless problems. How
can this grave injustice be ever justified? Can an ordinary person even dream to commit suicide?
It is under very compelling adverse circumstances that a person resorts to taking the extreme step
of attempting to commit suicide which must be fully taken into account. Such people suffering
from severe depression need the company of good doctors and not jailors which we all must also
now realise and appreciate
Ours is a democracy which means that it is by the people, of the people and for the people.
Constitution locates power that resides in the people. It is the peoples power for peoples benefit.
Constitution creates rights and duties. All most all our demands get converted into rights-even our
feelings, emotions is governed by the rights and duties we have. As we have got the right to live
life with all dignity so we should also have right to die as when it is necessary by law in certain
situation. Constitution is a social document. It is the society in its political aspect. We cant
understand its nature without understanding the chief characteristics of the society. If the
constitution is such that it has taken into its consideration, the social set up, then only will it stand
the test of time. Constitution and society grows, develops together and gets intertwined in each
other. The constitution takes into account change and developments in the society.
Therefore, it is wrong to say that the Indian penal code is a modern code in every possible sense.
Laws are made for the people and it should be change to meet the aims and aspiration of the

changing society. Ultimately, the aim should be to evolve a consensual and conceptual model
effectively handling the evils without sacrificing human rights. Therefore section 309 should be
deleted from the Indian penal Code because as mentioned in Maruti Shripati Dubal that No
deterrence is going to hold back those who want to die for a special or political cause or to leave
the world either because of the loss of interest in life or for self- deliverance. Thus in no case does
the punishment serve the purpose and in some cases it is bound to prove self defeating and counter
productive. In any case a person should not be forced to enjoy the right to live to his detriment,
disadvantage, and disliking. Further, the Right to life under Article 21 should not include right
to die because this provision might increase the rates of suicides in the country and moreover the
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.
Although the judgement given by Supreme Court in Gyan Kaur is followed but according to me
this should be scrapped from the I.P.C. but the right to die should not be expressively included
in the right to life, because Life is a gift given by God and He alone can take it. Its premature
termination cannot be approved by any society. Neither it should be penalised. Attempt to commit
suicide is a manifestation of diseased mind. So what is to be done is rightly stated by the decision
given in P. Rathinams case-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. 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.
The desirability for deletion of Section 309 of I.P.C. is also the view supported by the majority of
states in India. Twenty five Indian states except Madhya Pradesh, Bihar and Sikkim have favoured
striking down I.P.C. Section 309 that criminalises attempt to commit suicide by making it
punishable with imprisonment.
In conclusion, it can be said that to resolve this debate, the conflict between the principle of sanctity
of life and the rights of self determination and dignity of an individual is to be resolved first and
right to die should not be generalized but should be exercised as an exception in the RAREST OF
RARE CASES like Death Penalty in India.
Edited by Saksham Dwivedi
[1] Sec 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

Crime of Attempt to commit Suicide

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In India, attempt to commit suicide is punishable u/s 309 of the


Indian Penal Code. Section 309 of the Indian Penal Code thus
reads as:

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Neeraj Chhabra 2nd
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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.

The above section has been the subject of controversy in many cases, especially over the last
two decades. Most notably, the subject was under scrutiny in the cases of P. Rathinam v. Union
of India and Smt. Gian Kaur v. State of Punjab. In the former case, the Division Bench of two
judges of the Supreme Court held section 309 as ultra vires of the fundamental rights enshrined
in Article 21 of the Constitution. In the latter case, a Division Bench of three judges of the
Supreme Court had to decide correctiveness of P. Rathinam. The earlier decision of Supreme
Court in P. Rathinam was overruled and the court held that section 309 was neither violative of
Article 21 nor Article 14 of the Constitution.
It is also important to note that the Law Commission of India has also recommended
decriminalizing of attempt to commit suicide in its 42nd and 210th reports. So far, the law on
attempt to commit suicide is still based on the ruling of Supreme Court in Gian Kaur.
Suicide
Interestingly, the term suicide is not defined in the Indian Penal Code. However, a quick
reference of Clift v. Schwabe gives an apt definition of this term, to commit suicide is for a
person voluntarily do an act (or, as it is submitted, to refrain from taking bodily sustenance), for
the purpose of destroying his own life, being conscious of that probable consequence, and
having, at the time, sufficient mind to will the destruction of life. Emphases here are on the
words voluntary act and being conscious of that consequence. This means intention is the
essential ingredient. It can be observed that, while, there is no punishment for the completed act
but the law makes sure that the individuals who are not able to accomplish the act are punished.
This implies a person who is highly depressed or diseased, someone who has lost all hope to
live, decides to end his life and his attempt is unsuccessful, the penal procedures would make
sure that he is punished for the unsuccessful attempt.
One perspective on the above illustration would evoke sympathy towards the survivor; such a
person needs help and counseling. He needs emotional support. The other perspective is that
punishment for suicide would act as deterrence. This aspect would also be dealt with further in
the paper when the number of suicides in the recent years is analyzed.

Another argument is that a person accused for offence such as human trafficking, drug
trafficking or murder and other crimes, tries to end his life by committing suicide, this provision
would make sure that he is tried under this section atleast if he escapes the other charges. But is
this reason strong enough to advocate continuing with section 309 in Indian Penal Code?
Further, declaring attempt to commit suicide as a crime presents another problem. In countries
like United States of America and Canada, practice of using the words died by suicide rather
than committed suicide is slowly developing. The reason for that is, crimes are committed by
criminals and suicide is not a crime (not even attempt to commit suicide is a crime in these
countries). Therefore, committed suicide and similarly attempt to commit suicide are not
appropriate terms in modern times.
Should Attempt To Commit Suicide Be A Crime?
Right to life, which is described under Article 21 of the Constitution also aids in giving citizens
a right to live a life of dignity. A life with full control over it is supposedly guaranteed by the
Constitution. The conflict, however, begins here. Liberty is guaranteed to an individual but no
such right is given to end his life with his own will.
This debate has been the subject in cases of P. Rathinam v. Union of India and Smt. Gian Kaur
v. State of Punjab. In P. Rathinam, the Supreme Court held the right to die as an aspect of
Article 21. It was held that section 309 was violative of Article 21 of the Constitution inasmuch
as right to live includes right to die or right not to live a forced life and the section interferes
with that right. The court agreed with the reasoning given by Bombay High Court in the case of
Maruti Shripati Dubal v. State of Maharashtra,
the freedom of speech and expression includes freedom not to speak and to remain silent. The
freedom of association and movement likewise includes the freedom not to join any association
or to move anywhere. The freedom of business and occupation includes freedom not to do
business and to close down the existing business. If this is so, logically it must follow that right
to live as recognized by Article 21 of the Constitution will include also a right not to live or not
to be forced to live. To put it positively, Article 21 would include a right to die, or to terminate
ones life.
The High Court also observed that there is nothing unnatural about the desire to die and hence
the right to die. The means adopted for ending ones life may be unnatural varying from
starvation to strangulation. But, the desire which leads one to resort to the means is not
unnatural. Suicide or an attempt to commit suicide is not a feature of a normal life. It is an
incident of abnormality or of an extraordinary situation or of an uncommon trait of personality.
Abnormality and uncommonality are not unnatural merely because they are exceptional.
The High Court further observed that the right to die or to end ones life is not something new
or unknown to civilization. Some religions like Hindu and Jain have approved of the practice of
ending ones life by ones own act in certain circumstances while condemning it in other
circumstances. The attitude of Buddhism has been ambiguous though it has encouraged suicide
under certain circumstances such as in the service of religion and country. Neither the old nor

the New Testament has condemned suicide explicitly. However, Christianity has condemned
suicide as a form of murder. In contrast, the Quran has declared it is a crime worse than
homicide.
The Supreme Courts stand on attempt to commit suicide was categorically overruled in the
case of Smt. Gian Kaur. The court held that right to die cannot be construed from right to life
under Article 21. The court stated, 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.
Thus section 309 was upheld as constitutional. But the motive with which this section was first
instated in the Indian Penal Code and the subsequent upholding of the section i.e. to protect life
and discourage self-destructive practice of suicide is now slowly losing its relevance. This is
evident from the rise of suicide cases in recent years.
While approximately one million people die by suicide worldwide, more than one lakh persons
(1,18,112) in the country lost their lives by committing suicide during the year 2006. This
indicates an increase of 3.7 per cent over the previous years figure (1,13,914). The number of
suicides in the country during the decade (1996-2006) has recorded an increase of
33.9 per cent (from 88,241 in 1996 to 1,18,112 in 2006).
Looking at the offence of attempting to commit suicide, it has been observed by an English
writer:
It 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.
Perspective Of The Survivor
The law has its take on suicide, but it is silent on exploring the state of mind of a suicide
survivor. The law mostly restricts itself to understand mens rea of the survivor. But nothing has
been stated explicitly about healing the mind of such a person. The irresistible thought of
suicide is the product of diseased mind. Such a mind needs counseling; the survivor needs to
talk about his situation. For instance, the Central Board of Secondary Education in India since

the last few years has opened helplines before declaring 10th and 12th standard results. This
need was felt when large number of cases involving student suicides due to unsatisfactory
results in examinations were reported. Helplines are now also available to provide counseling to
farmers, women facing domestic problems and to other individuals for variety of reasons that
evokes suicidal thoughts in them. The reason is the same in each case, rise in incidents of
suicides, and need has been felt to do something about it. When many of the institutions have
understood the need to protect and help these people who are prone to suicidal thoughts, our
judiciary and legislature should also step forward to do their bit and amend the law. Punishment
to survivors is not the solution. But counseling would definitely help them.
A Comparative Study
Only a small number of countries in the world like Pakistan, Bangladesh, Malaysia, Singapore
and India continue with the law of criminalizing attempt to commit suicide. Large number of
countries including United States of America, England, the whole of Europe, some South
American nations and neighbouring Sri Lanka have decriminalized attempt to commit suicide.
The survivors are provided medical help as well as societal and family support. They are
certainly not sent to prisons, even for a small term.
Suicide survivors need emotional and psychiatric support. Decriminalizing attempt to commit
suicide will help many of the survivors to come out and seek help, as today they may be afraid
for fear of being penalized.
Conclusion
Right to life, with a right to live a life of dignity does not certainly mean to live a forced life.
Decriminalizing attempt to commit suicide would not actually result in increase in number of
suicides but would only encourage the survivors to seek help. Quoting from Law Commission
Report,
Right to live would, however, mean right to live with human dignity up to the end of natural
life. Thus, right to live would include right to die with dignity at the end of life and it should not
be equated with right to die an unnatural death curtailing natural span of life.
Hence, a dying man who is terminally ill or in a persistent vegetative state can be permitted to
terminate it by premature extinction of his life. In fact, these are not cases of extinguishing life
but only of accelerating process of natural death which has already commenced. In such cases,
causing of death would result in end of his suffering.
Thus section 309 as a law should be amended suitably keeping in view the kind of people who
attempt suicide. The section should be amended to punish only those who try to escape
punishment due to other criminal liabilities excluding those who attempt it out of sheer
frustration, depression or due to living in such circumstances that would invoke suicidal
thoughts.