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ADIEU SECTION 309 IPC

Better Late than Never


HEMANT KUMAR, ADVOCATE
_______________________________________hemantkumar.mallb@gmail.com
The incumbent Modi dispensation deserves due applause for it recently signalled
its intention to efface a so-termed anachronistic law which prescribes
punishing a person who attempts to commit suicide. There cant be any second
opinion that whosoever for whatever reason(s) tries to terminate his/her
precious life prematurely certainly deserves appropriate counselling, proper
treatment and sympathy rather than inflictment of any kind of punishment in
case he/she fails during such an attempt.
On December 10, 2014 while giving a written reply in Rajya Sabha, Union Minister of State for
Home Affairs, Haribhai Parathibhai Chaudhary informed the House that consequent upon Law
Commission of India (LCI) recommendation in its 210th Report that Section 309 IPC (which
prescribes punishment for attempt to commit suicide) needs to be effaced from the statute- book
and owing to fact that law and order is the State subject, views of State Governments/Union
Territories(UTs) were called by the Centre over this issue upon which 18 States and 4 UT
Administrations have supported the idea of its effacement. Keeping in view the responses from
the States/UTs, the Minister asserted that it has been decided to delete the same from the Penal
Code.
Here it is also merits due reference that three years back on December 14, 2011, a Division
Bench of Delhi High Court comprising its then Acting Chief Justice AK Sikri (currently Judge of
Supreme Court) and Justice Rajiv Sahai Endlaw also disposed of a writ petition filed by Mental
Health Foundation wherein it inter alia sought directions from the HC for expeditious
implementation of above referred report of LCI. Albeit the HC refused to adjudicate the
Constitutional validity of Sec 309 IPC which was also sought to be declared ultra vires by the
petitioner Foundation as the Court affirmed that the issue already stands settled down by a
March, 1996 Constitutional Bench Ruling of Supreme Court but it did called for a response from
the Union Government vis--vis the aforesaid recommendation of LCI.

There upon, it was submitted on record before the HC by then counsel(s) appearing
for Union of India that 25 State Governments/UT Administrations have agreed to the
proposal for deletion of Section 309 IPC and on that basis the Union Home Ministry is of
the view to duly consider the same during the next batch of comprehensive amendment(s)
to the IPC, 1860. Unfortunately, this given undertaking was perhaps not even considered
by the then UPA-2 dispensation when it incorporated wide-ranging amendments in
Criminal Law(s) in early-2013 in the aftermath of much-hyped Nirbhaya case.
Be that as it may, in view of above cited factual position, one is forced to wonder that
when such a large number of state governments across the country are openly endorsing
the idea to repeal Section 309 IPC, why anyone of them has hitheto on its own done the
needful or even attempted to do the same? Of course, under present scheme of affairs,
states are competent enough to enact suitable amendment(s) in the IPC albeit after
following a precribed due procedure. There have been several instances of state specific
amendments evident in IPC. What has impeded the states on this vexed issue is
anybodys guess?

Here it merits due mention that above cited 210th report was submitted by 18th
LCI headed by Dr. Justice AR Lakshmanan with the title Humanization and
Decriminalization of Attempt to Suicide more than six years back in October,
2008 which strongly recommended immediate repeal of Sec 309 IPC terming it as
anachronistic law. It also held that 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.
But as is usually the case with well-researched reports submitted by LCI where they
are scantly expeditiously duly considered by the executive government much less than
due debate and deliberation upon them in the Parliament , this Report was too perhaps
put in cold bag and allowed to gather dust which is substantiated by the fact that there
was also no follow-up on the same by the then UPA dispensation.

Section 309 IPC provides that 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. Thus legally speaking, suicide as such is not a
crime per se under the IPC. It is only an attempt to commit suicide which is punishable. In other
words, it is only when a person fails in his/her mission to commit suicide that the Penal Law
comes into picture. On the contrary, it such a person succeeds, there would be no operation of
this law as there would be no offender who could be brought within the purview of it. What an
irony? Perhaps this is the only offence where an alleged perpetrator after successfully
committing an offence would escape from the clutches of law for ever as he/she would not be
alive anymore. Much worst, the ibid law is cognizable albeit bailable.

As per the latest available report titled Accidental Deaths and Suicides in India
by National Crime Records Bureau, in the year 2013 a total of 1,34,799 persons
lost their life by committing suicides which works out to be 15 suicides every one
hour during the corresponding year. It has been observed that social and
economic causes have led most of the males to commit suicides whereas
emotional and personal causes have mainly driven females to end their lives.
Family problems (24%) and Illness (19.6%) have accounted for 43.6% of total
suicides in country during 2013. Also, 1 suicide out of every 6 was committed by a
Housewife.
Further, while 39.8% of the suicide victims died by hanging, 27.9% of the victims
consumed poison, 7.4% by fire/self-immolation and 5.7% by drowning. Among
53 mega cities of the country, Chennai(2,450), Bengaluru(2,033), Delhi
( 1,753) and Mumbai (1,322) have reported almost 35.5% of the total suicides
reported from all such cities. Finally, the suicide rate in cities (13.3) was higher as
compared to All-India suicide rate(11.0).
In many countries, attempt to commit suicide is regarded more as a manifestation
of a diseased condition of mind deserving of treatment and care rather than as an
offence to be visited with punishment. Acting on the view that commission of
such act deserve the active sympathy of society and not condemnation or
punishment, the British Parliament had enacted the Suicide Act in 1961 whereby
attempt to commit suicide ceased to be an offence. Only a handful of countries in
the world viz. India, Pakistan, Bangladesh, Malaysia, Singapore etc have persisted
with this undesirable law.
In India, firstly it was the 42nd report submitted by 5th LCI (June, 1971) which
recommended, inter alia, repeal of Sec 309 IPC perceiving it as harsh and
unjustifiable. Pursuant to this recommendation, the same was incorporated in
Indian Penal Code (Amendment) Bill, 1978 and even passed by Rajya Sabha but
before its passing in lower House, the then Lok Sabha was dissolved and hence
the legislation lapsed. No efforts had been made by any successive dispensations
neither at Centre nor in any state since then even to re-introduce a legislation to
repeal the same again much less than its due enactment.

Attempt to commit suicide should stay on the statute book because


suicide comes in conflict with the monopolistic power of the state to take away life. The better
option is not to punish anyone for attempting suicide but the law may be allowed to remain on the
statute book as the chances of abuse on its deletion are very high Faizan
NALSAR, Hyderabad in article in The Hindu (Dec, 2014)

In

Mustafa ,VC of

P. Rathinam Vs Union of India (1994), a Two Judge Bench of

the SC held that

Sec 309 IPC deserves to be effaced from the statute book so as to humanise our
penal laws. It was held that it violates Article 21 and so, it is void. But in March,
1996, this case was overruled by a Constitutional Bench of Apex Court in Gian Kaur
Vs. State of Punjab wherein it was held that Article 21 of our Constitution
guaranteeing the right to life did not include a right to die. It was further held that,
right to life was a natural right embodied in Article 21 , but suicide was an
unnatural termination or extinction of life and therefore, incompatible and
inconsistent with the concept of right to life. It must be mentioned that SC in Gian
Kaurs case had only upheld the Constitutional validity of Sec 309 IPC and it didnt
went into the question of desirability of retaining the same in the IPC.

In August 1997, the 14th LCI under its then Chairman, Justice K. Jayachandra Reddy in its
156th report relating to IPC however justified retention of Sec 309 IPC asserting that owing to
rise in narcotic drug-trafficking and terrorism offences in different parts of the country, the
phenomenon of human bombs etc have led rethinking on the need to keep attempt to commit
suicide an offence. For instance, a terrorist or drug trafficker who fails in his/her attempt to
consume the cyanide pill and the human bomb who fails in the attempt to kill himself/herself
along with the targets of attack have to be charged under Sec 309 IPC and investigations be
carried out to prove the offence. These groups of offenders stand under a different category than
those who due to psychological or religious reasons attempt to commit suicide. In view of such
apprehensions, there is a need to carve a silver lining between the two so as to ensure national
sovereignty and societal welfare. This apprehension has also been now expressed by those states
who are still resisting the idea for abrogating the offence regarding attempt to commit suicide.

We are of the opinion that although Section 309 Indian Penal


Code (attempt to commit suicide) has been held to be constitutionally valid in Gian
Kaurs case, the time has come when it should be deleted by Parliament as it has
become anachronistic. A person attempts suicide in a depression, and hence he needs
help, rather than punishment. We therefore recommend to Parliament to consider the
feasibility of deleting Section 309 from the Indian Penal Code, Justice Markandey
Katju, then SC Judge in Aruna Shanbaug Vs Union of India (March, 2011)

Also, now a days there is an ever-growing trend witnessed amongst certain


individuals to enact a suicide drama at public places on trivial matters so as to gain
cheap publicity in print and digital media. Many a times some jilted lovers also
climb high rise buildings or towers threatening to end their life. The cases of such
nuisance elements needs to be dealt severely as they tend to disturb public peace
and tranquility. Decriminalizing attempt to suicide should not come as a bonanza
for such persons.
As far as Hunger Strikes including Fast-unto-Death are concerned, such tactics are
resorted to as a means to pressurize some authority to concede demand(s) of
such agitators. So generally speaking, intention of such person(s) is not to kill
him/herself. Only if such person (s) sitting on fast unto death proceeds to refuse
all nourishment and the stage is reached where there is imminent danger of
death ensuing, he/she could face the offence of attempted suicide.
Here it is also worth mentioning the case of Irom Chanu Sharmilla who started
her hunger strike more than fourteen years back in November, 2000 demanding
repeal of Armed Forces (Special Powers) Act in Manipur . This Iron Lady of
Manipuris being force-fed through a nasal tube and has been released and rearrested by the police several times, but her fight wages on. One can understand
that state is under an obligation to prevent any person(s) from taking his/her life
notwithstanding the fact that such fast is ultimately for public good.

A person cant even claim his/her life by saying that he/she had led a successful
life and the mission of his/her life is fulfilled. There is no distinction between
suicide as ordinary understood and the right to voluntarily put an end to ones
life. Both stand on equal pedestal as far as Indian Law is concerned. As regards
the fate of terminally ill-patients, a ruling of Apex Court authored by Justice
Markandey Katju ( see box) delivered in March, 2011 in much-publicized Aruna
Shanbaugs case had given them some relief wherein the Court has given a nod
for Passive Euthanasia (PE) albeit with suitable safeguards so as to prevent its
possible misuse.

The IPC of Victorian vintage was drafted and enacted by "McCauley, a great
jurist of fossil vision, which today has ceased to be humanities spiritual and
temporal norm. Necessarily, law must change when social philosophy changes
Justice VR Krishna Iyer, former SC Judge and Indias legal colossus who left for
heavenly abode recently. Long before Mar, 2011 ruling of Apex Court in Aruna Shanbaugs case relating
to Passive Euthanasia, as head of Kerela Law Reforms Commission, he suggested legalisation of
Euthanasia coupled with abolition of Sec 309 IPC.

It must be realized that a determined suicide can never be prevented by the fear of only one
years imprisonment or fine or both as prescribed in Sec 309 IPC. One must also here recall
infamous Maruti Sripati Dubal Vs State of Maharahstra (1986) ruling by Justice PB Sawant,
former SC Judge and then Judge of Bombay HC wherein he pointed out that the
discriminatory nature of S. 309 becomes particularly prominent when its provisions are
compared with S. 300 IPC. While defining murder, the legislature has taken pains to make a
distinction between culpable homicide amounting to murder and one not amounting to murder
and has prescribed different punishments for the two. However, S. 309 prescribes the same
punishment to all individuals irrespective the different sets of circumstances under which the
suicide attempt is made. This is strange although murder is a more heinous offence with
consequences to the other member or members of the society.
Finally, now that the Modi dispensation has recently signalled its intention in Parliament to do
away with Sec 309 IPC, there ought not be any more inordinate delay at least on the part of
ruling political executive in this regard. This provision which has since been termed as
Anachronistic law needs to be immediately effaced from IPC. It is highly hoped that the
requisite legislation in this regard would be tabled in the forthcoming Budget Session of
Parliament. Last but not the least, while doing so, requisite and suitable legislative framework
must be put in place so as to ensure that all those who tend to abuse or misuse the effect of
decriminalization of attempt to commit suicide in one way or the other for vested interests,
public nuisance et al are sternly dealt with.

CONCLUDED