CONSTITUTIONALITY OF ATTEMPT TO COMMIT

SUICIDE

A research proposal submitted in partial fulfilment of the course

Criminal Law- I for obtaining the Degree BBA LLB (Hons.) during
the Academic Year 2019-2020.

Submitted by
RAHUL KUMAR
Roll No.: 2032
Submitted to
Dr. Fr. Peter Ladis F.
Assistant Professor of Law

August, 2019
Chanakya National Law University
Mithapur Nayaya Nagar, Patna-800001
 CONTENTS
INTRODUCTION ................................................................................4
1. The meaning of ‘life’ .......................................................................6
2. SECTION 309 OF INDIAN PENAL CODE, 1860 ........................8
3. Article 21 of the Indian Constituion ................................................9
4. ‘Right to life’ Versus ‘Right to die’...............................................12
5. Constitutionality of section 309 of IPC .........................................13
Argument in favour of criminalization of attempting suicide: ..16
Argument against decriminalization of attempting suicide: ......17
Views by eminent persons regarding Section 309 I.P.C. ............18
7. Concept of euthanasia: An analysis ...............................................19
8. CONCLUSION CRITICISM AND SUGGESTIONS ..................20
9. BIBLIOGRAPHY ..........................................................................23

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 DECLARATION

I hereby declare that the project entitled “CONSTITUTIONALITY OF

ATTEMPT TO COMMIT SUICIDE” submitted by me at CHANAKYA
NATIONAL LAW UNIVERSITY is a record of bona fide project work carried
out by me under the guidance of our mentor Dr. Fr. Peter Ladis F. . I further
declare that the work reported in this project has not been submitted and will
not be submitted, either in part or in full, for the award of any other degree or
diploma in this university or in any other university.
----------------
RAHUL KUMAR
ROLL NO. 2032
3RD SEMESTER
2ND YEAR

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 ACKNOWLEDGEMENT

It is a fact that any research work prepared, compiled or formulated in isolation

is inexplicable to an extent. This research work, although prepared by me, is a
culmination of efforts of a lot of people who remained in veil, who gave their
intense support and helped me in the completion of this project.

Firstly, I am very grateful to my mentor Dr. Fr. Peter Ladis F., without the kind
support and help of whom the completion of this project was a herculean task
for me. She donated her valuable time from her busy schedule to help me to
complete this project. I would like to thank her for her valuable suggestions
towards the making of this project.

I am highly indebted to my parents and friends for their kind co-operation and
encouragement which helped me in completion of this project. I am also
thankful to the library staff of my college which assisted me in acquiring the
sources necessary for the compilation of my project.

Last but not the least, I would like to thank the Almighty who kept me mentally
strong and in good health to concentrate on my project and to complete it in
time.

I thank all of them !

RAHUL KUMAR
ROLL NO. 2032
3RD SEMESTER
2ND YEAR

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INTRODUCTION

‘Life’ holds many definition throughout the literature but in all of them, essence remains the
same. All defines life as the ‘Right to live’. It is a common practice or teaching that no person
shall be harmed. Every person has the liberty to live.
As the nature provides, so the law protects. The Constitution itself holds the principle and
provides numerous rights under the name of fundamental rights under part –III. Article 21 of
our Constitution provides the right to life and liberty. It is considered one of the important
fundamental rights among those rights. This Article 21 of our Constitution deals with
Protection of Life and Personal liberty.

ARTICLE 21 :
“No person shall be deprived of his life or personal liberty except according to procedure
established by law.”

According to this Article, every person has a right to live a life. It also defines that right to
life means the right to lead meaningful, complete and dignified life. The meaning is not
constraint to certain definition. The objective of this right is to prevent the state from
applying any injunction upon the personal liberty of the citizen and deprivation of life except
according to procedure established by law.
The meaning of the words personal liberty came up for consideration of the supreme court for
the first time in the case of A.K. Gopalan V. Union Of India. In this case, the Supreme Court
held that the word deprivation was construed in a narrow sense and it was held that
deprivation doesn’t restrict upon the right to move freely which came under Article 19(1) (d).
Now, the question of the research is whether the right to life under Article 21 includes right
die or not. Every person though hold the life but can not be considered as either meaningful
or dignified. Taking the example of a person suffering from permanent unconsciousness or
‘coma’, for that person life already have no meaning and is no longer enjoying the life but has
become a suffering. For such person, having life holds very different meaning than a normal
person. The question in hand tries to explain the gravity and legality of the meaning of life
and Constitutionality of the Article 21 as well as the legality of the section 309 which
criminalizes the attempt to commit suicide.
Throughout the passage of time, many cases challenged the Constitutionality of attempt to
commit suicide or infringement of the right given under Article 21 of Indian Constitution. In
many cases, court has provide many contradictory judgements. In some of them, the court
supports the arguments while in other rejects it and holds the legality of the penal provision.

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  OBJECTIVE OF THE STUDY

Through the detailed study of the subject matter, the researcher has tried to analyse
the following arguments:

1. The meaning of life as discussed through the provisions of Constitution and

Indian Penal Code.
2. Whether the provision upholds the legality or infringes the fundamental right
of the citizens
3. Whether the person with incurable disease be permitted to terminate his or her
life.
4. Whether the concept of euthanasia fall under the ambit of the said ‘right’.

 HYPOTHESIS
The researcher hypotheses’ that :
1. The right to life under Article 21 of the Constitution doesn’t include Right to die.
2. The concept of euthanasia comes under the ambit of ‘right to die’.

 RESEARCH MTHODOLOGY
In this research doctrinal mode of research has been used. They primarily includes the
web, books, and newspaper articles.
 SOURCE OF THE DATA

1) Primary data –
Enactments, Rules, Regulations, coventions,etc.

2) Secondary data –
Secondary data that is already available and published. Various internet sites,
newspaper, books, magazines, etc were searched in order to find information useful for
completion of this project.

 LIMITATIONS OF THE STUDY

The researcher being a student doesn’t have the source or access to resources beyond his
capacity. He however, has collected the data from book, internet sites, newspaper, magazines
and interviews. Some of the limitations researcher has faced or is bound to face are:
1. Money: one of the most influential limitation for researcher, for researcher is a student.

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 2. Time period: the allocated period of time is not sufficient to collect and analyse the data
for more accurate judgement of the subject.

3. Research Area: the provided place for conducting the data collection is very small and
the scope for collection of information is narrow.

 SCOPE OF STUDY
To understand the commission and reason of suicide and to ponder about the
constitutionality of the act. Whether suicide can be considered a criminal act or not is
discussed in this study.

CHAPERIZATION

1. The meaning of ‘life’

There is no denial of the preciousness of life. Life stands at the pinnacle of the priorities of an
individual. The beauty of life lies not in the enjoyment but the unprecedented contribution
that one makes in the ethnic field. The opportunity that life provides to each to make ones
name immortal in the history of mankind.
“Laie Hayat Aye- Le Chaliquazachale. Apni Khushina Aayena Apne Khushi Chale”1, Life
brought me, I came, Death took me, I went. Neither I came of my accord nor went with my
consent.
Though life may be considered a beautiful gift but it is not a smooth ride. Life is 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 enough to cherish it. It must never be thrown away with minor
inconveniences“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. With weakness comes ignorance,
and with ignorance comes misery.”3 The misery creates turbulence in our life and often
compels us to efface it2. 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.

1
Mohammad Ibrahim Zaq.

2
Swami Vivekananda

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It is best described in Bhagwat Geeta:
Karmanya Vadhikaraste, Ma phaleshukadachana

Ma Karma Phala Hetur Bhurmatey Sangostva Akarmani3

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 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.

3
Bhagvat Gita, Chapter II, verse 47.

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 2. SECTION 309 OF INDIAN PENAL CODE, 1860
Suicide has not been defined anywhere in the IPC. However briefly defined, ‘suicide’ is the
human act of self-inflicted, self-intentioned cessation4. It has been defined by various
sociologists and psychologists in different ways. Some of the definitions are ‘suicide is the
initiation of an act leading to one’s own death’. “It is synonymous with destruction of the self
by the self or the intentional destruction of one’s self.”5 Thus, suicide is killing oneself
intentionally so as to extinguish one’s life and to leave this world. The Oxford Companion to
Law, explains it as ‘self killing or taking one’s own life’.

Suicide as such is no crime under the code. It is only attempt to commit suicide that is
punishable under this section, i.e., code is attracted only when a person is unsuccessful in
committing the suicide. If the person succeeds, there is no offender who could be brought
within the purview of law. The section is based on the principle that the lives of men are not
only valuable to them but also to the state which protects them.

S. 309 – 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 both.”6

Attempt must be intentional- 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 state of intoxication, or
in order to evade capture by his pursuers he is not guilty under this section. Similarly, if a
person because of family discord, destruction, loss of a near and 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 guilty for attempt to suicide. In such a case, the unfortunate man deserves
indulgence, sympathy and consolation instead of punishment. It is under very compelling
adverse circumstances that a person resorts to taking the extreme step of attempting to
commit suicide. Some of them are depressive illness, schizophrenic attitude, physical illness
which is intolerable, poverty, unemployment, frustration, disappointment, dowry problems
etc.

There are many ways in which suicide can be committed. The known methods are by
drowning, hanging, poisoning, cutting throat, burning, shooting oneself, hunger strike etc.
But it is difficult to generalize any and conceptualize particular theory because whenever we
hear news about individuals committing suicide, we immediately come up with a conclusion

4
Encyclopaedia Britannica, (1973) at p. 383. [Google Scholar]
5
The Social Meaning of Suicide(1967): Jack D. Donglas, Princeton Univ. Press, New Jersey.
6
IPC Sec.309

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that these people are depressed, dissatisfied, and unhappy with their lives. However, when
popular and rich people commit suicide, we are left in confusion. Why would someone who
is loved and idolized by many decide to kill himself? Depression may be the main culprit, but
there are a lot of things to consider as well. These include overwhelming pain, grief, and
stress; some use it as an escape for their failure and shortcomings like criminals who are
about to be sentenced or caught. However, there are cases where suicide is an option that is
mandatory or required. Thus, most people end up sacrificing themselves to save the lives of
others in unbelievable circumstances. Heroes during the wartime generally belong to this
category.

3. Article 21 of the Indian Constituion

The Constitution of India provides a long list of fundamental rights under Part-III. Article 21
of our Constitution is one of the important fundamental rights among those rights.

Article 21 – Protection of Life and Personal Liberty: “No person shall be deprived of his life
or personal liberty except according to procedure established by law.”7

Though the phraseology of Article 21 starts with negative word but the word No has been
used in relation to the word deprived. The object of the fundamental right under Article 21 is
to prevent encroachment upon personal liberty and deprivation of life except according to
procedure established by law. It clearly means that this fundamental right has been provided
against the state only. If an act of private individual amounts to encroachment upon the
personal liberty or deprivation of life of other person, such violation would not fall under the
parameters set for the Article 21; in such a case the remedy for aggrieved person would be
either under Article 226 of the constitution or under general law.

But, where an act of private individual supported by the state infringes the personal liberty or
life of another person, the act will certainly come under the ambit of Article 21. Article 21 of
the Constitution deals with the prevention of encroachment upon personal liberty or
deprivation of life of a person. The state cannot be defined in a restricted sense. It includes
Government Departments, Legislature, Administration, Local Authorities exercising statutory
powers and so on so forth, but it does not include non-statutory or private bodies having no
statutory powers.

Right to Life means the right to lead a meaningful, complete and dignified life. It does not
have restricted meaning. It is something more than just surviving or animal existence. The
meaning of the word life cannot be narrowed down. As far as Personal Liberty is concerned,
it means freedom from physical restraint of the person by personal incarceration or otherwise
and it includes all the varieties of rights other than those provided under Article 19 of the
Constitution. Procedure established by Law means the law enacted by the State. Deprived has

7
The Constitution of India

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also wide range of meaning under the Constitution. These ingredients are the soul of this
provision. The fundamental right under Article 21 is one of the most important rights
provided under the Constitution which has been described as heart of fundamental rights by
the Apex Court.

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in
A.K.Gopalan v. State of Madras8 that the contents and subject matter of Article 21 and 19 (1)
(d) are not identical and they proceed on total principles. In this case the word deprivation
was construed in a narrow sense and it was held that the deprivation does not restrict upon the
right to move freely which came under Article 19 (1) (d). At that time Gopalan’s case was the
leading case in respect of Article 21 along with some other Articles of the Constitution, but
post Gopalan case the scenario in respect of scope of Article 21 has been expanded or
modified gradually through different decisions of the Apex Court and it was held that
interference with the freedom of a person at home or restriction imposed on a person while in
jail would require authority of law.

Whether the reasonableness of a penal law can be examined with reference to Article 19, was
the point in issue after Gopalan’s case in the case of Maneka Gandhi v. Union of India9, the
Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary,
unfair or unreasonable one. Article 21 imposed a restriction upon the state where it prescribed
a procedure for depriving a person of his life or personal liberty. This view has been further
relied upon in a case of Francis Coralie Mullin v. The Administrator, Union Territory of
Delhi and others[6] 10as follows:
Article 21 requires that no one shall be deprived of his life or personal liberty except by
procedure established by law and this procedure must be reasonable, fair and just and not
arbitrary, whimsical or fanciful. The law of preventive detention has therefore now to pass
the test not only for Article 22, but also of Article 21 and if the constitutional validity of any
such law is challenged, the court would have to decide whether the procedure laid down by
such law for depriving a person of his personal liberty is reasonable, fair and just.

In the same case Bhagwati J. held:

“ We think that the right to life includes the right to live with human dignity and all that goes
along with it, namely, the bare necessaries of life such as adequate nutrition, clothing, and
shelter over the head and facilities for reading, writing and expressing oneself in diverse
forms, freely moving about and mixing and commingle with fellow human beings.”

The Judge conceded that “the magnitude and content of the components of this right would
depend upon the extent of the economic development of the country”, but emphasised that “it

8
AIR 1950 SC 27.
9
AIR 1978 SC 97.
10
AIR 1981 SC 746.

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must, in any view of the matter, include the right to the basic necessities of life and also the
right to carry on such functions and activities as constitute the bare minimum expression of
the human – self.”

In another case of Olga Tellis and others v. Bombay Municipal Corporation and others[7] 11,
it was further observed:
Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates
law and procedure alike. It is therefore essential that the procedure prescribed by law for
depriving a person of his fundamental right must conform the norms of justice and fair play.
Procedure, which is unfair in the circumstances of a case, attracts the vice of
unreasonableness, thereby vitiating the law which prescribes that procedure and
consequently, the action taken under it.

The interpretation which has been given to the words life and personal liberty in various
decisions of the Apex Court, it can be said that the protection of life and personal liberty has
got multi-dimensional meaning and any arbitrary, whimsical and fanciful act of the State
which deprived the life or personal liberty of a person would be against the provision of
Article 21 of the Constitution. “The expression personal liberty in Article 21 is of widest in
nature and it covers a bundle of rights which go to constitute the personal liberty of man and
some of them have raised to the status of distinct fundamental rights and given additional
protection under Article 19”.

Supreme Court again and again after Maneka Gandhi12 underlined the theme that Article 14,
19 and 21 are not mutually exclusive, but they “sustain, strengthen and nourish each other”.
To any civilized society there can be no attributes more valuable than the life and personal
liberty of its members. This is why the Supreme Court has now given pride of place to Article
21.

Thus, Article 21 provides ‘right to live with dignity’ as well as ‘right against cruel and
unusual punishment’ and ‘Due process of law’ laid down in Article 21 has became the source
of many substantive rights and procedural safeguards to the process.

11
AIR 1986 SC 180.
12
AIR 1978 SC 97.

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 4. ‘Right to life’ Versus ‘Right to die’

The Indian constitution under Article 21 confers the right to Life as the fundamental right of
every citizen. The Right to Life enriched in Article 21 have been liberally interpreted so as to
mean something more than mere survival and mere animal existence. The Supreme Court has
asserted that Article 21 is the heart of the fundamental Rights provided under part III of the
constitution. The Supreme Court has clearly stated that in order to treat a right as a
fundamental it is not mandatory that it should be expressly stated as a fundamental right. In
India “The right to life” under Article 21 of the Constitution has received the widest possible
interpretation under the able hands of the judiciary and rightly so.

On the grounds as mentioned, Article 21 does not have a restrictive meaning and needs to be
interpreted broadly. This affirms that if Article 21 confers on a person the right to live a
dignified life, it should bestows the “Right to Die” also, but the inclusion of Right to die
under Article 21 contradict the provision of Indian Penal Code under section 309. As
according to section 309 of the I.P.C. “Whoever attempts to commit suicide and does any act
towards the commission of such offense, shall be punished with simple imprisonment for a
term which may extend to one year or with fine, or with both”. This section is based on the
principle that lives of men are not only valuable to them but also to the state which protects
them.

By considering both the laws the provision of I.P.C. under section 309 is contradictory to the
fundamental right guaranteed under Article 21 of the Indian Constitution. The state’s power
under section 309, I.P.C. to punish a man for attempt to commit suicide is questioned not
only on the grounds of morality, but also on the constitutionality of the said provision. A lot
of conflicting opinions have been given on desirability of retaining or abolishing section 309
of Indian Penal Code because of some contrasting judgement given by the courts.

A very fascinating development in the Indian constitutional jurisprudence is the extended

dimension given to Article 21 by the Supreme Court in the post-Maneka era. Since then,
Article 21 has proved to be multi-dimensional. This aspect of Article 21 is brought up by
many judicial pronouncements. This right is inalienable and is inherent in us. It cannot and is
not conferred upon us. This vital point seems to elude all those who keep on clamoring for
the “Right to die”. That means that every individual has fundamental freedom to choose not
to live. On this issue the stance taken by the judiciary is unquestionable. The main question
arises is whether the right to life includes right to death.

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 5. Constitutionality of section 309 of IPC

The state’s power under section 309, I.P.C. is questioned not only on grounds of morality
but also on the constitutionality of the provision.

Maruti Shripati Dubal v. State of Maharashtra13

This is the case in which first time it came for the consideration before the court that
whether a person has a right to die. The petitioner, a police constable, who became
mentally ill after a road accident attempted to commit suicide by dousing himself with
kerosene and then trying to light a match was prevented and prosecuted under section 309
of I.P.C. In 1987, the Division Bench of Bombay High Court stuck down sec 309, I.P.C.,
as ultra vires vide article 14 and 21 of the constitution which guarantees ‘right to life and
personal liberty’. The court said the ‘right to life’ includes ‘right to live’ as well as ‘right
to end one’s life’ if one so desires. It was pointed out that Fundamental Rights have
positive as well as negative aspects. For example: Freedom of Speech and Expression
also includes freedom not to speak and to remain silent. If this is so, logically it must
follow that right to live as recognized by article 21 of the constitution also includes a right
not to live or not to be forced to live.

Justice P.B. Sawant:

“If the purpose of the prescribed punishment is to prevent the prospective suicides by
deterrence, it is difficult to understand how the same can be achieved by punishing those
who have made the attempts. Those who make the suicide attempt on account of mental
disorder requires psychiatric treatment and not confinement in the prison cells where
their condition is bound to be worsen leading to further mental derangement. Those on
the other hand, who makes a suicide attempt on account of actual physical ailments,
incurable disease, torture (broken down by illness), and deceit physical state induced by
old age or disablement, need nursing home and not prison to prevent them from making
the attempts again. No deterrence is going to hold back those who want to die for a
special or political cause or to leave the world either because of the loss of interest in life
or for self- deliverance. Thus in no case does the punishment serve the purpose and in
some cases it is bound to prove self defeating and counter – productive.”

13
(1987) Cr LJ 473 (Bom.)

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 State v. Sanjaya Kumar Bhatia14
In 1985, the Division Bench of Delhi High Court while acquitting a young boy who
attempted to commit suicide by consuming ‘Tik Twenty’ strongly advocated for deletion
of section 309, I.P.C. from the statue book and held that:
“the continuance of section 309 of the Indian Penal Code is an anachronism unworthy of
human society like ours. Instead of sending the young boy to a psychiatric clinic society,
gleefully (happily) sends him to mingle with criminals. Medical clinics are needed for
such social misfits; but police and prison never.”

Chenna Jagadishwar v. State of A.P.15

The Division Bench of Andhra High court upheld the constitutionality of section 309,
I.P.C., and remarked that “right to life does not necessarily signify a right to die” which is
an offence and therefore section 309 does not violate Articles 19 and 21 of the
constitution. It was also pointed out that the courts have sufficient power to see that
unwarranted harsh treatment or prejudice is not meted out to those who need care and
attention. This, therefore is not violation of article 14.

P. Rathinam v. Union of India16

The two petitioners assailed the validity of Section 309 by contending the same to be
violation of Articles 14 and 21 of the Constitution and the prayer was to declare the
section as void. The additional prayer was to quash the proceedings initiated against the
latter petitioner under sec 309. In 1994, the Division Bench of Supreme Court comprising
of Justices R.M. Sahai and B.L. Hansaria, approved the Judgment of Bombay and Delhi
High Courts, but overruled the Andhra Pradesh High Court Judgment by contending that
the Section 309 is violative of Articles 14 and 21 of the constitution.

While striking down Section 309, I.P.C., the Apex Court said ‘it is cruel and irrational
provision violative of Article 21 of the constitution.’ Expanding the scope of Article 21,
the court upheld that, ‘right to life’ include ‘right not to live a forced life’; i.e., to end
one’s life if one so desires. The court went on to say that-

“…it may result in punishing a person again (doubly) who has suffered agony and would
be undergoing ignominy (humiliation) 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 not baneful effect on society. Further, suicide or attempt to commit

14
(1985) Cr LJ 931 (Del)
15
(1988) Cr LJ 549 (AP)
16
AIR 1994 SC 1844

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 it causes no harm to others, because of which state’s interference with a personal liberty
of the concerned person is called for.”

The Court further said a person who attempts to commit suicide does not deserve
prosecution because he has failed. There can be no justification to prosecute sacrificers of
their lives. For instance, students who jump into the well after having failed in
examination but survive; girls and boys who resent arranged marriage and prefer to die,
but ultimately fail, do not deserve punishment; rather soft words, wise counselling of a
psychiatrist and not stony dealing by a jailor following harsh treatment meted out by a
heartless prosecutor.

Gian Kaur v. State of Punjab17

In 1996, a five judge Constitutional Bench of the Apex Court comprising of Justices J.S.
Verma, G.N. Ray, N.P. Singh, Faizauddin and G.T. Nanawati overruled its decisions of
1994 in P. Rathinam/ Naghbhusan Patnaik and upheld the constitutionality of Section
309.

The appellant and her husband were convicted by the Trial Court under Section 306,
I.P.C. for abetting the commission of suicide by Kulwant Kaur. In special leave before the
Apex Court the conviction of the appellant has been assailed (challenged), inter alia on
the ground that Section 306 I.P.C.is unconstitutional in view of Judgment in 1994;
wherein Section 309 I.P.C. has been held to be unconstitutional as violative of Article 21
of the Constitution. The Court while dismissing the petition held that the ‘right to life’ is
inherently inconsistent with the ‘right to die’ as is ‘death’ with ‘life’. In furtherance, the
right to life, which includes right to live with human dignity, would mean the existence of
such a right up to the natural end of life. It may further include ‘death with dignity’ but
such existence should not be confused with unnatural existence of life curtailing natural
span of life. In progression of the above, the constitutionality of section 309 of the I.P.C.
which makes “attempt to suicide” an offence, was upheld, overruling the judgment in P.
Rathinam’s case.

The Apex Court further held that Section 306, I.P.C. as constitutional and said that ‘right
to life’ does not include ‘right to die’. Extinction of life is not included in protection of
life. The Court further went on to say that Section 306 constitute a distinct offence and
can exist independently of Section 309, I.P.C. As regards Section 309, I.P.C. is
concerned, the court said that the’ right to life’ guaranteed under Article 21 of the
Constitution did not include the ‘right to die’ or ‘right to be killed’ and therefore an
attempt to commit suicide under section 309, I.P.C. or even abetment of suicide under

17
AIR 1996 SC 1257

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 section 306, I.P.C., are well within the constitutional mandated, and are not void or ultra
vires.18

The Court said –

“Article 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 ‘protection of life’
whatever may be the philosophy of permitting a person to extinguish his life by
committing suicide, it is difficult to construe Article 21 to include within its ambit the
‘right to die’ as a part of the Fundamental Right guaranteed therein. ‘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’.”

6. Section 309 of Indian Penal code, 1860 : An Analysis on moral

Ground

As a normal rule, every human being has to live and continue to enjoy the fruits of life till
nature intervenes to end it. Death is certain. It is a fact of life. Suicide is not a feature of
normal life. It is an abnormal situation. But if a person has right to enjoy his life, he cannot
also be forced to live that life to his detriment, disadvantage or disliking. If a person is living
a miserable life or is seriously sick or having incurable disease, it is improper as well as
immoral to ask him to live a painful life and to suffer agony. It is an insult to humanity.

Right to life means right to live peacefully as an ordinary human being. One can appreciate
the theory that an individual may not be permitted to die with a view to avoiding his social
obligations. He should perform all duties towards fellow citizens. At the same time, however,
if he is unable to take normal care of his body or has lost all the senses and if his real desire is
to quit the world, he cannot be compelled to continue with torture and painful life. In such
cases, it will indeed be cruel not to permit him to die. There are people who though see
suicide as morally wrong, still create obligatory grounds to commit suicide and advanced
some arguments with moral backups in favour of suicide. Thus giving us the chance of
raising the question whether man has the moral right to die or take his or her life.

Argument in favour of criminalization of attempting suicide19:

 Moral right to die on account of terminal illness- Suicide is one of the ways in
which people can exercise a right to die. Burn victims having severe injuries resort to
and claim that they have a right to die of which any prevention of their intention to die

18
Varun Kumar, Right to Die and constitutionality of Section 309 IPC: a global perspective, Referred Research
Journal,July, 2011,ISSN-0975-3486,RNI: RAJBIL 2009/30097,VOL-II*ISSUE 22 [Google Scholar]
19
2000 Cri LJ 3729

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 is seen as a breach of their right to die because it seems impossible to recover from
their suffering.
 Losses and shameful acts- Suicide is morally right in the instance of losses or
shameful acts like loss of limb or of physical beauty and the person is not in a position
to give any meaning to his life, i.e., he is under the high level of depression, as no
relief can be procured.
 Liberty- To those who see man as a free agent, suicide is morally right. Man’s life
belongs to him, hence he is at liberty to take it without denial; and no other person has
the right to force their own ideals that life must be lived. Rather, only the individual
involved can make such decision and whatever decision he or she does make, should
be respected.
 To save the life of more people- When a person refuses to give information to an
enemy camp in order not to endanger the lives of other; killing himself is morally
right.

Argument against decriminalization of attempting suicide20:

 Suicide is unhealthy approach to the problems of life- Most people who opt to die
are somehow begging for help in order to solve the problems of life. “If a man really
does not wish to live, then we think he must be insane, and unfit therefore, to decide
his own fate. It becomes our duty to save him first to save his life and then to cure his
melancholy.”21 The depressive situations occasioned by frustration, losses, shame,
fear etc. are not enough to warrant ones to commit suicide. After all there are societal
approved means of coping with human problems not suicide.
 Suicide degrades human worth- Kant and Mappes argue on the immoral nature of
suicide, also that it degrades human worth. Granted that man is an image of God, he
occupies a very special place in creation and to commit suicide reduces his nature
below the level of animal nature hence man should abhor suicide.
 Suicide is against the law of self-preservation- This argument proceeds from man’s
natural instinct of self-preservation so; killing oneself is a direct negation of this
natural law of self. Hence, suicide is always contrary to the natural law and to charity
whereby every man should love himself. Suicide is a terrible aberration which is
diametrically opposed to a well ordered self-love and the natural instinct of self-
preservation.Suicide seen as an escape from overwhelming personal disaster, evil, life
misery, frustration, or dishonour, far from an act of fortitude, is an act of cowardice.
 Suicide destroys the basis of morality- Kant observes that suicide destroys the basis
of morality. He adds, when the subject of morality in one’s person is destroyed, it
means that morality itself is rooted out of existence.
 Suicide violates God’s supremacy- This argument proceeds from the fact that God is
the creator and Lord of life. Man is placed on Earth under certain conditions and for
specific purposes. The act of suicide therefore opposes the very purpose of the
creator. To St. Augustine and others, God prohibits suicide and that we are under
obligation to obey a divine command.

20
http://forums.philosophyforums.com/threads/convincing-arguments-for-suicide-40130.html(last visited on
20th sept 2019)
21

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  Utilitarianism- The theory of Utilitarianism given by Bentham based on ‘Pleasure
and Pain’ concept also make ‘suicide an evil’ because the pleasure is obtained only by
one person who commits suicide to escape from the life full of sufferings but the pain
is caused to many members of society who all are dependent on the person who has
committed suicide.

Views by eminent persons regarding Section 309 I.P.C.

 In this regard eminent lawyer Ram Jethmalani says “The right to die is a part of a
wider concept of liberty. The whole nation of the state controlling your life and death
is grotesque”. Equally radical is Dr Appa Ghatate, Supreme Court lawyer who agrees,
“The right to die should be included in the Indian Constitution as a fundamental right.
The very idea of the state controlling your life is absurd.”

 Mr. V. S. Deshpande, after his retirement as Chief Justice of Delhi High Court,
referring to what had been held by this Court regarding the scope of Article 21, took
the view that if Section 309 is restricted in its application to attempts to commit
suicide which are cowardly and which are unworthy, then only this section would be
in consonance with Article 21, because, if a person having had no duties to perform to
himself or to others when he is terminally ill, decides to end his life and relieve
himself from the pain of living and the others from the burden of looking after him,
prosecution of such a person would be adding insult to injury and it was asked :
“Should a Court construe Section 309 I.P.C. to apply to such cases ?”

 Sometime afterwards appeared an article of Justice R.A. Jahagirdar of Bombay High

Court in which the learned Judge took the view that Section 309 was unconstitutional
for four reasons:
(1) Neither academicians nor jurists are agreed on what constitutes suicide, much less
attempted suicide;
(2) Mens rea, without which no offence can be sustained, is not clearly discernible in
such acts;
(3) Temporary insanity is the ultimate reason of such acts which is a valid defence
even in homicides; and
(4) Individuals driven to suicide require psychiatric care not the prison cells.

 While dealing with issues pertaining to euthanasia, the bench of justices Markandey
Katju and Gyan Sudha Mishra observed, “We are of the opinion that although Section
309 of I.P.C. (attempt to suicide) has been held to be constitutionally valid in Gyan
Kaur’s case by Supreme Court, the time has come when it should be deleted by
Parliament as it has become anachronistic”.22

22
http://news.oneindia.in/2011/03/08/supreme-court-india-suicide-euthanasia-aid0120.html

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  Fali S. Nariman, a senior Supreme Court Advocate, “It is time for India to take
consideration of the International hue and cry which has been going on and take a
humane step towards mankind and his existence with dignity.”

7. Concept of euthanasia: An analysis

The word euthanasia, originated in Greece means a good death23. Euthanasia encompasses
various dimensions, from active (introducing something to cause death) to passive
(withholding treatment or supportive measures); voluntary (consent) to involuntary (consent
from guardian) and physician assisted (where physician's prescribe the medicine and patient
or the third party administers the medication to cause death)24. Request for premature ending
of life has contributed to the debate about the role of such practices in contemporary health
care. This debate cuts across complex and dynamic aspects such as, legal, ethical, human
rights, health, religious, economic, spiritual, social and cultural aspects of the civilised
society. Here we argue this complex issue from both the supporters and opponents’
perspectives, and also attempts to present the plight of the sufferers and their caregivers. The
objective is to discuss the subject of euthanasia from the medical and human rights
perspective given the background of the recent Supreme Court judgement3 in this context.

In India abetment of suicide and attempt to suicide are both criminal offences. In 1994,
constitutional validity of Indian Penal Code Section (IPC Sec) 309 was challenged in the
Supreme Court25. The Supreme Court declared that IPC Sec 309 is unconstitutional, under
Article 21 (Right to Life) of the constitution in a landmark judgement. In 1996, an interesting
case of abetment of commission of suicide (IPC Sec 306) came to Supreme Court26. The
accused were convicted in the trial court and later the conviction was upheld by the High
Court. They appealed to the Supreme Court and contended that ‘right to die’ be included in
Article 21 of the Constitution and any person abetting the commission of suicide by anyone is
merely assisting in the enforcement of the fundamental right under Article 21; hence their
punishment is violation of Article 21. This made the Supreme Court to rethink and to
reconsider the decision of right to die. Immediately the matter was referred to a Constitution
Bench of the Indian Supreme Court. The Court held that the right to life under Article 21 of
the Constitution does not include the right to die.

Regarding suicide, the Supreme Court reconsidered its decision on suicide. Abetment of
suicide (IPC Sec 306) and attempt to suicide (IPC Sec 309) are two distinct offences, hence
Section 306 can survive independent of Section 309. It has also clearly stated that a person

23
Lewy G. Assisted suicide in US and Europe. New York: Oxford University Press, Inc; 2011.
24
Dowbiggin I. A merciful end: The euthanasia movement in modern America. New York: Oxford University
Press, Inc; 2003. [Google Scholar]
25
P. Rathinam vs. Union of India, 1994(3) SCC 394 [Google Scholar]
26
Gian Kaur vs. State of Punjab, 1996(2) SCC 648

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attempts suicide in a depression, and hence he needs help, rather than punishment. Therefore,
the Supreme Court has recommended to Parliament to consider the feasibility of deleting
Section 309 from the Indian Penal Code27.

8. CONCLUSION CRITICISM AND SUGGESTIONS

It is most intriguing and frustrating to observe that our penal laws which are nothing but the
handiwork of Britishers have by and large remained untouched even after more than 60 years
of independence. What a pity that Britishers have themselves amended their penal laws and
decriminalised attempt to suicide way back in 1961 but we are yet to even deliberate on
taking any action on this decisive issue which subjects an already tormented person to further
punishment and ignominy!

Certainly, we should not be the copycat of Britishers but can we deny that increasingly more
and more countries like Netherlands, Belgium, Luxembourg, Switzerland, Oregon and
Washington in USA and Thailand are even legalising euthanasia or mercy killing for
terminally ill persons? Can we deny the decriminalization of attempted suicide by all
countries in Europe, North America and Canada? Can we deny that it is only a handful of
countries in the world like Pakistan, Bangladesh, Malaysia, Singapore and India who still
punish attempt to suicide under their penal laws? Are we still waiting only to be the last
country in the world to decriminalise attempt to suicide?

Let us not forget that Section 309 of I.P.C. tantamount to brazenly punishing a person who is
already suffering endlessly by not only sending him/her to prison for one year but also
imposing fine which only serves to make their life more miserable by further compounding
their endless problems. How can this grave injustice be ever justified? Can an ordinary
person even dream to commit suicide? It is under very compelling adverse circumstances that
a person resorts to taking the extreme step of attempting to commit suicide which must be
fully taken into account. Such people suffering from severe depression need the company of
good doctors and not jailors which we all must also now realise and appreciate

Ours is a democracy which means that it is by the people, of the people and for the people.
Constitution locates power that resides in the people. It is the people’s power for people’s
benefit. Constitution creates rights and duties. All most all our demands get converted into
rights-even our feelings, emotions is governed by the rights and duties we have. As we have
got the right to live life with all dignity so we should also have right to die as when it is
necessary by law in certain situation. Constitution is a social document. It is the society in its

27
Aruna Ramchandra Shanbaug vs. Union of India & Ors. Writ Petition (Criminal) no. 115 of 2009, Decided on 7
March, 2011. [accessed on August 16, 2011]. Available from:
http://www.supremecourtofindia.nic.in/outtoday/wr1152009.pdf .

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political aspect. We can’t understand its nature without understanding the chief
characteristics of the society. If the constitution is such that it has taken into its consideration,
the social set up, then only will it stand the test of time. Constitution and society grows,
develops together and gets intertwined in each other. The constitution takes into account
change and developments in the society.

Therefore, it is wrong to say that the Indian penal code is a modern code in every possible
sense. Laws are made for the people and it should be change to meet the aims and aspiration
of the changing society. Ultimately, the aim should be to evolve a consensual and conceptual
model effectively handling the evils without sacrificing human rights. Therefore section 309
should be deleted from the Indian penal Code because as mentioned in Maruti Shripati Dubal
that “No deterrence is going to hold back those who want to die for a special or political
cause or to leave the world either because of the loss of interest in life or for self- deliverance.

Thus in no case does the punishment serve the purpose and in some cases it is bound to prove
self defeating and counter – productive”. In any case a person should not be forced to enjoy
the right to live to his detriment, disadvantage, and disliking. Further, the “Right to life”
under Article 21 should not include “right to die” because this provision might increase the
rates of suicides in the country and moreover the “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”.

Although the judgement given by Supreme Court in Gyan Kaur is followed but according to
me this should be scrapped from the I.P.C. but the ‘right to die’ should not be expressively
included in the “right to life”, because “Life is a gift given by God and He alone can take it”.
Its premature termination cannot be approved by any society. Neither it should be penalised.
Attempt to commit suicide is a ‘manifestation of diseased mind’. So what is to be done is
rightly stated by the decision given in P. Rathinam’s case-“What is needed to take care of
suicide prone persons are soft words and wise counselling (of a psychiatrist), and not stony
dealing by a jailor following harsh treatment meted out by a heartless prosecutor. Section 309
of the Penal Code deserves to be effaced from the statute book to humanise 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.”

The desirability for deletion of Section 309 of I.P.C. is also the view supported by the
majority of states in India. Twenty five Indian states except Madhya Pradesh, Bihar and
Sikkim have favoured striking down I.P.C. Section 309 that criminalises attempt to commit
suicide by making it punishable with imprisonment.

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In conclusion, it can be said that to resolve this debate, the conflict between the principle of
sanctity of life and the rights of self determination and dignity of an individual is to be
resolved first and right to die should not be generalized but should be exercised as an
exception in the “RAREST OF RARE CASES” like Death Penalty in India.

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 9. BIBLIOGRAPHY

BOOKS:
 Dr. J. N. Pandey, The Constitutional Law of India 49th Edition
 DURGA DAS BABU, The Constituional Law of India, 8th edition

WEBSITES
 http://www.legalserviceindia.com/article/l374-Article-21-and-Constitutional
 http://indianjournals.com/ijor.aspx?target=ijor:jiafm&volume=27&issue=2&article=
010
 http://www.legalserviceindia.com/article/l374-Article-21-and-Constitutional
 https://timesofindia.indiatimes.com/

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