The Indian Penal Code 1860 (hereinafter referred as The Code) has been in
effect for over a century now, because of which there is need to re-consider
some its provisions which might be considered draconian due to change in times,
one of such provision is Section 309 which provides for punishment for Attempt
to commit suicide. This section was introduced so that it can have a deterrent
effect over people with respect to committing of suicide.
According to National Crime Record Bureau Report the Family Problems
and 'Illness' were the major causes of suicides which accounted for 32.4% and
17.1% of total suicides respectively during 2019. Drug Abuse/ Addiction
(5.6%), Marriage Related Issues
(5.5%), 'Love Affairs' (4.5%),
Bankruptcy or Indebtedness
(4.2%), 'Failure in Examination' and
'Unemployment' (2.0% each), Professional/Career Problem
(1.1%) were other causes of suicides.
This is adequate to show that most of the suicides are due mental stress caused
due to some or the other circumstances, and punishing person who attempted to
commit suicide due to mental stress will cause him to be punished thrice, once
due to the result of the circumstances, second time due to ignominy resulting
out of failed attempt at suicide and third time due to law.
Naturally Sec. 309 of the code has been challenged before the Courts on numerous
occasions and paved way for debate of euthanasia, i.e. whether it should be
allowed or not. In the following cases, there is an attempt to trace the trail
the development from right to die to right to die with dignity.
Maruti Shripati Dubal v. State of Maharashtra In the present case vires of sec 309 of The Code was in question on basis of
being violating Art. 14 and 21 of the Indian Constitution (hereinafter
referred as The Constitution), when a police constable attempted to commit
suicide because there was delay in processing of a license application of
his life after suffering from schizophrenia for almost 5 years. The Bombay
High Court held that the section is violative of Art. 14 of the constitution
as it does not defines suicide hence failing to differentiate between
felonous and non-felonous ones and treating all the attempts to suicide same
without regard to the circumstances in which they were made.
Also it is violative of Art. 21 as Art. 19 of the constitution which
encompasses itself right to form association as well right not to join any
association or right not move similarly right to life and liberty includes
right not to live or terminate the life. The court said there termination of
life naturally is not to be confused with unnatural end of life. The court
also differentiated between suicide and mercy killing, where former amounts
to termination of one's own life and latter is euthanasia or killing with
physician intervention which is also not allowed as it is homicide.
P. Rathinam v. UOI In this case the constitutional validity of Sec 309 of the code was
challenged before the Apex Court. And the court pronounced that this section
should be effaced to humanize the penal laws as it punishes the person
twice, first as a result of agony leading him to commit suicide and shame
related to failure to commit it and second due to punishment under The Code.
The court said that the act of attempted suicide can't be said to be against
the religion, morality or public policy as it has no baneful effect to
society or causes harm to the others. The state's interference with personal
liberty is not called for as Art. 19(1)(a) of the constitution encompasses
in itself not to speak similarly Art. 21 of the constitution includes right
not to live as well.
Gian Kaur v. State of Punjab In the present case the appellant and her husband were found guilty of the
offence of abetment to suicide but they contented on basis of P. Rathinam
case that abetment to suicide is merely helping the other person enforce
the right enshrined under Art. 21 of the constitution, i.e. right to die.
The court in this case overruled all the previous judgments upholding right
to die, and said that right to life is a fundamental right and cannot be
waived off. The court differentiated between right to die with dignity at
the end of life (i.e. naturally) from right to die an unnatural death thus
curtailing the natural span of life. At the same time the court opined that
in situation of terminal illness or Persistent Vegetative State (PVS), the
process of death has already commenced and executing physician-assisted
termination of life may fall within the ambit of right to die with dignity
at the end of natural life as it amounts to accelerating the conclusion of
life rather than the extinguishing it. Though the court did not gave a final
view on the aspect of euthanasia (active or passive) in this case, iterating
that the debate on this inconclusive.
Aruna Ramachandra Shanbaug v. UOI & ors In this case a petition was filed by an activist that Ms. Aruna, who has
been in PVS for last 37 years, be subjected to passive euthanasia by denying
her food and water, her only form of life support. In this case the court
defined certain necessary terms which are as follows, Euthanasia is of two
types: active and passive. Active euthanasia entails the use of lethal
substances or forces to kill a person e.g. a lethal injection given to a
person with terminal cancer who is in terrible agony. Passive euthanasia
entails withholding of medical treatment for continuance of life e.g.
withholding of antibiotics where without giving it a patient is likely to
die, or removing the heart-lung machine, from a patient in coma. A further
categorisation of euthanasia is between voluntary euthanasia and
non-voluntary euthanasia. Voluntary euthanasia is where the consent is taken
from the patient, whereas non-voluntary euthanasia is where the consent is
unavailable e.g. when the patient is in coma, or is otherwise unable to give
The present case required passive non-voluntary euthanasia but the court
decided on basis of report of medical team that executing euthanasia would
be unjustified as Ms. Aruna as she can breathe without support machine and
has feelings and responds to necessary stimulus though she is in PVS.
Moreover removing life-saving technique such as not feeding is not same as
removing of ventilator and if in future there will be need the staff of King
Edward Memorial Hospital (Mumbai) can approach the High Court.
Though the court said that passive euthanasia can be executed in certain
cases following the procedure as laid down by the court in this case, to be
followed country-wide until the parliament comes up with the legislation to
this effect. The procedure laid down is as follows: in cases of a person
being brain dead or so terminally ill that he/she can't be ever be come back
from that stage then then close relatives/friends/medical staff of the
hospital can apply to High Court under Art. 226 of the constitution for
withdrawal of life support. On filing of application, the Chief Justice of
High court should constitute a bench of at least 2 judges to accept or
Before taking the decision, the bench should consult committee of 3 reputed
doctors (to be nominated by bench after consulting such medical authorities
or practitioners as it may deem fit) one of whom shall be psychiatrist,
which shall examine the patient and attending record and thereafter submit
its report to the bench. The bench, simultaneously with appointing
committee, should issue notice to the state and close relative/next friend
and supply the copy of report of committee, thereafter the bench should give
The court also recommended repealing of sec 309 of the code.
Common Cause v. UOI In this case the court held that Right to die with dignity is a part of
right to life with dignity when death due to termination of natural life is
inevitable and imminent and the process of natural death has commenced
as there is little doubt that terminally ill or in PVS will be able to take
decision of early extinction of life on basis of privacy-autonomy-dignity
dichotomy as interpreted in Justice K.S. Puttaswamy (Retd.) & Anr. v.
The court also upheld the right of a person, who is able to consent, to
issue Advance Directives and attorney authorizations (or 'living will' is a
legal document in which it is specified an individual's health care
decisions and identify persons who will take those decisions for the said
individual in the event he is unable to communicate his wishes to the
According to the court a person is competent to issue advance directives if
the person is an adult, is of sound mind and has complete understanding of
directives. The directives are valid if they are voluntary, free from any
coercion or undue influence and specifies the name as to who is authorized
agent and responsible for medical decision in case executioner becomes
incapable or incompetent.
Advance directives can be executed in 3 cases: when a person is suffering from a
terminal condition; when a person is in a persistently unconscious condition;
and when the person is suffering from an end-stage condition.
The following procedure is laid down for execution of the advance directives:
- The executor is required to sign the advance directive in presence of
two, preferably independent, attesting witnesses.
- The advance directive shall then be countersigned by the jurisdictional
Judicial Magistrate of First Class (hereinafter referred to as the JMFC).
- The jurisdictional JMFC and both the witnesses shall then
record their satisfaction regarding the fact of voluntary execution and absence
of any form of coercion or inducement or compulsion and that the document was
executed with complete understanding of all the relevant information and
- There shall be multiple copies of the advance directive including a
digital copy and each of the hardcopy of the document will be kept in
custody of JMFC, the registry of the jurisdictional District Court and with
the competent officer of the local Government or the Municipal Corporation or
Municipality or Panchayat for being preserved. v. Additionally, the JMFC shall
also have the immediate family members of the executor informed regarding the
advance directive and a copy will also be entrusted to the family physician.
After the above requirements have been complied with, the advance directive will
be said to have been duly executed. It is pertinent to note that the same
procedure is required to be followed in case of revocation of the advance
After the advance directive is properly executed, a situation may arise wherein
the enforcement of the advance directive in needed.
In such a situation the Supreme Court laid down the following guidelines for execution:
- The treating physician shall ascertain the genuineness and authenticity
of the advance directive with the jurisdictional JMFC.
- The physician shall thereafter apprise the guardian/ close relative or
the executor, depending on the circumstances, about the nature and gravity
of illness, forms of treatment available and the consequences of not seeking
medical treatment, among other things. The doctor has an additional
responsibility of ensuring that on reasonable grounds he believes that the
executor or the guardian as the case may be fully understands the
information provided and has deliberated over the various options that were
provided and has come to a well-founded opinion that all of the options,
withdrawal or refusal of medical treatment remains the best option.
- After a decision regarding withdrawal or refusal of treatment has been
made by the patient or his guardian, a Medical Board will be assembled by
the hospital comprising of the Head of the treating Department and three
other experts from particular specialities. All these experts should
mandatorily have experience in critical care and experience of at least twenty
years. The board shall visit the patient while his guardian/close relative are
also present and thereupon deliberate on whether to certify or not to certify
enforcement of withdrawal or refusal of further medical treatment. This decision
of the Board shall be referred to as a preliminary opinion.
- After the preliminary opinion, the jurisdictional Collector shall be
informed regarding the proposal of withdrawing of treatment. The collector
thereafter will constitute another Medical Board comprising the Chief
District Medical Officer of the district as the Chairman and three other
expert doctors from the specialities specified in the judgement with practice of over
20 years. The doctors of this board should not have been members of the Medical
Board assembled by the hospital. This medical board constituted under the
supervision of the jurisdictional collector shall then, depending on their
opinion endorse the certificate to carry out the directions given in the living
- Before effectuating the advance directive, the Chairman of the Medical
Board formulated by the Collector shall have to mandatorily
communicate the decision to the jurisdictional JMFC. Thereafter, the JMFC then
shall also visit the patient and examine all relevant aspects, and after being
satisfied he may authorise the implementation of the decision.
In cases where there is no advance directive, the hospital medical board shall
discuss with the family physician and the family members and record the minutes
of the discussion in writing. During the discussion, the family members shall be
apprised of the pros and cons of withdrawal or refusal of further medical
treatment to the patient and if they give consent in writing, then the Hospital
Medical Board may certify the course of action to be taken.
In case where the hospital medical board takes a decision not to follow an
advance directive while treating a person, then it shall make an application to
the medical board constituted by the jurisdictional collector for consideration
and appropriate action on the advance directive.
Further, if permission to withdraw medical treatment is refused by the Medical
Board constituted by the jurisdictional collector, it would be open to the
executor of the Advance Directive or his family members or even the treating
doctor or the hospital staff to approach the High Court by way of writ petition
under Article 226 of the Constitution.
The Common Cause judgement in my opinion marks a significant steps to enhance
the quality of life so that the person not only live with dignity but also die
with dignity instead of being on life support devices when suffering from
terminally ill and incurable disease which are only going to prolong his/her
agony along with that of person's family.
Though according to me, the procedure laid down for execution and implementation
of Advance Directives or Living Will is too tedious and time consuming
especially of implementation considering the position in which the executor will
be, the same should be streamlined so that directives could be implemented more
smoothly, not adding to the pain of family/friends of the person as well
ensuring no foul play on part of family for property or wealth of the dying
person (the main concern because of which the whole bureaucratic procedure has
been introduced by the court so that the close relatives, after bribing doctors,
don't leave the patient to die even when he/she can be saved) .
- NCRB, Accidental Deaths and Suicides in India 2019 200 (Ministry of Home
- (1986) 88 Bom LR 589
- JT 1994 (3) SC 392
- (1996) 2 SCC 648
- Supra note 3
- (2011) 4 SCC 454
- 1 (2018) 5 SCC 1
- AIR 2017 SC 4161