On September 21, 2011 the Central Government informed the Delhi High Court that it was seriously contemplating decriminalizing an attempt to commit suicide. All State Governments in the country barring that of Bihar, Madhya Pradesh and Sikkim have also expressed their concurrence with this proposal. This submission was made by a counsel appearing on behalf of the Union of India before a Division Bench comprising Chief Justice Dipak Misra (since elevated as Judge of the Supreme Court) and Justice Sanjiv Khanna during the course of hearing of a Public Interest Litigation (PIL) preferred by an NGO viz. Mental Health Foundation wherein it was prayed for a declaration that section 309 of Indian Penal Code (IPC) is ultra vires the Constitution of India.
The petitioner Foundation also sought directions from the High Court for expeditious implementation of the 210 th report of the Eighteenth Law Commission of India (LCI) which too had recommended repealing of section 309 IPC terming it as "anachronistic law". The report titled "Humanization and Decriminalization of Attempt to Suicide" was submitted by its then Chairman, Justice AR Lakshmanan three years back in October, 2008. Although the High Court refused to adjudicate the constitutional validity of section 309 IPC as the issue is already settled down by a March 1996 Constitutional Bench ruling of the Supreme Court, the Court did call for a response from the Union Government on the aforesaid recommendation of the LCI. The Government would now file a comprehensive affidavit detailing the steps that have been taken by it in this regard when this case would come up for further hearing in the month of December, 2011.
Section 309 of 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, technically speaking, suicide as such is not a crime under the IPC; it is only an attempt to commit suicide that is punishable under this section. In other words, it is only when a person fails in his mission to commit suicide that the Penal Law comes into picture. On the contrary, if such a person succeeds, there would be no offender who could be brought within the purview of the law. 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 forever as he/she would not be alive anymore.
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 an act deserves 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 42 nd report submitted by the Fifth LCI (June, 1971) which recommended, inter alia , the repeal of section 309 IPC perceiving it as harsh and unjustifiable. Pursuant to this recommendation, the same was incorporated in the Indian Penal Code (Amendment) Bill, 1978 and was even passed by the Rajya Sabha but before its passing in the 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 even to re-introduce the same Bill.
In P. Rathinam v. Union of India, (1994), a Two- Judge Bench of the Supreme Court held that section 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, is void. But in March 1996, this case was overruled by a Constitutional Bench of the Apex Court in Gian Kaur v. State of Punjab wherein it was held that Article 21 of our Constitution guaranteeing the right to life does 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 the Supreme Court in Gian Kaur's case had only upheld the constitutional validity of section 309 IPC and it did not go into the question of desirability of retaining the same in the IPC.
In August 1997, the Fourteenth LCI under its then Chairman, Justice K. Jayachandra Reddy in its 156 th report relating to IPC however justified retention of section 309 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 to re-thinking 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 section 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.
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 need 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 himself/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 be held guilty of the offence of attempted suicide.
One may recall the much-publicized Anna Hazare's 12-day long fast in Delhi (August, 2011) demanding strong LokPal legislation wherein had he continued to do so even after physicians advised otherwise, the police authorities had no option but to forcibly pick him up so as to prevent any untoward incident. Then there is the unique case of Irom Chanu Sharmila of Manipur who started her hunger strike more than a decade back in November, 2000 demanding repeal of Armed Forces (Special Powers) Act in Manipur . This Iron Lady of Manipur is being force-fed through a nasal tube and has been released and re-arrested by the police several times, but her fight wages on. These couple of high-profile instances reveal that the 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.
There is no distinction between suicide as ordinary understood and the right to voluntarily put an end to one's life. Both stand on equal pedestal as far as Indian Law is concerned. As regards the fate of terminally ill-patients, a ruling of the Apex Court delivered earlier this year in the much-publicized Aruna Shanbaug's 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.
Pertinent that during the course of judgment on PE, Justice Markandey Katju (since retired) had also commented that time has come when section 309 IPC should be deleted by the Parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment. He recommended to the Parliament to consider the feasibility of its deletion from the IPC.
Lastly, it can be concluded that an attempt to commit suicide indeed merits decriminalization and hence omission from our penal statute viz. IPC. It must be realized that a determined suicide can never be prevented by the fear of only one year's imprisonment or fine or both as prescribed in section 309 IPC. This provision which has since been termed as "Anachronistic law" needs to be immediately effaced from IPC. But at the same time it must be ensured that those who tend to abuse or misuse the same in one way or the other must be strictly dealt with in accordance with law.