The Indian Influence On Kenya's Mental Health Jurisprudence

Section 226 was struck down by Justice Mugambi on three major grounds. Firstly, the provision was held to discriminate against persons on the basis of their health and thus violate the right to equality and freedom from discrimination guaranteed under Article 27 of the Kenyan Constitution. Secondly, it was held to infringe upon the right to human dignity enshrined in Article 28. This is because the provision subjected persons with suicidal ideation (which was beyond the mental control of such persons) to indignity and disgrace. Thirdly, since the provision exposed persons with suicidal ideations and survivors of suicide to criminalisation, it stigmatised them from receiving the medical help that they required and thereby infringed upon their right to receive the “highest attainable standard of health” which was guaranteed under Article 43(1).

The persuasiveness of Indian judgments

In defence of the constitutional validity of Section 226, it was argued before the High Court at Nairobi that the provision deterred and prevented self-destructive behaviour. It was also submitted that its continued existence was necessary for the state to preserve the “right to life” of citizens. The bench rejected this argument by placing reliance upon the judgment of the Supreme Court of India in P. Rathinam v. Union of India and the judgment of the Bombay High Court in Maruti Shripati Dubal v. State of Maharashtra. In both these decisions section 309 of the Indian Penal Code, which criminalised attempted suicide in India, was held to be unconstitutional. Justice Mugambi stated that both these judgments were persuasive authorities which were “germane in laying bare the fallacy of criminalising suicide attempts”.

In Maruti Shripati Dubal v. State of Maharashtra, a police constable who had been prosecuted for attempted suicide, challenged the constitutionality of section 309. The division bench of the Bombay High Court observed that the right to life under Article 21 would also include the “right not to be forced to live” and the right to die. It also held that the provision was arbitrary and violative of Article 14 on the ground that it neither defined the term “suicide” nor contained guidelines to distinguish between felonous and non-felonous acts. On these grounds, section 309 was held to be unconstitutional. The Kenyan High Court while placing reliance on this decision only referred only to the observations wherein the Bombay High Court stated that the provision was counterproductive, self-defeating, unreasonable and arbitrary as it did not provide the accused person with psychiatric treatment but instead confined them within prison walls where their mental health conditions were bound to worsen.

In P. Rathinam v. Union of India, a two judge bench of the Supreme Court held that Article 21 included within its ambit the right not to live a forced life. Thereby, section 309 was declared as void as it infringed upon Article 21. But the Supreme Court overruled the holding made by the Bombay High Court in Maruti Dubal pertaining to Article 14.

The current position on criminalisation of attempted suicide in India

It is to be noted that the decisions in both P. Rathinam and Maruti Dubal were later overruled in Gian Kaur v. State of Punjab wherein the constitution bench categorically held that the inclusion of “right to die” within the ambit of right to life under article 21 could not be accepted. The constitutionality of section 309 was also upheld.

Subsequently, the Supreme Court in Aruna Ramachandra Shanbaug v. Union of India termed the provision to be anachronistic and recommended the Parliament to consider its deletion from the IPC. But it is to be noted that after the passage of the Mental Healthcare Act, 2017, the provision was reduced to a paper tiger. As observed by Justice Rohinton Nariman in his concurring opinion in Navtej Johar v. Union of India, the “inhumane” provision was rendered largely ineffective due to section 115 of the The Mental Healthcare Act, 2017 which states that any person who attempts to commit suicide shall be presumed to have severe stress and that they shall not be tried and punished under Section 309 of the Indian Penal Code.

Though a provision similar in scope to section 309 of the IPC does not exist in the Bharatiya Nyaya Sanhita (the new Indian Penal Code), a new provision i.e., section 226, that criminalises an attempt to commit suicide in order to force or restrain a public servant from performing their official duties, has been introduced. In the past, due the absence of definition of the term 'suicide' in section 309, the provision had been invoked to silence dissent by cracking down on hunger strikes against the government. Such a mechanical application of the provision occurred despite judgments of Indian courts that specifically stated that hunger strikes would not be criminalised by way of section 309.

Thereby, the absence in defining the term 'suicide' in the new provision exposes the provision to be misused and casts a chilling effect on a form of dissent that has been integral to several democratic movements in the past. This apprehension has been voiced by the government of Karnataka and certain members of Parliament. It is also to be noted that currently, section 115 of the Mental Healthcare Act, 2017 has not been amended to replace the words “section 309 of the Indian Penal Code” occurring in it with the words “section 226 of the Bharatiya Nyaya Sanhita”.

If faced with a constitutional challenge to section 226 of the BNS, the Indian courts must now also consider Justice's Mugambi's compelling critique of section 226 of the Kenyan Penal Code, as his observations on the right to equality, dignity, freedom from discrimination and access to healthcare would squarely apply to the Indian context.

Jannani M is an Advocate practicing before the Madras High Court. Views are personal.