Introduction:
The increase in the number of suicide cases in India has highlighted the unheeded issue of Section 309. The suicide of the late actor Mr. Sushant Singh Rajput has compelled the society to think about the issues relating to mental health. In India, the laws are quite stringent on suicide. One of the most archaic laws on suicide is Section 309 of the Indian Penal Code 1860, which punishes the attempt to suicide with a maximum one year of simple imprisonment.
Section 309: “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.”
Therefore, a person who dies by killing himself, cannot be prosecuted but a person who fails to commit suicide can be punished under section 309 of the Indian Penal Code, 1860.
The Constitutional Validity of Section 309 IPC:
It’s not the first time when the constitutionality of Section 309 of IPC has been challenged in the four walls of the courtroom. Article 21 of the Indian Constitution provides and protects the Right to Life of an individual while on the other hand, the Supreme Court observed that the Scope of Art 21 is not big enough to cover the Right to Die.
The Constitutionality of Section 309 was first challenged before the Supreme Court in P. Rathinam vs. Union of India (1994 AIR 1844), where the court observed that section 309 is irrational and violative of Art 21 of the Indian constitution and therefore struck down the section 309 of IPC on the ground of it being unconstitutional.
But section 309 of IPC did not remain in the dark cloud for so long. The constitutional validity of the said section was again challenged in Gian Kaur vs. State of Punjab (1996 AIR 946) where the larger bench clarified that Article 21 does not include the right to die. Hence, section 309 does not stand struck down as laid in the above-mentioned case.
Mental Health Care Act 2017 and Section 309 of IPC:
After witnessing the increase in an alarming number of suicide cases and in order to comply with the UN Convention on Rights of Person with Disability, the government passed the Mental Health Care Act 2017. The said Act minimizes the impact of Section 309 of IPC after it provides a presumption of severe stress in case of an attempt to commit suicide under section 115 of the Mental Health Care Act 2017.
“Section 115: Presumption of severe stress in case of attempt to commit suicide:
(1) Notwithstanding anything contained in section 309 of the Indian Penal Code 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.
(2) The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.”
The Mental Health Care Act does not repeal Section 309 of the Indian Penal Code, but rather provides a presumption regarding mental illness.
In the case of, Common Cause vs. Union of India ((2016) 15 SCC 269), the Supreme Court reaffirmed the judgment of Gian Kaur case and held that section 115 of the Mental Health Care Act 2017 is a non-obstante provision which mandates a person who attempts to commit suicide shall be presumed to be suffering from severe stress unless the contrary is proved by the prosecution.
Recently a Writ Petition was filed in Supreme Court in the matter of Red Lynx Confederation vs. Union of India & Ors., the validly of section 115 of the Mental Health Care Act was challenged. This again raised a question that whether a survivor of suicide should be punished or treated with care.
Conclusion:
Life is a gift, which is given by God. Article 21 of the Indian Constitution does not consider the right to die a part of the right to life. The enactment of the Mental Healthcare Act 2017, came into force, has significantly reduced the impact of Section 309 IPC, and has virtually made the attempt to commit suicide punishable only as an exception.