In a welcome move, the Union government has decided to decriminalise attempt to commit suicide which is currently a criminal offence under Sec. 309 of the Indian Penal Code.
The Law Commission, in its 210th Report, opined that sympathy, counselling and appropriate treatment and punishment would prevent a person from taking the extreme step.
Eighteen states and four Union Territory administrations supported its deletion while five states Bihar, Madhya Pradesh, the Punjab, Sikkim and Delhi did not fully support it.
Though there is no official data on attempted suicide, according to government data 134,799 people committed suicide in 2013 compared to 135,445 people in the previous year, which clearly proves that Sec. 309 is not a deterrent.
The Indian Law Commission, in its 42nd Report, also recommended the repeal of Sec. 309 as it felt it was harsh and unjustifiable to punish a person who had already found life unbearable.
Accepting the recommendation, the government introduced a bill which was passed by the Rajya Sabha in 1978, but it lapsed as the Lok Sabha was dissolved in 1979 before it could pass it.
Though the Supreme Court’s verdict in Aruna Ramchandra Shanbaug’s case (2011) about euthanasia spawned a huge debate, another important aspect of the judgment passed unnoticed.
The court suggested to the legislature to decriminalise attempt to commit suicide. Significantly, the court did not do it itself as it had done earlier in P. Rathinam’s case or as it laid down in Aruna’s case guidelines for allowing passive euthanasia. So, though one part of the judgment has a legislative component, the other part shows restraint.
In December 1985, the Delhi high court ordered the withdrawal of all prosecutions under Sec. 309, terming this act as “a blot on our statute book”. Chief Justice Rajinder Sachar passed this order while hearing a case of an attempt to commit suicide by a couple.
He reasoned that it was barbaric to punish a person who took the extreme step of trying to end his life owing to acute frustration, and there was a need to counsel, not punish, such unfortunate people.
Since a single judge bench could not declare a law unconstitutional, he passed an order to withdraw such cases.
There were around 120 cases under Sec. 309 of the IPC in Delhi, and he was shocked to discover that many of them were daily wagers who painted furniture, doors and windows.
It so happened that most of them ate their meals without cleaning their hands properly and fell ill as the paint contained toxic substances.
The insensitive police, always on the prowl to make money, slapped cases on them under Sec. 309. Justice Sachar further ordered that no case would be registered under this section in Delhi.
During his tenure, and six months after his superannuation, no such cases were registered. He admitted to the author that his order was illegal as Sec. 309 had not been set aside, but he passed this order as he considered Sec. 309 barbaric.
In 1987, a division bench of the Bombay High Court, in the Maruti Sripathi case, pronounced that this section was “barbaric” and, therefore, ultra vires of the Constitution.
It said that it was the only crime in which a successful criminal could not be punished while an unsuccessful one was liable for punishment. Subsequently, in 1994 the Supreme Court in
P. Rathinam held that the section was unconstitutional and void. However, in 1996 a five-judge bench of the Supreme Court in Gian Kaur revised its earlier decision and ruled that the right to live did not include the right to die as the court felt that “by no stretch of imagination can ‘extinction of life’ be read to be included in ‘protection of life’.”
Actually, the court was faced with a paramount question: that if the right to die was a fundamental right, abetment of suicide was an act that facilitated the exercise of such a fundamental right and, therefore, could not be punished.
But this argument is a specious one, as the abetment to commit suicide is punishable under Sec. 306 of the IPC and can remain so without making the attempt to commit suicide punishable.
In fact, the Supreme Court also appreciated this, as it observed: “(T)he arguments which are advanced to support the plea for not punishing a person who attempts to commit suicide do not avail for the benefit of another person assisting in the commission of suicide or in its attempt… The abettor is viewed differently, inasmuch as he abets the extinguishment of life of another person, and punishment of abetment is considered necessary to prevent abuse of the absence of such a penal provision.”
In England and Wales, there is a provision of up to 14 years of imprisonment for any person assisting a suicide, though the attempt to commit suicide itself is not a crime.
In 1999, Dr Jack Kevorkian was sentenced to 10-25 years’ prison for giving a lethal injection to Thomas Youk whose death was shown on the 60 Minutes television programme.
In 1979, the Swedish right-to-die leader Berit Hedeby was incarcerated for a year for helping a man with multiple sclerosis to die. In 2000, a retired Norwegian physician, Christian Sandsdalen, was found guilty of wilful murder.
He admitted to giving an overdose of morphine to a woman chronically ill for 20 years with multiple sclerosis who entreated him for his help.
In fact, the Supreme Court in Gian Kaur grappled with the problem of vegetative illness but could not give a final opinion on it. Sec. 306 makes the abetment of suicide a criminal offence punishable with imprisonment for a term which may extend to 10 years, and is also liable for a fine.
So, voluntary active euthanasia or physician-assisted suicide is not permissible under the IPC.
However, there are several provisions in the IPC which accord recognition to consent by a crime victim. Section 88 of the IPC reads: “Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.”
The writer is a senior TV journalist and columnist and author of Justice, Judocracy and Democracy in India
