Tuesday, December 16, 2014

Section 309 / Rajeev Dhavan

The Union government has decided to decriminalise suicide. A funny interpretation could well be that the Modi government can now commit hara kiri with impunity. But it should be noted that the cases under Section 309, which criminalises suicide, are haphazard, often concealing abetment to murder.
Philosophically, it is argued that the right to life includes the right to die without provocation or abetment by anyone else. In a development that could be traced back to the Wolfenden Committee report of 1957, England ended the criminalisation of suicide in 1961. Countries across the world followed suit. There is also concern about a duty to the sanctity of life. The law does not recognise a duty to save. But we need not get drawn into that controversy. We are concerned with the narrower issue of punishing a failed suicide attempt with imprisonment of up to one year or a fine or both. The offence of suicide is cognisable. A policeman is empowered to go to the hospital where the individual who attempted suicide is recovering, arrest him, and put him through the torture of criminal proceedings at a time when he is already emotionally fragile. In 1970, the Law Commission’s 42nd report recommended repeal and found it “monstrous… to inflict further suffering on even a single individual who has already found life unbearable, and happiness so slender”. In 1972, a bill was introduced in the Rajya Sabha, and discussed in a joint committee that lapsed in 1979.
Politics failed to humanise this provision. The matter was then addressed by the high courts. Bombay (1987) and Delhi (1985) struck down the provision, while Andhra Pradesh (1983) did not. The matter reached the Supreme Court in P. Rathinam vs Union of India (1994), which, in a sprawling and untidy judgment, struck down the provision. But some Supreme Court judges, including Justice J.S. Verma, felt that the right to die was inconsistent with “life and liberty”. This was consecrated in Gian Kaur vs The State of Punjab (1996), though the latter suffered from faulty logic and misplaced concerns.
The proposed amendment was supported by 18 states and four Union Territories. Bihar, Madhya Pradesh and Delhi continued to resist decriminalisation with no coherent argument of principle. But the most interesting aspect of the proposal is that it was linked to Section 124(1) of the mental health bill, which laid down that “the person who attempts to commit suicide shall ordinarily be presumed, unless proved otherwise, to have a mental illness and not be subject to any investigation or prosecution”. The wording of this section is clumsy. It cannot be that if the person is shown to not have a mental illness, he gets neither medical help nor immunity from prosecution.
Not all individuals attempting suicide are mentally ill in the narrow sense of the word. They may suffer from frustration, despair about living, health, debt, poverty, romance or shame, failure, depression. The instances I have culled from newspapers show that all are “sane” human beings who feel that they cannot continue living. This is not to suggest that people attempting suicide do not require medical or psychiatric help. They need support to regain their self-esteem. It is precisely because such people are not ill in the conventional sense that we omit to include them within the purview of welfare or medical care. Alas, the strains of everyday life mean that humanity has gone missing in India’s increasingly competitive and cruel society.
Euthanasia is not to be confused with suicide. Justice M. Katju’s somewhat unsatisfactory judgment on euthanasia in Aruna Shanbaug’s case (2011) did not find approval in Common Cause (A Registered Society) vs Union Of India (2014), which was referred to a larger bench on the grounds that Katju had misconstrued Gian Kaur’s case, which validated suicide and permitted passive euthanasia. Hopefully, the larger bench will examine the issues of suicide and euthanasia for the terminally ill who cannot decide for themselves. But the judiciary is not in sync with the times on these matters.
We are still left with an important issue. To punish attempted suicide is wrong. But what do we do in cases where someone else provokes or abets the suicide? Surely, the abettor, and anyone he is in conspiracy with, are guilty of homicide? That is why Section 305 of the Indian Penal Code deals with abetment of the suicide of a child or insane person. The charge invites death, life or other terms of imprisonment and a fine. Section 306 deals with abetment of suicide where the abettor, if guilty, may be awarded 10 years and a fine. The Delhi and Bombay courts felt that while suicide should be decriminalised, abetment to suicide should remain on the statute books.
Those who drive a person to suicide are criminals and  not to be spared. We see this in dowry death cases. But since 1986, there has been a direct provision, Section 304B, where punishment is not less than seven years and goes up to a life term. The mandatory seven years creates a problem, making judges reluctant to convict under 304B. A similar problem has arisen with minimum sentences under acts protecting SCs and STs.
How is the law to be changed? No fancy footwork is required on this through mental health legislation. What is needed is a simple clause replacing Section 309. An amendment to the IPC should simply state Section 309 of the IPC is repealed. The inhuman provisions criminalising suicide should have been replaced decades ago. On this, the Modi government has stolen a march over its predecessors. But we must withhold comment till the decriminalisation of suicide is actually enacted.

The writer is a senior advocate at the Supreme Court
- See more at: http://indianexpress.com/article/opinion/columns/309-reasons-why/99/#sthash.u4Cnogs2.dpuf

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