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Possession of this right is often understood to mean that a person with a terminal illness should be allowed to commit suicide or assisted suicide or to decline life-prolonging treatment, where a disease would otherwise prolong their suffering to an identical result. The question of who, if anyone, should be empowered to make these decisions is often central to debate. The right to die is sometimes associated with the idea that one's body and one's life are one's own, to dispose of as one sees fit. However, a legitimate state interest in preventing irrational suicides is sometimes argued. Pilpel and Amsel write, "Contemporary proponents of ‘rational suicide’ or the ‘right to die’ usually demand by ‘rationality’ that the decision to kill oneself be both the autonomous choice of the agent (i.e., not due to the physician or the family pressuring them to ‘do the right thing’ and suicide) and a ‘best option under the circumstances’ choice desired by the stoics or utilitarians, as well as other natural conditions such as the choice being stable, not an impulsive decision, not due to mental illness, achieved after due deliberation, etc." Hinduism accepts the right to die for those who are tormented by terminal diseases or that have no desire, ambition or no responsibilities remaining; and allows death through the non-violent practice of fasting to the point of starvation (Prayopavesa). Jainism has a similar practice named Santhara. Other religious views on suicide vary in their tolerance, and include denial of the right as well as condemnation of the act. Legal Documents Most often, the idea of the right to die is related to a person's wish that caregivers allow death—for example, by not providing life support or vital medication—under certain conditions when recovery is highly unlikely or impossible. It may also refer to issues regarding physician-assisted suicide. It may be called passive euthanasia in cases where the patient is unable to make decisions about treatment. Living wills and Do Not Resuscitate orders are legal instruments that make a patient's treatment decisions known ahead of time; allowing a patient to die based on such decisions is not considered to be euthanasia. Usually these patients have also made explicit their wish to receive only palliative care to reduce pain and suffering. Although specialized legal instruments differ from place to place, there are two more that are important in this context. The Five Wishes document allows a person to state in advance the priorities and values they wish to have honored at the end of life. And the Medical Durable Power of Attorney (or MDPOA) designates an agent to make decisions in case of incapacity, and can be used to give written guidance regarding end of life decision making. The MDPOA is generally considered to be the most powerful of all such instruments. All others may require interpretation on the part of health care providers or even court-appointed guardians; the MDPOA takes the job of interpretation out of the hands of strangers and gives it to a person selected and trusted by the individual. a five judge constitution bench in Gian Kaur’s case (1996) made it clear that it a was criminally irresponsible for people to kill themselves. This includes a bar on people assisting, provoking or abetting suicide. life was scared and people cannot tinker with lives of others. Death is not just a matter about physical states, economic resources and public policy. It is about emotion, and an intimation of a Faustian trade off with the devil. We are always under pressure to be practical and take practical decisions about life and death. But what happens when the heart cannot reduce everything to practicality Katju's judgment adopts the solution of the Law Commission and some global alternatives. Constitutionality of the right to die Right to life is a basic natural right of the human beings. It is a fundamental right guaranteed under Part-III (Article 21) of the Indian Constitution. Article 21 of the Indian Constitution states that – ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’. The phraseology may be negative, but it has conferred an obligation on the state to ensure good quality of life and a dignified life to the people, which is the positive aspect of the article The right to life be interpreted to such an extent which leads to its self destruction or self opposition? That is, can it include within its ambit the right not to live or the right to die? This is the crucial point where the debate arises involving moral, legal, medical and even political issues. Death can be defined as the termination of life. Death can be categorized basically into two kinds – (i) natural and (ii) unnatural death. It can be caused by the action as well as the inaction of a person. Causing the extinction of a life unnaturally by the action of oneself over his own self or over someone else is morally bad as well as legally punishable. But there are exceptions too. In certain circumstances death is allowed when it is with the full and real consent of the person who is going to die. For a common man, when life becomes far more painful and unbearable than death, then it is very normal for him to desire death. This voluntary embracing of death is known as euthanasia or mercy killing. Euthanasia is also termed as ‘dayamaran’. Some people as the great saints or heroic persons embrace ‘echchamaran’ or willful death, when they feel that they have achieved the purpose of their lives. There are different types of voluntary deaths in our country like the ‘sati’, ‘johars’, ‘samadhi’, ‘prayopaveshan’ (starving to death) etc. Voluntary death from the historical and philosophical perspective Hinduism and Buddhism allow prayopaveshan since it is a non violent, calm and much time taking way of ending life and it occurs by starving oneself to death at the right time, i.e. – when the person has achieved his aims in life and finished performing all the duties and responsibilities that were assigned to him and his body becomes a burden. Prayopaveshan is for people who are content with their lives. While on the other hand, suicide is a sudden act and associated with the feelings of anger, frustration, depression, i.e. – people who are not content with their lives have a tendency to commit suicide which is why it is not allowed by any of these religions. Though there is a division of views regarding euthanasia in Buddhism, the most common view is that voluntary euthanasia should not be permitted. Again there are two views of Hinduism regarding euthanasia which are contradictory, one is supporting euthanasia as a moral deed and another is considering euthanasia as a bad deed which disturbs the life and death cycle.
Ancient Indian philosophical tradition also justifies the idea of a man willing his own death. As per Hindu mythology Lord Rama and his brothers took ‘jal samadhi’ in River Saryu near Ayodhya. Ancient Indian history also tells that Lord Buddha and Lord Mahavir attained death by seeking it. Jainism gives full consent to its followers who want to embrace death mostly by fasting, if they believe that ‘moksha’ can be achieved that way. Muslim, Christian and Jewish laws are all against suicide and even euthanasia. According to these religions , all human life is sacred since it is given by God, and human beings should not interfere in this. The Roman Catholic Church regards euthanasia as morally wrong since it has always taught how important the commandment ‘you shall not kill’ is. The idea of willful death is traceable to Socrates, Plato, and Stoics in ancient Greek and Roman philosophy as well. In ancient Greece and Rome, helping others to put end to their lives was also permitted in certain situations. Suicide, assisted suicide and euthanasia Suicide: Suicide is one way to exercise the right to die. Generally when people are not content with their lives they choose to commit suicide. This discontentment can arise due to various factors such as mental disease, unbearable physical ailments, affliction by socially dreaded diseases, depression or losing all kinds of interests to live or a sense of shame or disgrace, physical disability and many other such factors. Assisted suicide: Assisted suicide happens when another person assists the person who is willing to commit suicide, with all the guidance and tools to take his own life, with the intention that whatever he is providing the person with, will be used for fulfilling this purpose only. Physicians can also assist a person in committing suicide which is called ‘physician assisted suicide’. In India, under sections 305 and 306 of the I.P.C., 1860, abetment of suicide is expressly punishable. Euthanasia: It can be defined as the intentional killing by act or omission of a dependent human being for his or her alleged benefit.There are 5 types of euthanasia, namely – (i) Active, (ii) passive, (iii) voluntary, (iv) involuntary, (v) non voluntary. Active euthanasia means a positive merciful act to end useless sufferings and a meaningless existence. It is an act of commission. Passive euthanasia means to let die. It implies discontinuing life sustaining measures that will prolong life. It can also include an act of omission such as failure to resuscitate a terminally ill patient or not carrying out a life extending operation, etc. Voluntary euthanasia happens when the person concerned gives his consent for it. Involuntary euthanasia is practising euthanasia against the will of the person. Non voluntary euthanasia happens when the person is in such a condition that he can not possibly give his consent. His relatives may consent for his death at that time. In India, euthanasia is punishable under clause 1 of section 300 of I.P.C. Non voluntary and involuntary euthanasia is struck down by proviso 1 to section 92 of the I.P.C. Regulation 6.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 also declares euthanasia as an unethical act. In modern parlance, the „freedom to die‟ seems to have emerged from the rights of privacy, autonomy and selfdetermination. But the real issue today is of three types: (i) The people who want to commit suicide themselves. The act of suicide is an offence but it is not possible to punish the individual who is successful in committing it. The attempt to commit suicide is however punishable under section 309 of I.P.C. Though in some countries, this is not punishable. (ii) The people who are able to express their desire to commit suicide but are infirm due to some reason and need assistance from others. (iii) The people who are not capable enough to consent to their death because of physical or mental disability. Arguments for legalizing euthanasia (i) The major argument in favour of this is that, it is a way to end an extremely miserable and painful life. Insistence to postpone the death against patient’s wishes are against law, unwise, inhuman and not medically sound. (ii) The family members of the dying patient are relieved of the physical, emotional, economical and mental stress upon them. It also provides comfort to the patient and causes relief of his pain. (iii) The patients also have a right to refuse medical treatment. If a doctor treats a patient against his express wishes, he can be charged with assault. (iv) Performance of euthanasia will free up the medical funds of the state to help other poor and needy people. (v) An individual has the freedom to exercise his right to die. Constitution guarantees the fundamental rights and freedoms where a positive right includes a negative right. For instance, freedom of speech includes within it freedom not to speak, etc. Arguments against legalizing euthanasia (i) Indian society, driven by religion, will not accept the concept of euthanasia as the religious scriptures defy it. (ii) Commercialization of euthanasia can take place. (iii) The poor people could resort to this in order to avoid the pecuniary difficulties of medication. (iv) Old and destitute are sometimes considered as burden and people can make use of this to shove off their responsibilities. (v) Allowing euthanasia will devalue human dignity and will offend the principle of sanctity of life. It will leave sick, disabled people more vulnerable than the rest of the population and can also provide a ‘cloak for murder’.
Article 21 of the Constitution reads as follows: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Safety of life and liberty of person are the two essential elements in an ordered society. Thus, right to life and personal liberty is guaranteed under Article 21 of the Indian Constitution. A person can be deprived of his life and personal liberty if two conditions are complied with, first, there must be law and secondly, there must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable. Meaning of Right to life: Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being. Thus, right to life means to lead a meaningful and dignified life. It does not have a restricted meaning. Whether right to die is included under right to life under Article 21 of the Indian Constitution? Meaning of Right to die: The right to die is the ethical or institutional entitlement of the individual to commit suicide or to undergo voluntary euthanasia. Possession of this right is often understood to mean that a person with a terminal illness should be allowed to commit suicide or assisted suicide or to decline life-prolonging treatment, where a disease would otherwise prolong their suffering to an identical result. The right to die is sometimes associated with the idea that one's body and one's life are one's own, to dispose of as one sees fit. Whether a person has a freedom to take his own life whenever he desires to do so? The question whether the right to die is included in Art. 21 of the Constitution came for first time before the Bombay High Court in State of Maharashtra v. Maruty Sripati Dubal,1987 Cr LJ 743(Bom). The Bombay High Court held that the right to life guaranteed by Art. 21 includes the right to live as well as the right to end one’s own life if one so desires, and consequently the court struck down Section 309, of IPC which says that“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 exceed to one year”. The judges felt that the desire to die is not unnatural but merely abnormal and uncommon. Similarly, in 1985 Delhi High Court in State v. Sanjaya Kumar ,1985 Cr LJ 931, while acquitting a young boy who attempted to commit suicide strongly advocated for deletion of section 309, IPC from the Statute Book and said that the continuance of sec 309 of the Indian Penal Code is an anachronism unworthy of a human society like ours. However, in Chenna Jagdishwar v.State of A.P.,1988 Cr LJ 549, the Andhra Pradesh High Court held that the right to die is not a fundamental right within the meaning of Art. 21 and hence, Section 309 is not unconstitutional. In 1994 a Division Bench of Supreme Court comprising of Justices R.M. Sahai and B.L. Hansaria in P.Rathinam v. Union of India (1994)3 SCC 394, while allowing the petitioners upheld the verdict given by the Bombay and Delhi High Courts and overruled Andhra ruling. The two petitioners assailed the validity of Sec 309 of the IPC by contending that the same is violative of Articles 14 and 21 of the Constitution. The right to live in Art.21 of the Constitution includes the right not to live, i.e., right to die or to terminate one’s life. However, in 1996 a five member Constitutional Bench of the apex Court compromising of justices J.S. Verma, G.N.Ray, N.P. Singh, Faizauddin and G.T. Nanawati in Gyan Kaur v. Uninon of India (1996)2 SCC 648, overruled its decision of 1994 in P.Rathinam v. Union of India. The Apex Court said that as regards section 309, IPC is concerned the ‘right to life’ guaranteed under Art 21 of the Indian Constitution did not include the ‘right to die’ or ‘right to be killed’ and therefore attempt to commit suicide under section 309, IPC is within the constitutional parameters and are not void or ultra vires. The ‘right to die with human dignity’ cannot be construed to include within its ambit ‘the right to terminate natural life’, at least before the natural process of certain death. The ‘right to die’, if any, is inherently inconsistent with the ‘right to life’, as is death with life. Right to die: A new dimension (Aruna Shanbaug’s case) In a path-breaking judgement, the Supreme Court allowed "passive euthanasia" of withdrawing life support to patients in permanently vegetative state (PVS) but rejected outright active euthanasia of ending life through administration of lethal substances. The Supreme Court of India, in its landmark judgment, pronounced passive euthanasia as permissible under Section 309 of the Indian Penal Code. The main ground for adjudication before the apex court was whether a person who advertently refuses to accept lifesaving treatments or food in order to die, commits a crime under IPC section 309 (suicide attempt).This landmark judgment was pronounced in relation to a journalist-writer, Pinki Virani’s plea to allow passive euthanasia for Aruna Shanbhag.
Aruna Shanbaug hailing from Haldipur town of Uttar kannada disrtict in Karnataka, was a junior nurse, at King Edward Memorial Hospital in Mumbai and was planning to get married to a medic in the hospital. On the night of 27 November 1973, Shanbaug was sexually assaulted by Sohanlal Bhartha Walmiki, a ward boy at the King Edward Memorial Hospital. Walmiki was motivated partly by resentment for being ordered about and castigated by Shanbaug. Walmiki attacked her while she was changing clothes in the hospital basement. He choked her with a dog chain and sodomized her. The asphyxiation cut off oxygen supply to her brain, resulting in brain stem contusion injury and cervical cord injury apart from leaving her cortically blind. The police case was registered as a case of robbery and attempted murder on account of the concealment of anal rape by the doctors under the instructions of the Dean of KEM, Dr. Deshpande, perhaps to avoid the social rejection of the victim and her impending marriage. Walmiki was caught and convicted, and served two concurrent seven year sentences for assault and robbery, neither for rape or sexual molestation, nor for the "unnatural sexual offence" A petition for euthanasia was first by Pinki Virani, a journalist and her friend who has written a book on the woman who she is being forced to live her life stripped of basic dignity. The Supreme Court praised Ms. Virani’s concern, but ruled out that her relationship with the patient does not give her this right to file a petition on behalf of Ms. Shanbaug for mercy killing. The only party that can appeal for the euthanasia is the staff of KEM hospital where she had served as a nurse. Refusing mercy killing of Aruna Shanbaug, lying in a vegetative state for 37 years in a Mumbai hospital, a two-judge bench of justices Markandeya Katju and Gyan Sudha Mishra, laid a set of tough guidelines under which passive euthanasia can be legalised through high court monitored mechanism. Ms Shanbaug has, however, changed forever India's approach to the contentious issue of euthanasia. The verdict on her case on 7th March, 2011 allowed passive euthanasia contingent upon circumstances. So other Indians can now argue in court for the right to withhold medical treatment - take a patient off a ventilator, for example, in the case of an irreversible coma. The judgement made it clear that passive euthanasia will "only be allowed in cases where the person is in persistent vegetative state or terminally ill”. The apex court while framing the guidelines for passive euthanasia asserted that it would now become the law of the land until Parliament enacts a suitable legislation to deal with the issue. The bench also asked Parliament to delete Section 309 IPC (attempt to suicide) as it has become "anachronistic though it has become constitutionally valid”. "A person attempts suicide in a depression, and hence he needs help, rather than punishment," Justice Katju writing the judgement said. The apex court said though there is no statutory provision for withdrawing life support system from a person in permanently vegetative state, it was of the view that "passive euthanasia" could be permissible in certain cases for which it laid down guidelines and cast the responsibility on high courts to take decisions on pleas for mercy killings. "We agree with senior counsel T R Andhyarujina (who assisted the court in the matter) that passive euthanasia should be permitted in our country in certain situations, and we disagree with Attorney General (G E Vahanvati) that it should never be permitted," said the bench. Thus, in each case, the relevant high court will evaluate the merits of the case, and refer the case to a medical board before deciding on whether passive euthanasia can apply. And till Parliament introduces new laws on euthanasia, it is Ms Shanbaug's case that is to be used as a point of reference by other courts. Bibliography: Pandey J.N, Central Law Agency, Constitutional law of India. Gaur K.D, Universal Law Publishing Co., The Indian Penal Code.
Indian Penal Code (IPC)
Section 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 term which may extend to one year 1[ or with fine, or with both]. CLASSIFICATION OF OFFENCE Punishment—Simple imprisonment for 1 year, or fine or both—Cognizable—Bailable— Triable by any Magistrate—Non-compoundable.
COMMENTS ‘Attempts to commit suicide’ as under sections 306 and 307 A person who jumps into a well in order to avoid and escape from her husband and subsequently comes out of the well herself, cannot be convicted under this section if there is no evidence to show that she wanted to commit suicide; Emperor v. Dhirajia, AIR 1940 All 486. Right to die vis-a-vis Right not to die The Supreme Court has set aside its earlier judgment in P. Rathinam/ Nagbhushan Patnaik v. Union of India, JT 1994 (3) SC 392, wherein the Court had struck down section 309 as unconstitutional. In a country where one-half of its population still live below the poverty line, the right to die by suicide cannot be granted to any person. Article 21 of the Constitution, which gives right to life and personal liberty, by no stretch of imagination can be said to impliedly include right to death by committing suicide. The section is also not violative of article 14. There is no requirement of awarding any minimum sentence. The sentence of imprisonment or fine is not compulsory but discretionary; Gian Kaur v. State of Punjab, JT 1996 (3) SC 339.
Why Not To Give The Right: At first one might be shocked to learn just how many healthy of mind and body elderly people are thinking about choosing this option, when it suits them to finish their life with dignity, with all their mental faculties in tact and without pain or loss of dignity. We all know how distressing it is to witness a loved one deteriorate into dementia, or for someone who has suffered a stroke, to be so physically affected that they no longer have any quality of life. The loss of dignity and total lack of quality for some old people in our nursing homes is heart wrenching. It seems after a full, rich, long life, a person ought to have the right to choose when the time to go has come and have a chance to celebrate their life before they are gone, or have lost the ability to do so. After all we do so for our beloved pets so they will not suffer. We let them go to sleep without pain, trauma and in peace. Many old people take their own lives in the end and some in dreadfully violent or unpleasant ways, simply because the means to do so in a peaceful way was not available to them. Should we make the means available to them? This is the question that riddles this dilemma? How do we advocate a peaceful "passing"? We cannot! It is against all our human beliefs in the preservation of life at all cost, but do we really think about or measure that cost to the individual in terms of the pain they may be suffering or worse their loss of dignity?
Assisted suicide is the process by which an individual, who may otherwise be incapable, is provided with the means (drugs or equipment) to commit suicide. In some cases, the terms aid in dying or death with dignity are preferred. These terms are often used to draw a distinction from suicide; in some legal jurisdictions, "suicide" (whether assisted or not) remains illegal, while "aid in dying" is permitted. The term euthanasia refers to an act that ends a life in a painless manner, performed by someone other than the patient. This may include withholding common treatments resulting in death, removal of the patient from life support, or the use of lethal substances or forces to end the life of the patient. Assisted suicide dates all the way back to ancient Greece and Rome when many people preferred to die by their own will than to live in pain. During these times, people would usually consult with a doctor to hear the course of their ailment and then decide whether to end their own life. This became controversial when the use of the Hippocratic Oath was introduced. The belief of Christianity that every life was a gift from God also added to the controversy. In the 1600s, Francis Bacon stated that he thought part of a physician‟s duty was to alleviate pain, even if that means death. The use of anesthetics and morphine to end a patient‟s life was introduced by Samuel Williams in 1870 while addressing the Birmingham Speculative Club. His speech became very popular and was often quoted and reviewed. Lawyers and social scientists joined the discussion of physician-assisted suicide in the 1890s. Many lawyers supported it by saying that patients deserved the right to choose to live or die. Many physicians were against assisting suicide because they thought it would bring the medical profession a bad name and discredit them. Among supporters of assisted suicide, an ongoing debate exists as to whether it should be available to all competent individuals, or only the terminally ill.
Constitutional validity of “Right to Die” Now, the question arises whether right to life under Article 21 includes right to die or not. This question came for consideration for first time before the High Court of Bombay in State of Maharashtra v. Maruti Sripati Dubal. In this case the Bombay High Court held that the right to life guaranteed under Article 21 includes right to die, and the hon‟ble High Court struck down section 309 IPC which provides punishment for attempt to commit suicide by a person as unconstitutional. In P Rathinam v. Union of India a Division Bench of the Supreme Court supporting the decision of the High Court of Bombay in. Maruti Sripati Dubal case held that under Article 21 right to life
also include right to die and laid down that section 309 of Indian Penal Court which deals with „ attempt to commit suicide is a penal offence‟ unconstitutional. This issue again raised before the court in Gian Kaur v. State of Punjab. In this case a five judge Constitutional Bench of the Supreme Court overruled the P. Ratinam‟s case and held that “Right to Life” under Article 21 of the Constitution does not include “Right to die” or “Right to be killed” and there is no ground to hold that the section 309, IPC is constitutionally invalid. To true meaning of the word „life‟ in Article 21 means life with human dignity. Any aspect of life which makes life dignified may be include in it but not that which extinguishes it. The „Right to Die‟ if any, is inherently inconsistent with the “Right to Life” as is “death” with “Life” A question may arise, in case of a dying man, who is, seriously ill or has been suffering from virulent and incurable form of disease he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of „Right to Die‟ with dignity as a part of life with dignity. According to the court these are not cases of extinguishing life but only of accelerating the process of natural death which has already commenced. End-notes 1. A.K. Gopalan v. Union of India AIR 1950 SC 27 2. Maneka Gandhi v. Union of India AIR 1978 SC 597 3. State of Maharashtra v. Maruti Sripati Dubal AIR 1987 CrLJ 549 4. P Rathinam v. Union of India (1994) SCC 394 5. Gian Kaur v. State of Punjab (1996) SCC 648
The meaning of the words “personal liberty” came up for consideration of the Supreme Court for the first time in A.K. Gopalan v. Union of India. The scope of Article 21 was a bit narrow at that time. In this case the Supreme Court held that 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). Finally, in Maneka Gandhi v. Union of India, the Supreme Court has overruled Gopalan‟s case and widens the scope of the words “personal liberty”, which is as follows: “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”
Constitutional Validity Of Sec. 309 Disposing the case P. Rathinam v union of India, Division Bench of the Supreme Court of India declared Section 309 IPC as unconstitutional and void. Before arriving at the conclusion, the Supreme Court took into consideration the cases argued / disposed by the high Courts of some states namely, Delhi, Bombay and Andhra Pradesh on the aforesaid issue and held that Section 309 IPC which has no justification to continue to remain on the statute book.. However, the Andhra Pradesh High Court in Chenna Jadeshwar upheld the constitutional validity of section 309, I.P.C. and remarked that ‘right to life’ does not necessarily signify ‘right to die’ which is an offence. The judgement therefore dissented to the view of Bombay High Court. 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 IPC 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 defense even in homicides; and (4) individuals driven to suicide require psychiatric care not the prison cells. In one of the case accused poured kerosene on his body and attempted to commit suicide and it was proved that the accused after receiving head injury in a road accident had started showing abnormal behaviour. Therefore before the start of case the accused challenged the vires of section 309 and high court declared section 309 ultra vires the constitution. On appeal SC set aside the order of High Court and following the decision in Lokendra Singh v. state of M.P. upheld the validity of section 309 and said the criminal case initiated on charge of attempt to commit suicide required to be decided on merit. However in this case the Supreme Court took the lenient and sympathetic view and quashed the criminal proceedings and directed the accused should be treated sympathetically. The accused in another had jumped into the well after throwing her children inside the well but nobody had seen her doing this. It was held that her conviction was liable to be set aside. The accused wanted to voluntarily terminate his life as mission of his life was completed and he had led a successful life. It was held that it would attract the provisions of section 306 and 309 as the same amounted to suicide. The court was of the opinion that no distinction could be made between the suicide as ordinarily understood and the right to voluntarily put an end to one’s life. A revising author has criticised this view. In view of the phraseology of Art, 21, it is arguable that the inhibition against deprivation of life and personal liberty is general. Not only the state but also an individual is under constitutional obligation not to take away human life except by the procedure established by law. This individual may also be the victim himself. Read in this backdrop commission of suicide is a breach of fundamental rights. And there is no question of waiver of fundamental right. A completed act of suicide may remove the author of the breach beyond the reach of law, but attempted violation may be brought to justice through section 309, I.P.C. However, in 1996, a five judge constitutional bench of the apex court in Gian Kaur v. State of Punjab overruled its earlier decision of 1994 in P.Rathinam/ Naghbhusan patnaik and held that right to die is not a part of the 'right to life' . 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 section 306, I.P.C., are well within the constitutional mandated, and are not void or ultra virus.
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