Comment on Rathinam v. Union of India
by Dr. K.N. Chandrasekharan Pillai*
Cite as : (1995) 3 SCC (Jour) 1
The central question that was addressed and answered, though inadequately, in Rathinam v. Union of India1 was whether the offence of attempt to commit suicide under Section 309 IPC should be retained or abolished. The Court opted for its abolition and Section 309 is no more part of the IPC. In thus decriminalising attempt to commit suicide the Supreme Court had to trek many a difficult terrain of reasoning, some marshy, some slippery and some sandy making it sagging at several points. The purpose of this note is to examine whether deletion of Section 309 IPC executed by the Supreme Court is appropriate having regard to the fundamental principles of criminal law. In this examination it is also proposed to analyse the various arguments advanced by the Court.
At the outset itself it may be said to the credit of the Court that unlike its usual practice it has ventured to argue its points by a process of analysis of indigenous research. In fact the judgment is written as a dialogue between the Court and the writers on the subject. This process seems to have denied the Court an opportunity to weave out its thesis on the subject by resorting to original thinking. Had it ventured to give life to its judgment by breathing its own views into it, it would have been a coherent piece on a fundamental question in criminal law.
The scheme of the Court's inquiry and examination as indicated by it concentrates on the following:2
1. Why is a particular act treated as crime?
2. Which acts are treated as crime?
3. How can crime be prevented?
4. Why are suicides committed?
5. How can they be really prevented?
6. What type of persons have been committing suicides and what have been their motivations?
7. Looking at suicides in the light of the background of our social ethics.
All these inquiries have been made by the Court to find out the answer for the fundamental question as to why attempt to commit suicide should be a crime. Perhaps this could have been answered by prying open the basis of criminal responsibility and locating the underlying values. Instead, the Court has gone for a very detailed inquiry of disparate issues not directly connected with the subject leading to tenebrific discussions.
The Court seems to look upon attempt to commit suicide in the mould of an ordinary crime and searches for the essential ingredients of a crime in it. It is in this context that the Court inquires into the reasons for criminalisation and punishments for crimes. This kind of interrogation of Section 309 does not appear to be correct.
Ordinarily law makes no provisions for a situation which is considered instinctively natural for human beings. If some individuals create some situations, which usually human beings do not create, the society has a tendency to look down upon them as being uncommon or unnatural and this attitude is reflected in the laws. Whether those acts bring any particular harm or not the society shows its disapproval by declaring such acts as proscribed ones. This becomes evident when one examines the penal codes. No law prescribes the mode of sexual intercourse between man and woman. But it may make provision for dealing with unnatural offences not because they are injurious to the individual or others but because it is uncommon and hence disapproved by the society. At times even when it treats such acts as crimes it does not automatically provide for their enforcement by the State agencies; instead, the power for the enforcement is conferred on the affected individual(s). The offence of bigamy is in point. So long as it is not enforced by the affected party it does not have the nature of a crime (see Section 494 IPC). However, for the citizenry it serves a purpose - declaration that it is not socially approved and perhaps serves an educational purpose of norms-setting.
It is felt that attempt to commit suicide is a crime belonging to a genre that signifies societal disapproval of an act against sanctity of human life. Thus by declaring attempt to commit suicide a crime the Penal Code seems to uphold the dignity of human life. It also seems to signify the recognition of the urge for self-preservation of human beings. We have a strong feeling that there is an intrinsic value in human life, irrespective of whether it is valuable to the person concerned or indeed to anyone else. In such cases we cannot analyse the rationality of such feelings. In one form or another they form part of everyone's intrinsic values. No decision which ignores them can hope to be acceptable.
The fact that the dignity of the individual is an intrinsic value is shown by the fact that we feel it wrong when someone behaves in a way which we think is demeaning to himself, which does not show sufficient respect for himself as a human being. It is important in the area of criminal law which governs conduct that the society's notions of what is the law and what is right should coincide. This applies strongly in the cases of offences concerning life.
One of the grounds on which attempt to commit suicide is held to be no crime is the fact that it is for the individual to decide whether he should live or die. The Court has in this context found that an individual has a right to die. This right has arisen from the notion that while upholding the value of sanctity of human life law should emphasise the need for giving autonomy to the individual. A conflict between these two values may require a painful compromise. It is this compromise which is the function of law including the one on attempt to commit suicide. What the Supreme Court has done in this case is that it gave emphasis to the autonomy of the individual asserting in the process, however, that there was no question of attempt to commit suicide being against morality or public policy, the former being a variable concept and the latter being an ambiguous concept. (See discussions at SCC pp. 421 and 424)
The Supreme Court's judgment under comment argues that no moral value is protected by retaining Section 309. This view does not appear to be sound. Law presupposes a society of normal individuals with certain general instincts. Self-preservation is the most general instinct of human beings. In fact the urge to attempt to commit suicide runs counter to the instinctive urge of the normal individuals who constitute a majority in society. Those who attempt to commit suicide may be a minority. It is the instincts of majority segment of society that give rise to ethics and morality which lead to uniform norms. So attempt to commit suicide is against the generally accepted norm. Such general norms generally do not vary from society to society inasmuch as human life is the same in every society and every civilized society in the world may develop legal norms against breaches of uniform social norms. Viewed in this perspective individual autonomy can never be granted to the extent of permitting the individual to take away his life.3 This is because it is unnatural and so against the moral standpoints of normal individuals who constitute the society.
This argument has another dimension. According to the Court persons who attempt to commit suicide have psychological problems. It is against public policy that such persons should be permitted to exercise their autonomy to do whatever they like to do with their lives. The Court seems to give this right on the ground that those individuals make a choice to die. Whether they are in sound mental condition to take an independent decision on such a vital issue is a moot one. The Court's examples wherein according to it criminal proceedings should not be initiated, however, indicate that the accused are not in sound mental condition at the time of taking the decision to end their lives. (See discussions at SCC pp. 416-19, paras 72-74) Thus is not in the interest of the society and it is against public policy to allow some abnormal persons to end their lives because they are not competent to take such a decision. If they have taken such a decision they should face the society and receive the condemnation either in terms of punishment or treatment.
It is not correct to say that the individual has complete authority over his body and life. His spouse and children do have claims on his body and life. As stated above, even if the person is not interested to keep himself alive the society, because of its embedded love for sanctity of life, may have an interest in the body and life of the individual. In this view of the matter it is unfortunate that the Court finds social approbation of an unethical or immoral act such as the attempt to commit suicide.
The Supreme Court seems to have romantic ideas about suicide. For it speaks of communion with God (SCC p. 410) for a person after committing suicide. The judges seem to take help from the practice of suicide followed by some groups in India to show that the religion okayed it. To buttress its arguments the Court cited Acharya Vinobaji's death as suicide. It is unfortunate to say that Vinobaji committed suicide. In fact his was an acceptance of natural death by refusing to sustain his life by way of life-supporting medicines or food. It is this kind of death that seems to have been approved by Pope (SCC p. 420) also. It is also not correct to say that our customs look upon suicide with reverence. At least in some parts of India it is believed that commission of suicide being cutting short of one's life given to him by God the person who commits suicide shall not get moksha.4
The Court cites some examples in paras 72-74 and tries to answer them unsatisfactorily. In one case it asks whether persons who committed suicide at the time of death of M.G.R. in Tamil Nadu could be justifiably punished had they failed in their attempt. One can give an affirmative answer because they have tried to commit an act which was not liked by the society. To that extent they have the mens rea to commit an act not accepted as natural by the society.
The Court's ruling out the possibility of Section 306 becoming irrelevant in the light of the abolition of Section 309 is inappropriate. Indeed, self-killing is conceptually different from abetment of suicide as noted by the Court. But criminal law cannot be content with conceptual consistency alone. It has to be concerned with practical application of the concepts as well. This becomes clear in the context of Section 306 aptly. For example, suppose a victim of an accident who has lost his eyes is brought to the hospital. He expresses his wish to die and asks the doctor either to give him a lethal injection or to refrain from treating his infections. If the doctor acts either way, in the absence of the offence of attempt to commit suicide under Section 309, he cannot be proceeded against for the offence of abetment to commit suicide under Section 306 IPC.
The Court has spent a lot of time and energy to discuss certain issues such as the principles of legislation, the purpose of criminalisation of acts, prevention of crime etc. These discussions do not seem to have added strength to its discourse on abolition of the offence of attempt to commit suicide. (See SCC pp. 411-12, paras 37-44; pp. 413-15, paras 49-55; pp. 415-17, paras 56-61)
At present Section 309 IPC plays a role in unmasking the real reasons for attempt to commit suicide by a person. If the attemptor is not to be prosecuted it is likely that the affair may be hushed up. For example, take the case of a woman who as a result of torture by her husband attempted to commit suicide. If she is prosecuted under Section 309 it is likely that the facts about torture may be disclosed in the inquiry. If she is not to be prosecuted the husband may escape as the tendency may be to hush up the whole affair. Moreover, the Court may lose an opportunity to send her for psychiatric treatment/counselling which according to the Court should be the appropriate response to suicidal tendencies.
It is strongly felt that it should be possible for the society to treat attempt to commit suicide as an offence but yet to distinguish cases involving genuine difficulties for mitigation of punishment. The present Section 309 is conducive to follow this policy as it enables the Court to go for a very minor punishment in cases where the Court feels sympathy having regard to the circumstances of each case. In fact the Supreme Court in Radharani v. State of M.P.5 had released the person both under Sections 307 and 309 after admonition. If the Court so desires, under the provisions the person who attempted to commit suicide could be released on probation which may have a treatment content. Thus the Court's view of treating the persons could also be achieved if Section 309 is retained. It is therefore strongly felt that the decision in Rathinam should be reviewed and Section 309 IPC restored.
- P. Rathinam v. Union of India, (1994) 3 SCC 394.
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- Ibid. See discussions at p. 406. Indeed the Court listed out a detailed synopsis of its discourse at p. 407. But the central issues are to be found at p. 406.
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- See B.B. Pande: "Right to Life or Death? For Bharat both cannot be Right", (1994) 4 SCC 19 (Jour) wherein he examines the implications of accepting right to die. He argues that instead of recognising right to die, it could have been liberty to die so as to obviate reading of any positive obligation on the part of the State to enable its enforcement.
However, it is felt that no liberty to die could also be inferred as it is negation of the very existence of the individual and the State.
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- See also Chapter 40 of Yajurveda i.e. Esopanishad. It is stated that a person who kills himself may go to hell.
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- 1981 Supp SCC 84 : 1982 SCC (Cri) 470. See also Barkat v. Emperor, AIR 1934 Lah 514 wherein the court considered the pathetic situation of the accused under Section 309 and advised either to release him/her on probation or to impose a sentence of fine.Return to Text