By: Digvijay S. Chaudhary
The dust has finally settled on the constitutionality of Section 377. The Supreme Court has declared what the public looked forward to since the court raised the question on Section 377 in KS Puttaswamy v. Union of India (hereinafter ‘KS Puttaswamy’). Apart from declaring Section 377 as partially unconstitutional, certain other aspects were discussed in the historic judgment. One such issue opined in the judgment was the ‘inhumane’ Section 309 and its validity by F. Nariman.
Section 309 of the Indian Penal Code criminalises attempt to suicide and states as follows:
S. 309 – Attempt to commit suicide: “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.”
In Navtej Singh, the F. Nariman discusses the Mental Healthcare Act 2017. He states that the Act throws a great deal of light on recent parliamentary legislative understanding and acceptance of constitutional values as reflected by this Court’s judgments. In the background of this Act, he also sheds some light on Section 115 of the Act which is regarding the presumption of severe stress in case of attempt to commit suicide. This section recognises the psychological aspect of suicide.
Section 115 states the following:
“(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.”
He terms Section 309 as ‘inhumane’ and ‘outmoded’ and opines that Section 115 makes it clear that Section 309 is rendered largely ineffective, and on the contrary, instead of committing a criminal offence, any person who attempts to commit suicide shall be presumed to have severe stress and shall not be tried and punished under Section 309 of the Indian Penal Code. This reasoning is by virtue of Section 120 of the Act which states that the act to have overriding effect as follows:
“The provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”
Section 309 was declared unconstitutional by the Supreme Court in P. Rathinam v. Union of India (1994) (hereinafter ‘P Rathinam’) but was resurrected again by a five-judge bench in Gian Kaur v. State of Punjab (1996) (hereinafter ‘Gian Kaur’). The Supreme Court in the Gian Kaur, while interpreting Article 21, held that ‘right to life’ doesn’t include the ‘right to die’. The court, while overruling P. Rathinam stated that in all the decisions relied on by P. Rathinam, the negative aspect of the right was involved for which no positive or overt act was to be done.
The larger bench observed that when a man commits suicide, he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to or be included within the protection of the ‘right to life’ under Article 21. It also held that the significant aspect of the sanctity of ‘life’ should not be overlooked. The Court went on to hold that by no stretch of the imagination, extinction of life can be read to be included in the protection of life because Article 21, in its ambit and sweep, cannot include within it the right to die as a part of the fundamental right guaranteed therein.
The court interpreted the right to live with human dignity as to mean to live a life until the natural end of life. It said that death with dignity would be included in the right to life but death with dignity should not be confused with unnatural death such as suicide. This interpretation of human dignity would certainly not stand today’s standards set by the Supreme Court via the recent KS Puttaswamy and Navtej Singh judgments.
The thought that suicide is a sin has religious beliefs attached to it. Much of the legal stance against suicide originated from the declaration by St. Augustine that suicide is a sin; this led to suicide being viewed as a criminal act by governments that were influenced by the religious institutions. Yama Smriti (600 B.C.) holds that the bodies of those who end their lives by suicide should be defiled. Similarly, Christianity and Islam condemn suicide to be sinful. Hinduism, however, sanctions suicides to expiate sins and suicides like ‘Sati’.
The reasoning in Gian Kaur judgment would also fall foul of the principle iterated by F. Nariman in Navtej Singh. The learned judge, while overruling Suresh Kaushal held that a presumption of constitutionality cannot be given to pre-constitutional laws. Suresh Kaushal stated that pre-constitutional laws (such as Indian Penal Code), which have been adopted by Parliament and used with or without amendment, being manifestations of the will of the people of India through Parliament, are presumed to be constitutional. This reasoning has long been asked to do away with and finally was discarded by the court in Navtej Singh. However, as has been duly noted, this argument of the judge is incomplete. Why pre-constitutional laws should not carry a presumption of constitutionality is because they impose a double burden on the individuals they impact. These individuals had no say in the framing of these laws and secondly, now that these laws exist, it is those who suffer their effects who have to mobilise and convince parliament to repeal them. Therefore, this reasoning of the learned judge needs to deepen a bit to clearly understand the effect of the presumption of constitutionality on pre-constitutional laws.
In conclusion, this is not the first instance after Gian Kaur when questions have been raised on the validity of Section 309. The Law Commission in its 210th report titled ‘Humanization and Decriminalization of Attempt to Suicide’ recommended that section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional. It stated that the repeal of the anachronistic law contained in section 309 of the Indian Penal Code would save many lives and relieve the distressed of his suffering.
Even the Supreme Court in Aruna Ramchandra Shanbaug v. Union of India (Passive Euthanasia case) opined that section 309 should be deleted by Parliament as it has become anachronistic, that a person attempts suicide in a depression, and hence he needs help, rather than punishment. The court recommended the Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code. Thus, it is only a matter of time when we have another ‘inhumane’, ‘outmoded’ law eroded from the Indian Penal Code. Will Navtej Singh serve as KS Puttaswamy (as it did to Navtej Singh) to the unconstitutionality of section 309? This remains to be seen.
Digvijay Chaudhary is a 3rd-year law student at Dr. Ram Manohar Lohiya National Law University. He serves as an Executive Editor for JurisOpen Network Publishing. He also serves as an editor of RMLNLU Law Review and RMLNLU Law Journal of Communication, Media, Entertainment and Technology Law. His interests lie in Legal Theory and Constitutional Law along with Intellectual Property Rights.