Whether Section 309 of IPC is violative of Article 21 of Constitution?
Section 309 of IPC lays down the provisions relating to 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 (Sec.309)”
There had been great controversy as to the constitutional validity of Sec.309 I.P.C. by virtue of decisions of High Courts and Supreme Court. The Andhra Pradesh High Court in Chenna Jagadeeshwar Vs. State of A.P. (AIR 1988) held that Section 309 IPC is constitutionally valid. In this case, the accused a doctor attempted to commit suicide alongwith his wife after killing his 4 children. He was convicted for murder (under S.302) and attempt to suicide under S.309.
Later, Division Bench of Supreme Court in P. Rathinam V. Union of India (1994 Cr.LJ 1605) held that a person has ‘Right to die’ therefore Section 309 of the Indian Penal code is unconstitutional and violative of Article 21 of the Constitution. But later a 5 Judge Bench (Constitution Bench) of the Supreme Court in Gian Kaur vs. State of Punjab (1996) 2 SCC 649 upheld the constitutional validity of Section 309 of IPC and overruled the ratio of P. Rathinam’s case.
Mr. Justice J.S. Verma delivering the unanimous judgment held that, ‘Right to life’ Is a natural right embodied in Article 21 but suicide is an unnatural termination of life and incompatible and inconsistent with the concept of ‘Right to life’. In 1971, the Law Commission of India recommended to remove Section 309 from the Indian Penal Code. The Bill was introduced in Parliament for removal of Section 309 from IPC. However the Bill was not passed keeping the peculiar circumstances of India in view.
Analysis:
Right to life as enshrined in Constitution of India under Article 21 primarily means Right not to end life. Right to life is a gift of nature unlike other Constitutional and Fundamental rights which are Civil rights. Right to life is neither claimed nor remembered in daily routine because it is part and parcel of our existence. Only when there are circumstances that unduly or unfavorably influence the individual’s right to life, the importance of Right to Life comes to play to mitigate the unfavourable circumstances, which may be life threatening. That is why Right to Life is primarily a right that is pressed into service to mitigate circumstances that are life-threatening and that cause peril to life of a human being forcing him towards death. In this view of the matter, Right to Life cannot be viewed as an affirmative right.
It is a negative right aimed to negative those factors that force a human being towards death which is unnatural. Premature death is always unnatural. When there is possibility to live, the natural tendency of a human being is to live. Death is unnatural because it is an option chosen by a mind that forces itself and convinces about the comfort given by the consequence of death though death is painful. The act of reconciling with the idea of death is drawn by application of force to do something that the human being does not naturally tend to do. That is why Life and Death are two diametrically opposite factors and one wanting to end life cannot be treated as a Right.
When we say that Right to Life is a negative right and it is aimed at mitigating those circumstances that force a human being to die, that in itself conveys that it does not include the Right to Die, because in saying that a human being has a Right to life, the Constitution conveys a message to human being that “there is no need to end life, you have a right to Life”. Hence the State and Society have a responsibility to mitigate all those circumstances that endanger the life of a human being including the factors that force him to think of a suicide. That is why it is not an individual choice to make within four walls of a room without negotiating it with State and Society. Right to die cannot be left to an individual’s choice because the State and Society’s duty to mitigate the life-threatening circumstances and duty to know and negotiate with the individual making choice of suicide is mandated by Constitution in the form of Article 21. One’s Right to life and death are not the concern of the individual alone, the concern of people related, society and state is also involved in it. That is why a Habeas Corpus petition can be filed even by third parties.
However the idea of relating Section 309 of IPC with Article 21 of Constitution is not comfortable idea. How far Section 309 of IPC is relatable to Article 21 is a moot point. Indian Penal Code was drafted by Lord Macaulay much before Constitution of India was drafted. Constitution defines the relationship between State and its Citizens in Part III. In view of the foregoing discussion one can understand one’s right to life is guaranteed by Constitution more to curtail State’s Authoritarianism over a Citizen than to encourage citizens to fight for Right to Life. As such it is not a social right to fight for – enmasse.
Hence it imposes a mandate on the State in the nature of a Directive principle to strive to mitigate those circumstances that lead to cause the death of a Citizen and it is in this context of those mitigating circumstances the Right to Life is guaranteed. However those mitigating circumstances cannot be in the form of punishment. In view of this, the logic leading to relationship between Section 309 of IPC and Article 21 of Constitution appears paradoxical.
Article 21 is a claim of Citizen against the State. Section 309 is claim of State against undesirable act of a Citizen. There is no plausible linkage between these two claims. It is called an undesirable act rather than a crime because a crime has a bearing on the rights of others not on the rights of self. Can an act that does not infringe on the rights of others be construed a crime?- is a better moot point to discuss to keep Section 309 in IPC or not, rather than relating Section 309 of IPC to Article 21 of Constitution. Whose rights he had offended to call it an Offence? And if it is to be treated an offence, can an offender’s dying declaration be taken as evidence to punish others?
It is a settled legal principle that there is no right without a remedy. When the Court rules that there is no there is a Right to die, it goes without saying that it is a right without a remedy, because the choice is mandated to be exercised in isolation. It closes the windows of negotiation with world. Such a sweeping right without a remedy cannot be placed in the disposal of a citizen. In the same vein, when the Courts rule that there is no right to die and hence Section 309 of IPC is legal - as it involves punishment, it means to convey that the State has a right over the Life of a citizen and no obligation to mitigate circumstances leading to his death other than aggravating them by adding one more stigma to already burdened soul by accusing/proving him a criminal. If the State has no right over the life of a citizen it cannot be a prosecution’s case and no punishment would be imposed. But the Constitutional mandate for the State is only to guarantee the Right to life of its Citizens not to exercise control over it by force or legal authoritarianism.
Part III of Constitution gives rights to citizens against the State, it does not give Right to State against Citizens. Whenever State exercized right over the fundamental rights of citizens through the Penal Code or other penal provisions they have flown from the ‘reasonable restrictions imposed on fundamental rights’. Article 21 do not have any reasonable restrictions it is an absolute right guaranteed without any restrictions. That is why it is not correct to take shelter under Article 21 to perpetuate Section 309 of IPC.
Hence there is nothing Constitutional about State pursuing Rights against Citizens claiming that Section 309 is not ultravires Article 21 of the Constitution. Every right creates a corresponding duty on the person/(state in the case of Fundamental rights) that infringes on that right. Hence the State only has a duty towards the life of its citizens not a Right, in so far as Article 21 is concerned. And that duty envisaged under Article 21 of Constitution is to protect not to punish.
