WHY PENALIZATION OF ATTEMPT TO COMMIT SUICIDE IS STILL A VALID LAW?

Introduction

The tragic death of a young actor has once again sparked the debate around mental health and suicide. India, apart from being the country with the highest number of suicides, is also witnessing an upward trend in suicide cases with 230, 316 deaths alone were recorded in the year 2016. In addition to the above statistics, a more appalling concern is the fact that for every single death by suicide, on an average, 25 people attempt suicide.

It is trite law that right to life under Article 21 of the Constitution does not include right to die. While a person who dies by killing itself cannot be prosecuted but a person who fails is course of committing suicide can be punished under section 309 of the Indian Penal Code, 1860 (“I.P.C”). S. 309 read as under:

“Attempt to commit suicide.—Whoever attempts to commit suicide and does any act towards 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]”

The validity of section 309 has always been a contentious issue and people are divided on the issue of abolishing/retaining it. Initially, the constitutional validity of it was struck down for being irrational and violative of Article 21 of the constitution in the case of P. Rathinam v. UOI. However, within two years, the Supreme Court in Gian Kaur v. State of Punjab reversed the P. Rathinam dictum and upheld its constitutional validity. Fifteen years from the judgement in Gian Kaur, the Supreme Court in Aruna Shaunbaug v. UOI expressed its dissatisfaction over the provision of section 309 and urged the Parliament to consider the feasibility of decriminalizing the offence of attempt to commit suicide by deleting it from IPC.

The Government of India, after witnessing the alarming number of suicide cases and the need to bring Mental Healthcare Act in line with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), 2007, proposed a comprehensive law in 2013 which came into force in 2017 as Mental Healthcare Act, 2017. However, after the Mental Healthcare Act 2017 came into force, the understanding in respect of validity and applicability of section 309 is muddled and requires clarity.

The authors in this piece have attempted to highlight that section 309 of I.P.C. is still applicable in certain cases and retention of penal provision for certain situations (as discussed in the following paragraphs) is absolutely necessary.

Mental Healthcare Act 2017 and the Presumption of Severe Stress

It is a settled principle of law that specific law will prevail over general provisions laid down in I.P.C. The Mental Healthcare Act, 2017 (“Act”), being a special legislation, was introduced with the objective of ‘providing mental healthcare to the person with mental illness’ and it has, to some extent, decriminalized the rigorousness of attempt to suicide by way of section 115 which reads as under:

“115. Presumption of Severe Stress in case of Attempt to Suicide-

(1) Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.
(2) The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.”

Proof of severe stress: A bare perusal of the provision reveals that a person who attempts on his life is presumed to be under ‘severe stress’ and, therefore, the person will not be charged and punished under s. 309. However, it is worth noting here that the word ‘severe stress’ has not been defined in the Act and it did not initially feature in the original text of the bill but it was subsequently used in place of ‘mental illness’ as given u/s 2(s) of the Act. Hence, unless the legislature intended to give same meaning to both the terms, what would constitute ‘severe stress’ in a situation is left to the interpretation of the courts.

Now, with the promulgation of the Act, it is important to understand that section 115 does not provide blanket protection to everyone charged under s. 309 of I.P.C. It also does not completely decriminalize section 309 of I.P.C but barring the provision presuming ‘severe stress’ on part of the person who attempted on his life has not either explicitly repealed section 309 of the IPC or made it applicable to all the attempts of suicide. Moreover, the courts on a number of occasions have stated that this presumption is not absolute and can be rebutted in the cases wherein the police authorities bring on record material which is suggestive of the fact that the petitioner was not suffering from any stress at the time of the attempt.

Consequently, it means that a person who attempts on his life happens to be a person with no (proved) severe stress and, hence, cannot be kept out of the penal orbit of section 309. This view is also supported by the Law Commission of India in its “One Hundred and Fifty-Sixth Report: The Indian Penal Code” which after weighing the arguments of abolitionists and retainists on s. 309, has favoured the retention of it. Justifying its stand, the Law Commission observed that:

‘rise in narcotic drug trafficking offences, terrorism in different part of the country, the phenomenon of human bombs, etc. have led rethinking on the need to keep attempt to commit suicide an offence, and a terrorist of drug trafficker who fails in his/her attempt to consume cyanide pills and the human bomb who fails in the attempt to kill himself or herself along with the target of attack, have to be charged under section 309 and investigations be carried out to prove the offence.’

This view taken by the Law Commission coupled with the element of mens rea (which is an essential element to constitutes an offence under 309) of the accused can be used to make a logical distinction into two categories of the people who are charged under section 309.The following distinction adopts a middle path between the arguments of abolitionists and retainists by giving the benefit of presumption to people who deserve it while at the same time not making section 309 redundant.

1. People who intended to take their life on account of mental illness or severe stress should be given the benefit of the presumption u/s 115 of MHA. Therefore, they should not be charged under section 309 of IPC.
2. People who intended to take their life on account of their failure to commit an offence should not be given the benefit of presumption and must be charged and punished under section 309 of IPC. Extending the benefit of S. 115 of the Act to people falling under this category would be prejudicial to public interest as people can take recourse of this section to save themselves from their failure to commit crime. This inter alia can also have a deterrent effect on people.

Conclusion

As per the World Health Organization (“WHO”), as of now, 59 countries have decriminalized the attempt to commit suicide but decriminalization has been relatively late in countries following common law systems. While the Law Commission of India in its 210^th report titled ‘Humanization and Decriminalization of Attempt to commit suicide’ has favoured the effacing of s. 309 due to simple reason that people who try to commit suicide under severe stress or mental illness deserves active sympathy and assistance in the form of rehabilitation rather than social condemnation in the form of punishment. However, the authors respectfully submit that completely scrapping it can prove counterproductive in cases like a human bomb, terrorist etc. Hence, the authors through this piece attempted to highlight that section 309 of I.P.C. is not as much anachronistic as it is called out for and arguments for retaining it after clarifying its scope of applicability deserves due considerations especially because mens rea forms an essential element of this offence.

Authors : shiny g mahima n dimple Sangeetha