“There is only one really serious philosophical problem, and that is suicide,”[1] claimed Albert Camus in his book, The myth of Sisyphus. Since man has commenced organising himself politically and formed the state, there has been a prevailing tussle between the concept of individual liberty and the authority vested in the state. The limits to which individual liberty extends is ambiguous as per the different political thinkers in different time periods. As for Locke states, “Though Man in that State have an uncontroleable Liberty, to dispose of his Person or Possessions, yet he has not Liberty to destroy himself[2].” There had always been an ethical and moral imperative of suicide. The society is generally opposed to non-conventional actions pursued by man, regardless of whether such action would cause any harm in general. Such opposition is a result of the survival-instinct persevered through generations, which is thereby forming morals. The overlapping of this moral sphere with law resulted in the emergence of Section 309 of the Penal Code which criminalized attempt to commit suicide. Fortunately, there had been an acknowledgement of mental health issues and the altering perceptions towards suicide and hence, there has been an inexorable pressure for the adoption of laws that embraces the peculiarities in human behaviour all over the world. Section 115 of the Mental Health Care Act, 2017 is an answer to such increasing queries but the analogy between the two sections create an ambiguity in the realm of attempt to commit suicide.
The Zone of Culpability: Section 309 IPC
As noticed by Justice Hansaria, “adverse sociological effects are caused by the death of the person concerned, and not by one who had tried to commit suicide.[3]” This has created a negative outlook towards the commitment of suicide by a person. Further, as stated by K.N. Chandrasekharan Pillai, “If they have taken such a decision (for suicide) they should face the society and receive the condemnation either in terms of punishment or treatment[4].” Section 309 IPC[5] states that, “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].”
Suicide, as explained by the prominent sociologist Emile Durkheim, is, “applied to all cases of deaths resulting directly or indirectly from a positive or negative act of the victim himself, which he knows will produce this result. An attempt is an act thus defined but falling short of actual death.[6]”
The criminal liability attracted by attempt to commit suicide was declared constitutionally valid in Chenna Jagadeeswar and Anr. vs State Of Andhra Pradesh[7] and Smt. Gian Kaur vs The State Of Punjab[8]. In the former, the court elucidated on the fact that if Section 309 IPC is abrogated, it would in turn endanger the pursual of Section 306 IPC[9], that criminalizes abetment to suicide. This would further lead to no criminal liability of individuals who assist a person to commit suicide.
In the Gian Kaur case, court held the view that ‘right to life’ under Article 21 of the Indian Constitution does not encompass the ‘right to die’ because we cannot overlook the ‘sanctity of life’. It was further elaborated that ‘right to life’ is a law that is ‘positive in nature’ and inclusion of the negative aspect of death eradicates the very essence of the law and absolve it to nothingness.
There exists a capitalist notion of life as mentioned in the Maruti S. Dubal vs State, wherein the court mentioned that “one’s life, one’s body, with all its limbs, is certainly one’s property and he is the sole master of it.”[10] Such notion of life may constitute the element of mischief under Section 425 of IPC[11]. So, one cannot have complete domination over one’s life.
Emergence of Dissent Against the Culpability
Understanding of human psychology and the socio-economic reasons to suicide lead to various arguments against the culpability under Section 309 of IPC. Justice Rajinder Sanchar in State (Delhi) v. Sanjay Kr. Bhatia[12] said that “served, “Law under section 309 of IPC is an anachronism unworthy of a humane society and the accused being ‘social misfits’ call for medical treatment not the legal one.”
Mental Health is no more a trivial concern faced by India. Laws pertaining to mental health are crucial to providing high-quality care and are especially important to safeguard the rights of those receiving that care. According to an estimate by the World Health Organization (WHO), mental illness makes about 15% of the total health conditions in the world.[13]
A person who has engaged himself in the act of committing suicide is believed to be under severe psychological distress, which advances empathy towards the said person. Criminal liability to such offence, therefore, is considered inhumane. The 42nd[14] and 210th[15] Law Commission Reports also talk about the brutality of Section 309 of IPC.
In the Rathiram Case[16], the Supreme Court tried to determine the constitutional validity of Section 309 of IPC and later construed it as inhumane and unconstitutional. The hon’ble Supreme Court claimed that ‘right to die’ is naturally associated with ‘right to life’ mentioned under Article 21 of the Indian Constitution. It was further contended that the Constitution deems life as a superficial subject and for determining the culpability of attempt to suicide, it must delve deeper in the concept.
A comparative study was opted by BMJ Open, analysing the suicide rates of 171 countries, some having criminal liability for suicide. The report was based on the WHO Global Health Observatory dataset 2018. The results stated that, “Criminalisation of suicide was associated with slightly increased national suicide rates (β estimate=0.29, 95% CI −0.04 to 0.61)[17].” It was hence concluded that ant suicidal laws had a detrimental effect and were associated with higher suicide rates.
A way forward: Section 115 of the Mental Health Care Act, 2017
In 2017, the government acknowledged the grievances of people committed suicide and introduced the Mental Health Care Act (2017)[18] on April 7, 2017. This is “an Act to provide for mental healthcare and services for persons with mental illness (who have substantial disorder and whose functioning is grossly impaired) and to protect, promote and fulfil the rights of such mentally ill persons (who have substantial disorder and grossly impaired functioning), during delivery of mental healthcare services and for matters connected therewith or incidental thereto.”
The Act introduces Section 115(1)[19] that states, “Notwithstanding anything contained in Section 309 of the Penal Code (45 of 1860) 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.”
It is worth noting that the term “mental illness” in the previous draft of the Mental Health Care Act, 2013 was replaced by “severe stress” owing to the societal stigma attached to the term.
Furthermore, Section 115(2)[20] of the Act states that, ““The appropriate Government shall have a duty to provide care, treatment, and rehabilitation to a person, having severe stress and who attempted to die by suicide, to reduce the risk of recurrence of an attempt to die by suicide.” This was added to ensure the protection and care of individuals who try taking their own lives.
Prevailing Ambiguities In Section 115 of MHCA, 2017
The contradiction of the two sections (Section 309 of IPC, 1860 and Section 115 of the MHCA, 2017) in the legal framework has led to multiple ambiguities to prevail over the question of attempt to suicide. The two major issues with Section 115 are that firstly, the term “severely stressed” is vague and not defined and secondly, the burden to prove that the person committing suicide was under “severe stress” is on the prosecution and hence the accused has to go trough a prosecution under Section 309 of IPC.
Since the territory of the term “severe stress” is nebulous, it seems as if there are various degrees of stress associated to an individual and what degree constitutes that it was “severe” would depend upon the Judge presiding over the case. The understanding of such degree is subjective and would differs from Judge to Judge. This would in turn lead to non-equitable deliverance of justice.
For example, if student A attempts to commit suicide because of scoring less on a university examination while student B attempts to commit suicide because of not clearing the UPSC examination. In these cases, the degree to which A and B can endure the academic pressure is different and it is difficult to reason out as to what would culminate to “severe stress”. Also, there is no proper understanding in the act whether the “severe stress” is to be caused by “mental illness” or can be justified if the accused suffers through it in the instant.
It is a misconception that Section 115 has decriminalised the attempt to suicide, it is just a presumption that can be questioned by the prosecution in the court. It was evident in the case of Pratibha Sharma vs State of Himachal Pradesh[21], that the victim will only be absolved if the condition falls within the ambit of “severely stressed.” With one view, it is a commendable decision as the victim was acquitted and was let go of being ‘doubly punished’ while on the other hand, the harassment that one had to go through during is prosecution is yet to be catered upon. Such prosecution may trigger anxiety and mental stress to the person who may need medical treatment, and this would further be an infringement of Section 115(2) of MHCA.
Remedies Available
The former part of the article states that even after the introduction of the Mental Health Care Act, the culpability of ‘attempted suicide’ has a dwindling stance. The aim of the Act was to acknowledge the mental health issues faced by the people but the fallacies in Section 115 does not direct the flow towards the aim. The re wording of Section 115 to address such discrepancies would help not only to know the dichotomy between Section 309 IPC and Section 115 of MHCA but also assist in providing effective means to persons who need medical care.
One view can suggest striking down of section 115(1) and introducing a nationwide Suicide Prevention Policy because “stress” is not the only reason for commission of suicide. There are several psychological, socio-economic, religious, educational, and cultural reasons as well. Only working on the legal framework would not alleviate the issue of suicide, we need to remove the social stigmas revolving around the term ‘mental illness’. Such approach was also acknowledged in a paper by the World Health Organisation[22].
Even though the Mental Health Care Act is a progressive legislation, but it is obstructed by implementation issues. The provisions like half-way homes, mentioned in Section 18(2)(b) of the MHCA, 2017 and the mental health institutions are yet to be established and thoroughly implemented. One way to get through the implementation issues is to create District level Mental Health Programmes and awareness programs to help people understand the gravity of their situation.
Conclusion
When violence collaborates with success, it becomes a peril for the society because it legitimises and secures the effect of violence. Suicide has been considered a form of violence since long. Aristotle considered it “wrong because it is cowardly and treats the State unjustly[23].” Violence subjected by suicide does not limit to personal harm but also a loss of human capital, economic loss, and sentimental harm to others.
The advocation of ‘Right to die’, supported by philosopher like John Stuart Mill, who calculate life upon the hedonistic scale of self-interest and harm, often forget that harm is not a secluded arena restricted to an individual. The argument that even though suicide is an unnatural form of ending life, it comes through the will of the person and hence, should not be criminalized is flawed. If ‘suffering’ can award a merit to ending one’s life, then everyone who braves to get through life is unnatural. The intention of law had always been to restrict and delay imminent death- such is clearly visible in the cases of capital punishment which is given in the rarer of the rarest cases.
Law is considered as the epitome of righteousness. Decriminalizing attempt to suicide would only grant acceptance to the detrimental behavioural patterns of people. As a politically organized society, law and the State should condemn the act of suicide but not to an extent that it harms the individual’s mental health. Hence, Section 115 of the Mental Health Care Act’s inclusion of “severe stress” in the act of committing suicide is a laudable step taken by the lawmakers.
The individual may have to go through prosecution and the due ‘harassment’ associated with it because one must bear the consequences of their act. If the person is suffering through psychiatric issues or is under ‘severe’ stress, then only the act of suicide won’t attract criminal liability. But if Section 309 of IPC is strike down, the trends in the society relating to suicide will change and it would support the notion that even law has accepted the validity of taking one’s own life.
[1] Camus, A. (2012) Myth of sisyphus: And other essays. New York: Random House US.
[2] LOCKE, J. (no date) ‘Section 6’, in Second treatise of civil government. THE HEBREW University MAG.
[3] P. Rathiram v. Union of India, 1994 AIR 1844, 1994 SCC (3) 394.
[4] 7. K.N.C. Pillai, “Comment on P. Rathinam v. UOI”. (1995) 3 SCC (Jour.) 2.
[5] Penal Code, 1860, S. 309.
[6] Taylor, S. (1982). Durkheim and the study of suicide. https://doi.org/10.1007/978-1-349-16792-0.
[7] Chenna Jagadeeswar and Anr. v. State Of Andhra Pradesh, AIR (1988).
[8] Smt. Gian Kaur v. State of Punjab, 1996 AIR 946, 1996 SCC (2) 648.
[9] Penal Code, 1860, S. 306.
[10] 5. Maruti S. Dubai v. State, (1986) Bom LR 589 at 599.
[11] Penal Code, 1860, S. 425.
[12] State (Delhi) v. Sanjay kr. Bhatia, (1985) Cri LJ 931 (Del).
[13] What India must do to solve its mental health crisis? (2020, February 26). ETHealthworld. https://health.economictimes.indiatimes.com/news/industry/what-india-must-do-to-solve-its-mental-health-crisis/74314862
[14] Law Commission of India, Report No. 42 on the Indian Penal Code, Para 16.31 (June 1971).
[15] Law Commission of India, Report No. 210 on the Humanisation and Decriminalisation of Attempt to Suicide, Para 5.4 (October 2008).
[16] Supra note 3.
[17] Criminalisation of suicide and suicide rates: An ecological study of 171 countries in the world. (2022). BMJ Open. http://bmjopen.bmj.com/
[18] Ministry of Law and Justice. The Mental Healthcare Act; Gazette of India. 2017. [Last accessed on 2019 Feb 21]. Available from: http://www.egazette.nic.in/WriteReadData/2017/175248.pdf [Ref list]
[19] Mental Health Care Act, 2017, S. 115(1).
[20] Mental Health Care Act, 2017, S. 115(2).
[21] Pratibha Sharma v. State of H.P., 2019 SCC OnLine HP 2619.
[22] “Public Health Action for Prevention of Suicide”, World Health Organisation, p. 11,
[23] Id. at 1669.
Author: Khushi Rohatgi
Juris Centre 