Millennium Post

Not a criminal desire

Repeated recommendations by the Law Commission and long-brewing deliberations over Right to Live versus Right to Die have made the NDA government think about scrapping Section 309 of the Indian Penal Code (IPC), which makes a suicide bid punishable with imprisonment of up to one year, or with fine, or both.

Already 18 states and four UTs favouring decriminalising suicide are on board and the other five states objecting to it, including Punjab, want the law to rehabilitate those making such attempts, including rape victims and distressed farmers. Since law and order is a state subject, views of all states and UTs were sought on the recommendations of the Law Commission. Besides Punjab, the four other states which did not fully support the move to delete Section 309 are Bihar, MP, Sikkim and Delhi.

While Bihar wants a distinction drawn between persons driven to suicide due to medical illnesses, suicide bombers who fail to blow themselves up or terrorists who consume cyanide pills, MP, Delhi and Sikkim believe that decriminalising attempt to suicide would handicap law enforcement agencies in dealing with persons who resort to fast unto death or self-immolation. Since the provision is being considered as a “stumbling block in prevention of suicides and improving the access of medical care to those who have attempted suicide,” the government has been deliberating deleting it since 1970s.

Experts warn the suicide rate has lately increased and the reality needs to be addressed, not criminalised. According to government data, 1,34,799 people committed suicide in 2013 compared to 1,35,445 in the previous year. But there is no official data on the number of attempted suicides. Senior advocate and former additional solicitor general KV Vishwanathan was quoted saying as, “It was as early as in 1985 when Delhi HC chief justice Rajendra Sachar said it was a strange paradox that attempt to commit suicide is punishable.” 

Punjab and Haryana High Court lawyer Avatar Singh also said that the government’s decision was long overdue, but the decision to repeal the provision should not be treated as a license to die, but as a step to help such persons. “For this, various measures, including strict laws, need to be in place to ensure that such repeal does not promote suicide-bombers or protesters who want to pressurise the state functionaries to accept their unreasonable demands. The move should not be misused,” added another Delhi High Court advocate Abhishek Gupta.

“Section 309 of IPC was the strangest law which can only punish your failure. If a person tries to attempt suicide and fails. The law punishes him till he succeeds. Therefore, the enactment of the law is very strange. The right way should have been to create avenues for psychological and psychiatric help rather than failing a person in failing in suicide. It is a move in right direction, said Kapil Sankhla, a serior advocate in Delhi High Court. He further adds, “Right to Life is one of the epitomes of pure democracy and there should be some checks and balances. But checks cannot be on failures. Here in this law you are imposing checks on failures not the success.”

While discussing the issue, noted Supreme Court lawyer KTS Tulsi connects the issue with the issue of mercy killing. He said, “Person who is attempting suicide is mentally disturbed and you can not punish a mentally disturbed person. Law is saying better you succeed in your attempt otherwise we will punish you. I believe that everyone has a right to decide to the extent possible on how the end should come. In situations like chronical diseases, person on life support or with some other painful traumas, one must have the right to live and right to decide not to live. To my mind until there is any threat to others’ life, one must be given the freedom to choose on living or quitting.”

Will it motivate suicides?
Those who want the law to continue believe that repealing it will lead to an increase in the number of suicide cases. According to the latest data available with country’s National Crime Records Bureau, 1,34,599 people committed suicide in 2010.

Every four minutes, one person takes his or her life in India, it states. But justice Lakshmanan disagrees with the theory. In one of his interviews to a news agency he said, “Abolishing the law would not lead to more suicides. Countries in Europe and North America which have decriminalised attempted suicide have shown no indication of increase in suicide cases. Whereas Singapore, which criminalises suicide attempts, has seen an increase in the number of suicide cases.”

The issue was taken up in earnest by Dravida Munnetra Kazhagam (DMK) MP Kanimozhi too. She recently tabled a private members’ Bill in the Rajya Sabha for repealing Section 309 of the IPC. “It is an inhuman provision and a form of double punishment for the person who is already in pain. There is an urgent need to amend the law,” Kanimozhi holds.

Commenting on the issue, Kapil Sankhla says, “Those who are opposing the scrapping, they are the ones who are of dictatorial mindset. They don’t want to give in an inch of power they have. One famous political philosopher has said that ‘laws are created so that rulers can impose them on the ruled’. Section 309 is of that mindset. Governments want to keep control over the people’s lives.”

A new life to Irom Sharmila
Now when the law is being finally scrapped, it would mean a new life for Manipuri activist Irom Sharmila, who has been on an indefinite hunger strike for the past 11 years demanding the repeal of the Armed Forces Special Powers Act (AFSPA). In the legal world, her hunger strike is seen as an attempted suicide.

“I feel like a criminal,” Sharmila had said in a interview last year. Seemingly, one man’s fast is another man’s crime. Irom has been held in detention and force-fed through  a nasal tube in Manipur for more than 14 years on repeated charges of attempted suicide. She has been on hunger strike since November 2000 after personnel of the 8 Assam Rifles regiment gunned down 10 innocent people, demanding the repeal of the draconian  Armed Forces Special Powers Act (AFSPA) which gives forces virtual immunity to raid, arrest and shoot people.

The 42-year-old activist has never been convicted of attempting to commit suicide. She has been regularly released after completing a year in judicial custody only to  be re-arrested as she continues her fast.  In August 2014, a Manipur court had ruled  that there were no grounds to charge Irom Sharmila with attempted suicide and instead described her protest as a ‘political demand through lawful means’.

Right to live and to die: Journey of the Law

In 1987, the Bombay HC held that the Right to Life guaranteed by the Constitution includes the right to live and the right to end one’s life, and struck down Section 309. The SC in the case, P Rathinam versus Union of India, in 1994 upheld the HC view, saying the right to live under Article 21 can be said to bring in its trail the right not to live a forced life and Section 309 violates Article 21 of the Constitution. In 1996, this judgment was overruled in the case Gian Kaur versus State of Punjab by the Constitution Bench of the apex court, which held that the fundamental right to life did not include the right to die, and that Section 309 was constitutionally valid. That continues to be the law even today.

In its 210th report submitted in 2008, the Law Commission under the chairmanship of AR Lakshmanan recommended that attempt to suicide may be regarded more as a manifestation of a diseased condition of mind, deserving treatment and care, rather than punishment. It reiterated that the provision needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional.

In 2011, the SC in a case relating to Aruna Shanbaug recommended to Parliament to consider the feasibility of deleting Section 309, saying “the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in depression, and hence he needs help, rather than punishment.”
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