Decriminalising suicide

For a humane law

Print edition : September 16, 2016

Irom Sharmila during a press conference in New Delhi in March 2013. All along she had told courts that her intention was not to commit suicide and that her fast should not attract charges under Section 309 of the Indian Penal Code. Photo: Tsering Topgyal/AP

The Mental Health Care Bill, 2013, passed by the Rajya Sabha, will hopefully lead to decriminalising attempt to commit suicide. For now, the principal offence remains untouched in the statute.

THE question on whether attempt to commit suicide should be considered an offence or not has engaged the attention of Parliament and courts for several years. But a consensus on this issue has appeared elusive.

Section 309 of the Indian Penal Code (IPC) punishes attempt to commit suicide with simple imprisonment for a term which may extend to one year or with fine or with both. Since the provision uses the expression “may”, it has been interpreted to mean that there is no minimum punishment prescribed for the offence and hence the courts are free to use their discretion not to impose a punishment in case a person is found guilty of the offence. Section 309 is based on the principle that the state has an obligation to protect human lives, and therefore if attempt to murder another person is an offence, a similar attempt to take one’s own life is also an offence. However, while murder is an offence, suicide is not, as the person who successfully attempts suicide would no longer be alive to face prosecution. Therefore, even if suicide is made an offence, it has to abate even before it is taken note of.

Subclause (1) of Section 115 of the Mental Health Care Bill, 2016, passed by the Rajya Sabha recently, says: “Notwithstanding anything contained in Section 309 of the IPC, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.” Subclause (2) of the same provision says: “The appropriate government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.”

As the Lok Sabha is set to pass the Bill in its ensuing session, observers wonder whether the pending Bill can help mitigate the rigour of Section 309. Although the National Crime Records Bureau does not list separately the number of persons convicted and sentenced under Section 309 (it is included under the category “other IPC crimes”), from its annual reports it can be assumed that the number is negligible. But for those presumed to have attempted suicide and those who sympathise with them, the process of punishment itself is a punishment and a valid reason justifying the repeal of Section 309.

The prosecution of the civil rights activist Irom Sharmila, known as the “Iron Lady” of Manipur, under this provision for 16 long years, when she was on fast to protest against the Armed Forces Special Powers Act (AFSPA), offers an example of how this provision can be misused even against those who do not suffer from any severe stress. Irom Sharmila ended her fast on August 9 in order to explore other political options to pursue her struggle against the AFSPA. All along, she told the courts in Delhi and Manipur, where she had been fighting the charge under Section 309, that her intention was not to commit suicide, and therefore, her fast should not attract the provision.

The trial courts both in Delhi and Manipur accepted her defence and held her not guilty under the provision. But the fact that she could prove her innocence to the courts after nearly 16 years of subjecting herself to the court processes demonstrates what is wrong with the provision. Had the Mental Health Care Bill, 2016, been enacted before she ended her fast, the courts would have been justified in presuming that she suffered from severe stress. Of course, it is a rebuttable presumption.

But the alternative here is also a difficult situation. In order to avoid being punished under Section 309 of the IPC, an accused should allow the presumption of suffering from severe stress, and accept the care, treatment and rehabilitation offered by the government for the purpose. However, if the accused succeeds in challenging this presumption of suffering from severe stress, then the state will be justified in applying the rigour of Section 309. One wonders whether the object and the actual wording of the law could prove to be so inconsistent with each other.

A key milestone

Yet, the passage of the Mental Health Care Bill, 2016, marks an important milestone in the legal struggle to reform the law so as to decriminalise attempt to commit suicide. The Bill is an improvement over the draft Bill brought forward by the previous United Progressive Alliance government in 2013. A close examination of the 2013 Bill by the Parliamentary Standing Committee on Health and Family Welfare, which submitted its report on December 9, 2013, resulted in its recommendation to replace “mental illness” with “severe stress”. Despite the smooth passage of the Mental Health Care Bill, 2016, in the Rajya Sabha, the question why the government refrained from bringing forward a Bill to repeal Section 309 remains.

The Narendra Modi government, which came to power in 2014, reiterated the previous government’s stand in Parliament, to decriminalise attempt to commit suicide. However, five States, namely, Bihar, Madhya Pradesh, Punjab, Sikkim and Delhi, opposed the move citing various reasons. Bihar raised the hypothetical question of terrorists intending to follow up terrorist acts or attempts to commit them with unsuccessful suicide bids, taking advantage of the legal vacuum, in case Section 309 was repealed. Other States cited extraneous issues like the probable increase in the number of farmer suicides, fasts unto death, self-immolation, and other law and order problems.

Law Commission report

If there is one legal justification to repeal Section 309, it can be found in the 210th Report of the Law Commission submitted to the then government on October 17, 2008. The 18th Law Commission, headed by Justice A.R. Lakshmanan, a retired judge of the Supreme Court, examined the issue in depth and recommended the repeal of Section 309. Interestingly, the Commission made a similar recommendation in its 42nd Report, submitted in 1971. The Indian Penal Code (Amendment) Bill, 1978, as passed by the Rajya Sabha, accordingly provided for omission of Section 309. Subsequently, however, the Lok Sabha was dissolved and the Bill lapsed.

Meanwhile, Section 309 became the object of legal challenge in the Supreme Court. The court held Section 309 constitutional in Gian Kaur vs State of Punjab in 1996. The Supreme Court held so, overruling a Bombay High Court decision and the apex court’s own decision in P. Rathinam, on the grounds that Article 21 cannot be construed to include within it the “right to die” as a part of the fundamental right guaranteed therein.

In Gian Kaur, the Supreme Court held that the right to life is a natural right embodied in Article 21, but suicide is an unnatural termination or extinction of life, and therefore, it is incompatible and inconsistent with the concept of “right to life”.

The Law Commission submitted its 156th report in 1997 after the pronouncement of the judgment in Gian Kaur, recommending retention of Section 309. In its 210th report, however, the Commission veered around to recommending its repeal on the grounds that in Gian Kaur the Supreme Court did not go into the wisdom of retaining or continuing Section 309 in the statute.

The Commission’s 42nd report referred to the Dharma Sastras which legitimised the practice of taking one’s life in certain situations and also referred to the Suicide Act, 1961, in Britain which decriminalised the offence. The Commission then said that Section 309 was harsh and unjustifiable and recommended that it should be repealed.

Its 210th report found that there were no indications whatsoever that there was an increase in suicides following decriminalisation of suicide bids, and that in many instances, the number of suicides had decreased because those who attempted suicide received the help and care they needed. The increase in the number of suicides in Singapore, with the criminalisation of suicide bids, was cited as an example. The Commission’s 210th report, therefore, concluded that it would not be just and fair to inflict additional legal punishment on a person who had already suffered agony and ignominy in an unsuccessful suicide bid. The report found that Section 309 was also a stumbling block in preventing suicides and improving the access of medical care to those who attempt suicide.

More important, the report concluded that Section 309 needed to be effaced from the statute book because the provision was inhuman, irrespective of whether it was constitutional. The repeal of the anachronistic law, it hoped, would save many lives and relieve the suffering.

While the passage of the Mental Health Care Bill, 2016, in the Rajya Sabha will help further the debate on decriminalising suicide, nothing but the repeal of Section 309 of the IPC can help humanise the law.