If Shakespeare were in our midst today Hamlet’s soliloquy “to be or not to be that is the question”, would be replaced by the soliloquy “to die or not to die that is the agonizing question”. This agonizing question confronts many. The agony is aggravated by the cruel anomaly in our penal jurisprudence that if a person succeeds in his attempt to commit suicide and dies that’s the end of the matter. But if the person doesn’t, the suicide attempt may see him behind bars and is punishable under Section 309 of our penal code by simple imprisonment for a term which may extend to one year or fine or with both.
To Rajya Sabha’s credit, it recently passed the Mental Health Care Bill, 2015 which provides that anyone attempting to commit suicide wouldn’t be punished under Section 309. The proposed law doesn’t in terms repeal or amend Section 309 but in substance nullifies its penal consequences.
The issue of suicide has been debated in our country and elsewhere. The Law Commission in its 42nd Report in June 1971 recommended repeal of Section 309 based on cogent reasons. A Bill, the Criminal Law Amendment Act, 1978, was introduced in the Rajya Sabha for repeal of Section 309. But before the Lok Sabha could pass it, the government fell. The Bill lapsed.
The issue arose before the Supreme Court in P Rathinam v. Union of India case. A Supreme Court bench comprising Justices R M Sahi and B L Hansaria after elaborate discussion in its judgment dated April 26, 1994 held Section 309 a cruel and irrational provision, and that it may result in punishing a person again (doubly) who has suffered agony and would also be suffering ignominy because of his failure to commit suicide. Consequently, according to the Bench, the section was violative of Article 21, hence unconstitutional.
The issue also arose before different High Courts, majority of them held Section 309 unconstitutional. Thereafter, the issue came up for consideration before a Supreme Court Constitution Bench comprising Justices J S Verma, G N Ray, N P Singh, Faiz Uddin and G T Nanavati. The Bench after a detailed discussion, after referring to High Court judgments and writings of foreign scholars concluded that Section 309 isn’t violative of Article 14 or Article 21. It’s not unconstitutional. The Constitution Bench disapproved of the Supreme Court judgment in P Rathinam’s case. The Court ruled that it wasn’t possible to “construe Article 21 to include the right to die as part of the fundamental right guaranteed therein. Right to life is a natural right embodied in Article 21 but suicide is an unnatural termination of life, therefore, incompatible and inconsistent with the concept of right to life”.
The Law Commission, understandably in its 156th report, followed the Constitution Bench judgment and favoured retention of Section 309. I had occasion to appear before the Constitution Bench. Unfortunately, I failed to persuade the Bench that it has been universally acknowledged that a provision to punish and attempt to commit suicide is irrational and Section 309 is unconstitutional.