CRIMINAL LAW PROJECT INTRODUCTION

Suicide means the act or an instance of taking one's own life voluntarily and intentionally especially by a person of years of discretion and of sound mind. A plain reading of the meaning of the word makes us feel as if its a psychiatric problem and not a manifestation of criminal instinct. Ancient history of our nation says that lord buddha and lord mahavira achieved death by seeking it. We are proud of the fact that our father of the nation went for various fast unto death for our independence movement which ironically has been classified as a criminal act by the courts.

LAW ON SUICIDE IN INDIA

Coming to the law regulating suicides in india, we have section 309 (hereinafter referred to as the said provision) of the indian penal code, 1860 (IPC) which makes attempt to suicide a punishable offence, the punishment being imprisonment up to one year or fine or both. This section is based on the principle that state, being the protector of life of the people, is under an obligation to prevent people from taking their own lives as it prevents them from taking other peoples lives. Other sections which make this act punishable are S. 305 & S.306 .

SECTION 309

states that "Whoever attempts to commit suicide and does any act towards the

commission of such offense ,shall be punished with simple imprisonment for a term which may extend to one year or with fine or both ".

ATTEMPT TO COMMIT SUICIDE: - Suicide as such is no offence under the code . It is

only attempt to commit suicide that is punishable under this section. In other words it is only when a person is unsuccessful in committing suicide that the code is attracted. If the person succeeds, there would be no offender who could be brought within the purview of the law. The section is based on the principle that lives of men are not only valuable to them but also to the State which protects them. The state is under an obligation to prevent persons from taking their lives as it prevents them from taking the lives of others .

ATTEMPT MUST BE INTENTIONAL: - The essence of suicide is an intentional self

destruction of life . Thus if a person takes an overdose of poison by mistake or in a state of intoxication , or in order to evade capture by his pursuers he is not guilty under this section .

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Similarly if a person because of family discord, distraction, loss of a near one or cause of a like nature overcomes the instinct of self preservation and decides to take his life ,he should not be guilty for attempt to suicide .

IS HUNGER STRIKE AN ATTEMPT TO SUICIDE :- These cases present difficulty in

determining whether the intention of the hunger striker is to kill himself or simply to force the authorities to fulfill his demands . If the answer is in affirmative i.e. killing him then the person is guilty under s.309 of IPC and if the answer is negative it does not fall under the purview of this section. Illustration : The case is of Ramsundar Duby . The accused was charged under s.309 of IPC for an attempt to commit suicide by resorting to hunger strike. He was employed in the Mental Hospital, Bareilly , but was suspended from service . He alleged that the authorities in charge of the institution were guilty of unfair discrimination and on 27-02-1960 in order to coerce them into reinstating him , he lay down on a bed near Gandhi statue in the heart and then proceeded to fast . Thereafter he was found in a critical position hence he was moved to the District Hospital and then to District Jail . The accused admitted that he had gone on a hunger strike but denied that he had intended fasting unto death .He produced evidence to show that he was taking lemon juice in the morning and evening during the continuance of his fast. The courts however did not believe the defense and reached the conclusion that the accused actually meant to fast to death unless his demands conceded. Case : Irom Sharmila Chanus Case On 2 November 2000, in Malom, a town in the Imphal Valley of Manipur, ten civilians were allegedly shot and killed by the Assam Rifles, one of the Indian Paramilitary forces operating in the state, while waiting at a bus stop. The incident later came to be known to activists as the "Malom Massacre. The next day's local newspapers published graphic pictures of the dead bodies, including one of a 62-year old woman, Leisangbam Ibetomi, and 18-year old Sinam Chandramani, a 1988 National Child Bravery Award winner. Sharmila, the 28-year-old daughter of a Grade IV veterinary worker, began to fast in protest of the killings, taking neither food nor water. Her primary demand to the Indian government was the repeal of the AFSPA, which has been blamed by opposition and human rights groups for permitting torture, forced disappearances, and extrajudicial executions. Three days after she began her strike, she was arrested by the police and charged with an "attempt to

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commit suicide", which is unlawful under section 309 of the Indian Penal Code, and was later transferred to judicial custody. Her health deteriorated rapidly, and the police then forcibly had to use nasogastric intubation in order to keep her alive while under arrest .Since then, Irom Sharmila has been regularly released and re-arrested every year since under IPC section 309, a person who "attempts to commit suicide" is punishable "with simple imprisonment for a term which may extend to one year [or with fine, or with both".This brings us to the question of whether Sharmilas case, and more generally fasts unto death, are appropriately viewed as attempts to commit suicide under Section 309 of the Indian Penal Code. Any criminal offence, barring certain exceptions, requires the proof of a mens rea, or the existence of a guilty mind. Sharmila has been fasting not with an intention to die, but with an intention to achieve a desired result from the state. Her refusal to consume food or water can be criminalized only if she has acted in furtherance of a conscious endeavour to commit suicide. In the absence of such conscious endeavour, to accuse and prosecute her for an offence under Section 309 is misconceived.

ALARMING INCREASE IN SUICIDE CASES: - Due to impact of globalization, materialism

and consumorism leading to rise to expectation and standard of living people are becoming increasingly depressed and distressed with lessor support structures to prop them up.

DISTINCTION BETWEEN SATI AND ATTEMPT TO SUICIDE : - The act of 'sati' as stated

earlier is not an attempt to commit suicide, rather it is the most barbaric and shameful social evil which demands harsh and deterrent punishment. The punishment should not be accorded to the innocent, illiterate and helpless women who attempts to commit sati, but the punishment should be given to those who perpetuate , glorify and abet a woman to become sati .

VALIDITY OF SECTION 309

There has been a lot of debate in the recent times regarding the humanitarian aspect of this law and the courts. The most recent opinion on the said section is the 210th law commission of India report13 which has recommended an omission of section 309 of IPC. The present stance of law as regards the constitutional validity of the said provision has been enunciated by a constitution bench judgement in the case of Smt. Gian Kaur v. State of Punjab1. This constitution bench has upheld the validity of the said provision and has held that it is a necessary and desirable provision. Article 21 of the
1

1996 SCC (2) 648

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constitution of India deals with right to life and liberty and it has been clearly held in the case of Maneka Gandhi v. Union of India2 that procedure established by law must be just, fair and reasonable if it has to conform to article 21. Now, the main issue that has been dealt by the supreme court again and again is that whether or not right to life guaranteed under article 21 of the constitution of India includes in it a right not to live a forced life and consequentially, a right to die. As is flowing from the point that if right to die is included under article 21 then attempt to suicide would get the sanction as a fundamental right. It has been held by various judgments of the Supreme Court, that any law which is taking away a fundamental right is void. .In 1987, in the case of M aruti Shripati Dubal v. State of Maharashtra3, the Bombay High court struck down section 309 IPC as ultra vires of article 21 and said that right to life. Includes in itself a right not to live. Section 309 IPC was also struck down on the ground that it is violative of article 14 as it is discriminatory as it does not take into account circumstances of the case, and is arbitrary as it does not clearly lay down what constitutes attempt and is thus, very vague. The court also held that since two persons may attempt to commit suicide for very different reasons, they should not be put on an equal footing and there has to be some sort of Intelligible differentia in the punishment provision. The court further held that since the said provision does not categorically lay down what constitutes an attempt to commit suicide, it is very vague and hence, arbitrary as each judge may interpret any action of a person as an attempt to commit suicide as he thinks fit. Thus, there is too much subjectivity involved and hence, the law is arbitrary and violative of article 14. In this way, section 309 of IPC was struck down for the first time. However, in 1988, a division bench of the Andhra Pradesh High Court rejected the challenge to the constitutional validity of section 309 IPC in the case of C henna Jagadeeswar v. State of Andhra Pradesh it was held that right to life under art 21 cannot be construed to include right to die. As a result, sec 309 IPC was held to be not in violation of art 21. It was also held that since the section provides ample discretion to the courts in terms of awarding punishment, they have all the power to see to it that unwarranted harsh punishment is not given to any victim of circumstances who needs care and attention. Thus, it is not violative of art 14 too and not unconstitutional. In 1994 came the landmark judgment of P. Rathinam v. Union of India4. The facts of this case were that the

1978 SCR (2) 621 1987 (1) BomCR 499 4 1994 SCC (3) 394
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petitioner had unsuccessfully attempted to commit suicide and was charged under sec 309 IPC for the offence of attempt to commit suicide. He filed a writ petition in the Supreme Court challenging the constitutional validity of sec 309 IPC saying that the said provision was in violation with articles 14 and 21 of the constitution. The court upheld his contention only on the basis that sec. 309 was in violation of art 21. The court upheld the judge ment in M arutis case saying that if right to speak involves right not to speak and right to do business includes right not to do business then right to life also includes right not to live a forced life. Therefore, the Supreme Court struck down sec 309 IPC as unconstitutional and ultra Vires of art 21. After the passing of the abovementioned judgement by the SC and till the judgement of smt. Gian kaur v. State of punjab,30 the people of India had a right to die at their will as long as they did not infringe other peoples rights. However, Gian Kaurs judgement changed the position of law in this regard. Overruling the previous judgement, it made the said provision valid again and thus, people lost their right to die. This judgement, being the latest law of the land, needs a detailed examination. The constitution bench in this case negative all the arguments given in the previous judgment With regard to article 21: The Supreme Court in this case held that section 309 of IPC does not violate article 21. The Supreme Court differentiated between right to life and other fundamental rights by saying that for other rights like right to speak, the negative aspect of the right does not require doing of a positive or overt act but is by implication. However, when a person commits suicide, he has to do an overt act to end his life. Thus, an analogy cannot be drawn between right to life including right to die and other rights including their negative aspects. The court thus held: 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'. Further, the court held that right to life under art 21 is a natural right which is inherent in each and every person and is not a conferred right. But, suicide is an unnatural termination of life and therefore, does not fall under the purview of right to life. The court also held that right to life may include any aspect of life which makes it dignified but not that which extinguishes it. Therefore, right to die cannot be included as a part of right to life under article 21. With regards to article 14: The court held that whatever be the reasons of attempting to commit suicide, the law cannot be differentiated as suicide in all cases involves intentionally taking ones

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own life. Moreover, it is open to the accused to prove that his act does not amount to attempting to commit suicide. Also, the circumstances related to each case are taken into account by the judge while awarding punishment to the accused. The court also held that the debate on desirability of retaining such a penal provision which punishes someone whose only offence is that he/she, being in such a state of despair that the person does not want to live any more, attempts to end his life, which includes the recommendation of the 42nd law commission to remove this provision, is not a basis for saying that sec 309 is unconstitutional. For holding a provision to be unconstitutional, it has to be proved that the provision is violating a constitutional provision.

SECTION 305
Abetment of suicide of child or insane person .:- If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine. This section is intended to apply to those cases where a person in charge of a minor or non compos insane encourages or by omission gives them facilities for committing suicide. This section is applicable only when the person abetted commits suicide as a result of instigation.

SECTION 306
ABETMENT OF SUICIDE: - 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 . When a person is charged under section 306, IPC, it is triable by the Sessions Court as the alleged offence is a non-bail able offence.

SUICIDE: Extent, Scope and Abetment: - A man encouraging and abetting another to commit
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suicide is certainly criminal and his act is punishable under s.306, I.P.C. The offence of abetment must confirm to the definition of abetment given in s.107 of IPC i.e. there must be instigation or engaging in conspiracy or assistance in commission of the offence. However instigation must be intentional to be in the case of abetment. S.306, IPC creates a specific offence and the liability arises only when the suicide is committed, it will not apply in cases of attempted suicide, which will attract s.309, IPC. The punishment in such case may extend up to ten years of imprisonment of either description & fine .

ABETMENT OF SUICIDE BY A MARRIED WOMAN : To combat the ever increasing menace

of dowry deaths , Criminal law (Second Amendment ) Act , 1983 has provided that where a married girl commits suicide within seven years of her marriage , the court may presume that her husband and the relatives of her husband had abetted her to commit suicide by virtue of insertion of s.113A in the Evidence Act ,1872.

ABETTING SUICIDE AND CONSENT KILLING :- Distinguishing :- The former is punishable

under section 306 of IPC whereas the latter is homicide by consent , Exception 5 to S.300 . And punishable under section 304 of IPC. E.g.: If a doctor to hasten patients death, who is terminally ill(incurable disease ) injects poison with the patient's consent ,the doctor will be liable for culpable homicide not amounting to murder under s.304, I.P.C , but if the doctor places the poison by the patient's bed side and he takes it then the doctor is liable for abetting the patient to commit suicide punishable under section 306, I.P.C .

ABETTING SATI : It basically means inducing a widow to become sati , to persuade or instigate

woman to believe that the act would bring spiritual benefit to her or her husband or her family . Abetment also means obstructing the police from performing the legitimate duty of preventing the woman from becoming sati directly or indirectly shall be punished with death sentence or life imprisonment and fine . Those guilty og glorifying sati may be punished with imprisonment up to seven years and fine .There is also an act for prevention of sati i.e. The Commission of Sati (Prevention) Act ,1987.

EUTHANASIA , MEANING AND EXTENT:

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Euthanasia, the word having its origins in Greek refers to the act of ending a life in a painless manner. The House of Lords Select Committee on Medical Ethics, has defined euthanasia as "a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering. EUTHANASIA AND SUICIDE Felo De Se or suicide is, where a man of age of discretion and compose mentis voluntarily kills himself by stabbing, poison or any other way and was a felony at common law .12 In India, both attempt as well as abetment to commit suicide are punishable offences under Indian Penal Code. Suicide and Euthanasia are two different acts and cannot be considered on the same footing. The Bombay High Court in Maruti Shripati Dubal vs. State of Maharastra13 has attempted to make a distinction between suicide and mercy killing. According to the court, the suicide by its very nature is an act of self killing or termination of ones own life by ones act without assistance from others. But Euthanasia means the intervention of others human agency to end the life. Mercy killing is nothing but a homicide, whatever be the circumstances in which it is committed. This is the Indian opinion on the topic of Euthanasia.

EUTHANASIA AND PHYSICIAN ASSISTED SUICIDE

In this type of suicide , the doctor provides information to the patient, with the guidance and means to take his or her own life with the intention that they will be used for such purpose . The patient himself ends his life by using the information and means provided by the doctor, it is called Physician assisted suicide. It is important that Euthanasia is not confused with physician assisted suicide. The later involves a patients voluntarily bringing about his or her own death with the assistance of a physician. In this case the act is a suicide (international self-inflicted death), because the patient actually causes his or her own death thus while in assisted suicide the doctor makes available to the patient the means by which he can kill himself, in Euthanasia the doctor himself (by act or omission ) kills the patient. 15 Furthermore some countries16 have preferred to legalize assisted suicide though they remain averse to permitting Euthanasia.

WITHDRAWAL TO ARTIFICIAL MEANSURES :- It is not lawful for a doctor to administer a

drug to his patient to bring about his death ,eventhough that course is prompted by a humanitarian desire to end his suffering ,might be .
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CRIMINAL LAW PROJECT CONCLUSION

Attempt to suicide is more a manifestation of a diseased condition of mind deserving of care rather than imprisonment. The law makers should realize that criminal law must act as effective machinery to cure the intended and not act with misplaced over zeal. The above discussion clearly indicates that Section 309, IPC does not stand up to the constitutional requirements and is otherwise also an ineffective and a draconian law which punishes not offenders but victims of circumstances. Also, it does not serve any purpose as no person contemplating suicide is deterred by the thought of being imprisoned for a year if he fails in his attempt. An important conclusion of the discussion is that each member of society has an inalienable right to die also, embedded in his right to life, the inherent decision making power on the fundamental question of whether or not to continue with life. Thus, right to die of ones own free will and right not to live a forced life is a fundamental right inherent in us and also protected by our constitution under article 21 and it should not be criminal. The right to die that we have cannot be curbed unreasonably but regulated in a reasonable manner. In light of the above, the author proposes legislative repeal of section 309, IPC and enactment of another legislation which regulates our right to die by providing reasonable reformative measures. Such a law should provide counseling, rehabilitation etc. To any person who attempts to commit suicide. This way the person has a chance to be reformed, be given a new perspective and a new will to live. For bringing about this change, the government shall have to provide new infrastructure like rehabilitation centers, people who can impart lessons on spirituality, psychologists, psychiatrists etc. Also, proper procedures for rehabilitation and making the government aware of the problems that made the person attempt to take his own life should be set in place. All this has to be ensured in such legislation.the proposed legislation shall be constitutionally correct as attempt to commit suicide would not Remain a punishable offence but shall only be regulated by government through a just, fair and reasonable procedure. The government shall then be under an obligation to try and reform a person who has lost all hope in life instead of punishing him.

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