CRIMINAL LAW I

PROJECT ON:
DEVELOPMENT OF LAW OF SUICIDE
IN INDIA
By:
Harshdeep Singh
11A051
Semester III


The English poet William Ernest Henley wrote: "I am the master of my fate, I am the captain of
my soul."
Despite the above, Hamlet's dilemma of "to be or not to be" faces many a soul in times of
distress, agony and suffering, when the question asked is "to die or not to die". If the decision be
to die and the same is implemented to its fructification resulting in death, that is the end of the
matter. The dead is relieved of the agony, pain and suffering and no evil consequences known to
our law follow. But if the person concerned be unfortunate to survive, the attempt to commit
suicide may see him behind bars, as the same is punishable under Section 309 of our Penal
Code.
1

Suicide has been defined as an act or instance of taking ones own life voluntarily and
intentionally, the deliberate and intentional destruction of his own life by a person of years of
discretion and sound mind; one that commits or attempts his self murder. Suicidal acts with non-
fatal outcomes are known as attempt to commit suicide. According to Section 309 of the Indian
Penal Code, 1860, 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

[or with fine, or with both].
2
The constitutional validity of this section has
been discussed in various judgments. The two most important judgments on this issue and the
ones which will be dealt with in this paper are P. Rathinam v. Union of India
3
and Gian Kaur v.
State of Punjab.
4

The main question to be decided in these issues is whether the right to die was to come under
the right to life as guaranteed under Article 21 of the Constitution of India. Article 21 of the
Constitution of India states, No person shall be deprived of his life or personal liberty except
according to procedure established by law.
The question whether the right to die is included in Article 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 Article 21 includes

1
P. Rathinam v. Union of India, AIR 1994 SC 1844
2
Section 309, Indian Penal Code, 1860
3
AIR 1994 SC 1844
4
AIR 1996 SC 946
the right to live as well as the right to end ones own life if one so desires, and consequently the
court struck down Section 309 of the Indian Penal Code.
Similarly, in 1985 Delhi High Court in State v. Sanjaya Kumar
5
, 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.
6
, 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.
Now, in P. Rathinam v. Union of India, a Division Bench of the Supreme Court supporting the
decision of the High Court of Bombay held that under Article 21, right to life also includes right
to die and held that section 309 of the IPC is unconstitutional.
Justice Hansaria's following observation brings home the point forcefully:
''Section 309 of the Penal Code deserves to be effaced from the statute book to humanise
our penal laws. It is cruel and irrational provision, and it may result in punishing a person
again (doubly) who has suffered agony and would be undergoing ignominy because of
his failure to commit suicide.
The court in P. Rathinam cited an article by R.A. Jahagirdar of the Bombay High Court which
appeared in the Illustrated Weekly of India (September 29, 1985). The learned judge in this
article took the view that Section 309 was unconstitutional for four reasons. These being: (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.
The Supreme Court, in this decision overruled the earlier decision by the Bombay High Court in
State of Maharashtra v. Maruti Shripati Dubal
7
which had declared Section 309 of the IPC as a

5
1985 Cr LJ 931
6
1988 Cr LJ 549
violation of Article 14 of the Constitution of India. The Bombay High Court had treated Section
309, IPC as a violation of Article 14 of the Constitution of India because of two reasons: First,
which act or acts in series of acts will constitute attempt to suicide, where to draw the line, is not
known some attempts may be serious while others non-serious. It was stated that in fact
philosophers, moralists and sociologists were not agreed upon what constituted suicide. The want
of plausible definition or even guidelines, made Section 309 arbitrary as per the learned Judges.
Another reason given was that Section 309 treats all attempts to commit suicide by the same
measure without referring to the circumstances in which attempts are made.
The Supreme Court held, The first of the aforesaid reasons is not sound, according to us,
because whatever differences there may be as to what constitutes suicide, there is no doubt that
suicide is intentional taking of one's life, as stated at p. 1521 of Encyclopaedia of Crime and
Justice, Vol. IV, 1983 Edn. Of course, there still exists difference among suicide researchers as
to what constitutes suicidal behavior. Even so, suicide is capable of a broad definition, as has
been given in the aforesaid Webster's Dictionary. Further, on a prosecution being launched it is
always open to an accused to take the plea that his act did not constitute suicide whereupon the
court would decide this aspect also. Insofar as treating of different attempts to commit suicide by
the same measure is concerned, the same also cannot be regarded as violative of Article 14,
inasmuch as the nature, gravity and extent of attempt may be taken care of by tailoring the
sentence appropriately. It is worth pointing out that Section 309 has only provided the maximum
sentence which is up to one year. It provides for imposition of fine only as a punishment.
Hence, by the above, the Supreme Court dismissed the notion that Section 309 was a violation of
Article 14 of the Constitution of India.
The Bombay High Court in State of Maharashtra v. Maruti Shripati Dubal states that all
fundamental rights which essentially give a positive right also confer a negative right. It states,
The freedom of speech and expression includes the freedom not to speak and remain silent. The
freedom of association and movement likewise includes the freedom not to join any association
or to move anywhere. The freedom of business and occupation includes freedom not to do any
business and to close down the existing business. If this is so, it must logically follow that right

7
1987 Cr LJ 743
to live as guaranteed by Article 21 of the Constitution will include the right not to live or be
forced to live. To put it positively, Article 21 would include a right to die or to terminate ones
life.
It has been argued:
''The aforesaid analogy between right to life and other freedoms is totally misplaced. It can arise
on account of a superficial comparison between the freedoms ignoring the inherent dissimilarity
between one right and the other, like the freedoms referred to in the above observations, the right
to life remains meaningful only in its positive sense, because the negative aspect of this right
would mean the end or the extinction of the positive aspect for the claimant. It is either 'this' or
'that', not the suspension of 'this' for the time being as in the case of 'silence' 'non-association' and
'non-movement'.
8

The Supreme Court was aware of this criticism of Dubal case but only set it aside in the course
of their assertion of right to die as follows:
''The aforesaid criticism is only partially correct inasmuch as though the negative aspect may not
be enforceable on the analogy of the rights conferred by different clauses of Article 19, but one
may refuse to live, if his living be not according to the person concerned worth living or if
richness and fullness of life were not to demand living further. One may rightly think that having
achieved all worldly pleasure or happiness he has something to achieve beyond this life. This
desire of communion with God may very rightly lead even a very healhty mind to think that he
would forego his right to live and would rather choose not to live. In any case a person cannot be
forced to enjoy right to life to his detriment, disadvantage or disliking.''
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

8
Pande, B.B.(1987), p.117
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.
The Bench said the following, Article 21 is a provision guaranteeing protection of life and
personal liberty and by no stretch of imagination can extinction of life' be read to be included in
protection of life'. Whatever may be the philosophy of permitting a person to extinguish his life
by committing suicide, we find it difficult to construe Article 21 to include within it the right to
die' as a part of the fundamental right guaranteed therein. 'Right to life' is a natural right
embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore,
incompatible and inconsistent with the concept of right to life'. With respect and in all humility,
we find no similarity in the nature of the other rights, such as the right to freedom of speech' etc.
to provide a comparable basis to hold that the 'right to life' also includes the 'right to die'. With
respect, the comparison is inapposite, for the reason indicated in the context of Article 21.
Hence, the Supreme Court as is apparent from the above excerpt overruled the earlier assertion in
the P. Rathinam case where other fundamental rights such as right to freedom right to assembly
were compared to right to life. The Supreme Court outrightly declared that there is no similarity
between other fundamental rights and right to life under Article 21.
The Supreme Court did agree with P. Rathinam case in their view of Section 309 not being a
violation of Article 14. It said, With respect, we are in agreement with the view so taken qua
Article 14, in P. Rathinam.
We have already stated that the debate on the desirability of retaining such a penal provision of
punishing attempted suicide, including the recommendation for its deletion by the Law
Commission are not sufficient to indicate that the provision is unconstitutional being violative of
Article 14. Even if those facts are to weigh, the severity of the provision is mitigated by the wide
discretion in the matter of sentencing since there is no requirement of awarding any minimum
sentence and the sentence of imprisonment is not even compulsory. There is also no minimum
fine prescribed as sentence, which alone may be the punishment awarded on conviction under
Section 309, IPC. This aspect is noticed in P. Rathinam for holding that Article 14 is not
violated.

The Supreme Court after declaring that Section 309 of the IPC cannot declared unconstitutional
on any basis, be it Article 14 or Article 19 of the Constitution moved on to the question of the
validity of Section 306 of the IPC.
Section 306 of the IPC states, If any person commits suicide, whoever abets the commission of
such suicide, shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
9

The Court said, The abettor is viewed differently, inasmuch as he abets the extinguishment of
life of another persons and punishment of abetment is considered necessary to prevent abuse of
the absence of such a penal provision.
Abetment of suicide or attempted suicide is a distinct offence which is found enacted even in the
law of the countries where attempted suicide is not made punishable. Section 306, IPC enacts a
distinct offence which can survive independent of Section 309 in the I.P.C. The learned Attorney
General as well as both the learned amicus curiae rightly supported the constitutional validity of
Section 306 I.P.C.
Hence, the Supreme Court finally decided that neither Section 306 nor Section 309 of the Indian
Penal Code is constitutionally invalid.
Right to die: A new dimension (Aruna Shanbaugs 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.


9
Section 306, Indian Penal Code, 1860
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 Viranis 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. Viranis 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 7 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,"
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.