WHETHER SECTION 309 SHOULD BE DECRIMINALIZED OR NOT?

By- Aayushi Mehta

But in the end one needs more courage to live than to kill himself.”

― Albert Camus

Introduction

Suicide is fundamentally an attempt made by an individual to bring an end to his life. The attempt to commit suicide can be because of many factors like mental stress or illness. Thus, it is necessary to understand the true intention of the individual for inducing in such an act before holding him punishable under Section 309 of the Indian Penal Code.

The prestigious article in our constitution Article 21 provides the Right to Life to all but it does not embrace within its scope the impression of the Right to Die. The conception that if a person committing suicide fails will be prosecuted under section 309 of IPC is inappropriate to an extent. The death of the late Sushant Singh Rajput has urged this topic of debate i.e. mental health and suicide in our country.

Section 309 of the Indian Penal Code of IPC outlaws the act of right to attempt to suicide by providing detention for a term of 1 year or fine or both i.e. it totally depends on the facts and circumstances of each case. But the 42nd Commission Report recommended that attempt to suicide shall not be criminalized and which led to extending the attention towards Section 115 of MHA (Mental Health Care Act),2017.

Whereas, Section 115 of MHA states that punishing an individual for committing suicide under section 309 of IPC is inappropriate. Before punishing, it must be seen that whether a person was suffering from severe stress or not. If it is proved that there exists severe stress then punishment cannot be granted under section 309 of IPC.

According to WHO, approximately 59 countries have decriminalized the attempt of suicide by a person. This is a topic of foremost concern that needs to handled with gentle care rather than imprisoning the personnel’s or imposing fine on them.

This concept has been adopted late by the countries following the Common Law System. In India, Section 309 of the IPC has not been totally scrapped because scrapping may return out to be counterproductive in cases of human bombs, terrorists, etc.

Journey of Decriminalizing

The journey of decriminalizing the attempt to commit suicide started way back when the 210th Law Commission Report titled: Humanization and Decriminalization of Attempt to commit suicidewas submitted and the case of Gian Kaur v. the State of Punjab was highlighted.

As in this instance, the constitutionality of the provision was focused on rather than whether it should be retained in the statute or not. So, the commission made recommendations suggesting the omission of this provision from the act as it was totally inhuman. They stated that if an individual attempt to commit suicide, it is due to this diseased condition which requires medical treatment rather than a punishment.

Further, in the case of Aruna Shanbaug v. Union of India, the Supreme Court apprehended that the section is constitutionally valid.

But the Parliament was of the interpretation that section 309 IPC shall be removed from the act. They said that the person attempting to commit suicide needs aid apart from the punishment stated under IPC.

Finally, in the case of Common Cause v. Union of India, the Supreme Court came out with an understanding that the opinions on decriminalizing of S.309 IPC require to be emphasized. The Supreme Court noted section 115 of MHA,2017 where they felt a need of constructing changes in the Indian law as according to MHA a person attempting suicide needs care, protection rather than punishment.

In other words, such persons shall be sent to rehabilitation centers rather than to prisons. But finally, the Supreme Court refrained and stated that it was not vital for purpose in Common Cause.

Conclusion

As it is vibrant that the intent of the legislature while framing of Section 309 of IPC was totally redundant, the only thing that requires to be thru is its omission from the statute. But it has been retained mainly because of the lack of legislative awareness.

Therefore, it can be stated that mostly the police officials are unaware of MHA, 2017 and they always book the wrongdoers under IPC. Thereby, the retention makes attempted suicide a medico-legal case and prevents his effective treatment.

As it is a settled principle that special laws will prevail over general laws, it is high time that the officials should keep themselves updated with omissions or additions in our laws. Thereby, considering the booking of a person under section309 IPC as totally void.


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