Citation: A.I.R. 1996 SC 1257 Bench:
- Jagdish Saran Verma
- N.P. Singh
- Faizan Uddin
- G.T. Nanavati
In 1996, a five-judge Constitutional Bench of the Apex Court comprising Justices J.S. Verma, G.N. Ray, N.P. Singh, Faizauddin, and G.T. Nanavati overruled its decisions of 1994 in P. Rathinam/ Naghbhusan Patnaik and upheld the constitutionality of Section 309. The Right to Life mentioned in Article 21 was interpreted freely to mean more than mere survival and animal life. The Court of Justice has claimed, in part III of the Constitution, that Article 21 is at the heart of fundamental rights. The High Court has made clear that it is not obligatory for a right to be expressly declared an absolute right to treat it as essential. In India, the “right to living” following Article 21 of the Constitution has been interpreted as broadly as possible and rightly by the judiciary.
The appellants namely Gian Kaur and her husband Harbans Singh were convicted by the Trial Court of Madhya Pradesh under Section 306, Indian Penal Code, 1860 and sentenced to six years of rigorous imprisonment and a fine of Rs. 2,000/-, or, in default, further rigorous imprisonment for 9 months for abetment of suicide done by Kulwant Kaur. The convictions for both were upheld in appeal to the High Court, but Gian Kaur’s term alone was shortened for three years to rigorous detention.
A special leave petition was filed against their conviction and the sentence convicted under section 306 IPC.
- The constitutional validity of section 306 of the Indian Penal Code.
- Does section 309 of the Indian Penal code violate the validity of article 14 and 21 of the Indian Constitution?
- It was urged that Section 306, I.P.C. also is unconstitutional, being violative of Article 21 of the Constitution. The inclusion of the “right to die” under Article 21 of the Constitution is one of the points specifically posed, which is that anyone aiding in the implementation of the “right to die” actually helps to uphold the fundamental right of Article 21, which is not punishable, and thus Section 306 IPC punishes the Act, violates Article 21.
- Nevertheless, Shri Ujagar Singh accepted P. Rathinam’s conclusion that Section 309, I.P.C. was legally unconstitutional only for the purposes of the breach of Article 14 rather than Article 21. In deciding on the statutory validity of Section 309, Shri B.S. Malik contended euthanasia is not applicable.
- He argued that Article 21 should not be viewed as the “right to die” since Article 21 ensures the defence and non-extinction of life and rights. He argued that Article 309 did not even breach Article 14 because the sentence found therein requires the unfortunate survivor of suicidal activities to enforce the clause with sympathy.
- Maruti Shri. Pati Dubal, Vs. State of Maharashtra, the decision by a Division Bench of the Bombay High Court. In that decision, P.B.Sawant, J., as he then was, speaking for the Division Bench, held that Section 309 IPC is violative of Article 14 and Article 21 of the Constitution. The provision was born to be discriminatory and also arbitrary to violate the equality guaranteed by Article 14. Article 21 was construed to include the right to die or to terminate one’s own life. For this reason, it was held to violate Article 21 also.
- Chenna Jagadeeswar and another Vs. State of Andhra Pradesh, the challenge to the constitutional validity of Section 309 IPC was rejected therein. The argument that Article 21 includes the right to die’ was denied. Amarethwari also pointed it out, J. speaking for the Division Bench that the Courts have sufficient power to see that unnecessary harsh treatment or- prejudice is not meted out to those who need care and attention; this negated the suggested violation of Article.
The Respondents being the state, wanted the decision of the Trial Court and the High Court to be upheld by the Apex Court. They vehemently contended that Section 306 of The Indian Penal Code, 1860, which talks about the abetment of an attempt to suicide, is an independent provision. Hence it does not rely on Section 309 of the same Act. Moreover, Section 306 is constitutionally valid and does not violate Article 21 of the Constitution. The Respondents also wanted the ruling of the case P. Rathinam v. Union of India to be struck down since Section 309 of I.P.C. is again constitutionally valid. They contended that the ‘right to life’ is inherently inconsistent with the ‘right to die,’ and the right to die cannot fall within the ambit of Article 21. The Respondents contended that there is no merit in the contention-based on Article 14 of the Indian Constitution.
CONTENTIONS TO BE NOTED
Shri F.S. Nariman
He submitted that Sections 306 and 309 ordain independent substantive offences, and Section 306 can exist independently of Section 309. He then contended that the desirability of deleting Section 309 from the I.P.C. is very different from saying that it is to be considered unconstitutional. Mentioning that the debate on euthanasia is not relevant for deciding the constitutional validity of Section 309. He argued that Article 21 should not be viewed as the “right to die” since Article 21 ensures the defence and non-extinction of life and rights. He argued that Article 309 did not even breach Article 14 because the sentence found therein requires the unfortunate survivor of suicidal activities to enforce the clause with sympathy. He then also referred to the reported decisions in order to indicate that the enforcement of the said provision by the courts has been with compassion to ensure that it is not harsh in operation while submitting that the decision taken in P. Rathinam requires reconsideration as it is incorrectly framed.
Shri Soli J. Sorabjee
He submitted that Section 306 could survive independently of Section 309, I.P.C., as it does not violate Article 14 or Article 21. Neither did he support the construction made of Article 21 in P. Rathinam nor wanted to include therein the ‘right to die’, but he kept the conclusion that Section 309 is unconstitutional on the ground that it violates Article 14 of the Constitution. Shri Sorabjee submitted that it had been universally acknowledged that a provision to punish attempted suicide is monstrous and barbaric. Therefore, the section must be held and concluded to be violative of Article 14 of the Constitution. His argument, therefore, is that Section 306, I.P.C. must be upheld as constitutional. Still, Section 309 should be held unconstitutional, not as violative of Article 21 as held in P. Rathinam but for being violative of Article 14 of the Constitution. He also referred to assistance from Article 21 to support the argument based on Article 14.
- If a person has the right to live, the question is whether he has the right not to live. The Bombay High Court stated in paragraph 10 of its judgment that as all the fundamental rights are to be read together, as held in R.C. Cooper v. Union of India, what is true of one fundamental right is also true of another fundamental right. It was then stated that it is not, and cannot be, seriously disputed that fundamental rights have their positive and negative aspects. For example, freedom of speech and expression includes the freedom not to speak. Similarly, the release of association and movement consists of the freedom not to join any association or move anywhere. So too, freedom of business includes the freedom not to do business. It was, therefore, stated that logically it must follow that the right to live will retain the right not to live, i.e., right to die or to terminate one’s life.
- Two of the above named and critics of the Bombay judgment have stated that the aforesaid analogy is “misplaced”, which could have arisen on account of superficial comparison between the freedoms, ignoring the inherent difference between one fundamental right and the other. It has been argued that the negative aspect of the right to live would mean the end or extinction of the favourable element, and so, it is not the suspension as such of the right as is in the case of ‘silence’ or ‘non- association’ and ‘no movement.’ It has also been stated that the right to life stands on a different footing from other rights as all other rights are derivable from the right to live.
- At this stage, it may be mentioned that reference has been made in P. Rathinam and the Bombay High Court decision to the debate relating to euthanasia, the sociological and psychological factors contributing to suicidal tendencies and the global discussion on the desirability of not punishing attempt to commit suicide. The absence of provisions to punish attempted suicide in several jurisdictions has also been noticed. The desirability of attempted suicide not being made a penal offence and the Law Commission’s recommendation to delete Section 309 from the Indian Penal Code has also been adverted to.
- The Court held that Article 14 and 21 is not violated by section 306 and 309 of Indian Penal Code.
- In rejecting the appeal, the Court found that the ‘right to life’ as ‘death’ with ‘life’ is fundamentally incompatible with the right to die. In addition, the right to life, and the right to live with human dignity, would mean the existence of such a right up to the natural end of life. It may further include ‘death with dignity,’ but such existence should not be confused with the unnatural existence of life curtailing the natural span of life. As the above progressed, it reaffirmed that Article 309 of the IPC, which “attempt to suicide” is a felony, overriding the decision in P. The constitutionality of the case of Rathinam.
- Section 306 of the I.P.C. and proclaimed ‘right of life’ not to require ‘right to death.’ Life extinction is not included in life defence. Furthermore, the Court claimed that the “right to life” provided in compliance with Article 21 of the Constitution does not entail “right of death or the right to be killed” and thus an intention to commit suicde pursuant to Article 309 IPC or even an attempt to indulge in suicide pursuant to Article 309 IPC, which may also occur independently of Section 309, IPC.
- The Court said – “Article 21 is a clause that ensures the security of life and of freedom of the individual, and no part of imagination may mean that ‘extinction of life’ is to be taken into account as ‘protecting life,’ irrespective of the ideology of causing a person to die by committing suicide. Still, suicide is an unnatural termination or extinction of life and therefore incompatible and inconsistent with the concept of ‘right to life’.“
Laws against suicide and attempted suicide prevailed in English common law until 1961. Suicide ceased to be a legal offence with the passing of the Suicide Act 1961which states that “the rule of law where it is a crime for a person to commit suicide is as a result of this abrogated.”
Suicide with assistance was legal for a time in Australia, however it is not anymore. In 1995, Australia’s northern territory introduced the first euthanasia statute, the Protection of the Terminally Ill Act of 1995. In compliance with the Act, four patients died using Dr Philip Nitschke’s euthanasia method. The statute was repealed by Australia’s Federal Parliament in 1997. Dr. Nitschke created Exit International in reaction to the overthrow of the Act.
Attempted suicide is not considered a criminal offence in Ireland, and under the Irish law, self-harm is also not generally seen as a form of attempted suicide. However suicide and euthanasia, however, are not permitted.
It is not a crime to be present in the Netherlands and to provide emotional assistance for suicides; it does not provide general suicide knowledge. However, engaging, or offering lethal instruments or guidance to their use, in the planning or execution of suicide is a criminal act. The exception could be physician-assisted suicide.
The dissuasion of suicides is special to North Korea. In North Korea, families (including a suicide victim) of a criminal may be prosecuted as social punishment, as the law cannot punish a dead person.
In Russia, persuasive suicide is punishable by up to 5 years of incarceration through threats, brutal punishment and systemic humiliation. (The Russian Federation’s Article 110 of the Criminal Code).
At the time of passing the Suicide Act, no laws on the matter existed until 1961. At present, suicide is not a Scots law offence. The crime of seeking suicide, though, is a breach of peace. A individual assisting suicide may, depending on the circumstances of each case, be charged with murder, guilty homicide, or no crime.
In Singapore, a person who attempts or tries to commit suicide can be imprisoned for up to one year.
In the past, some states have classified the Suicide Act as a crime, but the laws have slightly been applied. Eighteen US states refused to have suicide laws in the late 1960s. By the late 1980’s, 30 of the 50 nations had no suicide laws or attempted suicides, but each state had laws that declared it a crime to help, advise or enable someone to commit suicide. By the early 1990’s, only two countries identified suicide as a felony and have since deleted it. Suicide, as suggested in Blackstone’s Commentaries, remains an unwritten “common law crime,” As a common-law crime, suicide can bar recovery for the late suicidal person’s family in a lawsuit unless the suicidal person can be proven to have been “of unsound mind.” The suicide has to be to prove as an involuntary act of the victim for the family to be awarded monetary damages by the Court. This can occur when the deceased’s family sues the caregiver (perhaps a jail or hospital) for negligence in failing to provide appropriate care.