By Dipender Chhikara and Adarsh Singh
Sushant Singh Rajput commits suicide, Tunisha Sharma commits suicide, and a law student from an institution commits suicide. These headlines abound all across the newspaper. The suicide rate has climbed by 40 percent since the pandemic. In India, Mental illness is viewed with mistrust, and those who suffer from it are condemned. The time has come to review India's suicide laws and shift the emphasis from punishing suicides to preventing them. The Mental Health Care Act of 2017 was enacted in order to provide mental health care for those with mental illnesses. The Act provided free healthcare and counselling to the victims of mental suffering. Section 115 of the Act aims to decriminalise suicide attempts and implement a public health strategy for all individuals who are affected. The legislation greatly restricted the scope of section 309 of the IPC, but did not eradicate it. This article tries to identify the gaps in the very law that was supposed to be a stroll in the park for victims of mental illness, and the authors desire to suggest measures to effectively address the problem.
Keywords: Suicide, Attempt to suicide, severe stress, decriminalisation
From Sushant Singh's Rajput to Tunisha Sharma's suicide, the mainstream media is flooded with expressions of sorrow and compassion. Cases of suicide are increasing daily, particularly after the COVID-19 pandemic. The pandemic has substantially affected the mental health of every third person in the country. Therefore, it becomes very important to review the legislation pertaining to suicide attempts in our country.
“I am the master of my own fate, I am the captain of my soul”, William Ernest Henley through this line clearly addresses the fact that every individual should have command over his own soul and the choice to decide his fate.[1] The true meaning of individual autonomy and self-ownership is yet to be acknowledged by the Indian society where attempt to suicide is still perceived as an offence. The word ‘suicide’ (felo de se) has been derived from the French word ‘Suicidium’. The meaning of Sui is ‘oneself’ and the term ‘cidium’ denotes killing’.[2] According to Black law’s dictionary, the term suicide means self-destruction and the term attempt ordinarily means intent combined with an act falling short of thing intended. Since the beginning of time, suicide has been a source of controversy and debate. Religion-based societies have always been agitated with individuals who committed suicide.[3] A suicide attempt is a non-fatal, self-inflicted, potentially lethal act committed for the purposes of dying.[4] The act of suicide itself is not considered a crime in India because the person committing it is beyond the reach of the law.[5] However, the attempt to commit suicide is a crime in India and is penalised by Section 309 of the Indian Penal Code.[6] The purpose of this provision is to express the desire of the legislature that the lives of men are valuable not only to the individuals themselves but also to the state, which has a responsibility to ensure their safety.[7] It is so paradoxical that rather than providing support to the survivor, the state prefers to mingle him with the criminals, which ultimately double jeopardises him.
In the words of J.S. Mill, it is the harm-to-others which ought to be prevented by the state.[8] A person who commits suicide causes no harm to another. Infact, many scholars have contributed towards the destigmatization of suicide. Durkheim in his book ‘Study of Sociology’ gave a theory of suicide where he laid certain factors that directly or indirectly contributed towards suicidal behaviour and also condemned the stigma attached with suicide.[9] In the years 1971[10]and 2008[11], the Law Commission of India made recommendations to repeal Section 309. In response to the recommendations, the Rajya Sabha passed the IPC (Amendment) Bill 1978, which decriminalised Section 309 of the IPC, but the bill lapsed in Parliament.[12] However, the Mental Health Care Act (herein referred to as the "MHCA") was finally passed by the Parliament in 2017 in order to comply with the obligations under the Convention on the Rights of Persons with Disabilities. The MHCA seeks to address the stigma associated with the victims of mental stress and focuses on decriminalising suicidal attempts in order to allow the survivor to live with honour and dignity. Therefore, the Act of 2017 considerably limited the applicability of Section 309 of the IPC. Despite the fact that the act limited the scope of section 309, the wordings of Section 309 continues to cause harm to the victims till this day. Section 115 of the MHCA raises a rebuttable presumption that the person who has committed suicide is under a state of severe stress, as a result of which he is excluded from prosecution under Section 309 of the Penal Code unless proven otherwise. It is very evident from the wordings of Section 115 that it does not impose a complete blanket on the applicability of Section 309. It merely raises a presumption in favour of the person, which, if rebutted, would again open the doors of Section 309 to hold the person liable. It is a non-disputed fact that COVID-19 has greatly affected the mental health of the community, which has directly or indirectly driven people, especially the younger generations, to commit suicide.[13] Prior to the pandemic, the people of the country had a little understanding of mental health, but things have changed since then. It is the duty of the government to change things for the better. The time has arrived when we, as a nation, should stand in solidarity in order to eradicate the abhorrent laws pertaining to the penalisation of suicidal attempts. This is not the end of the road since the purpose of MHCA seems to be partially fulfilled. As long as the decriminalisation of suicide remains subject to rebuttable presumptions, the lives of the survivors will continue to haunt them.
II DECIDING CONSTITUTIONAL FATE OF SECTION 309 IPC: THE LOST BATTLE
The debate pertaining to constitutional validity of section 309 IPC has been going since last few years. In Maruti Shripati Dubal v State of Maharashtra[13], Justice Sawant emphasised that article 21 within its ambit covers a negative right to not live. The court took a notice of various causes which lead people to commit suicides, they are: mental instability, unbearable physical ailments, affliction by socially dreaded diseases, decrepit physical condition disabling the person from performing his normal chores etc.[14] The court also attempted to highlight the difference between act of self-killing and mercy-killing. The court stated:
“Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one's own life by one's own act and without the aid or assistance of any other human agency. Euthanasia or mercy-killing on the other hand means and implies the intervention of other human agency to end the life. Mercy-killing thus is not suicide and an attempt at mercy-killing is not covered by the provisions of section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy-killing is nothing but homicide, whatever the circumstances in which it is effected”
From the above quoted lines it is clear that the term ‘suicide’ implies the act of terminating one’s own life without the aid or assistance of another human agency whereas ‘euthanasia’ implies the intervention of human agency to end life. The above decision of Bombay High Court was reaffirmed by the Supreme Court in P Rathinam v Union of India[15] where it declared section 309 to be unconstitutional and violative of article 21 and 14 of the Indian Constitution.[4] The Court expressed its view of uplifting right to die in the following words
“One may refuse to live, if the living be not according to the person concerned worth living or if the richness and fullness of life were not to demand living further. One may rightly think that having achieved all worldly pleasure and happiness, he has something to achieve beyond this life. This desire to communion with God may very rightly; lead even a very healthy mind to think that he would forgo his right to live and would rather choose not to live. In any case, a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking.”
Punishing an act of suicidal attempt sounds horrific because it adds additional suffering to the life of those who are already undergoing excruciating pain. Law that pushes individuals whose lives are miserable to more misery seems perverse.[16] The Indian Judiciary has understood long back that the victims of mental illness are to be protected and consoled so as to blow winds of hope inside them. In Chena Jagadeeswar and Another v State of UP, the court while condemning section 309 IPC dictated that if a person is sick, we treat him and not punish. [17]
It is so paradoxical that the society will neither provide sustenance nor allow the sufferer to die. In a country like ours, where the individual is subjected to tremendous pressures, it is dreadful that the law authorities are ready to engulf him and does nothing to motivate him.[18] It has been understood by the courts long before that incarceration is not a solution to curb suicidal attempts. The rays of hope that began in Maruti Shripati's case did not last long, as the Supreme Court turned the tables in Gian Kaur v. State of Punjab, ruling that the right to life does not include right to die.[19] It was believed by the court that conferring a right to die would be a step towards promoting self-destruction. There have been lot of efforts made by Law Commission of India for abolishing section 309. The Law Commission of India in its 42nd report stated that Section 309 should be abolished because it is "arbitrary and unreasonable". The commission laid emphasis on the Suicide Act[20] passed by the British Parliament in order to decriminalise suicidal attempts. Another attempt to decriminalise Section 309 was made by the Commission in 2009 under the leadership of Justice AR Lakshmana. The Committee stated that an attempt to suicide reflects a fragile mental condition that requires attention, and it would be abhorrent to incarcerate a person who has left all hopes to embrace his life and demands nothing but death.[21] The report further stated that death is inevitable. It is a reality of life. If the composition of life is balanced, we accept it unreservedly; but, if the proportion of afflictions exceeds the proportion of pleasure, it may not be acceptable to all.[22] In such a case, a person may not have the willingness to live to his detriment and would chose to end his sufferings. It would be so immoral to coerce a person to live and suffer the perpetual agony. It would be a slur against mankind. He needs protection but the current obnoxious law throws him behind the grey walls of jail. Pursuant to the recommendations made by the commission, the parliament drafted The Mental Health Care Act, 2017 which was the first milestone towards addressing the vulnerabilities of mentally unsound persons. There is a common mis-understanding in the general public that after passing of MHCA, section 309 has been abolished. However, the act has just partially restricted the scope of section 309 which does not completely cures the problem. The next part of the paper addresses the implications of Section 115 of MHCA.
TURNING OVER THE LEAF BY ENACTING THE MENTAL HEALTH CARE ACT, 2017
The Mental Health Care Act of 2017 (herein refereed as MHCA), which repealed the Mental Healthcare Act of 1987, was the result of a decades-long fight for a responsive approach towards addressing mental health.[25] The MHCA is a ground breaking legislation that reformed the nation's mental healthcare system and is in consonance with the obligations under Convention on Rights of Persons with Disabilities to which India is a signatory.[26] Since its inception, the MHCA has sought to remove the stigma associated with mental illness and has partially nullified section 309 of the Indian Penal Code which forbids and penalize suicidal attempts. The part I of section 115 of the MHCA implies that if a person has attempted suicide and has failed in such attempt it shall be presumed that he was under the ‘severe stress’ which prompted him to take such drastic step. This rebuttable presumption in favour of the person exonerates him from being prosecuted and punished under section 309 IPC.[27] The part II of section 115 imposes a responsibility on the Government of India to provide free treatment to the survivor who failed in ending his life. It also imposes a duty upon the government to rehabilitate such person in order to prevent re-occurrence of such an act. The fundamental reason for this significant breakthrough was the realization that an individual who attempts suicide is already suffering trauma, sorrow, and fragile mental health.[28] The act also recognized that punishing such an individual would only exacerbate the grief and mental torment that he is facing. The legislation recognizes that the best way to reduce suicidal attempts is by rehabilitating and not penalizing. Prima facie, the legislation appears to be progressive in nature which has heard the cry of the unheard victims but the legislation appears to be good only in the print and is actually crude in its application. It is far away from being a silver bullet. The next part of the paper would address the implications and controversies brought in by section 115 of the act.
SLINGS AND ARROWS OF SECTION 115 OF THE MENTAL HEALTH CARE ACT
NO STANDARDS TO MEASURE SEVERITY OF STRESS
In accordance with subsection (1) of section 115 of the Act, a person attempting suicide is presumed to be under immense stress and, unless proven otherwise, is exempted from being prosecuted under section 309 of the IPC. However, the provision is susceptible to criticism on numerous grounds.
In the wordings of section 115 of MHCA, a person who attempts to commit suicide is assumed to be under "severe stress" and is absolved from the liability under section 309 IPC. The words ‘unless proven otherwise’ in the section creates an ambiguity which has the capacity to deteriorate the entire purpose of the legislation. In layman’s term the section states that the person committing suicide shall be presumed to be under severe stress and thereby be exempted from the attack of section 309IPC. However, if it is proved that the individual was not suffering from any mental stress so severe as to drive him to attempt suicide, he shall be prosecuted under section 309 IPC. The fate of person is decided by the severity of stress he possess. Severity of stress is a very subjective concept and must differ from individual to individual. No hard and fast rule can be applied in order to establish severity of the stress. It can neither be measured by mathematical calculations nor weighed on golden standards. The MHCA does not specify any measurement scale in order to precisely determine the stress level, neither does it define the severity of stress. This raises a question as to the uncertainty of the provision since the presumption it provides is vague in its understanding. There is no criteria given in the legislation prescribing the quantum of stress to be called as severe or mild. The power to decide upon the quantum is left to the examination body which is very likely to be prejudiced.
SECTION 115 OF THE MENTAL HEALTH CARE ACT IS AN UNDER-INCLUSIVE PROVISION : ATTACK BY ARTICLE 14 OF THE CONSTITUTION
It is vital to understand that section 115(1) of the MHCA, 2017 makes a difference between a suicide attempt that is caused by stress and one that is not. This categorical distinction goes against the court’s dictum in the case of Thomas Master v Union of India wherein the court stated that there is no line of difference between suicidal attempts committed after stressful situations or those committed exuberantly after serving the purpose of life. According to the wordings of section 115 MHCA, a person is exculpated from being prosecuted under section 309 only when the cause of suicidal attempt is due to severe stress. The act has closed the doors for other causes which can very well drive a person to end his life such as unbearable physical ailments, affliction by socially-dreaded diseases, decrepit physical condition disabling the person from taking normal care of his body and performing the normal chores etc. In other words, if a person attempts suicide and it is shown that the act was not in pursuance of severe stress, he would be engulfed by the archaic wordings of section 309. Hence, The MHCA 2017 is a perfect example of colourable exercise of judicial power. At first, there is a presumption of severe stress, but when it is shown that the attempt wasn't made because of severe stress, the same provision pushes a person who isn't stressed into a perpetual cycle of frustration by allowing a prosecution in a court of law, which could even lead to punishment. This is nothing but against the spirit of article 14 of the Indian Constitution as it violates the principle of reasonable classification.
There is no intelligible differentia in excluding those who try to commit suicide by reasons other than severe stress. There appears to be a blatant legislative blunder in the provision. It appears to be a product of hasty decision. It is also important to note that the term "mental illness" was substituted by "severe stress" under Section 115 of the MHCA 2017.[29] The rationale behind this change is the disgrace associated with the term "mental illness." As a consequence of the alteration, the presumption is now drawn only regarding severe stress. Therefore, in order to claim the immunity under Section 115 of the MHCA, the person should be a victim of only severe stress. If there is any other mental condition that by chance falls short of severe stress, then it would be outside the protection afforded by Section 115 of the MHCA. This again shows the legislative hurry in drafting the Act. The provision fails the test of reasonable classification as the basis of classification is under-inclusive.
ATTACK ON SECTION 309 IPC VIS-À-VIS SECTION 115 OF THE MHCA BY THE INDIAN JUDICIARY: SOWING THE SEEDS OF HOPE
The fact that Indian judges have begun to examine the scope of the MHCA through a prism lens has laid the groundwork for the country's progressive jurisprudence. The Indian judiciary has owed more than verbal respect to the provisions of MHCA by interpreting it not just in letter but also in spirit. While upholding the concept of passive euthanasia, the Supreme Court in Common Cause v Union of India[30] categorically stated that in the light of International advancements, the law relating to criminalisation of suicides should be reviewed. In Smt.Pratibha Das vs The State of Orissa, the courts invoked section 115 of the MHCA and excused the victim from any liability under section 309. The court condemned the blunt filing of FIR’s in cases relating to suicidal attempts. The court highlighted that even though section 115 of MHCA provides adequate relief against prosecution to the survivors but the police is still not aware of the progressive legislation which results in unnecessary harassment of the victim and the police administration is yet to come out of its colonial image. Decriminalisation of section 309 IPC is the only feasible option left to curb unwarranted torture of such persons. In In Red Lynx Confederation vs Union of India and others special leave to appeal, the Supreme Court clearly highlighted the existing conflict between section 309 IPC and section 115 of the MHCA and demanded a clarification from the government. The matter is as of now res integra. The dispute between both the provisions again arose in Maris Raju v State Represented by Inspector of Police. Lately in 2022, the Kerala High Court in Simi CN v State of Kerala quashed a case registered under section 309 stating that the use of this section has completely sabotaged the legislative intent behind enacting section 115 of the MHCA.
CONCLUSION AND RECOMMENDATIONS
‘Man is born free; and everywhere he is in chains’, this statement by Rousseau surrounds the present law relating to attempt to suicide in India. It is very despicable and aberrant on the part of state to penalise a mentally unstable person who has just tried ending his life but failed. In the current times where the nation is yet to come out of the distress caused by the pandemic, the state is under an obligation to lower the miseries of its citizens. It is undoubtedly true that the pandemic has caused upsurge in suicide cases in India. At this point, it becomes very crucial to review the legislations relating to criminalisation of suicide. We have come a long way after the enactment of the MHCA but there is an imminent need to fight the uncalled battle. This can only be achieved by striking down the anachronistic provisions and paving a way for the victims of mental health to open up freely. Studies have reported that decriminalising suicidal attempts have shown significant improvement in their prevention. The archaic provision is nothing but a hindrance to the prevention of suicides. It is unfair to condemn a person who on account of his mental instability tries to end his life. Repealing the old venerable provision in lieu of the current dynamics of the country where every third person is a victim of mental illness would ensure that Mental illness is addressed and prevented. It should be understood that the repeal of section 309 IPC would not amount to granting of a licence to die rather it will impose a positive obligation on the state to address the gravity of problem more efficiently. Decriminalising suicidal attempt would in no case mean that the state is recognising the principle that those who are not able to helm a graceful life should abort it. The parliament should recognise that the time has come to completely eradicate the provision relating to criminalisation of suicide attempt. Section 115 of the MHCA does not appear to fulfil the purpose in its complete sense. Also it is an under-inclusive legislation which does not take into account others tainted with same mischief. The only solution that could effectively reduce the suicidal attempts is decriminalisation of section 309 IPC. If the legislature wants to continue with the archaic provision, then the minimal thing they can do is amendment of section 115 of the MHCA so as to conform it to the spirit of equality clause under article 14 of the Indian Constitution. Until section 309 IPC is not repealed, an amendment to widen the scope of section 115 by removing the rebuttable presumption clause could be a right step towards addressing the problem. In order to normalise mental conditions and suicidal attempts, we as a human should stop using the words “Committed Suicide”. The word commit before suicide brings a feeling of shame and disgrace. It undermines the pathology of the victim’s condition. It shows as if the person who died was a perpetrator and not a victim. Slowly but surely, we shall win this battle.
The author of this article is Dipender Chhikara and Adarsh Singh, LLM students at National Law Institute University (NLIU), Bhopal.
[1] Akaant Kumar Mittal, 'Repealing Section 309: A Right Step in a Wrong Direction by the Parliament' (2015) 36 Statute L Rev 280<https://heinonline.org/HOL/Page?public=true&handle=hein.journals/statlr36&div=33&start_page=280&collection=journals&set_as_cursor=1&men_tab=srchresults> accessed 14 January 2023.
[2] Black Laws Dictionary (11th edn, 2019)
[3] ibid
[4] Behere, Prakash B.; Sathyanarayana Rao, ‘Decriminalization of attempted suicide law: Journey of Fifteen Decades’ (2015) 57 (2) Indian Journal of Psychiatry <http:// journal.lww.com/indianjpsychiatry/Fulltext/2015/57020/Decriminalisation.aspx>
accessed 12 December 2023.
[5] Ratanlal and Dhirajlal Indian Penal Code (35th edn, Universal Lexis Nexis 2019)
[6] Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year or with fine, or with both.
[7] Latika Vashist, ‘Re-Thinking Criminalisable Harm in India: Constitutional Morality As a Restraint on Criminalisation’ (2013) 55 (2) Journal of the Indian Law Institute <https://www.jstor.org/stable/43953628#metadata_info_tab_contents> accessed 16 January 2022.
[8] Bell MC, ‘John Stuart Mill's Harm Principle and Free Speech: Expanding the Notion of Harm’ (2021) 33 Utilitas 162 <https://www.cambridge.org/core /utilitas/artic/journals le/john-stuart-mills-harm-principle-and-free-speech-expanding-the-notion-of-harm/F1D77D5D5F9A4B8AA3B Harm Principle and Free Speech -23-HarmAD4058A9708B4> accessed 17 January 2023.
[9] Prakash Behere ; RaoTosh, ‘Decriminalisation of Attempted Suicides: A Journey of Fifteen Dcecades’ (2015) 57(2) Indian Journal of Psychiatry <https://www.researchgate.net/publication/279210794_Decriminalization_of_attempted_suicide_law_Journey_of_Fifteen_Decades> accessed 7 December 20222.
[10] Law Commission of India, Suicide: Abetment and Attempt ( Law Comm No 42 , 1971)
[11] Law Commission of India, Humanisation and decriminalisation of attempt to suicide ( Law Comm No 210, 2008) 17
[12] Mohamed Thaver, ‘Section 309: Questions and Answers around the Archaic Law’ The Indian Express (Mumbai, 23 June 2020) < https://indianexpress.com/article/explained/sec-309-ipc-questions-and-issues-around-an-archaic-section-of-the-law-6468338/> accessed 16 January 2023.
[13] Maruti Shripati Dubal v. State of Maharashtra, 1987 Cri LJ(Bom) 743.
[14] Gaur KD Textbook on The Indian Penal Code (4th Ed. Universal Law Publishing House 2013)
[15] P Ratinam v Union of India AIR 1994 1844
[16] Sofiya Mhaisale, 'Gian Kaur v. State of Punjab, (1966) 6 SCC 262' (2018) 6 Supremo Amicus 478 <https://heinonline.org/HOL/Page?handle=hein.journals/supami6&div=56&g_sent=1&casa_token=&collection=journals> accessed 23 January 2023.
[17] Smitha Satapathy, Madhubrata Mohanty, ‘Constitutionality of Right to Suicide: Unlocking The Contraversy’ (2020) 20(1) Medico- Legal Update <https://www.google.com/Smita Sathpathy- Mohanty> accessed 28 January 2023.
[18] Chenna Jagadeeswar And Anr. vs State Of Andhra Pradesh AIR 1987 AP 232
[19] Rajni Kheria, ‘Let me Die, Cry The Soul: Eradicate Section 309 IPC’ (2019) 3(1) International Journal of Legal Developments and Allied Issues <https://thelawbrigade.com/wp-content/uploads/2019/05/Rajni.pdf> accessed 17 January 2023.
[20] Gian Kaur v State of Punjab 1996 SCC (2) 648 ( Verma J)
[21] Section 2 of Suicide Act, 1961
[22] Section 2 of Suicide Act, 1961
[23] M. N. Kaushika, 'Decriminalisation of Attempt to Commit Suicide' (2018) 6 Supremo Amicus 193 <https://heinonline.org/HOL/Page?public=true&handle=hein.journals/supami6&div=23&start_page=193&collection=journals&set_as_cursor=1&men_tab=srchresults> accessed 19 January 2023.
[24] Leenaars, Antoon, ‘Suicide and Human Rights: A Suicidologist’s Perspective’ (2003) 6(2) Journal of Health and Human Rights pp. 128–48.< https://doi.org/10.2307/4065433> accessed 1 February 2023.
[25] Tripathi; Neelima, ‘A Brief History of Mind: The Development of Mental Health Laws in India’ (2019) 61(2) Journal of the Indian Law Institute <https://www.jstor.org/stable/27097362> accessed 1 Feb 2023.
[26] Davidson, ‘A Key, Not a Straitjacket: The Case for Interim Mental Health Legislation Pending Complete Prohibition of Psychiatric Coercion in Accordance with the Convention on the Rights of Persons with Disabilities’ (2020) 22 (1) Health and Human Rights <https://www.jstor.org/stable/26923483> accessed 20 January 2023
[27] 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.
[28] Aditya, ‘Contrast in section 309 IPC and Section 115 MHCA : An Analysis’ (2021) 12(1) Jus Corpus Journal < https://www.juscorpus.com/wp-content/uploads/2021/08/112.-Aditya-Sunil.pdf> accessed 17 January 2023.
[29] Mahesh; Suresh Bada, ‘Mental Health Care Act: From Action to Aspioration’ (2021) 16(4) Indian Journal of Psychiatry < https://journals.lww.com/indianjpsychiatry/Fulltext/2019/61004/Mental_Healthcare_Act_2017___Aspiration_to_action.9.aspx> accessed 14 January 2023
[30] Writ Petition (2005) Civil 215.
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