INTERNATIONAL JOURNAL OF RESEARCH AND ANALYSIS 2014

VOLUME 1 ISSUE 3

“CASE REVIEW OF SMT. GIAN KAUR VS. STATE OF PUNJAB”

**Pawar Garvit .S & Aman Chaudhary

INTRODUCTION

India got independence in 1947. With the independence of India, Constitution of India
was enacted in 1950. Whereas, Indian Penal Code was enacted way back in 1860. Though the
gap between two important enactments is very huge, but the legislators have very diligently
framed law. Considering the gravity of the situation, the framers of the Constitution of India
gave paramount importance to Constitution of India. Especially fundamental freedoms provided
and conferred by the Constitution upon the citizens of India.

There are various enactments and laws governing various offences at the same time
penalizes, with a view to protect society. Though many laws and enactments are prevailing at the
same time, but the ultimate importance id given to fundamental rights and freedoms conferred
upon the citizens of India by Constitution of India. If any provision of law is derogatory in nature
or in conflict to the fundamental freedom and rights, then Constitution of India stands strong.
Meaning that when there will be a conflict between fundamental freedom and rights with any
other provision of law, then certainly Constitution of India, 1950 shall prevail. In various cases
the Hon’ble courts have also been of the similar view.

Perhaps due to significance of fundamental rights conferred upon the citizens by

Constitution, many questions have been raised as well as answered from time to time by the
judiciary of India. For instance in regards of article 14, Constitution of India, 1950 provides right
to equality. The above said provision is challenged several times. Similarly article 21,
Constitution of India, 1950 which provides right to life has been brought into controversy for
various reasons. But among all the most vital is that, “right to life also includes right not to life.”
Since, the enactment of the law, several times question has been raised as to constitutional
validity of article 21, Constitution of India, 1950. It is pertinent to note that, section 309, Indian
Penal Code, 1860, that penalizes “attempt to commit suicide” is at par criticized along with
article 21.

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On validity of section 309, Indian Penal Code in context of article 21, Constitution of
India, the supreme authority have made several attempts to distinguish both the provisions and
validity of the same. Though, it is pertinent to note that various sections are inter-related such as
section 309, which states attempt to commit suicide at the same time section 306 deals with
abetment of suicide.

There is lot of ambiguity over the question of law in context of right to life and attempt to
commit suicide at par with other provisions of law. The same will be pointed out in the research
paper and will be discussed in brief with the assistance of various decided cases and provisions
of law on different subjects.

JUDGMENT

Trial Court:-
The above case falls under the ambit of criminal jurisdiction. The defence, that is Smt.
Gian Kaur and her husband were convicted u/s 306, IPC by the trial court and sentenced to six
years rigorous imprisonment and fine of Rs. 2, 000/-. The couple was convicted for commission
of abetment of suicide by Kulwant Kaur.

However, an appeal was filed in the High Court.

High Court:-
An appeal was made in the High Court by convicts. Appellants contended that,
conviction u/s 306, IPC was unconstitutional. The contention of the appellants was on the
grounds of a decided case of “P. Rathinam vs. Union of India and Anr.” In P. Rathinam case, it
was held that section 309, IPC is unconstitutional because it violates article 21 of the
Constitution of India. Hence, appellant contended that when the act of suicide that is section 309
is made unconstitutional then apparently section 306, which states punishment for abetting
suicide should also be held unconstitutional. Further, appellants contended that article 21of the
constitution guarantees right to life which also includes right to die. Hence, the act of appellants
was not a crime but a mere aid to exercise fundamental right of deceased [Kulwant Kaur.]
Therefore, the act of appellants was not a crime.

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Considering the gravity of the issue and constitutional bench was setup in order to review the
judgment given by division bench in P. Rathinam vs Union of India and Anr.. The constitutional
bench re-considered judgments on the basis of which judgment was given in P. Rathinam case.
The constitution bench referred to following cases:-

 “Maruti Shri Pati Dubal vs. State of Maharashtra,”1 it was held that article 21 of the
Constitution which guarantees right to life, but it also includes right to die. Hence, section
309 of IPC was held violative of article 14 and 21 of the Constitution.
 “State vs. Sanjay Kumar Bhatia”2 it was held section 309 is violative and its continuance
may harm the society. However, the bench did not emphasized on its being
unconstitutional.

In “P. Rathinam vs. Union of India and Anr.”3 It was contended that section 309 of IPC and
violative of article 14 and 21 of the Constitution. The division bench held that, section 309 is not
violative of article 14 but it is violative and of article 21 of the constitution. The division bench
considered the judgment given of Bombay High Court and Andhra Pradesh High Court and
judgment was given on the lines of judgment given by Andhra Pradesh High Court. In view of
article 21, the division bench considered the judgment of Bombay High Court. The bench
supported the decision and held that article 21 of the constitution is right to life but is also
includes right to die. Moreover, the division bench also referred to 42 nd Law Commission Report
of India which provides for repelling section 309, IPC for violating article 14 and 21 of the
Constitution. Considering the judgment in P. Rathinam, the question arose, was whether article
21 includes right to die? On this issue, division bench relied on judgment of Bombay High Court,
wherein the bench held that section 309, IPC is violative of article 21. It gave an analogy on the
basis of freedom of speech and expression includes freedom not to speak and concluded that
article 21, defines right to life have a very wide interpretation and thus it also includes right to
die.

1
1987 Crl.L.J.743
2
1985 Crl.L.J.931
3
(1994) SCC 394

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Finally, it was concluded that article 21 of the Constitution states right to life but it does not
includes right to die. The reason stated was that the provision was enacted with the view of
beneficial and positive interpretation. It cannot be interpreted in a negative aspect. By including
right to die, the intention behind the enactment of article 21 is defeated.

Further, the constitutional bench held that there is no ground for declaring section 309, IPC
as violative of article 21 of the constitution. In addition it also held that section 309 cannot be
held violative even of article 14 of the constitution.

Hence, constitutional bench rejected the judgment of “P. Rathinam vs. Union of India and
Anr.” It ruled that section 309 of IPC is not violative of article 14 and 21 of the Constitution of
India, and section 309, IPC stands valid. When section 309, IPC stands valid, there is no doubt
about the validity of section 306, IPC. Hence, the constitutional bench held section 306 valid.
The conviction of appellant was upheld.

Now, we shall discuss the relevant provisions related to the case in hand and analyze if the
judgment provided is a good judgment and the reasons relating to the same.

ARTICLE 21, CONSTITUTION OF INDIA, 1950

Article 21 of the Constitution of India, 1950 stated as, “No person shall be deprived of his
life or personal liberty except according to procedure established by law.” Article 21 was enacted
with the intention to guarantee right to life and personal liberty to citizens only against arbitrary
actions of executive. But after the judgment of Maneka Gandhi, 4 the scope of article 21 has
became wide. At present it guarantees right to life and personal liberty to citizens against
arbitrary actions of executive and legislative. 5

The scope of article 21 has been expanded by the 86th amendment in 2002. The
amendment added article 21A to the Constitution of India. It made right to elementary education
as a fundamental right vested upon the citizens of India.

4
Maneka Gandhi vs. Union of India, AIR 1978 SC 597.
5
Dr. J.N. Pandey, The Constitutional Law of India, 47th Edition, Central Law Agency, Allahabad. 2010

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The scope of article 21 is very wide and includes various right guaranteed to the citizens
of India. One of the rights guaranteed by article 21 is right to life. In view of legislators right to
life means every citizen of India shall have the right to live. But it has always been subject
debate that whether article 21 also includes right to die. Many debates have been going on
around the world on the issue.

For the first time the question was raised in “State of Maharashtra vs. Maruty Sripati
Dubal,”6 The Hon’ble High Court held that right to life also includes right to die. The court laid
various circumstances where under, a individual can exercise the fundamental freedom of right
not to live, that right to die. The court laid down that in situations like disease, cruelty,
unbearable conditions of life etc. can entail a individual to exercise right not to die. The court
was of view that every individual should have freedom to dispose off life upon the
circumstances.

Similarly, in “P. Rathinam vs. Union of India and Anr.”7 The court held that article 21
also includes right to die. The court was of view that a individual cannot be forced to enjoy life.
A individual who is already suffering from various problems due to which one wants to end up
the life and if the attempt of kill to oneself goes unsuccessful, then section 309 comes into
execution that penalizes him/her for the act of killing. The court considered the importance of
humanity, held that a person who is already suffering from various life problems. By penalizing
the act of unsuccessful suicide, the law and world is not showing the humanity. Instead of aiding
the problems in an individual, an effort should be made to relieve the problems by various other
methods. Hence, court held section 309 as unconstitutional and violative of article 21.

It is pertinent to note that the Bombay High Court has included right to die under article
21 but only under satisfaction of certain circumstances. The right to die can be exercised only
upon satisfaction of various situations and not under all the circumstance. It implies that if there
is no adequate cause upon which a court can rely for the attempt of suicide, then such omission
would be a considered a offence and punishable as well. 8

6
1987 Cr LJ 549.
7
(1994) 3 SCC 394
8
Supra note no. 5.

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Article 21 does not includes right to die extensively. It includes right to die till an extent
that is acceptable by the court as laid in judgment given by Bombay High Court. The court
included right to die under article 21 due to mercy on such category of people who are really
under a situation, which is not bearable for them and life is at such a door, where no one would
like to continue their life, subject to circumstance permitted by the court.

SECTION 309, INDIAN PENAL CODE, 1860.

Section 309, Indian penal Code, 1860 states 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.”

A act of committing suicide is not a offence, because with the successful commission of
suicide, there will be no existence of man. But a unsuccessful suicide is called an attempt to
suicide and the same is punishable by law. 9 The code punishes attempt to commit suicide. It is
said that a body of a man is not personal to him but the existence of man also affects relatives or
people surrounding man. Hence, considering the importance of a man in society, the code
penalizes an attempt to commit suicide. To penalize omission of attempt to commit suicide, the
omission must be intentional. The person should have the knowledge about the act.

However, from time to time section 309 has been challenged. It is said that section 309 is
violative of article 14 and 21 of the constitution and hence section 309 is unconstitutional. At the
same time many debate have took place on the topic. The Law Commission of India in its 47 th
report has proposed to repeal section 309 from the Indian Penal Code, 1860. In the report, law
commission has stated that section 309 is against humanity. 10 A person, who is suffering from
insufferable pain and due to various issues of life, wants to end up life. However, if omits to do
so and goes unsuccessful, then law punishes the same. And if the omission is successful, then
there is no issue over penalizing. The laws of manu also state for repealing laws that provide for
punishment of an attempted suicide.

From time to time various cases have been filed in order to repeal section 309 from the
code. But the legislators as well as judiciary have not accepted the pleas and section 309 is
persistent in the penal code.
9
K.D Gaur, Textbook on The Indian Penal Code, 4th Edition, Universal Law Publishing House, 2013
10
Ratanlal & Dhirajlal, The Indian Penal Code, 33rd Edition, Lexis Nexis Butterworths Wadhwa, Nagpur. 2010

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SECTION 306, INDIAN PENAL CODE, 1860

Section 306, Indian Penal Code, 1860, states that, “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.

In regards of section 306, it is apparent that if right to die is not a absolute right, then
similarly repealing section 306 absolutely is also not possible. 11 The section penalizes such
individuals who commit abetment to a suicide. Such an act is punishable because when a act of
suicide is punishable, then a act of supporting or assisting such act should also be held
punishable. From time to time lot of debates took place on repealing section 306 via section 309.

But is contended that when section 309 cannot be repealed, it ultimately pull curtain over
the debate of repealing section 306. In the above case the court has very diligently justified and
in my opinion, the application in regards of section 306 is valid.

ARTICLE 14, CONSTITUTION OF INDIA, 1950

Article 14 states that, “The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.” To be precise the article provides
for right to equality. The issue over section 309 being violate of article 14 has been realized in
various cases. But, the court because of various reasons has stated that section 309 in no
circumstances is violative of section 309. 12 Moreover, in P.Rathinam the bench already
concluded that section 309 is not violating article 14 of the constitution. Therefore the debate
over section 306 as violating article 14 comes to an end.

Considering the judgment of the court, the above provision has been applied very
diligently and hence the application is valid.

11
Ratanlal & Dhirajlal, The Indian Penal Code, 33rd Edition, Lexis Nexis Butterworths Wadhwa, Nagpur. 2010
12
Supra note no. 5

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CONCLUSION
The appeal was made in the High Court on the grounds that if section 309 is held as
violative of article 21, then section 306 that punishes for abetting a crime should also be held
violative of article 21. The above proposition has been held invalid by the court on various
grounds. However, the more importance has been on article 21. The bench held that section 309
is not violative of article 21, because article 21 does not includes right to die.

Howsoever, in various cases it has been held that article 21 is violated by section 309.
But the justification by the courts given is that article 21 also include right to die. But the above
contention is accepted only partially. The court have held that article 21 includes right to die but
only till limited extent. That is if the parties have the justification or a cause as provided by the
judgment of Bombay High Court, if the reason falls under any of the cause prescribed by the
court, then right to die shall be included in article 21. However, the court has rejected the
judgment on the grounds that article 21 was enacted with the intention to guarantee right to life
to every individual, because the life of every individual is important to another, hence one should
not be allowed just to end up life. Therefore, the court concluded that section 309 is not violative
of article 14 and 21. At the same time the report of law commission is also to considered. In
regards of section 306, when the mere act of attempt to commit suicide is made punishable then
it can be ascertained that the act if assisting such crime can also be held punishable.

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REFERENCE
1. K.D Gaur, Textbook on The Indian Penal Code, 4th Edition, Universal Law Publishing
House, 2013
2. Ratanlal & Dhirajlal, The Indian Penal Code, 33rd Edition, Lexis Nexis Butterworths
Wadhwa, Nagpur. 2010
3. B.M. Gandhi, Indian Penal Code, 3rd Edition, Eastern Book Company, Lucknow. 2010
4. Dr. J.N. Pandey, The Constitutional Law of India, 47 th Edition, Central Law Agency,
Allahabad. 2010
5. Westlaw Journal

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