Arpitpushp Chaturvedi and Utkarsh Jain
The paper we have written attempts to explore the dilemma and irony surrounding the section 309 of the Indian Penal Code. The section deals with the criminalization of attempt to suicide. Our paper discusses whether section 309 of the IPC should be unconstitutional, thus, indirectly granting a right to death or whether indeed life as given to us by god should be preserved as long as it can be. We write the paper in a form a judgment based on a hypothetical fact situation, about the protagonist being a suppressed lower caste laborer who is subjected to humiliation and injuries when he protests against the local landlord and decides to immolate himself in the market but is saved and now faces charges under section 309, and a newspaper article which concludes our opinion and reflects on the judgment. The paper starts with the chief justice’s judgment as a part of the two judge’s bench of the Supreme Court of India wherein he starts with describing the fact situation briefly. He declares section 309 of the IPC to be unconstitutional when read with the articles 14 and 21 of the constitution. The second part consists of the dissenting judgment which lays down the fact that suicide is indeed a crime and section 309 is not unconstitutional as the state has a positive duty to preserve life and its dignity. The dissenting opinion also borrows from various religious and moral arguments proving that the state has a duty to protect life and anything contrary of section 309 would be unconstitutional. The third part of the paper is a newspaper article which analyses the hypothetical judgment and lays down the conclusion of the paper. The article argues that suicide cannot be de-criminalized except in the rarest of rare cases where it has been established by the medical fraternity that a human being is totally incapable of any improvement and is in a permanent vegetative state and has previously showed an intention to allow euthanasia. In all other case, we argue, that suicide is an immoral and weak act and should be punished so as to deter people from destroying the sanctity of life.
Please note that, all the names used in this hypothetical case is imaginary and have no connection with anyone in the real life.
Statement of Motivation
The value of academic literature on areas of immediate relevance like Suicide shouldn’t be underestimated. However, rarely do we find such literature making its way to the Courtroom. A probable reason is that this literature acts outside of the field of Judicial Language. It is this reason that inspired us to conceptualize a research paper in the format of a Judgment. Not only does this put across out vision of such hypothetical judgments being realized in reality, it also acts to reduce the threshold of ‘acceptance’ of such work, where it is most needed today, the Courtroom.
“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 legislation1.”
Hari K v. Union of Hindusthan
In the Supreme Court of Hindusthan
Sharma C.J., Mathews J., Raza J.
September 15, 2015
For reference: S.309 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 term which may extend to one year [ or with fine, or with both].
Sharma C.J, Mathews J.: These appeals have been brought before us in light of the judgment of the Uttara Pradesham High Court which passed an order of conviction against one Shri Hari who had attempted to commit suicide through self-incineration on the 12th of August, 2013 punishable under Section 309 of the Indian Penal Code, 1860. The relevant facts have been summarized hereunder.
The appellant, Hari aged 20 is a resident of village ‘Jhansi’ in the state of ‘Uttara Pradesham. He used to work as a daily wage laborer under one wealthy Parsi landlord. It has been established that the Parsi landlord was the reason for gross exploitation of daily wage laborers in that area for a decade or so. These laborers being poor and lower caste Hindus were also exploited by the Brahmin priests in the area.
Hari had seen both his parents flogged and subsequently killed in public in front of his eyes a few years ago. On Monday, 12th August, 2013, an inspired Hari and his friend Raj decided to protest against the usual discrimination that they were subjected to, driven on by their fellow laborer community. Instead of paying heed to their demands, an employee of the landlord, Josh along with a few high ranking Brahmins publicly humiliated and beat up both Hari and Raj while a huge crowd formed around. Raj later succumbed to injuries on his head and chest.
That evening, according to sufficient eyewitness reports, Hari went to the local ‘Subzi mandi’ (Vegetable shops) and borrowed a can of kerosene. He then proceeded to the Chowk, covered himself with the inflammable liquid and set himself on fire whilst shouting slogans against the Brahmins and the Parsi landlord. He was immediately mobbed and the fire was extinguished. He suffered second degree burns covering about 35 percent of his body. We are to decide on whether he should be charged with attempt to suicide or not.
- It is rather shocking that this is the fifth such incident in two months that has cropped up. It is indeed of utmost seriousness that young people like Hari are burning themselves because of discrimination based on caste and creed. According to me, such cases of self incineration can be distinguished from cases of ordinary suicide2based on the following factors:
- The element of altruism3in such self incinerations,
- External coercion from the society leading to a constructed ‘mens rea4’,
- The problematic nature of the process of wounding those most in need of help and
- The belief that imprisonment as described in s.309 is an end in itself thereby ignoring the root cause of such incinerations.
- Altruistic suicide occurs because of a deep integration of a person in the society5because of which there comes a sense of accountability and responsibility in oneself towards the society. I have observed a similar situation in this case where the society of daily wage laborers were all collectively against the Parsi and Brahmin establishment and rose together in protest. There was an element of societal coercion in this case. Now, because of this external force acting on Hari for a long period of time, his last resort to burning himself was not essentially born out of his own thought process but that of the society and his perpetrators i.e. the landlords and the Brahmins. It would be quite difficult to actually think of an inborn desire to put ones mortal frame in the hands of fire. Hence, the mens rea so essential to impute criminal culpability on a person is not proper in this case6.
- Also essential here, is the fact that Hari was mortally wounded and instead of him getting proper medical treatment, he, according to the law of the land should be sent to the confines of prison which according to me is crossing the bounds of reasonability. Our prison system is far from equipped to mentally and physically heal Hari who has seen all his close ones die on after another at the hands of ruthless people. Today, if there is unstoppable protest in the village of ‘Jhansi’ against malpractices mentioned above, it is only because of the enlightening spark left off by Hari via his self incineration. To me, this act is noble enough to wash away the taint of criminal culpability affixed on him7. Another important point to be noted is the blurring of the line between perpetrator and victim in case of a suicide (the victim is the one who attempts to kill himself). This differentiates this case from other crimes like theft, murder and even abetment to suicide and hence cannot be called a crime in the true sense.
- According to me, the end achieved8by the apex court in P. Rathinam v. Union of India9was correct. In that judgment, it was held that section 309 of the Indian penal code was unconstitutional as it was against articles 14 (equality) and 21 (life) of the constitution. It was also held that the right to live should also include the right to not live similar to the right to not speak as inclusive under the right to free speech. This line of reasoning was further used in the case of Maruti Shripati Dubal v. State of Maharashtra,10in which, among other things, it was opined that the language used in Section 309 was sweeping since it did not define what consisted of Suicide, hence bringing under its ambit all kinds of religious practices which involve ending of one’s life. Additionally, it was mentioned that if the purpose of such a section is to create deterrence within the minds of other individuals, then especially in cases where an individual has lost all hope in life, deterrence would never work.
- In addition to this reasoning, I believe that it is because of the society’s ills that this case occurred and by imprisoning a person who has already undergone torture for years at end would only serve as burying symptoms of the disease and not the disease itself11. Rathinam was overruled in 1996 by the case Gian Kaur vs The State Of Punjab,12and the main argument there was that declaring 309 unconstitutional would deem section 306 i.e. abetment to suicide as void because abetment to a fundamental right to die could not be conceived in the real world. I am, however, of the opinion that when one abets in suicide, mens rea is present in the true meaning of the word – ‘one person intentionally instigates another to kill him/herself’. There is not external pressure (to par with the present case) to such an act and therefore, abetment to ordinary suicide13. And, from the above, I have established that a self incineration cannot be construed as suicide as under s. 309 of the IPC.
- Concluding, I would like to add that besides all the harm that Hari suffered, the only harm done was to his perpetrators, people who ill treated him and his close ones based on differences in caste and creed, which is not acceptable by the morals of the constitution of this land. And I believe that this harm was deserved on the part of the perpetrators. Hari has benefited the society in ‘Jhansi’ and should be applauded by the law and not penalized.
I am therefore of the opinion that the defendant in this case is innocent and the conviction should be set aside.
Raza J: The facts of the case before us have been discussed by CJ Sharma, who has set aside the conviction for Hari based on the belief that section 309 of the IPC is unconstitutional. I would beg to differ with CJ Sharma here. What happened in ‘Jhansi’ was heart rending and shameful but what is more intimidating is the fact that our judiciary has reached a point where rather than condemning the acts of the society and the failed government which led to the attempt to suicide of the victim here the court has decided to set aside the conviction. This sends a wrong message to the citizens of India. It looks as if the court has legitimized a person’s wish to die, if he or she has a reason to believe that they have been treated in discriminatory and unfair ways. It is sad that the judiciary has, instead of making efforts to improve the situation provided such measures. The court did not talk about improving the rights as provided under the right to life but suggested a meekly way out of it and which happens to be the right to death.
The issue now before us is that whether section 309 of the Indian Penal Code, be held unconstitutional and citizens be given the right to death as read into the right to life of the article 21 of the Indian constitution.
- Suicide is intentional taking of one’s life, as stated at p.1521 of Encyclopedia of Crime and Justice, Vol. IV, 1983 Edn. The Indian courts have time and again tried to read the right to death as one in the right to life enshrined under article 21 which according to me is of unsound logic. The court in P. Rathinam v. Union of India14said “Article 21 has conferred a positive right to live which carries with it the negative right not to live.’ The reasoning it gave referred to R. C. Cooper v. Union of India,15“Mention was then made of freedom of speech and expression, as to which it was observed that the same includes freedom not to speak and to remain silent. Similarly, about the freedom of business and occupation, it was stated that it includes freedom not to do business.” How the courts have equated a right to speech and trade with life is beyond my power of imagination. The right to one’s life is an issue on altogether and it can in no way be talked into the same breath as right trade or freedom of speech etc. Article 21 talks about right to life with human dignity and it stresses upon storing the sanctity of life. Thus, right to life cannot be constructed to justify the extinguishing of life16. The court in Gian Kaur vs The State Of Punjab had held that the state also has a positive duty to protect life and not merely have a negative duty of not interfering with personal life17. Also the fundamental rights granted by state in article 12 to article 35 are available only against the state and not in private sphere18.
- Self preservation is the general instinct that we human beings posses. All activities that humans indulge in are in a way or other an attempt to preserve the self19. The state legitimizing a form of destruction of this self would run counter to the basic norm and the idea of life as prevalent in the majority section of society. Suicide is often committed by people whose mental faculties have been either impaired or influenced by the recent injustice or discrimination over a long period. These people are incompetent to take decisions like such. It has been noted that about 100,000 people who commit suicide are of unsound mind and the remaining number are largely filled up by reasons of poverty, debt and illiteracy20. The impact of poverty, debt or illiteracy leaves the mind in a state where it is compelled to run away from the issue rather than confront it. A basic feature of our societies is the survival instinct21. The court had said in Olga Tellis v. Bombay Municipal Corporation “the high purpose which the constitution seeks to achieve by enforcing fundamental rights is not only to benefit an individual but to secure the larger interest of the country22.”
- It should also be pointed suicide is an act which cannot be reversed. The act inflicts such damage which has no remedy or recovery. It is impossible to express regret if it turns out to be a mistake and the loss of such a mistake is life which is valued and kept on a pedestal so high that it would be a terrible damage to have ever experienced. In Christianity the Bible says “homas Aquinas, being Catholic and believing that confession of sin must be made prior to departure from the world to the next, taught that suicide was the most fatal of all sins because the victim could not repent of it23.”
- Suicide is often construed to be a right act by many academicians and jurist using the examples of Johar, Sati, Saamadhi, prayopaveshan, atmarpan24. Renowned scholar B.B. Pandey argues that creating a law based on a small section consisting of thinking people who value life would be wrong for the society25. As stated by James .M.A. Weiss a very small number of people who attempt suicides are certain that they will die i.e. a substantial number of people are uncertain of their death. A very small number is certain of dying and thus is not among the people who commit suicide because of self realization. The people who are certain fall under the successful attempts where they actually die. Most of the attempts of suicide fall into the not so innocent category of self punishment26.
- Death is inauspicious as it heralds decay and decomposition as against life which is auspicious and desirable27. Talking in the terms of religion it can be seen that no religion legitimizes the end of life by the hands of an individual. Especially given the fact that life is a property that god imparted to the people and only god holds the power of taking it away from the individual. , According to the Bible, “the only One who has the right to decide when we die is the Creator Himself. The Bible also says God has ordained the days of our lives. So, suicide specifically violates the will of God in a person’s life28.” In Islam a verse in the Quran instructs; “And do not kill yourselves, surely God is most Merciful to you29.” Another one goes as “narrated Abu Huraira: The Prophet said, “He who commits suicide by throttling shall keep on throttling himself in the Hell Fire (forever) and he who commits suicide by stabbing himself shall keep on stabbing himself in the Hell-Fire30.” Judaism and Hinduism also views suicide in a negative light31.
- Let’s move onto the criminal aspect of suicide. The arguments of a major part of opposition to criminalization of suicide are based on the fact that suicide is not a crime. Their arguments assert that 1) killing one’s self causes no harm to the society 2) individual owns his life similar to a property and he has the right to use his own property the way he likes to 3) right to die is the other side of right to life. Now I already discussed above as to why right to die cannot be the other side of right to life. I will discuss the first two basic arguments here. The harm principle holds that the only purpose for which power can be rightfully exercised over any member of a civilized community against his will, is to prevent harm to others32. The theories of natural law accentuates to the notions of universality of certain patterns of permitted and prohibited behavior. Now sociologically crime is viewed as deviant behavior which violates existing norms. Suicide as established above is not the norm and is practiced by an extinct section for its true purpose of realizing self. Thus it is a deviation of the norm and should be considered to be a crime. This deviation from the norm acts as a bad example to the society. It influences society in a wrong way and decriminalizing the act of suicide would set out a false notion of right or wrong. Acquitting Hari would set out a wrong notion of justice to the other people suffering the same plight as him and would encourage them to address the problem by ending their lives instead of demanding justice and forcing the society as well as government to improve the situation33.
- Coming to the point of considering life to be one’s own property. Section 425 of the IPC talks about the crime of mischief wherein is a person is not allowed to cause harm to any property34. Thus suicide can be viewed by the same logic that it imposes harm on others by destroying self. Further speaking ownership may amount to alienation but not destruction of the property35.
- Having discussed the reasons as to why suicide is a crime I would also like to point out that it should be possible for the society to treat attempt to suicide as an offence but yet to distinguish cases involving genuine difficulties for mitigation of punishment. Section 309 enables the court to go for minor punishment in cases where the court feels sympathy with regard to circumstances36. It has also been seen that normally offenders are dealt with compassion by giving benefit under probation act 1958 or section 562 of Cr.PC, 1908 corresponding to section 360 of Cr.PC 197337.
- Hari should be convicted and serve a term of six months in prison only after he is fully recovered from the injuries that he sustained and has sufficient mental capacity so as to make the right decisions.
- I would also like to point out that Hari attempted suicide after the social conditions forced him to and thus the individuals who publicly humiliated Hari should be charged with abetment to suicide38.
THE DILEMMA OF DYING, INDIAN EXPRESS, Abhishek Mukherjee, 29.11.2014
The new BJP-led Government recently announced that section 309 of the Indian Penal code should be effaced from the statute. The news comes after a report by the Law Commission of India on “Humanization and Decriminalization of Attempt to Suicide”.39The Commission’s report stated in its recommendations that section 309 of the IPC be effaced because the question here is not whether this provision is constitutional or unconstitutional rather that does the provision have any application while preventing suicide. The commission further in its report states that section 309 is inhuman on the grounds that it proves to a hindrance in prevention of such acts and especially in taking care of such persons who need medical and emotional help rather than being handed jail term by the hands of justice40. This topic draws our attention to very recent case decided by the Supreme Court of Hindusthan regarding Section 309 of the IPC. The court in this case had decided to acquit the famous Hari Kumar who had become a nationwide debate topic after he had tried to immolate himself in the central bazaar in Jhansi protesting against the oppressive Parsi landlords. The opinion of the three judge bench, presided by the CJH, was divided on the issue. The CJH while stating the majority opinion of the court acquitted Hari of his offences and called for decriminalization of suicide. The CJH reiterated the Law Commission’s arguments and ruled that right to life does include in it a right to die.
The dissenting opinion of the court delivered by Justice Raza provides an interesting twist to the debate by stating that de-criminalizing suicide would prove detrimental to the efforts and intention of the constitution to preserve life. The opinion is largely based on religious, fundamental and legal arguments which support the fact that life should be preserved and the right to die should not be allowed by the apex court of the nation in the interests of the same.
Sneha, a Chennai based NGO, works in the area of suicide intervention. According to the statistics stated by the NGO around 1,00,000 people commit suicide annually in our country and continuing laws which criminalize it are detrimental to the efforts of preventing it41. The WHO had informed SNEHA that, at a public level, punishing suicidal behaviors by law has many negative aspects. It has been witnessed in the case of Sri Lanka where such law was repealed four years ago and the number of suicides reduced drastically42. The Ministry of Law and Justice, Government of India has been communicated of the negative aspects of such laws. The President of the International Association for Suicide Prevention, France had strongly voiced his opinion regarding the same and urged India to join the various nations who have decriminalized suicide so that fear of punishment and social stigma does not prevent such individuals from expressing their concerns and emotions.
While one side of the coin rallies for de-criminalization, the other side voices their concerns regarding the lack of concrete proof and empirical data that could prove that de-criminalization of suicide would prove to be a positive change in prevention of suicide. Also, as they argue, there are rarely any instances where such persons, who have been charged with attempt to suicide, have been sent to jail and not provided physical or mental help. The judiciary has often taken a liberal view on such offences.
However there is a new section of medical practitioners, policy makers as well as jurists who have repeatedly voiced their opinion that irrespective of the view of the law on attempt to suicide, a permission to die or euthanasia should be provided as an exception in the rarest of the rare cases where a patient is incapable of bodily functions and suffers from Severe body wasting, intractable vomiting, urinary and bowel incontinence, immobility, and total dependence or is in a permanent vegetative state. Their main arguments rely on the fact that a competent adult has a right to autonomy (to decide what will or won’t be done to his or her body). There is almost universal agreement that a competent adult has the right to self-determination, including the right to have life-sustaining treatment withheld or withdrawn43. A dignified and comfortable life is what our constitution and various others across the world seek to achieve. A patient suffering from such condition, where it has been established by the medical fraternity over a period of time, review and treatment that there would not be any scope for improvement or revival and where it has been clearly expressed or proved, that the patient would not be willing to continue living life in such undignified ways, should be allowed to end his life. Although there are reservations regarding the intentions of the patient and the criteria for such rarest of the rare cases but a proper framework and guidelines for the same can be established with consultation and debates.
This middle path of providing an exception to physician assisted suicides in the rarest of rare cases is the only way the right to life with dignity in all its senses.
- Fedden, H. Romilly, Suicide, A Social and Historical Study, Peter Davies, London (1938), page 42 [↩]
- Encyclopedia of Crime and Justice, Vol. IV, (1983 Edn), p.1521, Intentional taking of one’s life [↩]
- Emile Durkheim, Suicide (Routledge 2005) [hereinafter A Study in Sociology]; also look at: altruistic suicide: suicide for the benefit of others in the society. [↩]
- Guilty mind, Elizabeth A. Martin, ed. (2003). Oxford Dictionary of Law. Oxford: Oxford University Press. [↩]
- Robert Pape, Dying to Win (Random House 2005), p.174 [↩]
- Actus non facit reum nisi mens sit rea: Act without guilty mind cannot be considered as criminal. [↩]
- Bindal, Amit, “Non-Culpability of Attempt to commit Suicide: A critical analysis of the States policy of wounding the wounded“, Bangalore Law Journal, 2010, p.192. [↩]
- Even though the reasoning of suicide as a means on becoming one with god due to fulfillment in life is not as convincing taking into account the ground reality of the farmers of India. [↩]
- P. Rathinam v. Union of India, 1994 (3) SCC 394. [↩]
- Maruti Shripati Dubal v. State of Maharashtra, 1987 CriLJ 743. [↩]
- Supra at footnote 8 [↩]
- Gian Kaur vs The State Of Punjab, 1996 AIR 946 [↩]
- Supra note 3 [↩]
- Supra note 10. [↩]
- R. C. Cooper v. Union of India, 1970 AIR 564, 1970 SCR (3) 530. [↩]
- Supra at footnote 13. [↩]
- Majumdar, Abhik, “The right to die: Indian experience“ Australian Journal of Asian Law, Vol. 6, No. 2, p. 157, 2004. [↩]
- Id. [↩]
- Pillai, Dr. K.N. Chandrasekharan, “Comment on Rathinam vs. Union of India” (1995) 3 SCC (jour). [↩]
- Nanda Prashant, IANS, Friday March 16 2007 [↩]
- Ashraf Md. Ali, “culpability of attempt to commit suicide- a legal labyrinth amidst ethical quandary” journal of indian law institute[vol. 49:4] [↩]
- Olga tellis v. Bombay Municipal Corporation AIR 1986 SC 180 at 192-93 [↩]
- Deem, Rich, “What Happens to Christians Who Commit Suicide? Do They Go To Heaven or Hell?“, May 11, 2011. [↩]
- These are acts supported by traditional logics and practices and involve an individual to end his life knowingly himself. Not all people who commit suicide do it because they have realized their true self and are content with their achievements. These kind of people are extinct as against the other types of people who commit suicide. [↩]
- Supra at footnote 5. [↩]
- Kannibar J.g., “should there be a right it to commit suicide” (1993) Cri LJ 14 at 390-91 [↩]
- Supra at 11 [↩]
- supra at 23. “Deviation from this would amount to a sin. The sacred and holy texts of various religions discuss suicide as a sin. The Bible condemning suicide has been quoted above.” [↩]
- Qur’an, Sura 4 (An-Nisa), ayat 29 [↩]
- Sahih al-Bukhari, 2:23:446 [↩]
- Jewish views on suicide state that suicide is forbidden by Jewish law. Judaism has traditionally viewed suicide as a serious sin. It is not seen as an acceptable alternative even if one is being forced to commit certain cardinal sins for which one must give up one’s life rather than sin. Hinduism addresses the issue in verse 3 of chapter 40 of Yajurveda which when translated means that people with self destructive tendencies live in darkness of ignorance which they cannot escape even after death. Also there is a large debate on fast unto deaths which is a clear form of attempt to suicide. It can be said that these fasts are done to improve the conditions of life as against the present situation and to assert life meaningfully than to give up. Their main objective is in resonance with the arguments I stated above. [↩]
- John Stuart Mill (1859) on liberty, “Once a person dies he leaves a void in the life of his loved ones and often the lifestyles of these loved ones halt for a reasonable amount of time which effect the upcoming course of their life largely. If the victim happens to be a bread earner of the family it creates a huge setback to the family for losing the individual. The pain, loss and setbacks are harm that the society indirectly suffers due to the damage inflicted by the suicide. Thus suicide imposes harm on the society in these forms.” [↩]
- Wright, Valerie (November 2010). “Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment“, 13 October 2012: “Research has shown that increasing the severity of a punishment does not have much effect on crime, while increasing the certainty of punishment does have a deterrent effect. “Clearly, enhancing the severity of punishment will have little impact on people who do not believe they will be apprehended for their actions.” [↩]
- Explanation 2 of this very section states that mischief can also be committed to one’s own property and inflict harm upon others. [↩]
- Supra at 21 pg.16 [↩]
- Supra at 19 [↩]
- 1996 AIR 946 [↩]
- 1994 (3) SCC 394: “But that cannot be mixed with this case as section 306 and section 309 are read into different areas. ”As regards person aiding and abetting suicide the law can be entirely different … as self-killing is conceptually different from abetting others to kill themselves” [↩]
- Modi govt plans to decriminalize attempt to commit suicide, Times of India, (August 5, 2014), http://timesofindia.indiatimes.com/india/Modi-govt-plans-to-decriminalize-attempt-to-commit-suicide/articleshow/39689034.cms [↩]
- Law Commission of India, Humanization and decriminalization of attempt to suicide, Report No. 210, (October 2008) Pg. 38-39 [↩]
- Sneha India, (http://www.snehaindia.org/index.php) (Retrieved: 25/11/2014). [↩]
- Report No. 210, Supra note 42 at 33 [↩]
- James Fieser, EUTHANASIA, Applied Ethics: A sourcebook, ( 10/3/2010), https://www.utm.edu/staff/jfieser/class/300/6-euthanasia.htm [↩]