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The Supreme Court and the Law Commission on Section 309 IPC

Akanksha.

On 11th September, a bench headed by Chief Justice of India SA Bobde made some remarks on Section 309, IPC which criminalises attempt to suicide. According to the bench, Section 115 of Mental Healthcare Act impacts Section 309 IPC. Section 115(1) reads as, “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.”

The bench, in an order, has sought an explanation from the Centre on the conflict between Section 115 of Mental Healthcare Act and Section 309 of IPC.

Background

Earlier Delhi and Bombay High Court held that Section 309 is unconstitutional. On the other hand, Andhra Pradesh High Court upheld its validity. The matter reached the Supreme Court in P. Rathinam v. UOI. A two-judge bench declared Section 309 to be unconstitutional and void. Later, it was overruled by a Constitution bench of the Supreme Court in Gian Kaur v. The State of Punjab. The court held that ‘right to die’ is not included in ‘right to life‘ under Article 21.

Two decades later, Justice DY Chandrachud revisited Section 115 and Section 309 in Common Cause v. UOI. He opined that we might need to revisit our stand on these two provisions keeping in consideration the domestic and international developments towards decriminalization of suicide. He said,

“Section 115 begins with a non-obstante provision, specifically with reference to Section 309 of the Penal Code. It mandates (unless the contrary is proved by the prosecution) that a person who attempts to commit suicide is suffering from severe stress. Such a person shall not be tried and punished under the Penal Code. Section 115 removes the element of culpability which attaches to an attempt to commit suicide under Section 309. It regards a person who attempts suicide as a victim of circumstances and not an offender, at least in the absence of proof to the contrary, the burden of which must lie on the prosecution. Section 115 marks a pronounced change in our law about how society must treat and attempt to commit suicide. It seeks to align Indian law with emerging knowledge on suicide, by treating a person who attempts suicide being need of care, treatment and rehabilitation rather than penal sanctions.”

In Navtej Singh Johar v. UOI, Justice RF Nariman in his concurring opinion held that Section 115 has done away with outmoded Section 309. He observed that:

“Instead of the inhumane Section 309 which has remained on the statute book for over 150 years, Section 115 makes it clear that Section 309 is rendered largely ineffective, and on the contrary, instead of committing a criminal offence, any person who attempts to commit suicide shall be presumed to have severe stress and shall not be tried and punished under Section 309 of the Indian Penal Code. More importantly, the Government has an affirmative duty to provide care, treatment and rehabilitation to such a person to reduce the risk of recurrence of that person’s attempt to commit suicide. This parliamentary declaration under Section 115 again is in keeping with the present constitutional values, making it clear that humane measures are to be taken by the Government in respect of a person who attempts to commit suicide instead of prosecuting him for the offence of attempt to commit suicide.”

Law Commission of India

In its 42nd Report, the Law Commission recommended to repeal Section 309 saying it is ‘harsh and unjustifiable‘. Later, in its 156th Report, it recommended Section 309 to be retained saying that assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the interest of society. 

In 2009, the Law Commission chaired by Justice AR Lakshmanan said that attempt to suicide is a manifestation of a suffering mind. It deserves care and treatment rather than a punishment. It said: “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 Indian Penal Code would save many lives and relieve the distressed of his suffering.”

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