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Survivor Of Suicide Attempt: An Offender Or A Victim? A Study Into Suicide Law Of India

India has a population of about 138+ crore and out of which around 2,30,000 people die by suicide (as in year 2016). With 18 per cent of the world's population living in India, ‘addressing suicides in India is imperative to making a global difference in the burden of suicides. Before beginning with the law of Suicide in India, let us first understand what is Suicide.

What Is Suicide?

Suicide is not specifically defined in Indian Penal Code (IPC), but can be understood as an act of intentionally causing one's own death. An attempt to Suicide is an act done with the intention of causing ones own death, which however does not result in death. An attempt to suicide can be said as a failed attempt to suicide. It usually succeeds a suicide ideation.
Now the question comes that was is suicide ideation?

It is a thought of ending ones own life which may or may not result in an attempt to suicide. i.e. if proper counseling or medical support is not provided at the right time it may lead to a tragedy for that person as well as for his near and dear ones.

Data from World Health Organisation

As per the information from WHO, there are some points which need to be highlighted:

  1. More than 8,00,000 people die by suicide every year, of which around 1,35,000 people are residents of India that counts to around 17% of total death by suicide. (one person dies every 40 seconds)
  2. For every one death by suicide more than 20 people attempt to suicide.
  3. Suicide is the third leading cause of death in15-19 years old.
  4. Suicide Rates in women in India is 6th highest in the world.

According to the World Health Organization's report, India has the highest suicide rate in the South-East Asian region. In the last two decades, the suicide rate in India has increased from 7.9 to 10.3 per 100,000. The majority of suicides (37.8%) are by those below the age of 30 years. In India one student dies due to suicide every hour, which is very devastating. Among the states, Tamil Nadu have the highest suicide rate, followed by Maharashtra and West Bengal.

India's National Crime Records Bureau, in their report on suicides in 2015, tabled an analysis of identified causes of suicide according to the age group of the decedents. Dowry-related issues (8%), other marriage-related issues (7%), love affairs (6%) and family problems (32%) were thought to explain a majority of cases of suicide of females aged 18-29 yr, while illness other than mental illness was believed to account for the suicides of 25 per cent of both men and women aged 60 yr or more.

Married women account for the highest proportions of suicide deaths among women in India. Marriage is less protective against suicide for women than in many other countries because of arranged and early marriage, young motherhood, low social status, domestic violence and economic dependence. Among older persons, social isolation, depression, functional disability and the feeling of being a burden on their family have been cited as reasons for suicidal ideation. Age and gender clearly are factors that should be examined in relation to causation of suicide.

Law In India
English poet William Henly wrote: I am the master of my fate. I am the Captain of my soul. How far does it apply?
Now, first of all let us understand the bare provisions relating to Suicide in India. Under the Indian Penal Code, sec- 305, 306, and 309 deals with abetment and attempt to suicide.

Section 305

U/s 305, punishment for abetting the suicide of a child or an insane person is given, which reads as follows:
If any person under eighteen years of age, any insane person, any delirious person, any idiot or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine.

Classification of offence:

This offence is cognizable, non-bailable, non-compoundable offence. It is triable by Court of session.

Section 306

u/s 306, punishment for abetting suicide is given, which reads as follows:
if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description of term, which may extend to ten years, and shall also be liable to fine.

Classification of offence- this offence is cognizable, non-bailable, non-compoundable offence which is triable by court of session.

In Archana Dubey v/s State of Madhya Pradesh, the deceased Bhaskar Pandey committed suicide by taking some pesticides. Before dying, the deceased told his friend that he took the pesticide because of Archana Dubey and his father. Archana had a love affair with the deceased.

Later, Archana and his father forced the deceased to marry Archana. They also threatened him that they will file some false complaint against the deceased. Under this pressure, the deceased committed suicide and died. The court held that the petitioner did not had the intention of causing the deceased to commit suicide, the deceased did so because of his supersensitive behaviour.

As per section 107 of IPC:

Abetment

involves a mental process of instigating a person or intentionally aiding a person in doing of a thing-Without a positive act on part of accused to instigate or aid in committing suicide, conviction cannot be sustained.

Further In order to convict a person under Section 306, there has to be a clear mens rea to commit offence It also requires an active act or direct act which leads deceased to commit suicide seeing no option and this act must have been intended to push deceased into such a position that he commits suicide. The petitioners neither had the mens rea nor the actus reas and hence their conviction was held unsustainable.

Section 309

U/s 309 of IPC, punishment for an attempt to commit suicide is given . Suicide is the only offence, for completion of which, no punishment can be prescribed. Sec 309 says as follows-
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.

This section is one of the most deliberated sections of IPC.
In P. Rathinam v/s Union of India, petitioners had filed petitions challenging the constitutional validity of Section 309 of the Indian Penal Code. The court held that SECTION 309 of the 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 of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State's interference with the personal liberty of the concerned persons is not called for.

The Supreme Court drew a parallel between the other fundamental rights and observed that 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 to not live. The right to life includes the right to die with dignity. Section 309 was seen in violation of fundamental right given in Article 21. Thus, the SC held that section 309 violates Article 21, and so, it is void.

Gian kaur V/s State of Punjab:

The decision of Rathinam v/s Union of India was ruled out in the case of Gian Kaur V/s State of Punjab. Gian Kaur and her husband Harbans Singh were convicted by a Trial Court under Section 306 of the Indian Penal Code. They were sentenced to six years imprisonment and fine of Rs. 2,000/- for abetting the suicide of Ms. Kulwant Kaur. Section 306 punishes anyone who abets the commission of suicide, while Section 309 punishes anyone who attempts to commit suicide.

It was argued that, as held in P. Rathinam v. Union of India, the Article 21 right to life includes the right to die. So, a person abetting suicide is merely assisting in the enforcement of Article 21. A five-judge bench of the Supreme Court overruled P. Rathinam.

The court over-ruled its earlier ruling and held that Right to life is a fundamental right and waiver of fundamental right is not allowed. There is a difference between dying with dignity (naturally) and dying by self harm (unnaturally). Right to life does not include right to die. Hence sec 309 of IPC was held valid.
Apart from this, to apply Section 309 the intention to die must also be clear.

In Emperor versus Dwaaraka Poonja, Mr. Poonja had jumped into a well to evade arrest by the police and not with an intention to die. Hence, he was not charged under Section 309. Thus, if a person takes an overdose of poison by mistake or in a state of intoxication, or jumps into a well to evade capture by the pursuers, he/she would not be guilty under this section.

Path To A Change
Mental Healthcare Bill 2013 was introduced in the Rajya Sabha by Gulam Nazi Azad in the year 2013, which was passed by the parliament on 7th April 2017 and came into force on 7th July 2018 as Mental Healthcare Act, 2017. It is an Act to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfill the rights of such persons during delivery of mental healthcare and services and for matters connected therewith or incidental thereto. This Act superseded the previously existing Mental Health Act, 1987 that was passed on 22 May 1987.

Section 115 of the Mental Healthcare Act, 2017 stands in contrast with section 309 of IPC

For example:
A girl named Y got raped by her neighbour. She is extremely frightened and in pain. She is in agony i.e. facing extreme mental and physical sufferings. She finally lands into a dilemma and commits suicide but fails in her attempt. Now, is punishing her under section 309 justified ? There are many cases apart from this, in which the person cannot be punished for his attempt but what happens in such cases?

Section 309 of IPC, which deals with those who attempt to die by suicide, was not only unsatisfactory but also discriminatory. It was inserted in the Code in order to prevent suicides. The main aim of adding such a section was to create a deterrent effect.

However, it converted into a monstrous act that inflicted further suffering on the person who had already found the life so painful and unbearable and the chances of happiness so slender that the person decided to embrace death to end the life. If such a person failed in the attempt to die, inflicting torture and degradation by punishment would be unreasonable and unjust. In fact, such persons deserve compassionate and sympathetic treatment.

Attempt to die by suicide is discussed in Section 115 of MHCA 2017.

Section 115 of MHCA, 2017 states that:

Notwithstanding anything contained in Section 309 of the IPC, any person who attempts to die by suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.

Here, the words mental illness, which were used in a previous draft of the MHCA in 2013, were replaced by severe stress, in 2016, by the Indian Parliament in MHCA 2017 after a lot of deliberations.

The main crux of these deliberations was:

Stigma associated with the word mental illness for every person who dies by suicide or attempts to die by suicide and The existence of various sections of IPC such as Section 306 (abetment of death by suicide) which states:
If any person dies by suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine, and Section 116 (abetment of an offence punishable with imprisonment if the offense is not committed).

Hence, considering the stigma and abetment laws associated with attempted suicide, the words mental illness were changed to severe stress. However, it is still important to recognize the need for mental health interventions in persons who attempt to die by suicide.

This section of the Mental Healthcare Act treats suicide as a medical issue. It shows sympathy towards the victims of suicide. According to the Section 115 of Mental Healthcare Act (MHCA), 2017, suicide attempters are presumed to have severe stress, not to be punished and the government should have duty to provide care, treatment, and rehabilitation to reduce the risk of recurrence.

Further SUICIDE, is a psychiatric problem and not a manifestation of criminal instinct. what is needed to take care of suicide-prone persons are soft words and wise counselling (of a psychiatrist), and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor. State governments are required to provide adequate care and rehabilitation for such individuals as to prevent a recurrence of an attempt to suicide.

However, that does not absolve anyone from abetting an attempt to die by suicide. That is to say if anyone abets any person to die by suicide, he will definitely be punished as per section 305 and 306 of IPC.

In State v. Sanjay Kumar Bhatia, the Division Bench of the Honorable High Court of Delhi observed The continuance of Section 309 IPC is an anachronism unworthy of a human society like ours. The provision like Section 309 IPC which has no justification has no right to continue to remain on the statute book.

How Far Does It Affect Section 309 Of IPC?
The Mental Health Care Act does not repeal Section 309 of the Indian Penal Code, but merely provides the presumption of mental illness. The words notwithstanding anything contained in section 309 of Indain Penal Code immunizes section 309 of IPC from section 115 of MHCA,2017.

Section 115 gives a presumption that anyone who commits suicide is suffering from mental stress. It limits the scope of application of section 309 of IPC. The words unless proved otherwise gives way for police investigations. However Section 115 of Mental Healthcare Act, 2017 and Section 309 of Indian Penal Code, 1860 continue to stand in contrast.

Suicide Legislation in other Nations

Australia

In the Australian state of Victoria, while suicide itself is no longer a crime, a survivor of a suicide pact can be charged with manslaughter. Also, it is a crime to counsel, incite, or aid and abet another in attempting to suicide, and the law explicitly allows any person to use "such force as may reasonably be necessary" to prevent another from dying by suicide.

United States

Historically, various states listed the act of suicide as a felony, but these policies were sparsely enforced. In the late 1960s, 18 U.S. states had no laws against suicide. By the late 1980s, 30 of the 50 states had no laws against suicide or suicide attempts, but every state had laws declaring it to be a felony to aid, advise, or encourage another person to commit suicide.[148]

By the early 1990s only two states still listed suicide as a crime, and these have since removed that classification. In some U.S. states, suicide is still considered an unwritten "common law crime," as stated in Blackstone's Commentaries.

Canada

The common law crimes of attempting suicide and of assisting suicide were codified in Canada when Parliament enacted the Criminal Code in 1892. It carried a maximum penalty of 2 years' imprisonment. Eighty years later, in 1972, Parliament repealed the offence of attempting suicide from the Criminal Code based on the argument that a legal deterrent was unnecessary.

The prohibition on assisting suicide remained, as s 241 of the Criminal Code:

Counselling or aiding suicide
241. Every one who
  1. counsels a person to commit suicide, or
  2. aids or abets a person to commit suicide,

whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Ireland

Attempted suicide is not a criminal offence in Ireland and, under Irish law, self-harm is not generally seen as a form of attempted suicide. It was decriminalised in 1993.

New Zealand

As with many other western societies, New Zealand currently has no laws against suicide in itself, as a personal and unassisted act. However, as with comparable societies, there are still legislative sanctions against 'assisting or abetting' the suicides of others, under Section 179 of the Crimes Act 1961.

Conclusion
India is a country with regional, religious, social, and linguistic diversity. A country of different people from different backgrounds but they all have one thing in common, a heart full of emotions. This can be a reason for an increased suicide rates in India. Attempt to suicide is not a offence in many countries but in India, it is still punishable although its scope have been narrowed after the Mental Healthcare Act, 2017.

A person who attempt to suicide need proper counseling and psychiatric treatment. The schools and colleges should also provide such counseling to depressed students so that they can tackle with their exam stress and other problems as well.

Parents must be very friendly to their children so that they can share their problems openly with them . We need to understand that a person who is in dilemma need love, care and affection rather than penal proceedings. They should be sent to rehabilitation centres and must be encouraged to give life a second chance. Always remember, Suicide is a permanent solution to a temporary problem.

End Notes:
  1. 2018 (1) MPWN 305
  2. 1994 AIR 1844
  3. 1996 AIR 946
  4. (1912) 14 BOMLR 146
  5. 1986 (10) DRJ 31
  6. Practical implications of Mental Healthcare Act 2017: Suicide and Suicide attempt by Laxmi Naresh Vadlamani and Mahesh Gowda

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