Section 309: A Right or an Offence
Authored By Siddharth Punj
Keywords: IPC 309; Mental Health; Suicide;
Suicide is a universal issue that affects every community as well as every section of the society throughout the world. Suicide is a distinctive crime in which the accused and the sufferer both are same person. Section 309 and Section 306 deals with the provisions of “attempt to suicide” and “abetment to suicide” respectively. The act to commit or even an attempt of suicide is illegal and contains criminal liability in penal laws of various Asian countries like India, Singapore, Pakistan, Bangladesh etc. However, India in 2017 decriminalized section 309 – attempt to suicide by enacting the Mental Health Act, 2017.
This article basically attempts to study section 309, its constitutionality and its presence in today’s scenario.
Suicide is an unfortunate adversity that snatches a life and drastically affects his surrounded society and community. In India more than 100 thousand people commits suicide every year. A tally of 134,515 suicide were disclosed in the year of 2018 which is an increase of 0.3% from the year 2017. Most of the reports of suicide are from the state of Maharashtra followed by Tamil Nadu and West Bengal.
According to the data from World Health Organization, the no. of suicide attempts are 20 times more than the actual suicides committed.
Factors Causing Suicide
Emile Durkheim , a renowned French intellectual classified suicide on the basis of rekations between a man and his surrounding society as:
· Egoistic Suicide:
According to Durkheim, if a man is socially alienated or thinks like he does not have a place in society, he kills himself. It is the suicide of a self-centered individual who lacks altruistic emotions and is typically cut off from the mainstream of society.
· Altruistic Suicide:
This form of suicide occurs when an imperative commitment towards duty to the society occurs. This kind of suicide is the consequence of the over-integration of the individual into social evidence.
· Anomic Suicide
This form of suicide is due to a certain collapse in the social structure, such as suicide after bankruptcy or winning a lottery. In other words, an anomic suicide occurs in a situation that is extra-ordinary or has unexpectedly escalated.
Section 309 Indian Penal Code, 1860
Suicide is not a crime under IPC, 1860. It is only its attempt which is punishable under section 309 of the IPC, 1860. In other words, it is only when a person fails in his mission to commit suicide that the Code is attracted. If the person succeeds, there would be no convict who could be brought in front of the eyes of the law. The section is based on the principle that the lives of men are not only valuable to them, but also to the family and the State. The State therefore, is under an obligation to prevent persons from taking their lives as it prevents them from taking the lives of others.
The section 309 IPC, 1860 reads as
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 crux of suicide is intentionally killing of oneself and ending his/her life. Thus if a man suffering from the loss of his close relation decides to end his life, he should not be booked under 309 IPC, 1860. In such deplorable circumstance, the man deserves affinity, compassion and condolence.
Law Commission Reports
In 1971, the 42nd Law Commission advocated the abrogation of section 309 IPC, 1860 for the first time. The law commission citing to the ancient Hindu texts Manusmriti stated that the provision to allow a person to end his life could be found in ancient India. The law commission also quoted to the English writer H. Romilly Fedden that it is unfair and monstrous to punish a person who has already been suffered enough that he wants to end his life.
In 1979 the Government of India accepted the Law Commission recommendation but the 1979 Lok Sabha was dissolved before passing the bill.
In 2008, the 210th Law Commission report recommended about nullifying section 309, IPC stating that the section is inhuman and anachronistic and needs to be omitted.
Constitutionality of Section 309, IPC
The constitutional validity of section 309, IPC has been challenged on the ground that it is a violative of Article 14, 19 and 21 of the Constitution of India. In State v. Sanjay Kumar Bhatia the Delhi High Court bench examined the character of Section 309, IPC. The bench observed that section 309, IPC does not fit in our modern civilized human society and there is no justification of it to remain in the penal code.
The Bombay High Court in Maruti Shripati Dubal v. State of Maharashtra observed that Section 309, IPC is considered an ultra- vires and violates Article 14 “right to equality” and Article 21 ”right to life” of the Constitution of India. The High Court also recognized that there is not anything abnormal about the willingness to die and hence to die. The bench further observed that the method considered to end one’s life could be unnatural but the willingness which lead one to that method could not be.
In P Rathinam v. Union of India, the apex court held section 309, IPC a violation of Article 21 of the constitution stating that every person have the right to live and he/she cannot be forced to live an unwanted life.
Later in Gian Kaur v. State of Punjab the constitutional bench of the apex court reversed the P Rathinam judgment stating that sction 309, IPC could not be constructed as a violation of Article 21 as suicide is an unnatural act which cannot be subsidized as right to death with right to life.
The section 309 of the Indian Penal Code, have been replaced with section 115 of the Mental Healthcare Act, 2017. The section 115 states that every person booked under section 309, IPC shall be considered a mental patient suffering from severe stress. It further states that the person shall not be punished and considered for medical treatment and rehabilitation by the State Govt. to ensure about not reoccurring of the same.
The concept of suicide has been present in our country from ancient India and its traces can be seen ancient texts. The theory of decriminalizing section 309, IPC was considered a dilemma for our judiciary and policy makers. It could be argued that in the modern society and fast paced life there may exist a person facing severe mental oppression which could let him end his life and for instance if he does not succeed in it, punishing him for that is monstrous and inhumane. And now with the enactment of the Mental Healthcare Act, 2017 those persons could be treated for their own betterment and save their precious life.
 Section 309 of the Indian Penal Code, 1860  Section 306 of the Indian Penal Code, 1860  Section 115 of the Mental Healthcare Act, 2017  National Crime Record Bureau (NCRB) report of 2018.  World Health Organization (WHO) Suicide prevention. 2012  Emile Durkheim was a French scholar commonly known as the architect of modern social sciences.  Subs. by Act 8 of 1882, section 7, for the words “and shall also be liable to fine”.  Dwarka Poonja v Emperor, (1912) 14 Bom LR 146  Para 16.31, 42nd Law Commission report, 1971  1986 (10) DRJ 31  1987 (1) BomCR 499, (1986) 88 BOMLR 589  1994 AIR 1844, 1994 SCC (3) 394  1996 AIR 946, 1996 SCC (2) 648