ATTEMPT TO COMMIT SUICIDE IS PUNISHBALE OR NOT
Author: Akshat Tripathi, NMIMS, School Law, Mumbai.
Interestingly, in the Indian Penal Code, the word ‘suicide’ is not specified. However, a brief reference of Clift v. Schwabe provides an appropriate meaning of this word, “to ‘commit suicide’ is for a person willingly do an act, for the purpose of destroying his own life, being conscious of the probable result, and having, at the time, ‘sufficient mind to will the destruction of life.”. It should be remembered that, while there is no penalty for the finished act, the statute guarantees that people who are unable to execute the act are punished. This ensures if a person who is severely suicidal or sick, someone who has lost all hope of surviving, tries to end his life and his effort is futile, the judicial prosecution will guarantee that he is prosecuted for failure. Indian Penal Code, 1860 defines attempt to suicide as “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”. Suicide has been a subject of intense speculation and unending discussion since time immemorial. Suicide was opposed and forbidden by tradition, empire, and colonization. Suicide is defined as death caused by self-directed harmful actions with the intention of dying as a result of the actions. A suicide attempt, on the other hand, is a possibly injurious, nonfatal self-directed action with the likelihood of dying as a result of the action. A suicide attempt can result in injury or not.
Historical Analysis: Global and Indian Reforms
The de stigmatization of the act of suicide began with Durkheim’s groundbreaking work. His hypothesis that external stresses or social stressors can lead to suicidal activity, raised suicide consciousness and helped to start de stigmatization. The dawn of psychiatry was another major force driving shifts in social views towards suicide. The definition of hysteria was introduced by Sigmund Freud and he suggested that psychiatric illnesses were, in effect, medical problems. Therefore, recognition of the notion that psychiatric or emotional trauma could be attributed to natural and physical variables, i.e. biological in nature, promoted improvements in suicide-related legal, criminal and religious legislation. Internationally, Germany was the first country to decriminalize suicide attempts in 1751. Following the French revolution, suicide was later decriminalized by all countries in Europe and North America. In 1983, for those who had committed suicide, the Roman Catholic Church repealed the canon law banning proper funeral services and burial in church cemeteries. In western culture, both of these changes have been influential in transforming views towards suicide. Certain states, such as Scotland, never deemed suicide a crime and did not have the same legislation. In 1981, when the Delhi High Court first rejected section 309 of the Indian penal code as “unworthy of society,” the first signs of a shift of perception of suicide attempts in India emerged. In 1994, the Supreme Court also went on to call it “irrational and barbaric and therefore unconstitutional.” It held that the right to life and liberty must also be interpreted under Article 21 of the Constitution. Equality of expression and speech requires equality not to comment and to stay silent. The right of association and travel also requires the right not to enter or go anywhere in any association. Equality of industry and profession requires equality not to do business and to close the current industry. If it is so, it would necessarily conclude it, as understood by Article 21 of the Constitution, the freedom to live also requires the freedom not to live or not to be compelled to live. Article 21 will, to put it favourably, including the ability to die or to end one ‘s life. In its 42nd report submitted in 1971, the Law Commission had earlier proposed the abolition of section 309. The 1978 IPC bill was passed by the Rajya Sabha, but the lower House was disbanded and the bill lapsed before it could be passed by the Lok Sabha. After the Gian Kaur decision, the Commission then submitted its 156th report in 1997, recommending that section 309 be maintained. The commission, in its 210th article, recommended that treatment and psychological services and not prosecution be warranted for attempted suicide. In view of the views shared by the WHO, the International Suicide Prevention Group, the Indian Psychiatric Society and the Commission’s representations obtained from various people, the Commission agreed to recommend that the Government of India take action to revoke the anachronistic legislation found in section 309 of the IPC. The right to die was held by the Supreme Court in P. Rathinam v. Union Of India as an element of Article 21. It was held that Article 21 of the Constitution was infringed by Section 309 in so far as the freedom to live requires the freedom to death or the right not to live a forced life and the section interferes with that right. The stance of the Supreme Court on trying to commit suicide was categorically overruled in the case of Smt. Kaur Gian v. State of Punjab. The court ruled that the right to death can not, according to Article 21, be construed as the right to live. The court declared that “the right to life is a fundamental right enshrined in Article 21, but suicide is an unnatural termination or disappearance of life and is both incompatible and incompatible with the definition of the right to life.
Convergence Of Section 309 of IPC and Mental Health Care Act 2017
Section 309 Of IPC is read as “Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year 1”[or with fine, or with both]. Section 309 legitimacy has always been a divisive issue and people are torn on the issue of abolishing / retaining it. Initially, in the case of , the fundamental supremacy of the constitution was set down as irrational and violative of Article 21 of the Constitutionin Rathinam v. Union Of India. Within two years, however, in Gian Kaur v. State of Punjab, the Supreme Court overturned the P. Rathinam’s dictum and maintained its legitimacy as a constitution. Fifteen years after the Gian Kaur decision , the Supreme Courtexpressed its disappointment with the terms of section 309 in Aruna Shaunbaug v. Union Of India and urged Parliament to explore the possibility of decriminalize ing the crime of attempting to commit suicide by withdrawing it from the IPC. After seeing the alarming number of suicide cases and the need to put the Mental Health Act into line with the 2007 United Nations Convention on the Rights of People with Disabilities (UNCRPD), the Government of India proposed a substantive law in 2013 that came into force as the 2017 Mental Health Act. However, the interpretation of the validity and applicability of section 309 remains muddled and requires clarification as the Mental Healthcare Act 2017 has come into force.
It is an existing theory in law that particular law would prevail above general laws set down in I.P.C. As a special law, the Mental Healthcare Act, 2017 was enacted with the intention in “providing mental health services to the individual with mental disorder” and has, to some degree, decriminalized the rigorousness of suicide attempts via section 115.
The Mental Health Act 1987 was substituted by the 2017 Act, which specifically describes mental disease. It seeks to transform the country’s mental health system by harmonizing the laws of India with the Convention on the Rights of People with Disabilities and its Optional Protocol. For people with mental illness living below the poverty line, even without the issuance of a BPL permit, or others who are homeless, the provision of care and therapy must be free of charge at all mental health institutions operated or funded by the proper government . In addition, the Act forbids electric shock as a form of treatment for children with mental illness. It also forbids electric shocks without the use of muscle relaxants and anaesthesia for adults with mental illness. Male and female sterilization as a cure for psychiatric illness is still banned. Yes, it also forbids binding mentally ill people with chains. A mentally ill person has the right to live with dignity … There shall be no discrimination on any grounds, including sex, gender, sexual identity, religion, culture, caste, social or political views, class or disability,’ says the Act, as it aims to compare the mentally disabled with the physically disabled in terms of delivering health care.
Section 115 Of Mental Healthcare Act, 2017 is inscribed as Presumption of Severe Stress in case of Attempt to Suicide which is illustrated as:
- Notwithstanding the provisions of Section 309 of the Indian Penal Code, any person who tries to commit suicide shall be assumed to have extreme stress unless proven otherwise and shall not be prosecuted and punished under the Code.
- It is the responsibility of the responsible government to provide diagnosis, medication and recovery to a person suffering from extreme depression and who has tried to commit suicide, in order to minimize the risk of recurrence of suicide attempts.
A bare perusal of the clause indicates that a person who refuses to survive is considered to be under ‘extreme stress’ and thus, the person will not be convicted and disciplined. It should be noted here, however, that the term ‘extreme stress’ was not described in the Act and did not originally appear in the original text of the bill, but was eventually used instead of ‘mental disorder’ as stated in the Act’s 2(s). Therefore, since the legislature decides to assign all words the same sense, what would constitute ‘extreme stress’ in a case is left to the courts’ understanding of the situation.
Implications of the Decriminalization Of Section 309 Of Indian Penal Code, 1860.
Currently, with the promulgation of the Act, it is important to understand that section 115 does not offer blanket immunity to anyone convicted under s. I.P.C. 309. It still does not fully decriminalize I.P.C. section 309, but it does not expressly repeal section 309 of the IPC or make it applicable to all suicidal attempts unless the law presumes’ extreme hardship ‘on behalf of the person who tried on his life. In addition, the courts have noted on a number of occasions that this presumption is not unconditional and can be rebutted in situations in which the police authority put on record material indicating that the petitioner did not suffer from any stress at the time of the attempt. The Law Commission of India also supports this opinion in its’ 156th Survey. The convergence of section 309 of IPC on section 115 of Mental Health Care Act, 2017 is divided into 2 outlooks:
- The value of the presumption section 115 of Mental Health Care Act should be given to people who planned to end their life because of mental illness or extreme stress. Consequently, they could not be fined under IPC section 309.
- The privilege of innocence should not be granted to persons who intended to take their lives because of their inability to commit a crime, and they must be convicted and prosecuted under section 309 of the IPC. Extending the benefit of section 115 of the Act will be harmful to the general interest for those falling into this group, as those would use this provision to save themselves from their unwillingness to commit crime. This can also have a deterrence effect on persons, among other items.
The sentence is actually waived and IPC Section 309 has been decriminalized. This does not mean encouraging suicide, rather assisting persons who suffer from depression or mental illness. This is a decade-long debate on whether or not the right to death should be constitutional. The right to life, the right to live a life with integrity, surely does not mean living a coerced life. In fact, decriminalizing efforts to commit suicide would not raise the number of suicides, but would only allow survivors to seek assistance. However, the right to live will mean the right to live with human dignity before the end of time. Therefore, the right to live must require the right to die at the end of life with dignity, and it should not be equated with the right to die an accidental death that reduces the normal life span.
Section 309 can be amended accordingly as a statute, taking into account the kinds of persons who commit suicide. The provision should be amended to prosecute only those that attempt to prevent justice out of other statutory duties, without any that attempt it out of pure anger, despair, or out of living in conditions that evoke suicidal thoughts. It is not enough to decriminalize suicide. In order to reduce its effects, there is a need for a robust health program. In addition, if the government and the social sector play a positive role in spreading anti-suicide awareness, the stigma linked to suicides would only recede. As of today, the International Health Organization (WHO) has decriminalized the effort to commit suicide in 59 nations, but in countries adopting common law frameworks, decriminalization has remained comparatively late. While the Law Commission of India supported the erasure of suicide in its 210th report entitled Humanization and decriminalization of suicide attempts. The amendment of section 309 is for the basic explanation that persons trying to commit suicide under extreme stress or mental illness need active sympathy and help in the form of recovery rather than social conviction in the form of retribution.
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2. Mohamed Thaver , study : Section 309 of IPC: Questions and issues around an archaic section of the law, ( 23rd June, 2020) , available at https://indianexpress.com/article/explained/sec-309-ipc-questions-and-issues-around-an-archaic-section-of-the-law-6468338/
3. Indo- Asian News Service . study : Government Decriminalises Suicide ,( 3rd June, 2018), available at https://www.ndtv.com/india-news/government-decriminalises-suicide-notifies-new-law-1861575
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