Unconditional Wait for Yamraj…

[Kritika Parakh is a third-year law student at National Law University, Jodhpur.]

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Suicide is perceived as a crime since long, perhaps even before the development of the legal systems in the world. The most prominent reason is the religious belief that suicide is a sin. Since the fundamental structure of the legal systems worldwide was laid down by the religious institutions and scriptures, suicide was positioned as a crime in the legal systems as well. For instance, the Church had laid down the laws in early Christian countries. It imbibed the biblical principles into the laws, which says that ‘Naked I came from my mother’s womb, and naked shall I return. The Lord gave, and the Lord has taken away; blessed be the name of the Lord’[1]. It means that God is considered as the giver of life and only he can take it away. Similar were the beliefs of Hinduism and Islam.

In a criminal legal system, the culpability of any act is determined by the punishment attached to it by the State.[2] Suicide itself was also a felony punishable by an ignominious burial and forfeiture of the property of the person.[3] However, these punishments were removed long back from the actual codification of the laws which are prevailing now in the world, which led to the detachment of culpability from suicide.

However, soon the criminality was attached to ‘attempt to suicide’.[4] The punishment for an attempt to suicide cannot be justified by theories of punishment like deterrence, preventive or reformative theories. Contra, these punishments have worsened the situation. Any physical punishment would not have any deterring effect on a person who has taken the decision to end his life. Moreover, it would not have any preventive effect on the person himself because after such punishment if he still wants to suicide, this time he would make sure that it would not be a failed attempt to receive punishment. Further, no argument can be made to prove that punishing a person for a failed attempt of suicide, would reform him and rebuild the willingness to live. Nonetheless, attempt to suicide had been criminalized by Section 309 of the Indian Penal Code, until it was decriminalized to some extent, by implication, recently by Section 115 of the Mental Healthcare Act, 2017 (“Act”)[See the provision here]. This Section presumes that a person has attempted suicide under ‘severe stress’ unless proved otherwise, and the government has a duty to provide care, treatment and rehabilitation to reduce the risk of recurrence of such attempt.[6]

The above position of law was also noted by the Supreme Court very recently in Navtej Singh Johar v. Union of India,[7] [Read here at page 238wherein R. F. Nariman, J. stated that:

“Section 115 largely does away with one other outmoded Section of the Indian Penal Code, namely, Section 309. … 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 parliamentary declaration under Section 115 again is in keeping with the present constitutional values, making it clear that humane measures are to be taken by the Government in respect of a person who attempts to commit suicide instead of prosecuting him for the offence of attempt to commit suicide.”

This provision might prove successful in reducing the stigma attached with suicides. People will not any longer feel the need to hide their suicidal thoughts and would be encouraged to talk about it with others and subsequently to seek professional help.[8]

Here, a circumstantial question may arise that even after these measures by the State, if a person still wants to end his/her life, whether the State can stop him/her to commit suicide? Since the culpability attached to the crime of attempt of suicide has been diluted by the Act [if done under severe stress], therefore by applying legal principle nulla poena sine lege[9], can one conclude that committing suicide under severe stress is not punishable at all or is there still a need for any provision which specifically gives this right to die?

The Indian judiciary faced this question for the first time in 1987 and the High Court of Bombay held that ‘right to life’[10] includes ‘right to die’ and struck down Section 309 as unconstitutional.[11] Further, in 1994, a Division Bench of the Supreme Court upheld the same.[12] However, in 1996, a five-judge Constitutional Bench of the Supreme Court in Gian Kaur v. State of Punjab, [13] overruled these decisions and held that ‘right to die’ cannot be granted because it is inherently inconsistent with Article 21 in which word ‘life’ means life with human dignity and suicide is an undignified act.

The implication of the word ‘dignity’ is subjective to every person, for example, how the law defines dignity for a person for whom dignity lies in non-continuance of his miserable and painful life full of sufferings not merely physical but mental also. Who can decide the moral status of ‘suicide’ for such a person, is it good or bad for him?

Though the apex court has allowed passive euthanasia in its recent landmark judgment,[14] yet it only accepted irrecoverable physical illness as a ground for the right to die and did not address issues concerning mental illness or mere unwillingness to live.

Therefore, multiple complexities and uncertainties still ponder around the Act. What legal course the Act provides for a person who is under stress and even after getting all the medical care wants to die? If that person again attempts to suicide, can he again get the advantage of this Act? Can the State force him to continue his life and wait for his natural death or Yamraj[15] to take away his life? Also, the term ‘severe stress’ has not been defined in the Act and therefore, a question arises that what standards should the courts follow for judicial determination of ‘severe stress’. It becomes significant because the minimum magnitude of severeness may vary from person to person and thus, its determination becomes extremely subjective.

Nevertheless, there are grounds to appreciate this provision. The State has shown the true essence of it being a welfare state because it has exempted the people from criminal liability for its inability to provide health care to a person suffering from mental hardship. In addition, the acceptance of the fact that steps taken under severe stress cannot be termed as criminal depicts a progressive approach. Once this acceptance is legalised, the natural consequence is that if the State wishes to prosecute an individual under Section 309 IPC, it bears the burden of proof to prove that the person was not under severe stress when he attempted suicide. This furthers the principle that ‘one is innocent until proven guilty’.

Therefore, the current position of law is that one has to unconditionally wait for Yamraj unless the milieu injects severe stress to an individual that compels him to attempt suicide.

[1] Job 1:21, English Standard Version of the Bible.

[2] Clark’s Criminal Law 1, 1915.

[3] R. W. Withers, Status Of Suicide As A Crime 641, The Virginia Law Register, 19 (Jan. 1914).

[4] See Section 309, Indian Penal Code, 1860.

[5] The Mental Healthcare Act, 2017 – “115. (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. Special provisions for States in north-east and hill States. Presumption of severe stress in case of attempt to commit suicide.

(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.”

[6] Ibid.

[7] Navtej Singh Johar v. Union of India, Writ Petition (Criminal) No. 76 of 2016.

[8] Prakash B. Behere, T. S. Sathyanarayana Rao and Akshata N Mulmule, Decriminalization of attempted suicide law: Journey of Fifteen Decades 122-124, Indian Journal of Psychiatry, 57 (2015), Volume 57, http://www.indianjpsychiatry.org/article.asp?issn=0019-5545;year=2015;volume=57;issue=2;spage=122;epage=124;aulast=Behere.

[9] Latin maxim meaning: Everything which is not forbidden is allowed. No penalty without crime.

[10] Article 21, The Constitution of India.

[11] State of Maharashtra v. Maruti Sripati Dubal, AIR 1987 CrLJ 549.

[12] P Rathinam v. Union of India, (1994) SCC 394.

[13] Gian Kaur v. State of Punjab, (1996) SCC 648.

[14] Common Cause (A Regd. Society) v. Union of India and Ors., AIR 2018 SC 1665.

[15] Yamraj is considered the lord of death in the Hindu religion.

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