[Attempt To Suicide] Constitutional Validity Of Section 309 IPC And Flip Flops By Supreme Court & Law Commission

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.

The court said that an attempt to commit suicide is a punishable offence under Section 309 of IPC. But, according to the bench, Section 115 of the Mental Healthcare Act adversely impacts Section 309 of IPC. Interestingly, these remarks were made while hearing a petition that sought for directions to ensure the prevention of attempts to commit suicide by persons who threw themselves in animal enclosures in Zoos.

Section 115(1) of the Mental Healthcare Act enacted in the year 2017 provides that 'notwithstanding anything contained in section 309 of the Indian Penal Code 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.' Anyhow, the bench has now sought for an explanation from the Centre on the conflict between Section 115 of the Mental Healthcare Act, 2017, and Section 309 IPC.

Constitutionality Of Section 309 IPC Stands Upheld By SC Constitution Bench

The Delhi and Bombay High Courts have considered the challenge and held that Section 309 IPC is unconstitutional. The Andhra Pradesh High Court, in 1988, upheld the validity of the provision. The issue reached the Supreme Court in P.Rathinam vs Union Of India. Disagreeing with the view of Andhra Pradesh High Court, a two judge bench declared that Section 309 IPC was unconstitutional and hence void. But this declaration did not survive for long, as a Constitution bench of the Supreme Court overruled this judgment.

In Gian Kaur vs The State Of Punjab, the Constitution bench of the Supreme Court headed by Justice JS Verma. The court was, in that case, considering a challenge the constitutional validity of Section 306. The court held that right to die' is not included in the `right to life' under Article 21 and therefore the view expressed in P. Rathinam on the basis of the construction made of Article 21 to include therein the right to die' cannot be accepted. The court finally held that neither of the two provisions is constitutionally invalid.

Twenty years later, in Common Cause vs. Union of India, Justice DY Chandrachud [one of the judges in Constitution Bench which allowed passive euthanasia], who wrote a concurring judgment, opined that the observations in Gian Kaur that the right to life does not include the right to die in the context of suicide may require to be revisited in future in view of domestic and international developments pointing towards decriminalization of suicide. The judge referred to Section 115 of the Mental Health Care Act and observed: "Section 115 begins with a non-obstante provision, specifically with reference to Section 309 of the Penal Code. It mandates (unless the contrary is proved by the prosecution) that a person who attempts to commit suicide is suffering from severe stress. Such a person shall not be tried and punished under the Penal Code. Section 115 removes the element of culpability which attaches to an attempt to commit suicide under Section 309. It regards a person who attempts suicide as a victim of circumstances and not an offender, at least in the absence of proof to the contrary, the burden of which must lie on the prosecution. Section 115 marks a pronounced change in our law about how society must treat and attempt to commit suicide. It seeks to align Indian law with emerging knowledge on suicide, by treating a person who attempts suicide being need of care, treatment and rehabilitation rather than penal sanctions."

Flip Flops By Law Commission of India

In its 42nd Report submitted in 1971, the Law Commission of India recommended repeal of section 309 observing that it is 'harsh and unjustifiable'. The commission had also taken note of the fact that the British Parliament enacted the Suicide Act in 1961 whereby attempt to commit suicide ceased to be an offence.

However, the 156th Report submitted after the pronouncement of the judgement in Gian Kaur, recommended it to be retained. It observed that assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the interest of society. Such a provision is considered desirable to also prevent the danger inherent in the absence of such a penal provision, it said.

 In 2009, the Law Commission chaired by Justice AR Lakshmanan  suo motu took up study of the issue of suicide prevention and opined that while assisting or encouraging another person to (attempt to) commit suicide must not go unpunished, the offence of attempt to commit suicide under section 309 needs to be omitted from the Indian Penal Code.

The Commission said that attempt to suicide is more a manifestation of a diseased condition of mind deserving of treatment and care rather than punishment and that it would not be just and fair to inflict additional legal punishment on a person who has already suffered agony and ignominy in his failure to commit suicide. "Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional. The repeal of the anachronistic law contained in section 309 of the Indian Penal Code would save many lives and relieve the distressed of his suffering.", it said.

Parliament's Approach To Section 309

Section 309, as originally enacted during the British Era, provided for a mandatory punishment of imprisonment. In 1882, an amendment was carried out to this provision by substituting "and shall also be liable to fine" by "or with fine, or with both". Since then, the Courts have the discretion to impose fine instead of ordering imprisonment.

Following the 42nd Law Commission report, a bill seeking omission of this provision was passed by the Rajya Sabha, but could not make it in Lok Sabha as the house got dissolved.

In 2017, the Mental Health Care Act was enacted which effectively minimizes the impact of Section 309 IPC by providing a presumption that any person who attempts to commit suicide shall be presumed, unless proved otherwise. One of the then member of Lok Sabha, [Mr. Bhartruhari Mahtab] during the debate in the house about the Mental Health Care Bill, pointed out that a number of Private Members' Bills were moved relating to Section 309. I do not know why but four States did not fully support the Union Government to repeal Section 309, he had said. 

In Navtej Singh Johar vs. Union of India, Justice RF Nariman (one of the judges of the Constitution Bench which decided the case) noted, in his concurring opinion, that Section 115 largely does away with one other outmoded Section of the Indian Penal Code, namely, Section 309. The judge observed thus: "Instead of the inhumane Section 309 which has remained on the statute book for over 150 years, Section 115 makes it clear that Section 309 is rendered largely ineffective, and on the contrary, instead of committing a criminal offence, any person who attempts to commit suicide shall be presumed to have severe stress and shall not be tried and punished under Section 309 of the Indian Penal Code. More importantly, the Government has an affirmative duty to provide care, treatment and rehabilitation to such a person to reduce the risk of recurrence of that person's attempt to commit suicide. This parliamentary declaration under Section 115 again is in keeping with the present constitutional values, making it clear that humane measures are to be taken by the Government in respect of a person who attempts to commit suicide instead of prosecuting him for the offence of attempt to commit suicide."