Dr.

Ram Manohar Lohiya National Law

University, Lucknow
2017-18

CRIMINAL LAW- II

FINAL DRAFT

ON

Smt. Gian Kaur v. The State of Punjab

MADE UNDER ABLE GUIDANCE OF: SUBMITTED BY:

Mr. Malay Pandey Karan Rawat

Assistant Professor B.A. LL.B. (Hons.)

DR.RMLNLU, Lucknow Semester- 4th

Section-A

Roll No. 66

DR. RMLNLU, Lucknow

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 ACKNOWLEDGEMENT
It is my pleasure to recall the many people who have been involved more or less directly in
inspiration and production of this project. Firstly, I would like to thank God for the
knowledge he has bestowed upon me.

I take this opportunity to express a deep sense of gratitude and humble regards to my subject
teacher Mr. Malay Pandey for his keen interest, constant guidance and encouragement
which enabled me to complete this project successfully.

I also owe sincere thanks to my parents, teachers, friends, libraries for their endless help and
support without whom this project wouldnt have been completed.

Finally, I wish to put on record this fact, that without the help given to me by my teachers and
parents, my project would have been in shambles and all efforts would have been nullified.

It is hoped that the project will fulfil the expectations of the Dr. Ram Manohar Lohiya
National Law University, Lucknow.

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 TABLE OF CONTENTS
S.No. Topic PageNo.

1. CASE NAME4

2. COMPOSITION OF BENCH.4

3. THE BRIEF HISTORY OF FACTS...............................................................................4-5

4. QUESTIONS OF LAW INVOLVED.................................................................................5

5. DECISION OF THE COURT.............................................................................................5

6. CASE COMMENT........................................................................................................6- 10
IS THERE A RIGHT TO DIE?
IS S. 309 IPC VIOLATIVE OF ARTICLE 14?
ABETMENT OF SUICIDE OR ITS ATTEMPT

7. CONCLUSION...................................................................................................................10

8. BIBLIOGRAPHY..............................................................................................................11

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 1. CASE NAME
Smt. Gian Kaur v. The State of Punjab, 1996 AIR 946, 1996 SCC (2) 648,
Date of judgment - 21 March 1996

2. COMPOSITION OF BENCH
A five Judges Constitutional bench comprising of:

VERMA, JAGDISH SARAN (J)

RAY, G.N. (J)
SINGH N.P. (J)
FAIZAN UDDIN (J)
NANAVATI G.T. (J)

3. THE BRIEF HISTORY OF FACTS

There is debate about the desirability of S.309 of Indian Penal Code (IPC), 1860 which
punish an attempt to commit suicide. However, the only real basis for determining the
validity or otherwise of criminalising suicide is the constitution.

The genesis of the debate is in the 42nd Law Commission Report, 1971, which recommended
that S.309 of IPC be repealed. This was followed by the decision in State v. Sanjay Kumar
Bhatia1 where the court observed that S. 309 IPC is anachronistic. The constitutionality of the
provision was assailed in two High Courts which came to different conclusions. The High
Court of Bombay in Maruti Shripati Dubal v. State of Maharashtra2 held that S. 309 IPC was
held to be violative of Article 14 and Article 21. Article 14 was held to be violative as S.309
IPC is discriminatory in nature and arbitrary. Article 21 was considered to include the right
to die, making S. 309 IPC invalid.

The Andhra Pradesh High Court in Chenna Jagadeeshwar & Anr. v.State of Andhra Pradesh3
held that S. 309 of the IPC is not violative of the constitution. The argument that there is right
to die in Article 21 was rejected. The court held that S. 309 IPC is not violative of Article 14
as the courts have sufficient power to mitigate harsh punishment.

This debate seemed to have been ended with P. Rathinam/ N. Patnaik v.Union of India 4
where the Supreme Court held that S. 309 IPC is violative of Article 21 of the Constitution,
as there exists under Article 21 a right to die. The court however rejected the contention
that Article14 is violated on the ground that there was sentencing discretion.

The question has been reopened in this case Smt. Gian Kaur v. The State of Punjab.5 In this
case the appellants Gian Kaur and her husband Harbans Singh were convicted by the Trial
Court under S.306 IPC and each sentenced to six years R.I. and fine of Rs. 2,000, or, in
default, further R.I for nine months, for abetting the commission of suicide by Kulwant Kaur.

1
(1985) Cr LJ 931 (Del).
2
(1987) Cr LJ 473 (Bom.)
3
(1988) Cr LJ 549 (AP).
4
1994 (3) SCC 394.
5
1996 SCC (2) 648.

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On appeal to the High Court, the conviction of both has been maintained but the sentence of
Gian Kaur alone has been reduced to R.I. for three years. They appeal to Supreme Court by
special leave petition against their conviction and sentence under S.306 IPC. They contended
that abetment of suicide cannot be a crime as it only amounts to assisting another person
assert a fundamental right and thus challenged the constitutional validity of S.306 IPC on the
basis of the decision in P. Rathinam by a Bench of two learned Judges of this Court wherein
S.309 IPC has been held to be unconstitutional as violative of Article 21 of the Constitution.
They urged that right to die being included in Article 21 of the Constitution as held in P.
Rathinam declaring S.309 IPC to be unconstitutional, any person abetting the commission of
suicide by another is merely assisting in the enforcement of the fundamental right under
Article 21; and, therefore, S.306 IPC penalising assisted suicide is equally violative of Article
21. By this argument, they urged that it is alone sufficient to declare that S.306 IPC is also
unconstitutional being violative of Article 21 of the Constitution.

4. QUESTIONS OF LAW INVOLVED

Whether S. 309 IPC is violative of Article 14 and Article 21 of the Constitution of

India and thus to be declared unconstitutional?
If S. 309 IPC is declared to be unconstitutional then whether S.306 IPC also is
unconstitutional being violative of Article 21 of the Constitution?
Is there a Right to die within the meaning of Right to live under Article 21 of the
constitution of India?

5. DECISION OF THE COURT

The Supreme 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 S. 309 of the IPC which makes attempt to
suicide an offence, was upheld, overruling the judgment in P. Rathinams case. The Apex
Court further held that S. 306 IPC 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 S. 306 IPC constitute a distinct offence and can exist independently of S.
309 IPC. As regards S. 309 IPC 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 S. 309 IPC or even abetment of suicide
under S. 306 IPC are well within the constitutional mandated, and are not void or ultra vires.
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.

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 6. CASE COMMENT
The problem of suicide has always led to various contentious issues being thrown up. The
issue is not either the right to die or even that the S. 309 IPC is arbitrary, insofar as it makes
no distinction between various forms of suicide. The question appears, merely to be: whether
it is just, fair and reasonable to punish a person who has attempted to commit suicide?
The answer to this question is the only necessary exercise. This has to be answered solely on
the basis of the Constitution.

IS THERE A RIGHT TO DIE?

The contention that was taken in this case was that -if there is a right to die, the abetment of
suicide cannot be criminal, as it only amounts to assisting another person assert a
fundamental right.

In P. Rathinam v. Union of India, it was held that since Article 21 recognised the right to live
it also recognised the right to die, as fundamental rights have both positive and negative
aspects. The court held that the right to live under Article 21 has in its trial the right not to
live a forced life.
The Constitution Bench has disagreed with the Division Bench on this ground. It held that the
decisions which hold that a right to associate includes the right not to associate etc., merely
hold that the right to do an act includes a right not to do that act. Protection from intrusion
does not mean a right to discontinue the exercise of the right to life. Further, when rights like
the right not to associate was exercised, there was no positive or overt act; when a person
commits suicide there is certainly an overt and positive act.

Therefore, the Constitution Bench held:

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.
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.

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. 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 S. 309. As according to S. 309 of the IPC Whoever attempts to commit

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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.

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 IPC 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.
Constitution locates power that resides in the people. It is the peoples power for peoples
benefit. Constitution creates rights and duties. 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. 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
S. 309 IPC 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 Gian Kaur is followed but according to
me this should be scrapped from the IPC 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 should it be penalised.

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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. S. 309 IPC
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 S.309 IPC 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 S. 309 IPC that criminalises attempt to commit suicide by making it punishable
with imprisonment.6

So 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.
*The Law Commission of India in its 42nd Report (1971) recommended repeal of Section 309
IPC 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. The 18th Law
Commission has also given many recommendations in its 210th Report titled Humanization
and Decriminalization of Attempt to Suicide submitted on October 17, 2008.

IS S. 309 IPC VIOLATIVE OF ARTICLE 14?

The question does not arise in this case as the validity of S. 306 IPC is being questioned only
on the basis of the right to die. Once the court came to the conclusion that there is no right
to die, the contention that S. 309 IPC is violative of Article 14 had already been rejected in P.
Rathinam.
It was contended that both Ss. 309 & 306 IPC are monstrous and barbaric and violate the
equality clause as being discriminatory and arbitrary. It was also contended that the wide
amplitude of Article 14 read with the dignity of life guaranteed under Article 21 renders S.
309 IPC unconstitutional.
The Constitutional Bench repeated the decision in P. Rathinam with reference to Article 14.
They held S. 309 IPC is not violative of Article 14 as:
1. The definition of suicide is capable of broad definition and there is no real
ambiguity in determining what acts constitute suicide. Hence, S. 309 IPC is
not arbitrary.
2. There is sentencing discretion and hence all suicides are not treated alike,
therefore S. 309 IPC is not violative of Article 14.

The main plank of argument that S. 309 IPC is barbaric and monstrous was not even
addressed. The main argument is that S. 309 IPC is violative of the fundamental rights, read
together as common code, as it is unfair, unjust and unreasonable. Further, Article 14 after
6
http://www.indianexpress.com/news/25-states-agree-suicide-attempt-should-not-be-punishable-by-
law/850036/

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Maneka Gandhi v. Union of India7, is the repository of reasonableness which is an essential
element of quality or non-arbitrariness. Thus S. 309 IPC may be violative of Article 14, as it
may be unreasonable, unfair and unjust to punish a person for attempting to commit suicide.
Attempts to commit suicide are indeed to be looked at with compassion, they are not to be
even tried even if they are not punished eventually.
It is submitted that the facts that there is sentencing discretion or even that attempts to
commit suicide are treated compassionately are not relevant in deciding the constitutionality
of a provision. It is surprising that such a consideration weighed with the court, given its
affirmation at the very outset that the question must be decided with reference to the
Constitution alone.
In Mithu v. State8, Chief Justice Chandrachud held: If a law were to provide that the offence
of theft will be punishable with the penalty of the cutting of the hands, the law will be
violative of Article 21. It will be no defence of the provision (of cutting hands for theft) that
there is sentencing discretion or that no hands have been cut as yet. Such a provision is on the
face violative of Article 21, it may be said that by the same token S. 309 is violative of
Article 21 or Article 14 as the case may be.
It must be mentioned that, the power of the court to examine the reasonableness or otherwise
of the substance of a provision may not exist. However, the right to examine the
reasonableness of procedure is established. It is not very clear whether we have substantive
due process or only procedural due process.
Such legal substitutes have not weighed with the current Supreme Court in its apogee of
activism. In this context, it is worthwhile to note that judicial activism has been defined as the
pursuit of an ideology with scant respect for established source of law. The Supreme Court in
both P. Rathinam and Gian Kaur has not even addressed the question.

ABETMENT OF SUICIDE OR ITS ATTEMPT

It has been seen that the right to die has been recognised in a limited circumstance as part of
the right to live with dignity. The court has held that the right to live with dignity allows a
terminally ill person in a persistent vegetative state to kill himself. When death is certain, the
process can be accelerated without attracting censure.
However, even in such cases the problem of physician assisted termination was left
unresolved. The court made a distinction between active interference in the process of dying,
and allowing a person to die. The Court cited various decisions from other jurisprudence to
show that even physician assisted termination may be illegal. Given that there are so many
limitations on physician assisted suicide, suicides assisted by lay-persons have no rational
basis to claim exclusion from the principle of sanctity of life, the Court opined.
Thus, in sum the position is that a terminally ill patient can attempt to commit suicide without
fear of penal consequences if he fails to succeed. However, there can be no active assistance
from the physician.
The Court has held that an attempt to commit suicide and the abetment of suicide are distinct
offences. The abetment of an attempt to commit suicide is also a distinct offence punishable
under S. 309 read with S. 107, IPC. So invalidity of S. 309 IPC, without the creation of the
right to die will not affect the validity of S. 306 IPC. The abetment of an attempt to commit
suicide is punishable under S. 108, read with S. 309 IPC only if the abetment is of an offence;
an act which is not punishable is not an offence. Therefore, if S. 309 is held invalid, abetment
of an attempt to commit suicide is not punishable.

7
(1978) 1 SCC 248.
8
1983 AIR 473.

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The question is whether S. 306 and Ss. 107, 108 and 109 IPC are capable of being read down,
so as to exclude those who abet the suicide or attempted suicide by terminally ill people. S.
306 IPC read as If any person commits suicide, whoever abets the commission of such
suicide, shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine. It is that the S. 306 IPC is clear in terms
and it may not be possible to exclude those people who abet the suicide by terminally ill
patients. People abetting the attempt to commit suicide by a terminally ill patient are also
liable to be punished. S. 108 IPC which is the general provision making abetment of an
offence, will operate even if the main offender is not guilty.
It is submitted that in India, the main offenders guilt does not affect the abettors guilt. In
India we have adopted the broad theory of accessorial liability rather than the narrow one.
The narrow theory depends on the imputation of liability from the perpetrator to the abettor,
hence if the perpetrator is excused, so is the abettor. This is not the case in India, under S. 108
IPC the abettor is punished even if the perpetrator is excused. A Culpability is personal under
the Indian Penal Code. It is clear then that the abetment of suicide or attempted suicide by
normal or terminally ill-patients is an offence. The limited right to die that has been created,
allows the contention that there is a limited right to abet the commission or abetment of the
commission of suicide. This is in contradiction of the express conclusions for Justice Verma,
he rules that assistance of suicide or attempt, is illegal. This is an inherent contradiction.

7. CONCLUSION
This decision was made necessary only because of the creation of a right to die in P.
Rathinam case. The creation of a right to die meant that abetment of suicide, which is
undoubtedly criminal, would become unconstitutional, because it was only abetment of the
enforcement of a fundamental right.
This only emphasises the care that must be taken in constitutional adjudication. The perils of
indiscriminate right creation, stand highlighted. The same impasse would result in the event
that S. 309 IPC was held invalid on the basis of a right to choose. However, this decision has
resulted in the baby being thrown out with the bath-water. It is respectfully submitted that the
Constitution Bench should have, assuming that there is substantial due process, restricted
itself to answering the question whether S. 309 IPC was monstrous and barbaric or whether it
is just, fair and reasonable to punish an attempted suicide because 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. The state is under an obligation to prevent persons from taking their
lives as it prevents them from taking the lives of others. Further, this decision has opened a
veritable Pandoras Box by its remarks on euthanasia. The limited right of a terminally ill
person to commit suicide has been recognised.

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8. BIBLIOGRAPHY

1. K.D. Gaur, The Indian Penal Code, 3rd edition, 2004, Universal Law publishing
Co.

2. B.M. Gandhi, Indian Penal Code, 2nd edition, 2006, Eastern Book Company,
Lucknow.

3. V.N. Shukla, Constitution of India, 11th edition, 2011, Eastern Book Company.

4. Dr. J.N. Pandey, Constitutional Law of India, 44th edition, 2007, Central Law
Agency, Allahabad.

5. Right to die- To be or not to be? by Piti Sarkar

6. Should Attempt to Suicide be Decriminalised? By Sanjeev Sirohi

7. http://www.indianexpress.com/news/25-states-agree-suicide-attempt-should-not-be-
punishable-by-law/850036/

8. http://lawcommissionofindia.nic.in/reports/report210.pdf

9. http://www.indiankanoon.org/doc/217501/

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