De-Criminalization of Section 309 IPC

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As per section 309 IPC- Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with imprisonment for a term which may extend to one year or with fine or with both.

suicide, such as drowning or poisoning or shooting oneself. If A with an object to commit  suicide, throws himself into a well, he is guilty of an attempt and puni8shable under this section, if rescued.

The essence of suicide is an intentional self-destruction of life. Thus, if a person takes an overdose of poison by mistake or in a case of intoxication or in order to evade capture by his pursuers, he cannot be booked under this section.

However, punishing a person who tried to end his life voluntarily through poison or other lethal means should not be again punished by law on the ground of attempt to commit suicide. It amounts to double punishment and highly reprehensible and even unethical on the part of the State to criminalize attempt to commit suicide.

If a person, because of family discord, distraction, loss of a dear relation or other cause of a like nature overcomes the instinct of self-preservation and decides to take his life, he should not be held for an attempt to suicide(Dwarka Poonja v Emperor(1912) 14 Bom L.R 146. In such n case the unfortunate man deserves indulgence, sympathy and consolation instead of punishment (A Text Book on Indian Penal Code, fourth Edition 2008-IPC 1860, sec 309-Right To Die vis-à-vis Right not to Die-A Constitutional Dilemma).

In P.Rathinam v Union of India-Justice Hansaria held: P Rathinam and Nagabhushan Patnaik,  the two petitioners -have assailed the validity of section 309 of IPC by contending that the same is violative of Art 14 and 21 of the Constitution-Supreme Court of India(1994).

Section 309 of IPC deserves to be effaced from the Statute book to humanize our penal laws. It is a cruel and irrational provision and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. An act of suicide cannot be said to be against religion. morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit suicide causes no harm to others, therefore the state’s interference with the personal liberty of the concerned persons is not called for. Thus section 309 violates are.21, and so void…

If a person n has right to live vide Art 21 of the Constitution, the question is whether he has a right not to live. Logically,  it must follow that the right to live will include the right not to live, say, the right to die or to terminate one’s life, Right to live of which art 21 speaks of can be said to bring in its trail the right not to live a forced life.

Morality has no define contour (boundary) and it would be too hazardous to make a bold and bald statement that commission of suicide is per se an immoral act. The petition was allowed.

However, the Indian Supreme court overruled the above right decision of its own in Gian Kaur v State of Punjab in a different set of circumstances of this case and under a different section of IPC. Justice JS Verma held:

The appellants Gian Kaur and her husband Harbans  Singh, were convicted by the trial court under section 306m IPC for abetting the commission of suicide by Kulwant Kaur. On appeal to the High Court, the conviction of both had been maintained.

The conviction of the appellants has been assailed inter alia on the grounds that section 306 IPC is unconstitutional. It is urged that right to die being included in art 21 of the Constitution as held in P.Rathinam declaring section 309 IPC to be unconstitutional, any person abetting the commission of suicide by another is merely assisting the enforcement of the fundamental right under art.21 and, therefore, section 306, IPC penalizing assisted suicide is equally vocative  of art.21.

The question is whether the scope of art 21 also includes the right to die? When a man commits suicide, he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to or be included within the protection of the right to life under art.21. The significant aspect of sanctity of life is also not be overlooked.
Art 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life be read to be included in the protection of life. Whatever may be the philosophy of permitting a person to extinguish   his life by committing suicide, the court reiterated that it is difficult to construe art 21 to include within it the right to die as a part of fundamental right guaranteed therein. Right to life is a natural right embodied in art 21, but suicide is an unnatural termination or extinction of life and therefore, incompatible and inconsistent with the concept of right to life. Section 306 enacts a distinct offence, which is capable of existence independent of section 309 IPC. Section 306 prescribes punishment for abetment to suicide, while section 309 punishes attempt to commit suicide. Abetment of attempt to commit suicide is outside the preview of section 306 and is punishable only under section 309 read with section 107, IPC., In certain other jurisdictions, even though  attempt to commit suicide is not a penal offence, yet the abettor is made punishable. The provision there provides for the punishment of abetment of suicide as well as abetment of attempt to commit suicide. Thus even where the punishment for attempt to commit suicide is not considered desirable, its abetment is made a penal offence. In other words, assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the interest of society.

     Hence, in view of the the above distinguished set of circumstances and section 306 of IPC only  abetment of Suicide or abetment of attempt to suicide are penal in nature as held in Gian Kaur’s case.  As far as decriminalization of attempt to commit suicide under Section 309 IPC, the above 1st cited decision of the Supreme Court in P. Rathinam v Union of India still holds good and  the law of the land.

Instead of criminalizing people who attempt to commit suicide under section 309 IPC, they should be provided with Societal and State Support and be offered counseling and other help depending upon their cause of attempt to commit suicide.

In US, Canada, England and almost all western countries attempt to commit suicide is decriminalized including attempt to commit suicide by a critically and terminally ill persons. However, it may not be possible for a critically ill man to commit suicide in India, Pakistan, Bangladesh, Sri Lanka, Myanmar and countries of south East Asia, such as Malaysia, Singapore, Thailand etc. where the very attempt to commit suicide is considered an offence that is punishable under their respective state laws.

Similarly, India should recognize execution of Living Wills by persons, , as is prevalent in  US and other western countries s. A living will is a written directive (wish) to the family, physician, health care provider’s to stop medical care if the person becomes terminally ill and is unable to express his or her wishes about stopping treatment. It is made when a man is capable of understanding the nature and consequences of his act. It may include instructions to limit, withhold or withdraw treatment. It exempts the physician from civil and criminal liability for withholding treatment or removing artificial respirator etc and in case, the attending physician does not want to follow instructions, he has to remove himself from the case.

 

 

 

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