Repeated recommendations by the Law Commission and long-brewing deliberations over Right to Live versus Right to Die has made the NDA government to think about scrapping Section 309 of the Indian Penal Code, which makes a suicide bid punishable with imprisonment up to one year, or with fine, or both.
Already 18 states and four UTs favouring decriminalising suicide are on board, and the other five objecting states, including Punjab, want the law to rehabilitate those making such attempts, including rape victims and distressed farmers. Since law & order is a state subject, views of all states and UTs were sought on the recommendations of the Law Commission. Besides Punjab, the four other states which did not fully support the move to delete Section 309 are Bihar, MP, Sikkim and Delhi. While Bihar wants a distinction drawn between persons driven to suicide due to medical illnesses, suicide bombers who fail to blow themselves up or terrorists who consume cyanide pills, MP, Delhi and Sikkim feel that decriminalising attempt to suicide would handicap law enforcement agencies in dealing with persons who resort to fast unto death or self-immolation. Since the provision is being considered as a “stumbling block in prevention of suicides and improving the access of medical care to those who have attempted suicide,” the government has been deliberating deleting it since 1970s.
The Law Commission had undertaken revision of IPC as part of its function of revising Central Acts of general application. In its 42nd Report in 1971, the Commission recommended repeal of Section 309. The Indian Penal Code (Amendment) Bill, 1978, as passed by the Rajya Sabha, provided for omission of the provision. But it could not be passed as the Lok Sabha was dissolved and the Bill lapsed. The Commission submitted its 156th Report in 1997 after the pronouncement of the SC judgment in the Gian Kaur case, recommending retention of the provision.
In 1987, the Bombay HC held that the right to life guaranteed by the Constitution includes the right to live and the right to end one’s life, and struck down Section 309. The SC in the case, P Rathinam versus Union of India, in 1994 upheld the HC view, saying the right to live under Article 21 can be said to bring in its trail the right not to live a forced life and Section 309 violates Article 21 of the Constitution. In 1996, this judgment was overruled in the case Gian Kaur versus State of Punjab by the Constitution Bench of the apex court, which held that the fundamental right to life did not include the right to die, and that Section 309 was constitutionally valid. That continues to be the law even today.
In its 210th report submitted in 2008, the Law Commission under the chairmanship of AR Lakshmanan recommended that attempt to suicide may be regarded more as a manifestation of a diseased condition of mind, deserving treatment and care, rather than punishment. It reiterated that the provision needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional.
In 2011, the SC in a case relating to Aruna Shanbaug recommended to Parliament to consider the feasibility of deleting Section 309, saying “the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in depression, and hence he needs help, rather than punishment.”
Experts warn the suicide rate has lately increased and the reality needs to be addressed, not criminalised. According to government data, 1,34,799 people committed suicide in 2013 compared to 1,35,445 in the previous year. But there is no official data on the number of attempted suicides. Senior advocate and former additional solicitor general KV Vishwanathan says it was as early as in 1985 when Delhi HC chief justice Rajendra Sacher said it was a strange paradox that attempt to commit suicide is punishable.
SC lawyer Arti Singh says the government’s decision was long overdue, but the decision to repeal the provision should not be treated as a licence to die, but as a step to help such persons. “For this, various measures, including ample laws, need to be in place to ensure that such repeal does not promote suicide-bombers or protesters who want to pressurise the state functionaries to accept their unreasonable demands. The move should not be misused,” adds another lawyer Rahul Gupta.