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Published : January 07, 2011 | Author : Manali Singhal
Category : Criminal law | Total Views : 21293 | Rating :

Manali Singhal
Manali Singhal, Gujarat National Law University

 Whether Right To Life Include Right To Die?

The Indian constitution under Article 21 confers the right to Life as the fundamental right of every citizen. The Right to Life enriched in Art. 21 have been liberally interpreted so as to mean something more than mere survival and mere animal existence. The Supreme Court has asserted that Art. 21 is the heart of the fundamental Rights provided under part III of the constitution[1]. The Supreme Court has clearly stated that in order to treat a right as a fundamental it is not mandatory that it should be expressly stated as a fundamental right[2]. In India “The right to life" under Article 21 of the Constitution has received the widest possible interpretation under the able hands of the judiciary and rightly so. On the grounds as mentioned, Article 21 does not have a restrictive meaning and needs to be interpreted broadly. This affirms that if Article 21 confers on a person the right to live a dignified life, it should bestows the “Right to Die” also, but the inclusion of Right to die under Article 21 contradict the provision of Indian Penal Code under sec. 309. As according to sec. 309 of the IPC “Whoever attempts to commit suicide and does any act toward the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year [or with fine, or with both]”. This section is based on the principle that lives of men are not only valuable to them but also to the state which protects them. By considering both the laws the provision of IPC under section 309 is contradictory to the fundamental right guaranteed under Article 21 of the Indian Constitution. The state’s power under section 309, I.P.C. to punish a man for attempt to commit a suicide is questioned not only on the grounds of morality, but also on the constitutionality of the said provision. A lot of conflicting opinions have been given on desirability of retaining or abolishing section 309 of Indian Penal Code because of some contrasting judgement given by various courts.

Wider Interpretation Of Article 21
A very fascinating development in the Indian constitutional jurisprudence is the extended dimension given to Article 21 by the Supreme Court in the post-Maneka era. Since then, Article 21 has proved to be multi-dimensional. This aspect of Art. 21 are brought up by many judicial pronouncements. This right is inalienable and is inherent in us. It cannot and is not conferred upon us. This vital point seems to elude all those who keep on clamoring for the "Right to die”. That means that every individual has a fundamental freedom to choose not to live. On this issue the stance taken by the judiciary is unquestionable. The main question arises is that whether right to life include right to death.

First time it came for consideration before Bombay High Court in Maruti Shripati Dubai[3] and struck down section 309 of Indian Penal Code, as unconstitutional vide Article 21 of the constitution which guarantees ‘right to life and personal liberty’. The court said that ‘right to life’ include ‘right to end one’s life’ if one so desires. It was pointed out that right to life has both its positive as well as negative aspects. To put it positively it would include a right to die, or to terminate one’s own life. The blanket prohibition on right to die on pain of penalty, it was pointed out is not reasonable.

Justice P.B. Sawant: “If the purpose of the prescribed punishment is to prevent the prospective suicides by deterrence, it is difficult to understand how the same can be achieved by punishing those who have made the attempts. Those who make the suicide attempt on account of mental disorder requires psychiatric treatment and not confinement in the prison cells where their condition is bound to be worsen leading to further mental derangement. Those on the other hand, who makes a suicide attempt on account of actual physical ailments, incurable disease, torture (broken down by illness), and deceit physical state induced by old age or disablement, need nursing home and not prison to prevent them form making the attempts again. No deterrence is going to hold back those who want to die for a special or political cause or to leave the world either because of the loss of interest in life or for self- deliverance. Thus in no case does the punishment serve the purpose and in some cases it is bound to prove self defeating and counter productive.[4]

Further in 1985, Delhi High Court in sanjay kumar[5] while acquitting a young boy who attempted to commit suicide by consuming ‘Tik Twenty’ strongly advocated for deletion of section 309, I.P.C. from the statue book and held that the continuance of section 309 of the Indian Penal Code is an anachronism unworthy of human society like ours. Instead of sending the young boy to a psychiatric clinic society, gleefully (happily) sends him to mingle with criminals. Medical clinics [are needed] for such social misfits; but police and prison never.[6]

Further, this issue came before Supreme Court in P. Rathinam/ Nagbhusan patnaik[7] in this case SC upheld the verdict given by Bombay High Court in Maruti Sripati Duba and held that a person has ‘right to die’, therefore section 309 of the IPC was violate of Article 21, hence it is void. A person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking. The 'right to live' in Article 21 of the Constitution includes the 'right not to live. The court went on to say that o person who attempts to commit suicide does not deserve prosecution because he has failed. There can be no justification to prosecute sacrificers of life.

In this regard eminent lawyer Ram Jethmalani says “The right to die is a part of a wider concept of liberty. The whole nation of the state controlling your life and death is grotesque. Equally radical is Dr Appa Ghatate, Supreme Court lawyer who agrees," The right to die should be included in the Indian Constitution as a fundamental right. The very idea of the state controlling your life is absurd."

Constitutional Validity Of Sec. 309
Disposing the case P. Rathinam v union of India, Division Bench of the Supreme Court of India declared Section 309 IPC as unconstitutional and void. Before arriving at the conclusion, the Supreme Court took into consideration the cases argued / disposed by the high Courts of some states namely, Delhi, Bombay and Andhra Pradesh on the aforesaid issue and held that Section 309 IPC which has no justification to continue to remain on the statute book.. However, the Andhra Pradesh High Court in Chenna Jadeshwar[8] upheld the constitutional validity of section 309, I.P.C. and remarked that ‘right to life’ does not necessarily signify ‘right to die’ which is an offence. The judgement therefore dissented to the view of Bombay High Court.

Mr. V. S. Deshpande after his retirement as Chief Justice of Delhi High Court[9], referring to what had been held by this Court regarding the scope of Article 21, took the view that if Section 309 is restricted in its application to attempts to commit suicide which are cowardly and which are unworthy, then only this section would be in consonance with Article 21, because, if a person having had no duties to perform to himself or to others when he is terminally ill, decides to end his life and relieve himself from the pain of living and the others from the burden of looking after him, prosecution of such a person would be adding insult to injury and it was asked : "Should a Court construe Section 309 IPC to apply to such cases?"

Sometime afterwards appeared an article of Justice R.A. Jahagirdar of Bombay High Court[10] in which the learned Judge took the view that Section 309 was unconstitutional for four reasons: (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 not the prison cells.

In one of the case accused poured kerosene on his body and attempted to commit suicide and it was proved that the accused after receiving head injury in a road accident had started showing abnormal behaviour. Therefore before the start of case the accused challenged the vires of section 309 and high court declared section 309 ultra vires the constitution. On appeal SC set aside the order of High Court and following the decision in Lokendra Singh v. state of M.P.[11] upheld the validity of section 309 and said the criminal case initiated on charge of attempt to commit suicide required to be decided on merit. However in this case the Supreme Court took the lenient and sympathetic view and quashed the criminal proceedings and directed the accused should be treated sympathetically.[12] The accused in another had jumped into the well after throwing her children inside the well but nobody had seen her doing this. It was held that her conviction was liable to be set aside.[13] The accused wanted to voluntarily terminate his life as mission of his life was completed and he had led a successful life. It was held that it would attract the provisions of section 306 and 309 as the same amounted to suicide. The court was of the opinion that no distinction could be made between the suicide as ordinarily understood and the right to voluntarily put an end to one’s life.[14]

A revising author has criticised this view. In view of the phraseology of Art, 21, it is arguable that the inhibition against deprivation of life and personal liberty is general. Not only the state but also an individual is under constitutional obligation not to take away human life except by the procedure established by law. This individual may also be the victim himself. Read in this backdrop commission of suicide is a breach of fundamental rights. And there is no question of waiver of fundamental right. A completed act of suicide may remove the author of the breach beyond the reach of law, but attempted violation may be brought to justice through section 309, I.P.C.[15]

However, in 1996, a five judge constitutional bench of the apex court in Gian Kaur v. State of Punjab[16] overruled its earlier decision of 1994 in P.Rathinam/ Naghbhusan patnaik[17] and held that right to die is not a part of the 'right to life' . The apex court further held that section 306, I.P.C. as constitutional and said that ‘right to life’ does not include ‘right to die’. Extinction of life is not included in protection of life. The court further went on to say that section 306 constitute a distinct offence and can exist independently of section 309, I.P.C.

As regards section 309, I.P.C. is concerned, the court said that the’ right to life’ guaranteed under Article 21 of the Constitution did not include the ‘right to die’ or ‘right to be killed’ and therefore an attempt to commit suicide under section 309, I.P.C. or even abetment of suicide under section 306, I.P.C., are well within the constitutional mandated, and are not void or ultra virus.[18]

Law Commission Of India
The chairman of the Law Commission of India, Dr. Justice AR. Lakshmanan, former Supreme Court judge has submitted 210th report to the Union Law minister, Dr. Hans Raj Bhardwaj, recommending humanisation and decriminalisation of attempt to suicide. A brief look at the actions undertaken to revise Article 309 suggest that in its 42nd Report, 1971, the commission recommended, inter alia, repeal of section 309. The 18th Law Commission in its 210th Report titled ‘Humanization and Decriminalization of Attempt to Suicide' submitted on October 17, 2008 gave the following recommendations:-

“1. Suicide occurs in all ages. Life is a gift given by God and He his life, it would be cruel and irrational to visit him with punishment on his failure to die. It is his deep unhappiness which causes him to try to end his life. Attempt to suicide is more a manifestation of a diseased condition of mind deserving of treatment and care rather than punishment. It would not be just and fair to inflict additional legal punishment on a person who has already suffered agony and ignominy in his failure to commit suicide.

2. The criminal law must not act with misplaced over zeal and it is only where it can prove to be apt and effective machinery to cure the intended evil that it should come into the picture.

3. Section 309 of the IPC provides double punishment for a person who has already got fed up with his own life and desires to end it. Section 309 is also a stumbling block in prevention of suicides and improving the access of medical care to those who have attempted suicide. It is unreasonable to inflict punishment upon a person who on account of family discord, destitution, loss of a dear relation or other cause of a like nature overcomes the instinct of self-preservation and decides to take his own life. In such a case, the unfortunate person deserves sympathy, counselling and appropriate treatment, and certainly not the prison.

4. Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional. The repeal of the anachronistic law contained in section 309 of the IPC would save many lives and relieve the distressed of his suffering.

5. The Commission is of the view that while assisting or encouraging another person to (attempt to) commit suicide must not go unpunished, the offence of attempt to commit suicide under section 309 needs to be omitted from the IPC.

Decriminalisation of attempt to suicide is also favored by the International Association for Suicide Prevention (France). This has been the practice in most countries in Europe and North America and is also supported by the Indian Psychiatric Society.

Present Status
The Supreme Court of India overruled the judgement given by Bomaby High Court in State of Maharashtra vs MarutySripati Dubai and also its earlier decision given in P.Rathinam vs Union of Indiacases wherein Section 309 of Indian Penal Code 1860 was held to be unconstitutional. It upheld the judgement of the Andhra Pradesh High Court in Chenna Jagadeeswar and another vs. State of Andhra Pradesh holding that Section 309 of the IPC was not violative of Articles 21 and 14 of the Indian Constitution and therefore, it cannot be declared null and void. Presently the verdict given in Gian Kaur v. state of Punjab is followed, in which the Supreme Court upheld the validity of Section 309 and states that it is within the constitutional mandates and is not violative of any fundamental rights.

My opinion: Although the judgement given by SC in Gian kaun is followed but according to me this should be scrapped from the IPC. I think the ‘right to die’ should not be expressively included in the “right to life”, because “Life is a gift given by God and He alone can take it”. Its premature termination cannot be approved by any society. Neither it shoukd be penalised. Attempt to commit suicide is a ‘manifestation of diseased mind’. “What is needed to take care of suicide prone persons are soft words and wise counseling (of a psychiatrist), and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor. Section 309 of the Penal Code deserves to be effaced from the statute book to humanise our penal laws. It is a 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.”

Therefore, it is wrong to say that the Indian penal code is a modern code in every possible sense. Laws are made for the people and it should be change to meet the aims and aspiration of the changing society. Ultimately, the aim should be to evolve a consensual and conceptual model effectively handling the evils without sacrificing human rights. Therefore section 309 should be deleted from the Indian penal Code because as mentioned in Maruti Shripati Dubai that “No deterrence is going to hold back those who want to die for a special or political cause or to leave the world either because of the loss of interest in life or for self- deliverance. Thus in no case does the punishment serve the purpose and in some cases it is bound to prove self defeating and counter productive”. In any case a person should not be forced to enjoy the right to live to his detriment, disadvantage, and disliking. Further, the “Right to life” under Art. 21 should not include “right to die” because this provision might increase the rates of suicides in the country and moreover the “Right to life’ is a natural right embodied in Art. 21 but suicide is an unnatural termination or extinction of life and, therefore incompatible and inconsistent with the concept of “right to life”.

Books Referred:

K.D. Gaur, The Indian Penal Code. 3rd Edn. Universal Law publishing Co. .

Journal Referred:
1. QUT Law & Justice Journal
2. Willmot, L., Christensen, S., Butler, D. (2001) Contract Law, Oxford University Press: Victoria“ISBN 0 1955 10062.
[1] Unni Krishnan v. state of Andhra Pradesh, AIR 1993 SC 2178
[2] Maneka Gandhi v. union of India AIR 1978 SC 597
[3] Maruti Shripati Dubai v. State of Maharashtra, 1987 Cr. LJ 743 ( Bom.)
[4] Ibid, para 20
[5] State v. sanjay kumar, 1985 Cr. LJ
[6] State v sanjay kumar, 1988 Cr.LJ 549(AP)
[7] P. Rathinam vs Union of India, AIR 1994 SC 1844
[8] Chenna Jagadeeswar and another Vs. State of Andhra Pradesh, 1988 Crl.L.J.549
[9] Deshpande VS "To be or not to be" SCC (Journal section) 1984; 3: 10 - 15 quoted in P. Rathinam v Union of India (1994)
[10] Jahagirdar RA. Illustrated Weekly of India September 29, 1985 quoted in P. Rathinam v Union of India (1994)
[11] 1996 Cr LJ 1660 (SC)
[12] State of Maharashtra v. Maruti Sripati Dubal, 1996 Cr LJ 4457(SC)
[13] Kavita v. state of tamilnadu 1998 Cr. LJ 3624
[14] C.A. Thomas Master and etc. v. Union of India and ors. 2000 Cr. LJ 743
[15] Right to die- A fundamental right by A.N. SAHA, 1987 Cr. LJ ( Journal) 70.
[16] Gian Kaur v. state of Punjab, AIR 1994 SC 1844
[17] AIR 1994 SC 1844, paras 111, 112
[18] Ibid

Authors contact info - articles The  author can be reached at: manalisinghal@legalserviceindia.com

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