In the Supreme Court of India
|Name of the Case||P.Rathinam v. Union Of India|
|Citation||1994 AIR 1844, 1994 SCC (3) 394|
|Year of the Case||1994|
|Respondent||Union of India|
|Bench/ Judges||Hansaria B.L. (J); Sahai, R.M. (J)|
|Acts Involved||The Indian Constitution, 1950 and Indian Penal Code,1860|
|Important Sections||Section 309- IPC; Articles14,21- Constitution of India|
“I am the master of my fate, I am the captain of my soul.”William Ernest Henley
P. Rathinam and Nagbhushan Patnaik had filed petitions challenging the constitutional validity of Section 309 of the Indian Penal Code. The Supreme Court took into consideration various judicial and legal thinking on the subject matter, some of which are briefly discussed in the article.
The Supreme Court also drew a parallel between the other fundamental rights – just as the right to freedom of speech under Article 19 gives the right to speak but also includes the right to not speak, the right to live under Article 21 includes the right not to live. Thus, Section 309 was held to be unconstitutional.
Anachronism- A thing belonging or appropriate to a period other than that in which it exists.
Draconian- Excessively harsh and severe law
Commemorate– Recall and show respect for someone or something
Ignominy- Shame or disgrace
Depredations- An act of attacking.
“Death is our friend, the trust of friends. He delivers us from agony. I do not want to die of a creeping paralysis of my faculties– a defeated man”.Gandhiji
P.Rathinam v. UOI, was the first case that the Supreme Court of India decided in respect of Section 309, IPC. The provision criminalized an attempt to commit suicide. Suicide is generally defined as ‘the action of killing oneself intentionally’.
This is the only section in the Indian Penal Code where punishment could be meted for an unsuccessful act only and never for a successful one. In other words, suicide is not a crime, its attempt is.
The draconian law punishes the already suffering individuals. What is needed to take care of suicide-prone persons are soft words and wise counseling (of a psychiatrist), and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor?
If a person makes the decision to terminate his life and the same results in death, the person is relieved from agony, pain, and suffering. But if the person is so unfortunate to survive, he is presented before the Court on the charge of ‘attempted suicide’. It is unfair, to say the least, that a person who is already suffering, is punished because provision like s.309 still finds mention in our Penal Code. The provision has been continuing since the IPC was drafted in 1860 during the British Raj, even though the Britishers have long ago, already amended their provisions to decriminalize attempt to commit suicide.
Section 309 of the Indian Penal Code provided for punishment to the people who attempted to commit suicide. Instead of sending the person to a psychiatrist, he is sent to the prison to gleefully mingle with the criminals. Thus, the continuance of this provision was believed to be an anachronism unworthy of human society like ours.
Therefore, this petition was filed before the Supreme Court to declare the section as void.
The petitioners had assailed the validity of Section 309 by contending that the same was violative of Articles 14 and 21 of the Constitution and the prayer made was to declare the section void. The additional prayer was to quash the proceedings initiated against the petitioner (Nagbhushan) under Section 309, IPC.
The main issue that the Court was confronted with was whether Section 309 of the Indian Penal Code violates Articles 21 and 14 of the Constitution and whether Article 21 includes the ‘right to die’. Some of the other important questions that the Court discussed were-
- Is suicide immoral?
- Does suicide produce adverse sociological effects?
- Is suicide against public policy?
- Does the commission of suicide damage the monopolistic power of the State to take a life?
- Section 309, Indian Penal states that- “Whoever attempts to commit suicide and does any act towards the commission of such offense, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both”
- Article 21 of the Constitution states that- “No person shall be deprived of his life or personal liberty except according to the procedure established by law”
- Article 14 of the Constitution states that- “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”
· State v. Sanjay Kumar Bhatia
This is a judgment by a division bench of the Delhi High Court in which, the Court acquitted a young boy, who was charged u/s 309. The Court in this case strongly advocated for the deletion of the provision from the IPC and observed that- “It is ironic that Section 309 IPC continues to be on our Penal Code. … The strange paradox that in the age of votaries of Euthanasia, suicide should be criminally punishable. Instead of the society hanging its head in shame that there should be such social strains that a young man (the hope of tomorrow) should be driven to suicide compounds its inadequacy by treating the boy as a criminal.”
· Maruti Shripati Dubal v. the State of Maharashtra
This was a division bench decision of the Bombay High Court in which the Court held Section 309 to be ultra vires being violative of Articles 14 and 21 of the Constitution. The reasons provided for the same were-
- As was held in R.C Cooper v. Union of India, the fundamental rights are to be read together. So, the freedom of speech and expression also includes the freedom not to speak and to remain silent. Similarly, about the freedom of business and occupation, it includes the freedom not to do business.
Based on that principle, it was held that Article 21 has conferred a positive right to live which carries with it the negative right not to live.
(b) The Bench thereafter stated that in our country different forms of suicide are known and the saints and savants, social, political and religious leaders have immolated themselves in the past and do so even today by one method or the other and the society has not only not disapproved of the practice but has eulogized and commemorated the practitioners.
(c) Which act or acts in a series of acts will constitute an attempt to suicide, where to draw the line, is not known, some attempts may be serious while others are non-serious. It was stated that in fact philosophers, moralists, and sociologists were not agreed upon what constituted suicide. The want of plausible definition or even guidelines made Section 309 arbitrary as per the learned Judges.
(d) Another reason given was that Section 309 treats all attempts to commit suicide by the same measure without referring to the circumstances in which attempts are made.
· Chenna Jagadeeswar v. State of Andhra Pradesh
In this case, the High Court of Andhra Pradesh upheld the constitutionality of Section 309, IPC and remarked that “right to life does not necessarily signify a right to die”
· Motion v. Yogesh Sharma
This decision was rendered in a Suo Motu proceeding titled by the Court on its own. The Court once again pointed out the futility of creating criminal liability in suicide cases, but instead of striking down the section or declaring it invalid, what the learned Chief Justice did was to quash all the 119 proceedings pending in the trial courts on the ground that dragging of the prosecutions for years when the victims have had enough of misery and the accused also belonged to the poorer section which added further insult to the injury, would be an abuse of the process of the court. Being of this view, each of the accused was directed to be acquitted.
The Supreme Court took into consideration some of the observations of eminent personalities on the subject matter. Some of which are:
- Shri V.S. Deshpande after his retirement as Chief Justice of Delhi High Court had expressed his view on this question in his article titled ‘To be or not to be’. He observed that if Section 309 is restricted in its application to attempts to commit suicide which are cowardly and which are unworthy, then only this section would be in consonance with Article 21, because, if a person has had no duties to perform to himself or others when he is terminally ill, decides to end his life and relieve himself from the pain of living and the others from the burden of looking after him, prosecution of such a person would be adding insult to injury.
- The Court also relied on an article of Justice R.A. Jahagirdar of Bombay High Court in the Illustrated Weekly of India (September 29, 1985) in which the learned Judge took the view that Section 309 was unconstitutional for four reasons: (1) neither academicians nor jurists are agreed on what constitutes suicide, much less attempted suicide; (2) men’s rea, without which no offense can be sustained, is not discernible in such acts; (3) temporary insanity is the ultimate reason of such acts which is a valid defense even in homicides; and (4) individuals driven to suicide require psychiatric care.
- J.S. Mill said in this connection in his famous track ‘On Liberty’ that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His good, either physical or moral, is not a sufficient warrant. The only part of the conduct of anyone, for which he is amenable to society is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
The Supreme Court held Section 309, IPC to be violative of Article 21. The Court observed that Section 309 of our Penal Code deserves to be effaced from the statute book to humanize our penal laws. It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because he was failing to commit suicide.
The Court also remarked that ‘life’ in Article 21, includes the right to live with human dignity and not mere animal existence. Therefore, the right to live brings in its trail, the right not to live a forced life. A person cannot be forced to enjoy a right to life to his detriment or disliking.
The Court further observed that Section 309 does not violate Article 14 because, as far as the argument that the section treats different attempts to commit suicide by the same measure is concerned, it is not correct. The sentence can be tailored depending on the nature, extent, and gravity of the attempt as the Section only provides for a maximum punishment of one year or the imposition of fine only.
Further, the Court also clarified that suicide is not against public policy. Whenever an offense is committed, the offender is punished to protect the society from the depredations of a dangerous person. But, in the case of suicide, the person is not harming others, and therefore, the question of protecting the society does not arise.
Finally, the Court remarked that no one can claim to have a monopolistic right over human life. God alone can claim such power. Therefore, the argument that the commission of suicide damages the monopolistic power of the State to take life has no legs to stand on.
Some other important observations made by the Supreme Court are as follows:
- The court remarked that in euthanasia a third person is either actively or passively involved about whom it may be said that he aids or abets the killing of another person. Whereas in suicide, the person is taking his own life. In this regard, the Court also discussed the case, Mckay v. Bergstedt, in which the Supreme Court of Nevada took the view that the desire of the patient for withdrawal of his respirator did not tantamount to suicide the same was rather an exercise of his constitutional and common law right to discontinue unwanted medical treatment.
- The Court mentioned that they do not agree with the view taken by the Andhra Pradesh High Court that if Section 309 were to be held bad, it is highly doubtful whether Section 306 could survive, as self-killing is conceptually different from abetting others to kill themselves. They stand on a different footing, because in one case a person takes his own life, and in the other, a third person is abetted to take his life.
- The Court also illustrated some cases to highlight how cruel the provision is. It pointed out that a student who jumps into a well because he failed in the examinations or a boy/girl who resent arranged marriage and prefer to die, do not deserve to be put on the stand as criminals. The Court further observed that a woman who tries to kill herself because she has been raped, is not a criminal and rather, requires our sympathy. If they are made to undergo trials, it would only be adding insult to injury and their life will become more intolerable.
- Finally, the Court stated that it should not be understood that according to the judgment, right encompassed or conferred by Article 21 can be waived as it has been held by a Constitution Bench in Olga Tellis v. Bombay Municipal Corpn., that a fundamental right cannot be waived.
 1994 AIR 1844
 1990 AIR 749
 (1986) 88 BOMLR 589
 1970 AIR 564
 (1988) Cr LJ 549 (AP)
 1986 RLR 348
 801 P.2d 617 (1990)
 1986 AIR 180