By Paras Marya
(This is in response to the previous post regarding retaining S.309 of the IPC and its validity presently in India (found here). In the post, it was argued that S.309, IPC serves another purpose and therefore, shall not be completely scrapped from the IPC. The following post provides a different perspective on the issue.)
Introduction
Section 309, Indian Penal Code [“IPC”] criminalises an attempt to suicide by any person. However, Section 115, Mental Healthcare Act, 2017 [“MHA, 2017”] states that any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and therefore, shall not be punished under the IPC.
Therefore, Section 115, MHA, 2017 imposes a rebuttable presumption that the person who commits suicide is suffering from severe stress and, therefore, shall not be punished under Section 309, IPC. The result of the abovementioned provision of the MHA, 2017 is that Section 309, IPC is otiose. However, if the presumption of severe stress is rebutted, then such a person may be punished under Section 309, IPC.
Developments in the law
Keeping in mind that punishing an attempt to commit suicide was excessive and unjustifiable, the 42nd Law Commission Report recommended that attempt to suicide should cease to be an offence.
However, the Law Commission recognised (as done in the previous post) that the provision serves another purpose: criminalising an attempt to suicide when it is used as an instrument to threaten with the object of coercing a public authority to pursue a course of action. To prevent suicide attempts being used as threats, to intimidate or coerce public authorities, the Law Commission recommended that Section 506A be added to the IPC:
“506A. Threat of suicide with intent to coerce a public authority — Whoever holds out a threat of suicide to a public authority, with intent to cause that authority to do any act which it is not legally bound to do, or to omit to do any act which it is legally entitled to do, as the means of avoiding the execution of such threat, and does any act towards the execution of such threat, shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.”
With respect to the concern of terrorists and drug-traffickers attempting suicide, such offenders shall be charged under other sections of the IPC and may be covered by further adding a specific and tailored provision to the proposed Section 506A of the IPC. Cases pertaining to “hunger strikes” or “fast unto death” may also be included under such a provision. This is because there is a clear and rational reason for removing Section 309 from the IPC.
The 210th Law Commission Report observed that in Gian Kaur v State of Punjab the Supreme Court focused on the constitutionality of the provision, and not whether it shall be continued or retained in the statute. In this regard, the Commission recommended that Section 309, IPC shall be effaced from the statute book since the provision is inhuman, irrespective of its constitutionality. The Law Commission was of the opinion that attempt to suicide is a manifestation of a diseased condition deserving of treatment and care rather than punishment.
This view expressed by the 210th Law Commission Report was reiterated in Aruna Shanbaug v Union of India by the Supreme Court where it held that even though Section 309, IPC may be constitutionally valid, the time has come where Parliament shall delete the provision for it has become anachronistic. The Supreme Court emphasised that a person suffering from mental health illnesses needs help rather than punishment. Further, in Common Cause v Union of India, the Supreme Court noted that the Court’s previous holding in Gian Kaur in the context of attempt to suicide may require to be revisited, pointing towards decriminalisation of suicide.
The Supreme Court noted the provisions of the MHA, 2017; marking a significant change in Indian law, by treating a person who attempts suicide as one in need of care, treatment and rehabilitation rather than penal sanctions. However, the Supreme Court refrained from making any considerations regarding Section 309, IPC in this regard, since it was not required for the purposes of the issues in Common Cause.
Conclusion
The MHA, 2017 has made Section 309, IPC redundant unless the presumption of severe stress is rebutted. However, there has been widespread use of the provision regarding cases of “hunger strikes” and “fasts unto death”, and to coerce public authorities. Nonetheless, retaining the provision to serve this purpose under its current language has unnecessary implications.
The costs of retaining the provision is that there are several instances of police charging persons under the provision due to a lack of legislative awareness. The retention of the provision also makes attempted suicide a medico-legal case and prevents effective treatment to the person who has attempted such suicide at the “golden hour” for providing effective treatment.
Since there is a clear intention of the Legislature to make Section 309, IPC redundant, its practical unwanted implications shall be done away with by removing such provision from the statute book. However, there is a need for a provision to take action against those who either intend to coerce public authorities by threatening to commit suicide, or attempt suicide to evade public authorities altogether. Nonetheless, since the cost of retaining the provision in its current form creates an unnecessary burden, the recommendation along the lines of the 42nd Law Commission Report to add Section 506A, IPC seems to be valid even now.
The proposed Section 506A, IPC requires changes in form and substance. Firstly, the proposed provision criminalises a “threat” accompanied by an “attempt” to commit suicide to coerce public authorities to do any act it isn’t bound to do, and not merely a “threat”. The same must be highlighted in the language to avoid misinterpretation during the framing of charges. Secondly, the current language of the provision criminalises “hunger strikes” and similar forms of protest. However, the Supreme Court in Ram Lila Maidan Incident v Home Secretary, Union of India & Ors has held that a hunger strike is “a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence.” Therefore, such forms of protest shall be exempted from the scope of the provision. Lastly, the provision must address the concern regarding terrorists and drug-traffickers who attempt suicide in order to evade law and order authorities.
[Paras Marya is a Final Year Student at National Law University, Jodhpur.]
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