Decriminalization of Attempt to Commit Suicide

Kunal Shah

In this civilized society of ours a draconian law as Section 309 of Indian Penal Codes needs to
be effaced from the statute book. This research work provides the arguments in favour of
decriminalization of attempt to commit Suicide and also sets forth the arguments for it to be
declared unconstitutional.

An Introduction to importance of Life

“A man who dares to waste one hour of time has not discovered the value of life.”1

There is no denying the fact that life is precious. The beauty of life lies not in its enjoyment and merry
makings but the unprecedented contribution that one makes in any ethical field. The true beauty of
live is the opportunity it provides to an individual to get his name inscribed in golden letters on the
pages of history. Life is certainly a gift of God.

“Laie Hayat Aye- Le Chaliquazachale. Apni Khushina Aayena Apne Khushi Chale”2, Life brought me,
I came, Death took me, I went. Neither I came of my accord nor went with my consent.

Life is beautiful but not always easy. Delights, agony, victory, defeat, day and night are the flip sides
of the same coin. Identical to the coin is life which is witnessed by periods of happiness, sorrow,
success and failure. Hence, both roses and thorns complement the life of an individual. The thorn
throws before us a challenge of persistence, courage and patience. The individuals who turn out
victorious in this arduous phase can be said to have realized and experienced the true beauty of life
which everyone craves for.

Life is precious and should not be effaced if we fail in this test of life. “Strength, strength it is that we
want so much in this life, for what we call sin and sorrow have all one cause, and that is our weakness.
3
With weakness comes ignorance, and with ignorance comes misery.” The misery creates turbulence in
our life and often compels us to efface it. To avoid misery strength is needed and this strength can only
be generated by our persistence and the hard labour that we put in, in our work without worrying for the
favourable result. This is so, because our control lies only in our action and not on the outcome of our
results. It is best explained by the following verse from the Holy Bhagwad Gita:

Karmanya Vadhikaraste, Ma phaleshukadachana

Ma Karma Phala Hetur Bhurmatey Sangostva Akarmani4

Life is a gift of nature to mankind and so, right to life is the most fundamental, natural human right.
Article 3 of Universal Declaration of Human Rights 1948 declares, ‘‘everyone has right to life, liberty
and security of person.’’ International Covenant on Civil and Political Rights 1966 in Article 6 declares,
“Every Human being has the inherent right to life. This right shall be protected by law.

Realizing the sanctity of life, our Constitution makers gave to us (citizens as well as non-citizens)
Article 21 which reads as under:

No person shall be deprived of his life or personal liberty except according to procedure established
by law.

Article 21 has a long journey from A.K. Goplan Case-via- Maneka Gandhi to the present position.
Article 21’s ambit has now been extended and stretched to procure those fancy but fundamental
                                                            

  3rd year law student of Dr. Ram Manohar Lohiya National Law University Lucknow. 
1
Charles Darwin.
2
Mohammad Ibrahim Zaq.
3
Swami Vivekananda.
4
Bhagvat Gita, Chapter II, verse 47.

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rights which have now become a part and parcel of our life with the ever widening scope of Human
Rights. These rights have been bestowed on the people by the lenient interpretation of Article 21 by
the Apex Court in number of cases and the pioneer case was that of Maneka Gandhi. Article 21 which
had lain dormant for nearly three decades was brought to life by the famous decision of Supreme
Court in Maneka Gandhi. Since then, Article 21 has become the source of many substantive rights
and procedural safeguards to the people.

Article 21 assures every person right to life and personal liberty. The term ‘life’ has been given a very
expansive meaning. The term ‘personal liberty’ has been given a very wide amplitude covering a
variety of rights which go to constitute personal liberty of a citizen. Its deprivation shall only be as per
the relevant procedure prescribed in relevant law, but the procedure has to be fair, just and
reasonable.5 The Apex Court in various cases have relied upon the interpretation of the term ’life and
liberty’ as was given in Munn v. Illinois6 which formed the basis of granting these new fundamental
rights and liberal interpretations. Per Field J., “By the term ‘life’ as here used something more is
meant than mere animal existence. The inhibition against its deprivation extend to all those limbs and
faculties by which life is enjoyed”.

With the ever widening interpretation of Article 21 another right which demands its approval from the
Honourable Supreme Court and the Indian Parliament is that of Right to Die. This right would be
forming the nucleus of my Research.

A Robust Debate: Right to life v. Right to Die

Suicide

Suicide has nowhere been defined in the Indian Penal Code. The word “Suicide” in plain English
Language means a person voluntarily putting an end to his life. It is obvious, on a plain reading of the
definition of “suicide”, that the causes and circumstances leading one to take such a decision are
wholly irrelevant for deciding the question as to whether the death was a suicide or not.

A person who is frustrated or defeated in life, may, on the spur of the moment or after proper
deliberation, come to the conclusion that he needs to put an end to his life. On the other hand, a
person who is otherwise happy and claims to be successful in life, and had led a contended life may
be taken on a conscious decision of putting an end to one’s life. Such a decision may be taken on a
full consideration of the relevant facts.

Nevertheless, on a plain meaning of the word “suicide” it is difficult to say that the decision taken to
voluntarily put an end to one’s life, in the latter case where a person claims to be successful in life and
7
happy, is not suicide.

Causes for committing suicide

The causes of suicide are not exhaustive. However the Bombay High Court in Maruti Shripati Dubal v.
State of Maharashtra8 has thrown some light on the causes for committing suicide.

There is no doubt that the normal urge of a human being is to live and to continue to enjoy the fruits of
life till nature intervenes to end it. But this is true for the normal and ordinary human beings, those
who are in possession of their normal mental, intellectual and physical faculties and lead a life of
ordinary mortals. Suicide or an attempt to commit suicide is not a feature of a normal life. It is an
incident of abnormality or of an extraordinary situation or of an uncommon trait of personality.
Abnormality and un-commonality are not unnatural merely because they are exceptional.

The Bombay High Court found that causes for committing suicide are many. Theses being mental
disease and imbalances, unbearable physical ailments, affliction by socially-dreaded diseases,
decrepit physical condition disabling the person from taking normal care of his body and performing

                                                            
5 th
Jain, M.P. Indian Constitutional Law, 6 ed. Lexis Nexis: Nagpur,2010. Pg. 1189.
6
(1877) 94 US 113.
7
C.A. Thomas Master v. Union of India, 2000 CriLJ 3729.
8
1987 CriLJ 743.

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the normal chores, the loss of all senses or of desire for the pleasures of any of the senses, extremely
cruel or unbearable conditions of life making it painful to live, a sense of shame or disgrace or a need
to defend one's honor or a sheer loss of interest in life or disenchantment with it, or a sense of
fulfillment of the purpose for which one was born with nothing more left to do or to be achieved and a
genuine urge to quit the world at the proper moment are among the various circumstances in which
suicide is committed or attempted.9

The causes of suicides are many and varying inasmuch as some owe their origin to sentiments of
exasperation, fury, frustration and revolution; some are the result of feeling of burden, torture, and
sadness. Some are caused by loss of employment, reversal of fortune, misery due to illness, family
trouble and thwarted love. Sometimes killing is in opposition to society and sometimes in opposition to
particular persons. This happens when the person committing suicide nurses a feeling of unjust
treatment, maltreatment and cruelty.10

Constitutionality of Sec. 309 of IPC

Attempt to commit suicide- 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 both11.

If a person resolves to put an end to his life and if the same is implemented with success, the person
is relieved of his agony, pain and suffering, but if he fails, the law takes its course and awards
punishment.

In State v. Sanjay Kumar Bhatia12, Per Sachar J.,

It is ironic that Section 309 Indian Penal Code still continues to be on

our Penal Code. The result is that a young boy driven to such
frustration so as to seek one's own life would have escaped human
punishment if he had succeeded but is to be bounded by the police,
because attempt has failed. Strange paradox that in the age of votaries
of Euthanasia, suicide should be criminally punishable. Instead of the
society hanging its head in shame that there should be such social
strains that a young man (the hope of tomorrow), should be driven to
suicide compounds its inadequacy by treating the boy as a criminal.
Instead of sending the young boy to psychiatric clinic it gleefully sends
him to mingle with criminals, as if trying its best to see that in future he
does fall foul of the punitive sections of the Penal Code. The
continuance of Section 309 Indian Penal Code is an anachronism
unworthy of a humane society like ours. Medical clinics for such social
misfits certainly but police and prison never. The very idea is revolting.

Thus there is a serious need for humane, civilized and socially oriented outlook and penology. Section
309, IPC has no justification to remain on statute book in its present form.

The above observation though does not determine the constitutionality of the provision but certainly
puts forward a strong argument on the grounds of morality and ethics which undermines the need and
existence of this provision. This argument can certainly be relied upon by the Legislatures to repeal
the existing law, but the Court cannot rely upon such arguments to declare it unconstitutional because
for a law to be declared unconstitutional, it must abridge or infringe or be inconsistent and
incompatible with Part III of our Constitution.

All laws in force in the territory of India immediately before the commencement of this Constitution, in
so far as they are inconsistent with the provisions of this Part, shall, to the extent of such
inconsistency, be void.13
                                                            
9
Ibid.
10
The Causes of Suicide by Maurice Halbwacks :Raj, Janak Commission and Omission in the administration of justice:
Regency: New Delhi, 2003.Google e book pg. 487.
11
Sec. 309 IPC.
12
1986 (10) DRJ 31.

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The question whether right to die is included in Article 21 of the Indian Constitution came for
14
consideration for the first time in the case of Maruti Shripati Dubal v. State of Maharashtra . The
Bombay High Court read Article 21 in the light of Article 19 where the freedom of speech and
expression includes freedom not to speak and to remain silent. The freedom of association and
movement likewise includes the freedom not to join any association or to move anywhere. Freedom of
business and occupation includes freedom not to do business and to close down the existing
business and logically concluded that the right to life guaranteed by Article 21 includes right to die,
and consequently the court struck down and declared Section 309 of Indian Penal Code as
unconstitutional which provides punishment for attempt to commit suicide by a person as
unconstitutional.15

The judges felt that the desire to die is not unnatural but merely abnormal and uncommon. The court
listed several reasons (as mentioned above) in which a person may desire to end his life. It was held
that everyone should have the freedom to dispose of his life as and when he desires. In this case a
Bombay Police Constable who was mentally deranged was refused permission to set up a shop and
earn a living. Out of frustration he tried to set himself afire in corporation’s office room.

It was also held that Sec. 309 of IPC is violative of Art. 14 of the Indian Constitution. The court was
prompted to hold so, on the ground that no definition of suicide was prescribed in the Penal Code.
The court cited the interpretation of “suicide” by a famous American Psychiatrist, Car Manninger from
his book “Man against himself”: Sometimes the term "partial suicide" has been used for self-mutilation
and "chronic suicide" for habitual behaviour injurious to life, such as alcohol and drug addiction. There
is also a distinction sometimes made between "fatal" suicide and "attempted" suicide or non-fatal
suicidal act. If these definitions are accepted, every act or a step taken, by a person which takes him
nearer his death or brings about the end of his life ultimately has to be characterised as suicidal or an
attempt to suicide. What may be considered suicide in one community may not be considered so in
another community and the different acts, though suicidal, may be described differently in different
circumstances and at different times in the same community as we have seen earlier. The want of
plausible definition and even of guidelines to distinguish the felonious from the non-felonious act itself
therefore makes the provisions of S. 309 arbitrary and violative of Art. 14.16

The Court also held that since Sec. 309 treats all cases of suicide with same measure without regard
17
to the circumstances in which attempt are made, this again violates Art. 14. The Bombay High Court
compared Sec. 309 with Sec. 300 of the Indian Penal Code and very candidly observed that the
legislature had 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.18

In Chenna Jagdeeswar v. State of A.P.19 the Andhra Pradesh High Court held that the right to die is
not a fundamental right within the meaning of Article 21 and hence Section 309, I.P.C. is not
unconstitutional. The reasoning behind such a decree is as follows:

The court found that neither From Article 19 nor from Article 21, it can be seen that the right to life is
specifically mentioned. But, in a broader sense, unless a man is assured of physical existence there
can be no other fundamental right and since the State exists for the common good of the citizens, no
Constitution can ignore the right of the citizens to life though it may not be explicitly explained. In
these circumstances, it is rather difficult to hold that the right to life impliedly guaranteed by the
Constitution includes the right to die. The Court took the example of hunger strikes, threatened self-
immolations and other potentially employed situations. If Section 309 I.P.C. held to be ultra vires, no

                                                                                                                                                                                         
13
Article 13 (1) of the Indian Constituion.
14
1987 CriLJ 743.
15
Ibid.
16
Ibid.
17
Ibid.
18
Ibid.
19
1988 CriLJ 549.

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action can be taken against the people resorting to these practices, on the ground that they have a
20
right to dispose of themselves.

The Court held that every case under S. 309 IPC may not lead to a punishment. Sec. 309 IPC by no
means mandates that a Court should punish an attempt to suicide, it only lays down the upper limits
of such punishment. But there are other acts which provide discretion to the Court. Sections 3, 4 and
13 of the Probation of Offenders Act, 1958 confer a wide discretion on Court either to bind such a
person to Psychiatric care or release him with an admonition.The Courts have sufficient power to see
that unwarranted harsh treatment or prejudice is not meted out to those who need care and
attention.21

The Court, thus set aside the claims and arguments (not expressly, but impliedly) that Sec. 309 is
violative of Art. 14. Since the Court is having the power to see that different cases of suicide are not
treated alike and that the punishment is in proportion with the nature of the act, it cannot be said that
Sec. 309 treats all cases of suicide with same measure without regard to the circumstances in which
attempts are made.

Another reason why the court favoured the retention of Sec. 309 on the Statute book was the
apprehension that if Sec. 309 was declared to be unconstitutional Sec. 306 could also not survive.
Thus people who actively assist and induce persons to commit suicide may go scot-free.22India is still
a Country where its women folk who constitute the majority are illiterate and tradition-bound. The
Community, caste and family still have the precedents over the individual. In this environment the
women may be subjected to barbaric and inhuman pressures.23

It is a paradox that society will neither provide sustenance nor allow the sufferer to die. In this
complexity of social mal-adjustments, the best safeguard is the Court which should exercise and
temper its judgment with humanity and compassion. In a Country like India, where the individual is
subjected to tremendous pressures, it is wise to err on the side of caution. To confer a right to destroy
one-self and to take it away from the purview of the Courts to enquire into the act would be one step
down in the scene of human distress and motivation. It may lead to several incongruities and it is not
desirable to permit them.24
25
In P. Rathinam v. Union of India a Division Bench of the Supreme Court agreed with the view of
Bombay High Court in Maruti Shripati Dubal Case, 1987 CriLJ 743, and held that a person has a
“right to die” and declared Section 309 of the Indian Penal Code unconstitutional which makes an
“attempt to commit suicide” a penal offence. The “right to live” in Article 21 of the Constitution includes
the “right not to live”, i.e. right to die or to terminate one’s life.

In the present case the petitioners had challenged the validity of Section 309 on the ground that it was
violative of Article 14 and Article 21 of the Constitution and prayed for quashing the proceedings
initiated against the petitioner under Section 309 pending in the Court Sub-Judge, in District Koraput,
Orissa for attempting to commit suicide.

The Court held that the contention that Sec. 309 IPC is violative of Art. 14, is untenable because
whatever differences there may be as to what constitutes suicide,there is no doubt that suicide is
intentional taking of one's life.26

Thus, the Court held that since every form suicide has a common element, of intentionally taking
one’s life, the provision cannot be declared to be void on the ground that there is absence of plausible
definition which vests arbitrary power with the Court to interpret ‘suicide’ as it likes.

The Court held that insofar as treating of different attempts to commit suicide by the same measure is
concerned, the same also cannot be regarded as violative of Article 14, inasmuch as the nature,
                                                            
20
Ibid.
21
Ibid.
22
Ibid.
23
Ibid.
24
Ibid.
25
AIR 1994 SC 1844.
26
Encyclopedia of Crime and Justice, Vol. IV, 1983.

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gravity and extent of attempt may be taken care of by tailoring the sentence appropriately. It is worth
pointing out that Section 309 has only provided the maximum sentence which is up to one year. It
provides for imposition of fine only as a punishment.27

Hence, the Court relying upon the decision of Andhra Pradesh High Court declared that since the
Court awards punishment appropriately, depending upon the nature of the case, it cannot be said that
Sec. 309 treats all cases of suicide with same measure without regard to the circumstances in which
attempts are made.

The Court held that Section 309 of IPC was violative of Article 21 and hence it is void. The Court
found that Article 21 provides that “a person cannot be forced to enjoy right to life to his detriment,
disadvantage or disliking.”28 The Court held that Section 309 of IPC was “cruel and irrational
provision”. The Court held that “right to life of which Article 21 of the Constitution of the Constitution
speaks of can be said to bring its trial the right not to live a forced life.”29

Explaining the reason for its decision the Court said that Section 309 IPC deserves to be effaced from
the Statute Book to humanize our penal laws. It is a cruel and irrational provision and may result in
punishing a person again who has suffered agony and would be undergoing ignominy because of his
failure to commit suicide.

In Gian Kaur v. State of Punjab30 , by way of Special Leave Petition, the Constitutionality of Sec. 306
was put in question before a five judge Constitution Bench of the Supreme Court. It was contended
that since by the virtue of P. Rathinam v. Union of India AIR 1994 SC 1844, ‘Right to die’ had been
held to be a fundamental right under Art. 21 of the Constitution, therefore a person assisting the
enforcement of ‘Right to die’ was merely assisting in the enforcement of the fundamental right, which
cannot be penal and therefore Sec. 306 should also be declared unconstitutional.

Per Verma J., “Any aspect of life which makes it dignified may be read into it but not that which
extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing
31
the right itself.”

‘Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or
extinction of life and, therefore, incompatible and inconsistent with the concept of ‘Right to life’.32

The Court found no similarity between the nature of other rights, such as a the right of freedom of
speech, etc. to provide a comparable basis to hold that ‘right to life’ also includes ‘right to die’.

The Court agreed with P. Rathinam Case, AIR 1994 SC 1844, in holding that Sec. 309 of IPC does
not violate Art. 14 of the Constitution.

Religious View on Suicide

The Bombay High Court in Maruti Shripati Dubal Case, 1987 CriLJ 743, took into consideration the
religious aspect of suicide. The Court found that the right to die or to end one's life is not something
new or unknown to civilization.

Some religions like Hindu and Jain have approved of the practice of ending one's life by one's own act
in certain circumstances while condemning it in other circumstances. The attitude of Buddhism has
been ambiguous though it has encouraged suicide under certain circumstances such as in the service
of religion and country. However, Christianity has condemned suicide as a form of murder. In contrast
the Quran has declared it a crime worse than homicide.

Suicide is strictly forbidden along with the killing of innocents in Islam. God is the author of life and it is
only He who could take life or tell human beings under what conditions a life should be taken such as
                                                            
27
AIR 1994 SC 1844.
28
Ibid.
29
Ibid.
30
AIR1996 SC 946.
31
Ibid.
32
Ibid.

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in punishment for murder and spreading destruction and havoc in the land. As human beings we don't
own our lives. As such we don't have the authority to take it. Suicide is disrespecting God and being
ungrateful for the life He has given us.

The following verses make the prohibition very clear and illustrate the punishment God bestows on
those who commit suicide.

But let there be amongst you Traffic and trade by mutual good-will:
Nor kill (or destroy) yourselves: for verily God hath been to you Most
Merciful! If any do that in rancor and injustice, soon shall We cast
them into the Fire: And easy it is for God.33

An inquiry into the History of Ancient India reveals the following:

In the Chapter on “The hermit in the forest”, Manu’s Code says,-

31. Or let him walk, fully determined and going straight on, in a north-
easterly direction, subsisting on water and air, until his body sinks to
rest.

32. A Brahmana having got rid of his body by one of those modes
(i.e. drowning, precipitating burning or starving) practised by the
great sages, is exalted in the world of Brahamana, free from sorrow
and fear.34

Two commentators on Manu, Govardhana and Kulluka, say that a man may undertake the
mahaprasthana(great departure) on a journey which ends in death, when he is incurably diseased or
meets with a great misfortune, and that, because it is taught in the Sashtras, it is not opposed to the
Vedic rules which forbid suicide35. To this Max Muller adds a note as follows36:-

“From the parallel passage of Apastambha II, 23, 2, it is, however, evident that a voluntary death by
starvation was considered the befitting conclusion of a hermit’s life. The antiquity and general
prevalence of the practice may be inferred from the fact that the Jaina ascetics, too, consider it
particularly meritorious.”

Hinduism in general does not permit the commission of suicide. The Hindus recognize the sanctity
attached to life and they consider it to be a benevolent gift of God. Suicide is considered as violating
the principles of ahimsa and therefore it is equivalent to the sin of committing murder. Hinduism also
opposes committing of suicide as it apart from causing harm to one-self also adversely affects the
other persons who are attached with him, thereby he commits another sin. Suicide in a family lowers
the reputation and brings a social stigma to the family.

As an exception to general rule, Hinduism does in certain circumstance permit the commission of
suicide. For examplePrayopavessa:

Prayopavesa, or fasting to death, is an acceptable way for a Hindu to end their life in certain
circumstances.37

Hindu law lays down conditions for prayopavesa:

a) inability to perform normal bodily purification

b) death appears imminent or the condition is so bad that life's pleasures are nil
                                                            
33
Qur’an 4:29 - 4:30: http://www.ascertainthetruth.com/att/index.php/al-islam/al-islam-and-suicide/131-suicide-and-islam-a-
deeper-perspective (Last visited on September 24, 2014).
34
Laws of Manu, trans. George Buhler, Sacred Books of the East edited by F. Max Muller, 1967 (reprint) Vol. 25, pg. 204
Shlokas 21 and 32.
35 nd
42 Report of the Law Commission of India, Indian Penal Code, 1971.
36
Ibid.
37
http://www.bbc.co.uk/religion/religions/hinduism/hinduethics/euthanasia.shtml (Last visited on September 28, 2014).

7 | P a g e  
 c) the decision is publicly declared

d) the action must be done under community regulation38

Thus, only a person who has no desire or ambition left, and no responsibilities remaining in life is
entitled to perform it. The decision to do so must be publicly declared well in advance. There are
certain situations where the condition is so bad that life's pleasures are nil and death appears
imminent. It is also allowed in cases of terminal diseases or great disability.

V.D. Savarkar performed Prayopavessa as he thought that his duties were fulfilled and thus has no
purpose left to live.After a fast of 21 days he finally left this world.

He did this with a sense of deep contentment at having fulfilled his worldly duties. In an article
published in the Marathi monthly, Sahyadri (July 1964), Savarkar had spelt out the difference between
suicide and self-sacrifice. Following is an English rendering of Savarkar’s article. “Blessed am I,
blessed am I, I know of no duty now, Blessed am I, blessed am I, I have fulfilled what I wished to
achieve.”39

Satguru Subramuniswamy, suffering from terminal intestinal cancer, subjected himself to

Prayopavessa, and died on his 32nd day of fast.40

The overall analysis of the religious views shows that though ordinarily suicide was disapproved, but
in certain circumstances it was tolerated and accepted and even acclaimed depending upon the
person and the particular circumstances. What is interesting to note is that the exceptions made were
more or less in conditions similar to those which are pleaded today as circumstances extenuating
suicides or attempts to commit them.

There is also no authoritative pronouncement as to why some religions and communities uniformly
condemned suicides and attempts to commit them, while others ordinarily did so.41

Suicide in United Kingdom

The crime of suicide was, at common law, a felonious homicide in which the malice aforethought was
directed to the destruction of the man’s own life. As no ordinary punishment could be inflicted on the
person who had committed suicide the attempt was made to deter persons from committing the crime
by the infliction of posthumous disgrace on the suicide by a specially ignominious disposition of his
corpse, and vicarious punishment of his family by the forfeiture of his property.42

The same is reflective in Act 5 Scene 1 of “The tragedy of Hamlet. Prince of Denmark”, a tragedy
written by Shakespeare where the gravediggers argue whether Orphelia should be given proper burial
in the churchyard, since her death looks like a suicide.

Times changed, notions changed and presently, an attempt to commit suicide is not a criminal
offence, as would appear from Suicide Act, 1961.

The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated.43

However the British Parliament criminalized the act of a person who abets the suicide of another
person, or abets an attempt by other to commit suicide. This is clear from the following provision.

A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to
commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding
fourteen years.44
                                                            
38
Ibid.
39
http://www.vijayvaani.com/ArticleDisplay.aspx?aid=1106 ((Last visited on September 28, 2014).
40
Id.
41
Maruti Shripati Dubal v State of Maharashtra, 1987 CriLJ 743.
42 th
Turner, Cecil J.W. “Suicide: Felonia De Se”. Russell on Crimes.12 ed. Vol. 1.Universal Law Publishing Company Private Ltd:
New Delhi. 2001, p. 560.
43
Sec. 1 of the Suicide Act, 1961.

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Suicide in United States of America

Suicide is not a crime under the statutes of any State in the United States. No State, by statute,
makes attempting suicide a crime. In twenty-two States and three United States territories, however,
assisting suicide is a crime. If an assistant participates affirmatively in the suicide, for instance by
pulling the trigger or administering a fatal dose of drugs, courts agree that the appropriate charge is
murder.45

42nd LAW COMMISSION REPORT

The Law Commission of India in its 42nd Report (1971) recommended repeal of Section 309 being of
the view that this penal provision is “harsh and unjustifiable”46. In taking this view, the Law
Commission quoted the following observations made by H. Romilly Fedden on Suicide (London,
1938) at page 42: “It seems a monstrous procedure to inflict further suffering on even a single
individual who has already found life so unbearable, his chances of happiness so slender, that he has
been willing to face pain and death in order to cease living. That those for whom life is altogether
bitter should be subjected to further bitterness and degradation seems perverse legislation.”47

Subsequently, a bill in this regard, The Indian Penal Code (Amendment) Bill, 1978, was passed by the
RajyaSabha, which provided for omission of section 309. Unfortunately, before it could be passed by
the LokSabha, the Lok Sabha was dissolved and the Bill lapsed.48

156th LAW COMMISSION REPORT

The 156thReport of the Law Commission, submitted in August, 1997, after the judgment in Gian Kaur,
recommended retention of section 309, IPC. The report pointed out certain developments have taken
place which have led to a rethinking on the need to keep attempt to commit suicide an offence. These
developments are “rise in narcotic drug-trafficking offences, terrorism in different parts of the country,
the phenomenon of human bombs etc.”49

In explaining how these developments have led to think in such direction, the Law Commission took
the help of an example: “For instance, aterrorist 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 or herself along
with the targets of attack, have to be charged under section 309 and investigations be carried out to
prove the offence. These groups of offenders under section 309 stand under a different category than
50
those, who due to psychological and religious reasons, attempt to commit suicide.”

210th LAW COMMISSION REPORT

The Commission recommended that people whoassist or encourage another person to (attempt to)
commit suicide must not go unpunished, but the offence of attempt to commit suicide under section
309 must be effaced from the Indian Penal Code.51

The Commission was of the view that “when a troubled individual tries to end his life, it would be cruel
andirrational to visit him with punishment on his failure to die. It is his deep unhappiness which causes
him to try to end his life. Attempt to suicide is more a manifestation of a diseased condition of mind
deserving of treatment and care rather than punishment. It would not be just and fair to inflict
additional legal punishment on a person who has already suffered agony and ignominy in his failure to
commit suicide.”52

                                                                                                                                                                                         
44
Sec. 2(1) of Suicide Act of 1961.
45
P. Rathinam v. Union of India, AIR 1994 SC 1844.
46 nd
42 Report of the Law Commission of India, Indian Penal Code, 1971.
47
Ibid.
48
http://indiatoday.intoday.in/story/passive-euthanasia-suicide-survivors-rathinam-case/1/346678.html (Last visited on October
1, 2014).
49 th
156 Report of the Law Commission of India, Indian Penal Code, 1997.
50
Ibid.
51 th
210 Report of the Law Commission of India, Humanisation and Decriminalization of Attempt to Suicide, 2008.
52
Ibid.

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The Law Commission also recommended that such person deserves sympathy, counselling and
53
medical treatment instead of prison cell.

Recent Developments

Twenty five Indian states have favoured striking down of Sec. 309 IPC. “Responding to a query by the
Union home ministry, states recently sent their comments concurring with the recommendation of the
54
210th Report of the Law Commission which advocated repealing Sec 309”. The article also
highlighted that Bihar, Sikkim and Madhya Pradesh are reluctant in doing away with this Section. The
article quoted Home Ministry officials who said that “it would take a year to bring about
comprehensive amendments in not just the IPC but also the CrPC and Evidence Act, besides a
decision on deletion of Section 309.”55

In Rajya Sabha the Indian Penal Code (Amendment) Bill, 2012 (Bill 1 of 2012) was tabled. The Bill
provided for repealing Sec. 309 as it was not in adherence with the modern day view of the State
providing care to its citizen.56 The recommendations provided by the 210th Law Commission Report
were also relied upon.The bill has also relied upon the fact that 25 Indian States have favoured
striking down of Sec. 309.

It was also placed before the house that Sec. 309of IPC is an inhumane provision and results in
double punishment and today remainsas a crime only in a few countries such as Singapore, Pakistan,
Bangladesh andMalaysia, besides India. The current status of the bill is unknown.

The latest Bill that has been tabled in the Rajya Sabha pertaining to decriminalization of Sec. 309 of
IPC is the Mental Health Care Bill, 2013. One of the provisions of the Bill is that “Notwithstanding
anything contained in Sec. 309 of the Indian Penal Code, any person who attempts to commit suicide
shall be presumed, unless proved otherwise, to be suffering from mental illness at the time of
attempting suicide and shall not be liable to punishment under the said section”57 The current status
of the Bill is that it is under examination with the Committee on Health on Health and Family
58
Planning.

Conclusion

Why right to life includes right to die?

There is no flaw in the analogy that since freedom of speech and expression includes freedom not to
speak, freedom of association and movement includes freedom not to join any association or move
anywhere, freedom of business includes freedom not to do business, therefore, logically it must follow
that the right to live includes right not to live, i.e., right to die or to terminate one's life.

The critics of the Bombay High Court judgment and also of Supreme Court judgment in P. Rathinam
Case, AIR 1994 SC 1844, often argue that the aforesaid analogy is “misplaced”, which could have
arisen on account of superficial comparison between the freedoms, ignoring the inherent difference
between one fundamental right and the other.

Now, what has to be realized is that by conferring those negative rights of not to speak, not to join
association and others, the intention of the Apex Court is to prevent forced participation. Keeping this
in mind we can rightly conclude that right to live of which Article 21 speaks of can be said to bring in
its trail the right not to live a forced life.

                                                            
53
Ibid.
54
http://archive.indianexpress.com/news/25-states-agree-suicide-attempt-should-not-be-punishable-by-law/850036/ (Last visited
on October 12, 2014).
55
Ibid.
56
Statement of Object and Reasons, http://164.100.24.219/BillsTexts/RSBillTexts/asintroduced/IPC-E.pdf ) Last visited on
October 24, 2014)
57
Clause 124(1) of the Bill.
58
www.rajyasabha.nic.in (Last visited on October 24, 2014).

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In Gian Kaur’s v. State of Punjab the reason given by the court for not following such logic was that
“any aspect of life which makes it dignified may be read into it but not that which extinguishes it and
is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself.”59

From, this we can validly conclude that the Court intended of keeping Right to live with Dignity at a
higher pedestal, such a paramount and sacrosanct right that only those which make life dignified can
be read into Art. 21.

Preamble also assures “dignity of the individual”. In Maneka Gandhi v. Union of India60 it was held
that the right to ‘live’ is not merely confined to physical existence but it includes within its ambit the
right to live with human dignity. Elaborating the same view the Court in Francis Coralie v. Union
Territory of Delhi61, said that the right to live is not restricted to mere animal existence. It means
something more than physical survival. The right to ‘live’ is not confined to the protection of any
faculty or limb through which life is enjoyed or the soul communicates with the outside world but it
also includes the “right to live with human dignity” and all that goes along with it, namely, the bare
necessities of life such as, adequate nutrition, clothing and shelter and facilities for reading, writing
and expressing ourselves in diverse forms, freely moving about and mixing and commingling with
fellow human beings.62

The court held that the right to life including the right to ‘live with human dignity’ would mean the
existence of such a right up to the end of a natural life. This also includes the right to dignified life up
to the end of a natural life.63

Thus, the Court acknowledged that “right to live with dignity” means right to a dignified life up to the
end of a natural life.

There is nothing unnatural about the desire to die and hence with the right to die. Whatever the
circumstances which induce a person to end or terminate his or her life, the act of termination of life is
the act of that individual. The confusion between the circumstances which impel or urge a person to
end his life often leads one to the mistaken conclusion that the desire to end one's life itself is not
natural. The unnatural cause of death must also be distinguished from the natural desire to die. The
means adopted for ending one's life may be unnatural varying from starvation to strangulation. But,
the desire which leads one to resort to the means is not unnatural. To take a concrete instance, it may
be that were it not for torture or cruel treatment in a given case that the person might not have ended
his or her life. But the urge which the individual felt to end life on account of the treatment was only
natural.64

We have to realize and understand the condition of the people in whose mind the negative notions
pop up which spurs that individual to commit suicide. The person who is occupied with such thoughts
is not in the right frame of his mind, the nature deprives him of his dignity. Neither he wants to
socialize or integrate himself with the society nor is he able to express himself freely. He considers
the entire world to be his enemy and he is merely reduced to an animal existence. This life can surely
not be called as a dignified life. Thus by committing suicide he puts an end to his undignified life.

Hence, we can conclude that suicide is not an unnatural termination of life and since it acts in
furtherance of putting an end to an undignified life, the same can be read into Article 21 of the Indian
Constitution which contains within its ambit the right to a dignified life.This, would render Sec. 309 of
IPC unconstitutional to that extent, being violative of this fundamental right.

What should be the role of Parliament?

Section 309 IPC is also not compatible and consistent with the Principal of Minimal
Criminalization.
                                                            
59
AIR1996 SC 946.
60
AIR 1978 SC 597.
61
AIR 1981 SC 746.
62 th
Pandey. J.N. “Protection of Life and Personal Liberty”, The Constitutional Law of India. 49 ed. Central Law Agency:
Allahabad.2012. pg. 246
63
Supra, 59.
64
Maruti Shripati Dubal v State of Maharashtra, 1987 CriLJ 743.

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This principle concerns the identification of a particular behaviour as criminal and argues that law
should not criminalize too much behaviour. Andrew Ashworth has pointed out four main components
of this principle:

a) The principle of respect for human rights

b) The right not to be subjected to state punishment

c) The principle that the criminal law should not be invoked unless other techniques are
inappropriate

d) The principle that conduct should not be criminalized if the effects of doing so would be as
bad as, or worse than, not doing so.65

Section 309 of the Indian Penal Code interferes too much with the human rights and there is equally
no doubt that the punishment awarded for a failed attempt to commit suicide further deteriorates the
prevalent condition of the victim.

On a serious note we have to realize that suicide involves no damage to the society, no damage to
other person or his property.

Equally important is the fact there are many remedies which are available which if brought into the
mainstream after substituting it with penal punishment can work wonders. Some of the ways of
reducing suicide are as follows:

1. Develop and implement strategies to reduce the stigma associated with being a consumer of
mental health, substance abuse and suicide prevention services

2. Develop and implement community-based suicide prevention programs

3. Reducing domestic violence and substance abuseare long-term strategies to reduce

many mental health problems.

Thus, this serves as a ground for Parliament to restrict the scope and vigour of Sec. 309 of IPC.

Sec. 306 of IPC it prescribes punishment for ‘abetment of suicide’ while Sec. 309 punishes attempt to
commit suicide.Abetment of attempt to commit suicide is outside the purviewof section 306 and it is
punishable only under section 309 read with section 107, IPC. If Sec. 309 of IPC is declared
unconstitutional or repealed then person who abets attempt to commit suicide shall not be met with
punishment and may go scot-free. Hence it is requested from the Parliament to amend Sec. 306 in a
manner so that it prescribes punishment to persons who abet “attempt to commit suicide” in the same
manner as Sec. 2(1) of the Suicide Act, 1961 does. Thus, in this way the concern raised by the
Supreme Court in Gian Kaur’s case to have Sec. 309 to punish the abettors of attempt to suicide can
be resolved.

The reason given by the 156th Report of Law Commission for retaining Sec. 309 is not a good reason
because the terrorists or drug trafficker or human bomber who fails in his attempt to commit suicide
and is caught can nevertheless be put to interrogation by the police under other relevant laws.

Some sociologists are also raising a question that without fear of punishment what would be the effect
on the young immature minds which tend to act or react in desperate haste?

There is no denying the fact that immature minds are often vulnerable to the act of committing suicide
as they face numerous circumstances in which they feel that the best option available to them is to
say goodbye to this world. Such an act can be prompted by many reasons for example, not faring well
in the exams, not able to achieve their goals, feeling of loneliness and various other reasons.

                                                            
65 th
Andrew Ashworth, Principle of Criminal Law, ford: 6 ed. 2009, OUP p 31.

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Similar fear was expressed when all countries in Europe and North America decriminalized attempted
suicide. But there are no indications whatsoever that there was an increase in suicides following
decriminalization, and in many instances it is thought that suicide decreased since more suicidal
individuals received the help they need.66The InternationalAssociation for Suicide Prevention has
pointed out that there is nothing to show thatsuicide rates have increased following its
decriminalization. This view is alsosupported by the World Health Organization and the Indian
Psychiatric Society.67

In Chenna Jagadeeswar Case, wherein the Court found that if Sec. 309 of IPC is declared
unconstitutional then Sec. 306 of IPC would not be able to survive and people who actively assist and
induce persons to commit suicide may go scot-free68 The Concerns relating to women that were
raised by Andhra Pradesh High Court can be answered as follows:

Section 306 enacts a distinct offence which is capable of existence independent of Section 309.69

In the end I would also like to submit that if the application of Section 309 is restricted by Clause
124(1) of the Mental Health Care Bill, it would serve as the perfect remedy for the above debate. The
above Clause provides that “Notwithstanding anything contained in Sec. 309 of the Indian Penal
Code, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to be
suffering from mental illness at the time of attempting suicide and shall not be liable to punishment
under the said section”

Thus if we analyse the above provision we find that the vigour of Sec. 309 has been reduced as the
person who attempts to commits suicide would be presumed to be suffering from mental illness and
would escape punishment.

On the other hand the provision also takes into consideration those situations which have the
potential to force the Government to buckle under pressure and to comply with certain demands. For
example hunger strikes, threatened self-immolations and other potentially employed situations can be
resorted to meet certain demands and if Sec. 309 is effaced no action can be taken against the
people resorting to these practices, on the ground that they have a right to dispose of themselves.
Under such conditions, since it can be proved that the person resorting to such means is not suffering
from any mental illness, Sec. 309 would come into play and the perpetrator can be punished
accordingly. This would also prevent lawlessness and chaotic situation from surreptitiously creeping
into the society where every person in order to get their demands fulfilled would be sitting on hunger-
strike with an intention to dispose of their life, thereby disturbing public peace and tranquility.

If such person 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.70

This would also be not inconsistent with the Article 21 of the Indian Constitution even if the Court
recognizes the “Right to Die” within its ambit. This is so because “Right to Die” means putting an end
to an undignified life and not an ordinary life.

After going through the various legal developments in foreign countries and after analyzing the whole
situation be it religion or be it social I submit that Section 309 of the Penal Code deserves to be
restricted to humanise our penal laws. Further, suicide or attempt to commit it causes no harm to
others, because of which State's interference with the personal liberty of the persons concerned is not
called for.

_________________________

                                                            
66 th
210 Report of the Law Commission of India, Humanisation and Decriminalization of Attempt to Suicide, 2008.
67
Paragraph 3 of Statements of Object and Reason of Indian Penal Code Ammendment Bill 2012.:
http://164.100.24.219/BillsTexts/RSBillTexts/asintroduced/IPC-E.pdf (Last visited on October 28, 2014)
68
Chenna Jagadeeswar v. State of Andhra Pradesh, 1988 CrLJ 549.
69
Gian Kaur v. State of Punjab AIR 1996 SC 946.
70
http://lawyersupdate.co.in/LU/8/644.asp (Last visited on November 01, 2014).

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