CASE ANALYSIS

OF
P RATHINAM V. UNION OF INDIA

BY: -
MRINALINI GOYAT
2nd YEAR,
AMITY LAW SCHOOL, NOIDA
UTTAR PRADESH

Email: - mrinalinijerry2703@gmail.com

www.probono-india.com

April 26,2020
Background

The case brought into light the question “whether an individual has a right to die, as they have a
right to live”. The case revolved around two petitions filed simultaneously by P. Rathinam
(Petitioner1)1 and Nagbhushan Patnaik (Petitioner2)2. According to their respective petitions,
Section 309 of the Indian Penal Code, 1860 was violative of Article 21 and Article 14 of the Indian
Constitution. The arguments were heard by a two-judge bench of the Supreme Court and the final
verdict was passed on 26th April 1994.

Issues raised by the Petition

According to the petition, a person wishing to relieve themselves of worldly agony through the
resort of suicide, is forced to further suffer should he fail to successfully kill himself. This suffering
is sanctioned by the state under Section 309 of the Indian Penal Code, 1960.

“The two petitions at hand have assailed the validity of Section 309 by contending that the same is
violative of Articles 14 and 21 of the Constitution and the prayer is to declare the section void. The
additional prayer in Writ Petition (Crl.) No. 419 of 1987 is to quash the proceedings initiated
against the petitioner (Nagbhusan) under Section 309”

It was contended by the petition that Article 21 shall provide an inherit right to die. The question
was raised before the Supreme Court whether the Article 21 has both negative as well as positive
effects when it comes to its interpretation.

Previous Judgements

It was not the first time that the court was faced with the question of the right to die of an
individual. In fact, it had been thrice that a case of similar nature was witnessed by the courts. An
additional case may be noted on similar lines, which went unrecorded and shall be duly mentioned
along with the other three cases.

1 Writ Petition (Crl) No. 409 of 1986

2 Writ Petition (Crl) No. 419 of 1987
State v. Sanjay Kumar Bhatial3

The case did not directly question the constitutionality of Section 309 of the IPCbut pondered upon
it consequently as a result of dealing with the time of investigation under Section 368 of CRPC. It
was observed in the aforementioned case that in a world which is globally accepting the humanizing
angle of euthanasia, the presence of Section 309 was baffling. It was further observed while
referring to the treatment of an accused under Section 309 that “Instead of sending the young boy to
psychiatric clinic it gleefully sends him to mingle with criminals”.

2) Maruti Shripati Dubal v. State of Maharashtra4

This particular case voiced the radical view and held that Section 309 was unconstitutional as it
violated Article 21 and Article 14 of the Indian Constitution. An analogy was drawn by the Bombay
High Court on the basis of the case R.C. Cooper v. Union of India. The judgement in its paragraph
10 held that as each fundamental right is interpreted in context to others, what is true of one
fundamental right shall be true of others. Thus, if an individual has the freedom to join an
association as well as the freedom to not join any association, so shall he have the right to die as he
has the right to life. It was also concluded that Article 14 was violated by section 309 as no line
could be drawn as to which acts constituted attempt to suicide. Furthermore, it was observed that
“philosophers, moralists and sociologists were not agreed upon what constituted suicide. The want
of plausible definitions or even guidelines made section 309 arbitrary as per the learned Judges”.

3) Chenna Jagadeeswar v. State of Andhra Pradesh

A clear dissent was expressed against the previous two judgements by stating that Section 309 does
not violate Article 21 and Article 14. The court upheld the validity of Section 309 of the IPC. The
court held that the issue of violation of Article 14 by Section 309 “may be taken care of by tailoring
the sentence appropriately.” As section 309 provides only the maximum punishment which leaves it
upto the court’s discretion to determine the minimum punishment.

4) Motion v. Yogesh Sharma

31986, Cri Lj 931 (1985) 2 HLR 348 DB: (1985) 2 DMC 153 (DB)
41987, Cri Lj 743 (Bombay)
This was an unreported case of the Delhi High Court which finds a reference in an article by Shri
B.B. Pande5. The court held Section 309 to be violative of Article 21 and pointed out the futility of
punishing a man who anyway wanted to escape this world. The judgement given by Justice Sachar
did not hold the section void, but instead quashed all the 119 pending proceedings under the same.
It was held by him that “dragging of the prosecution for years when the victim has had enough of
misery and the accused also belonged to poorer section which added further insult to injury, would
be abuse of the process of the court”.

Article 21 and its scope

Much of the case and the question of validity of Section 309 revolve around the interpretation and
scope of Article 21. To know if Section 309 is violative of Article 21 we must first determine if
Article 21 includes the right to die. Every law should be framed in such a manner that it does not
transcend the rights of another individual. It may also be noted that ultimately laws are a reflection
of the society. Societies are a culmination of culture and morals, so as these change with the
passage of time, so does the society and ultimately, so does law. A law which remains inconsistent
with the society will never be true to its purpose. Will it be okay to consider such a law cruel? A
suicide is a call for help which is blatantly ignored by Section 309, so will it be justified to call
Section 309 cruel? And if so then “may it be reminded that a law which is cruel violates Article 21
of the Constitution”6.

Article 21 clearly states that “no person shall be deprived of his life and personal liberty except
according to the procedure established by law”. If the courts legalize suicide would it be considered
a violation of Article 21? Does Article 21 ensure a monopolistic power of State to take life?

“The aforesaid point is not required to be gone into detail, because nobody can claim to have
monopoly over a human life. It is God alone who can claim such power. If a person takes his life,
he is taking his own life, and not the life of anybody else; and so the argument that State’s
monopolistic power to take life is taken away by the person who attempts to commit suicide has no
legs to stand on”7.

5Vol. VII (1), March 1987 at pp. 112-120

6Deena v. UOI 1983, (Cri) 879
7Para 99 of P. Rathinam v. UOI, 1994
Article 21 provides every individual with the right to life. But this life that has been mentioned in
Article 21 is not mere animal existence8. It is not just the process of survival. It entails much more.
“right to life embraces not only physical existence but the quality of life as understood in its
richness and fulness by the ambit of the Constitution”.

According to Dr M. Indira and Dr. Alka Dhal9, “Life is not mere living but living in health. Health
is not the absence of illness but a glowing vitality the feeling of wholeness with a capacity for
continuous intellectual and spiritual growth. Physical, social, spiritual and psychological well-being
are intrinsically interwoven into the fabric of life”.

Article 21 includes the right not to live a forced life which shall subsequently mean the right to die.
But it was held that this analogy has not been drawn from the comparison between Article 21 and
Article 19. The comparison being referred to is, as Article 19 provides for the freedom of
expression, it also provides for freedom to not speak10.

One shall further question whether the right to die also includes the right to commit suicide? If the
state shall allow a person the right to claim his life it shall be the individual’s discretion as to what
in what manner he chooses to take his life. It can be theorized that the right to die ultimately leads
to the right to commit suicide11.

International Perspective

“What is a sex crime in India may be sweetheart virtue in Scandinavia. What is an offence against
property in a capitalist society may be a lawful way of life in a socialist society? What is
permissible in an affluent economy may be a pernicious vice in an indigent community.”12

To provide a bird’s eye view of the world in this context, the following table may be referred to:

Africa- 11 countries and regions hold suicide legal

9 countries and regions have penalized suicide
22 countries show an unknown status

8Munn v. Illinois 94 U.S.113 (more) 4 Otto 113; 24 L. Ed. 77; 1876 U.S. LEXIS 1842
9Conference on Health and Policy in New Delhi in 1986
10Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615: AIR 1987 SC 748
11“The right to die: New Problems for Law and Medicine and psychiatry” at pp. 627-643 (1988)
12Perspectives in Criminology, Law and Social Change (1980) at pp. 7 and 8
Of these countries 21 countries and regions have penalized physician assisted suicide and the status
of the rest is unknown.

Asia- 24 countries and regions hold suicide legal

10 countries and regions have penalized suicide
8 countries show an unknown status

Of these countries 33 countries and regions have penalized physician assisted suicide, the status of 8
is unknown and 1 has legalized it.

Europe- 46 countries and regions hold suicide legal

2 countries and regions have penalized suicide
0 countries show an unknown status

Of these countries 41 countries and regions have penalized physician assisted suicide and 7 have
legalized it.

America- 11 countries and regions hold suicide legal

2 countries and regions have penalized suicide
25 countries show an unknown status

Of these countries 11 countries and regions have penalized physician assisted suicide, the status of
24 is unknown and 3 have legalized it.

The court while hearing the petitions by P. Rathinam and Nagbhushan Patnaik took into
consideration 2 countries to understand their perspective on suicide. The countries so chosen were
England and the United States of America. England had been chosen as it is a conservative country
with excellent democratic values. Also, it has played a significant role in the codification of our
Penal Code. US had been chosen for the radical nature of its society and laws.Moreover,it has
proven itself to be in the foremost as an advocate of Human Rights.

1) England
In England suicide was considered a serious offence to the extent that it attracted not only jail time,
should the person survive but it also found a way to punish the dead. A person who had committed
suicide was not allowed a Christian burial and was instead buried in a public highway. Not only
this, the property of such person was forfeited to the crown. But this was the case before 1961 when
the Suicide Act was passed. The Act received a varying array of comments. When the Bill was
under deliberation in the House of Lords, The Lord Bishop of Carlisle said that “sanctity of human
life is being destroyed”. The act managed to legalize the attempt to commit suicide. Shortly after the
passing of the Suicide Act of 1961, the Ministry of Health issued recommendation advising all
doctors and authorities that attempted suicide was to be regarded as a “medical and social problem”

2) United States

During the early 1970’s 9 states of US considered the attempt to commit suicide a crime, 2 of which
later repealed the same law. In 18 states suicide was not a crime but the abatement for same was
illegal and punishable. Apart from these 20 states had no mention of suicide in their penal
provisions, rendering suicide legal. In today’s time 22 states and 3 US territories have penalized the
act of assisting suicide. None of the states of the Unites States has penalized attempt to commit
suicide.

Relationship between suicide and religion

According to a paper by Shri G.P. Tripathi13, human life has 4 objectives which are:
Dharma- religious and moral virtues
Artha- financial obligations
Kama- love and desire
Moksha - spiritual enjoyment

Once a person as attained all 4, there is nothing left to achieve in this world and he aims for
Kayakalp which is the process of changing the old body into a new one through death.

The Christian view may be noted through the statement of Pope John Paul II, “ when inevitably
death is imminent inspite of the means used, it is permitted in conscience to take decision to refuse
forms of treatment that would only secure precarious and burdensome prolongations of life, so long
as the normal care due to sick person in normal care is not interrupted”.

13World Congress on Law and Medicine at New Delhi

If one was to note examples from mythology and ancient historyit may be observed that Lord Rama
and his brother took Jalasamadhi and Buddha and Mahavir achieved death by seeking it.

Petitioner’s Argument

The petitioners were represented by R. Venkataramani and Ranjan Dwivedi. The Petitioners
contended that Section 309 was cruel and irrational as it punishes a person who is already afflicted,
needs psychiatric counselling and has caused no harm to others. Attempt to commit suicide is not
against morality, religion, public policy or society. To keep Section 309 intact would lead to the
monopolistic right of the state to take life which may lead to “constitutional cannibalism”.

The Petitioner further submitted the xerox of the second para of the General section of The Suicide
Act, 1961 which states “rule of law whereby it is a crime for a person to commit suicide is hereby
abrogated”. Another document submitted was xerox of the report of the Law Commission of India’s
42nd report of 1971 which recommended the deletion of section 309.

Respondent’s Argument

The basic Argument of Shri Sharma, who was the lead counsel for the Union of India expressed
opposition to suicide for it was against public policy. Furthermore, the following grounds were laid
down for opposition:
Suicide is an act against religion
It is immoral
It produces adverse sociological effects
It is against public policy
It would encourage aiding and abetting of suicide

It was contended that if a victim of suicide was the sole bread-earner of his family then he will not
be the only victim for his family too will perish as a result of his deeds. An alive person is always of
use to the society and at any given point he may choose to make a difference in his life. This is only
possible if he is alive for which strong deterrents against suicide are in place.
 Judgement

The verdict was given on the 26th of April 1994 by a two-judge bench comprising of Justice R.M.
Sahi and Justice B.L. Hansaria. The verdict was a fruit of the contemplation which involved
answering the following questions:
Why is a particular act treated as crime?
How can crimes be prevented?
Why is suicide committed?
Who commits suicide? Secularization of suicide
How should suicide-prone persons be dealt with?
Is suicide a non-religious act?
Has Article 21 any positive content or is it only negative in its reach?
Has a person reading in India a right to die?
Why is a law enacted?
Is suicide immoral?
Does suicide produce adverse sociological effects?
Is suicide against public policy?
The main contention of the Respondent was that suicide was against public policy and was
immoral. The judges observed that “Morality has no defined contours and it would be too hazardous
to make a bold statement that commission of suicide is per se an immoral act. If human beings can
be treated inhumanly, as a very large segment of our population is, which in a significant measure
may be due to wrong acts of others, charge of immorality cannot be, and in any case should not be,
levied, if such human beings or likes of them , feel and think it would be better to end the wretched
life instead of allowing further humiliation or torture”14.

The bench also elucidated that the striking down of Section 309 does not affect the validity of
Section 306 as the both are very distinct sections neither of which depends on the other for
existence. Section 306 deals with the abetment of suicide which shall remain to be a crime. The
individual himself alone has the right to take his life and not with the help of another.

The court held that Section 309 had to be struck down purely to humanize our laws and also to
globalize them, that is, bring them in consistency with the laws of other progressive countries.
The final bench found Section 309 to be violative of Article 21 and in its final judgement stated:

14Para 88 of P. Rathinam v. UOI (1994)

“On the basis of what has been held and noted above, we state that Section 309 of the Penal Code
deserves to be effaced from the statute book to humanize our penal laws. It is a cruel and irrational
provision, and it may result in punishing a person again who has suffered agony and would be
undergoing ignominy because of his failure to commit suicide”15.

Conclusion

“Crimes can be created or abolished with the passage of time”16 Law and its advocated as well as its
interpreters cannot be rigid in the performance of their duties. There must always be enough room
for the law to breathe and change, for it to evolve with time, to suit the needs of the society.
Moreover, a law must never be harsh, it must always aim to bring out the best in people and deter
them from the worst. A law which borders on the tendency to be retributive will only bring more
harm than good. Section 309 did not aim to reform the accused, instead it further pushed him down
to a level from which he may or may not rise. In the words of Justice Iyer,
“If you are to punish a man retributively, you must injure him. If you are to reform him, you must
improve him. And men are not improved by injuries”.

Finally, the conclusion may be sought in the words of Victor Hugo, “We must look upon crime as a
disease. Evil will be treated in charity instead of anger. The change will be simple and sublime. The
cross shall replace the scaffold, reason is on our side, feeling is on our side and experiment is on our
side.”

References

Cases:

State v. Sanjay Kumar Bhatial1986, Cri Lj 931 (1985) 2 HLR 348 DB: (1985) 2 DMC 153 (DB)
Maruti Shripati Dubal v. State of Maharashtra1987, Cri Lj 743 (Bombay)
R.C. Cooper v. Union of India (1970 AIR 564, 1970 SCR (3) 530)
Chenna Jagadeeswar v. State of Andhra Pradesh1988 Crl. L.J. 549
Munn v. Illinois94 U.S.113 (more) 4 Otto 113; 24 L. Ed. 77; 1876 U.S. LEXIS 1842
State of Himachal Pradesh v. Umed Ram Sharma1986 AIR 847, 1986 SCR (1) 251

15para 109 of P. Rathinam v. UOI (1994)

16 R.S. Cavan’s Criminology (Edition II) at p.7
Statutes and Statutory Instruments:

Suicide Act of England, 1961

Books:

Justice Krishna Iyer, titled Perspectives in Criminology, Law and Social Change, (first published
1980 by Allied)
R.S. Cavan titled Criminology (Second Edition)

Journal Articles

Shri B.B. Pande in Islamic and Comparative Law Quarterly Vol. VII(1), March 1987 at pp. 112-
120
Dr M. Indira and Dr Alka Dhal in Meaning of Life, Suffering and Death
Article of Alan A. Stone titled The Right to Die: New Problems for Law and Medicine and
Psychiatry pp. 627-643 (1988)
Article by Shri G.P. Tripathi titled Right to die

About the Author

Mrinalini Goyat is a 2nd year, BA-LLB (Hons.) student from Amity Law school Noida. She has an
inclination towards Constitutional Law, particularly the Fundamental Rights in it. Through her
writing she aims at obliterating the ambiguities in the information available to the general public.
She had earlier interned with LexLife Law portal wherein her article titled “Analysis: The Brexit
Deal” was published. She was also awarded the best Reporter for her articles covering the Lyngdoh
Committee Report and the relevance of student unions in India, in the event Srijan 2019.