Section 309 of IPC: It's Constitutionality and decriminalization

There is a lot of confusion regarding section 309 of the IPC among the general public and few think that this section has been repealed by the apex court of India and as well as by the legislature. Some term this section as unconstitutional. Some demand that this section must be decriminalized. In this column, the writer will try to clear the air regarding section 309 of the IPC, Constitutionality of Section 309, and why in the view of the author this section should not be decriminalized.

First, let's see what is suicide Suicide is a combination of two words sui meaning self andcide meaning killing, In short, a person committing suicide, must commit by themself, irrespective of the means employed by him in achieving his object of killing himself

Section 309 of the IPC: Attempt to commit Suicide

Whoever attempts to commit suicide and does any act towards the commission of such offense shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both

The language of section 309 is very simple and it implies that if someone attempts to commit suicide and if he/she is not successful in achieving his/her object, then he/she may face simple imprisonment which may extend to one year or with fine or with both.

Section 309: Constitutional or Unconstitutional?

There have been different views regarding the constitutionality of section 309 of the IPC. The Bombay High court and the Andhra Pradesh High court has held a different opinion regarding the constitutionality of section 309 of the IPC

Constitutionality of section 309 Of Indian Penal Code first came up for consideration before the Bombay High Court in State of Maharashtra V. Maruti Sripati Dubal(1986) 88 Bom LR 589. In this case the Bombay High Court held that right to die is included under 'right to life ' enshrined under Article 21 of the constitution and hence section 309 violates the Fundamental Rights of the citizens, so the court struck down section 309 of the IPC and held section 309 to be unconstitutional.

The Andhra Pradesh High court in Chenna Jagdeshwar V. State of Andhra Pradesh (1988) cr LJ 549 held that right to die is not a fundamental right within the meaning of Article 21 of the Indian Constitution and hence section 309 of the IPC is not unconstitutional.

These two different views of the High courts was settled by a division bench of the apex court in P. Rathinam V. Union of India (1994) 3 SCC 394, The Supreme court held that views expressed by the Bombay High Court in State of Maharashtra V. Maruti Sripati Dubal (1986) 88 Bom LR 589 is right and stated that a person has a right to die and declared section 309 unconstitutional. In the case, the petitioner challenged the validity of section 309 on the ground that it was violative of Article 14 and 21 of the constitution.

The court held that section 309 of the IPC was a cruel and irrational provision. It was held that Article 21 also includes 'right not to live a forced life and hence court approved the decision of the Bombay High court in State of Maharashtra V. Maruti Sripati Dubal (1986) 88 Bom LR 589.

The decision of the apex court in P. Rathinam's case and the judgment of the Bombay high court in Maruti Sripati Dubal's case raises many questions:

1. This ruling will impact the young and immature minds that tend to act or react in haste.
2. Right to die an unnatural death should not be included under Article 21 of the Constitution.
3. What about those people who in the disguise of protest threatens to kill themselves if their demands are not meet, in front of government offices.
4. Suicide owing to frustration in love, failure in examinations, and failure to get a job is not a solution and should not be encouraged. This would raise many social problems.
5. Even different religions across the globe be it, Hinduism Islam, Christianity, Jainism or Buddhism treats Suicide as a negative act.

To provide some clarity regarding the right to die and constitutionality of section 309 of the IPC, The constitution bench of the Supreme Court in Gian Kaur V. State of Punjab (1996) 2 SCC 648 held that right to die under Article 21 of the constitution does not include right to die or right to be killed

Justice J.S Verma observed: Right to life is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and incompatible and inconsistent with the concept of right to life.

The court held made it clear that the right to life including the right to live with human dignity would mean the existence of such a right up to the end of natural life. Right to die with dignity at the end of life is not to be confused with the right to die an unnatural death curtailing the natural span of life. The court accordingly held that section 309 of IPC is not violative of Article 21 of the constitution.

The apex court overruled its own judgment in P.Rathinam's case and set aside the Bombay High Court order in State of Maharashtra V. Maruti Sripati Dubal (1986) 88 Bom LR 589 and upheld the judgment of the Andhra Pradesh High court in Chenna Jagdeshwar V. State of Andhra Pradesh (1988) cr LJ 549, which declared section 309 of the IPC constitutional.

So it is finally settled that Section 309 of the IPC is constitutional and it does not violate Article 14 and 21 of the Indian Constitution.

Decriminalization of section 309 of IPC

There have been calls for decriminalization of section 309 of the IPC from some NGOs and from the persons related to the legal field. Their point is that a person who suffers from stress due to various reasons attempts to commit suicide. By punishing them when they fail to achieve their objective is like giving them double punishment. This only increases their pain and agony. The criminalization of section 309 of the IPC does not help in reducing the pain. So even if it is not unconstitutional, this section should be decriminalized.

Legislature tried to decriminalize this section a few times but nothing has materialized in the decriminalization of this section.

People tend to think that Section 309 of the IPC has been repealed or decriminalized after the passing of Mental healthcare Act,2017. But this act has not repealed section 309 of the IPC, it has just reduced the scope for the use of section 309.

Section 115 (1) of the Mental Healthcare Act, 2017 states that:

Notwithstanding anything contained in section 309 of IPC any person who attempts suicide shall be presumed unless proved otherwise, to have severe stress and shall not be tried and punished under the same code.

This section clearly states that if a person attempts to commit suicide, it will be presumed that he/she was suffering from severe stress and he\she cannot be tried and punished under section 309 of the IPC.

Section 115(2) of the Mental Healthcare Act, 2017 states that:

The appropriate government shall have a duty to provide care, treatment, and rehabilitation to a person having severe stress and who attempts to commit suicide, to reduce the risk of re-occurrence of an attempt to commit suicide

So these two sub-sections of section 115 of the Mental Healthcare Act, 2017 clearly lays down guidelines regarding cases relating to attempt to suicide and it clearly reduces the scope of section 309. It will be presumed that a person is suffering from severe stress if a person attempts to commit suicide and the government should provide treatment and rehabilitation to such persons so that this attempt to commit suicide should not occur again.

CONCLUSION
In my view, the legislature should not decriminalize section 309 of the IPC and after the enactment of Mental Healthcare Act, 2017, there is no the way this section can be used to increase the pain and agony of a person who attempts to commit suicide. One of the important observation of the Supreme Court is not widely known to the public at large is that while delivering judgment in Gian Kaur V. State of Punjab (1996) 2 SCC 648 the Supreme court held that there is no requirement of awarding any minimum sentence. The sentence of imprisonment or fine is not compulsory but discretionary.

The contents of Mental Healthcare Act, 2017 is not known to the public at large, even some of the police officers at junior level do not have any idea about this act and that is why it is necessary to run some campaign which will enable police officers and people to know about the Mental Healthcare Act, 2017.

While it is also important to note that many times when the police arrest a person of any alleged crime, their family member threatens to commit suicide in front of the government office. These people are not suffering from severe stress, they are just trying to disrupt law and order and for these people, this section needs to stay and certain modifications can be done so that section 309 can deal with persons alleged of an attempt to commit suicide which falls outside the scope of section 115(1) of the Mental Healthcare Act, 2017.

End Notes:

1. Section 309 of IPC
2. State of Maharashtra V. Maruti Sripati Dubal (1986) 88 Bom LR 589.
3. Chenna Jagdeshwar V. State of Andhra Pradesh (1988) cr LJ 549
4. P. Rathinam V. Union of India (1994) 3 SCC 394
5. Gian Kaur V. State of Punjab (1996) 2 SCC 648
6. Section 115 (1) and 115(2) of the Mental Healthcare Act, 2017