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Case Summary
| Citation | Gian Kaur v. State of Punjab, 1996 |
| Keywords | |
| Facts | Gian Kaur and her husband Harbans Singh were convicted by the Trial Court under Section 306, IPC and each sentenced to six years rigorous imprisonment and fine of Rs. 2,000/-, or, in default, further rigorous imprisonment for nine months, for abetting the commission of suicide by Kulwant Kaur. On appeal to the High Court, the conviction of both has been maintained but the sentence of Gian Kaur alone has been reduced to rigorous imprisonment for three years. The first argument advanced to challenge the constitutional validity of Section 306 rests on the decision in P. Rathinam v. Union of India by a Bench of two learned Judges of this Court wherein Section 309 has been held to be unconstitutional as violative of article 21 of’ the Constitution. It is urged that right to die being included in Article 21 of the Constitution as held in P. Rathinam declaring Section 309 to be unconstitutional, any person abetting the commission of suicide by another is merely assisting in the enforcement of the fundamental right under article 21 and, therefore, section 306 penalizing assisted suicide is equally violative of Article 21. |
| Issues | Whether 306 of IPC is constitutionally valid? |
| Contentions | |
| Law Points | To give meaning and content to the word ‘life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself. The ‘right to die’, if any, is inherently inconsistent with the ‘right to life’ as is ‘death with life’. ‘Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of ‘right to life’. Article 21 is a provision guaranteeing “protection of life and personal liberty” and by no stretch of imagination can extinction of life be read to be included in the protection of life. In certain other jurisdictions, even though attempt to commit suicide is not a penal offence, yet the abettor is made punishable. The provision there, provides for the punishment of abetment of suicide as well as abetment of attempt to commit suicide. Thus, even where the punishment for attempt to commit suicide is not considered desirable, its abetment is made a penal offence. In other words, assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the interest of society. |
| Judgement | Supreme Court held that Section 306 and Section 309 both are constitutional, and they are not violating Article 21. P. Ratthinam Case was overruled by the Constitutional Bench. |
| Ratio Decidendi & Case Authority |
Full Case Details
J.S. VERMA, J. Leave granted in special leave peons.
2. The appellants Gian Kaur and her husband Harbans Singh were convicted by the Trial Court under Secon 306, Indian Penal Code, 1860 (for short “IPC”) and each sentenced to six years R.I. and fine of Rs. 2,000/-, or, in default, further R.I. for nine months, for abeng the commission of suicide by Kulwant Kaur. On appeal to the High Court, the convicon of both has been maintained but the sentence of Gian Kaur alone has been reduced to R.I. for three years. These appeals by special leave are against their convicon and sentence under Secon 306, IPC.
3. The convicon of the appellants has been assailed, inter alia, on the ground that Secon 306, IPC is unconstuonal. The first argument advanced to challenge the constuonal validity of Secon 306, IPC rests on the decision in P. Rathinam v. Union of India [(1994) 3 SCC 394] by a Bench of two learned Judges of this Court wherein Secon 309, IPC has been held to be unconstuonal as violave of Arcle 21 of’ the Constuon. It is urged that ‘right to die’ being included in Article 21 of the Constitution as held in P. Rathinam declaring Secon 309, IPC to be unconstuonal, any person abeng the commission of suicide by another is merely assisng in the enforcement of the fundamental right under Arcle 21; and, therefore, Secon 306. IPC penalising assisted suicide is equally violave of Arcle 21. This argument, it is urged, is alone sufficient to declare that Secon 306, IPC also is unconstuonal being violave of Arcle 21 of the Constuon.
4. One of the points directly raised is the inclusion of the `right to die’ within the ambit of Arcle 21 of the Constuon, to contend that any person assisng the enforcement of the `right to die’ is merely assisng in the enforcement of the fundamental right under Arcle 21 which cannot be penal; and Secon 306, IPC making that act punishable, therefore, violates Arcle 21. In view of this argument based on the decision in P. Rathinam, a reconsideraon of that decision is inescapable.
5. In view of the significance of this contenon involving a substanal queson of law as to the interpretaon of Arcle 21 relang to the constuonal validity of Secon 306, I.P.C. which requires reconsideraon of their decision in P.Rathinam, the Division Bench before which these appeals came up for hearing has referred the maer to a Constuon Bench for deciding the same. This is how the maer comes before the Constuon Bench.
6. In addion to the learned counsel for the pares the learned Aorney General of India who appeared in response to the noce, we also requested Shri Fali S. Nariman and Shri Soli J. Sorabjee, Senior Advocates to appear as amicus curiae in this maer. All the learned counsels appearing before us have rendered great assistance to enable us to decide this cklish and sensive issue.
7. We may now refer to the submissions of the several learned counsel who ably projected the different points of view.
8. Shri Ujagar Singh and Shri B.S. Malik appeared in these maers for the appellants to support the challenge to the constuonal validity of Secons 306 and 309, IPC. Both the learned counsels contended that Secon 306 as well as Secon 309 are unconstuonal. Both of them relied on the decision in P. Rathinam. However, Shri Ujagar Singh supported the conclusion in P. Rathinam of the constuonal invalidity of Secon 309, IPC only on the ground of violaon of Arcle 14 and not Arcle 21. Shri B.S. Malik contended that Secon 309 is violave of Arcles 14 and 21. He strongly relied on the ground based on Arcle 21 in P. Rathinam for holding Secon 309 to be invalid. He urged that “right to die” being included within the ambit of Arcle 21, assistance in commission of suicide cannot be an offence and, therefore, Secon 306 IPC also is violave of Arcle 21. He contended that Secon 306 is unconstuonal for this reason alone. Shri S.K. Gambhir appearing in one of the connected maers did not advance any addional argument.
9. The learned Aorney General contended that Secon 306 IPC constutes a disnct offence and can exist independently of Secon 309 IPC. The learned Aorney General did not support the decision in P. Rathinam and the construcon made of Arcle 21 therein to include the “right to die”. Shri F.S. Nariman submitted that Sections 306 and 309 constitute independent substanve offences and Secon 306 can exist independently of Secon 309. Shri Nariman then contended that the desirability of deleng Secon 309 from the IPC is different from saying that it is unconstuonal. He also submied that the debate on euthanasia is not relevant for deciding the queson of constuonal validity of Secon 309. He submied that Arcle 21 cannot be construed to include within it the so called ‘right to die’ since Arcle 21 guarantees protecon of life and liberty and not its exncon. He submied that Secon 309 does not violate even Arcle 14 since the provision of sentence therein gives ample discreon to apply that provision with compassion to an unfortunate vicm of circumstances aempng to commit suicide. Shri Nariman referred to the reported decisions to indicate that the enforcement of this provision by the courts has been with compassion to ensure that it is not harsh in operaon. Shri Nariman submied that the decision in P. Rathinam requires reconsideraon as it is incorrect. Shri Soli J. Sorabjee submied that Secon 306 can survive independently of Secon 309, IPC as it does not violate either Arcle 14 or Arcle 21. Shri Sorabjee did not support the construcon made of Arcle 21 in P. Rathinam to include therein the ‘right to die’ but he supported the conclusion that Secon 309 is unconstuonal on the ground that it violates Arcle 14 of the Constuon. Shri Sorabjee submied that it has been universally acknowledged that a provision to punish aempted suicide is monstrous and barbaric and, therefore, it must be held to be violave of Arcle 14 of the Constuon. Shri Sorabjee’s argument, therefore, is that Secon 306, IPC must be upheld as constuonal but Secon 309 should be held as unconstuonal, not as violave of Arcle 21 as held in P. Rathinam but being violave of Arcle 14 of the Constuon. He also sought assistance from Arcle 21 to support the argument based on Arcle 14.
10. At this stage, it would be appropriate to refer to the decisions wherein the queson of constuonal validity of Secon 309, IPC was considered.
11. Maru Shripa Dubal v. State of Maharashtra [(1987) Cri.L.J. 743] is the decision by a Division Bench of the Bombay High Court. In that decision, P.B.Sawant, J., as he then was, speaking for the Division Bench held that Secon 309 IPC is violave of Arcle 14 as well as Arcle 21 of the Constuon. The provision was held to be discriminatory in nature and also arbitrary so as to violate the equality guaranteed by Arcle 14. Arcle 21 was construed to include the ‘right to die’, or to terminate one’s own life. For this reason it was held to violate Arcle 21 also.
12. State v. Sanjay Kumar Bhaa [(1985) Cri.L.J. 931] is the decision of the Delhi High Court. Sachar, J., as he then was, speaking for the Division Bench said that the connuance of Secon 309 IPC is an anachronism unworthy of human society like ours. However, the queson of its constuonal validity with reference to any provision of the Constuon was not considered. Further consideraon of this decision is, therefore, not necessary.
13. Chenna Jagadeeswar v. State of Andhra Pradesh [1988 Cr.L.J.549] is the decision by a Division Bench of the Andhra Pradesh High Court. The challenge to the constuonal validity of Secon 309 IPC was rejected therein. The argument that Arcle 21 includes the ‘right to die’ was rejected. It was also pointed out by Amarethwari, J. speaking for the Division Bench that the Courts have sufficient power to see that unwarranted harsh treatment or prejudice is not meted out to those who need care and aenon. This negaved the suggested violaon of Arcle 14.
14. The only decision of this Court is P.Rathinam by a Bench of two learned Judges. Hansaria, J. speaking for the Division Bench rejected the challenge to the constuonal validity of Secon 309 based on Arcle 14 but upheld the challenge on the basis of Arcle 21 of the Constuon. The earlier decisions of the Bombay High Court and the Andhra Pradesh High Court were considered and agreement was expressed with the view taken by the Andhra Pradesh High Court as regards Secon 309 qua Arcle 14. The decision then proceeds to consider the challenge with reference to Arcle 21 of the Constuon. It was held that Arcle 21 has enough posive content in it so that it also includes the ‘right to die’ which inevitably leads to the right to commit suicide. Expressing agreement with the view of the Bombay High Court in respect of the content of Arcle 21, it was held as under: Keeping in view all-the above, we state that right to live of which Arcle 21 speaks of can be said to bring in its trail the right not to live a forced life.
The conclusion of the discussion was summarised as under: On the basis of what has been held and noted above, we state that Secon 309 of the Penal Code deserves to be effaced from the statute book to humanize our penal laws. It is a cruel and irraonal 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 aempted suicide has no baneful effect on society. Further, suicide or aempt to commit it causes no harm to others, because of which State’s interference with the personal liberty of the persons concerned is not called for. We, therefore, hold that Secon 309 violates Arcle 21, and so, it is void. May it be said that the view taken by us would advance not only the cause of humanizaon, which is a need of the day, but of globalizaon also, as by effacing Secon 309, we would be auning this part of our criminal law to the global wavelength. (Page 429)
15. At this stage it may be menoned that reference has been made in P.Rathinam and the Bombay High Court decision to the debate relang to euthanasia, the sociological and psychological factors contribung to suicidal tendencies and the global debate on the desirability of not punishing ‘aempt to commit suicide’. The absence of provisions to punish aempted suicide in several jurisdicons has also been noced. The desirability of aempted suicide not being made a penal offence and the recommendaon of the Law Commission to delete Secon 309 from the Indian Penal Code has also been adverted to. We may refer only to the recommendaon contained in the 42nd Report (1971) of the Law Commission of India which contains the gist of this logic and was made taking into account all these aspects. The relevant extract is, as under:
16. 31 Secon 309 penalizes an aempt to commit suicide. It may be menoned that suicide was regarded as permissible in some circumstances in ancient India. In the Chapter on “The hermit in the forest”, Manu’s Code (See: Laws of Manu, translated by George Buhler, Sacred Books of the East edited by F.Max Muller, (1967 Reprint) Vol.25, page 204,J Shlokas 31 ad 32) says –
‘31. Or let him walk, fully determined and going straight on, in a north-easterly direcon, subsisng on water and air, unl his body sinks to rest.
32. A Brahmana having got rid of his body by one of those modes (i.e. drowning, precipitang burning or starving) pracsed by the great sages, is exalted in the world of Brahamana, free from sorrow and fear.’ Two commentators of Manu, Govardhana and Kulluka (See Medhathi’s commentary on Manu), say that a man may undertake the mahaprasthana (great departure) on a journey which ends in death, when he is incurably diseased or meets with a great misfortune, and that, because it is taught in the Sastras, it is not opposed to the Vedic rules which forbid suicide (See : Laws of Manu, translated by George Buhler, Sacred Books of the East edited by F.Max Muller, (1967 Reprint) Vol.25, page 204, footnote 31). To this Max Muller adds a note as follows :- (See: Ibid) From the parallel passage of Apas tambha II, 23, 2, it is, however, evident that a voluntary death by starvaon was considered the befing conclusion of a hermit’s life. The anquity and general prevalence of the pracce may be inferred from the fact that the Jaina ascecs, too, consider it parcularly meritorious.
16.32 Looking at the offence of aempng to commit suicide, it has been observed by an English writer: (See: H.Romilly Fedden: Suicide (London, 1938), page 42).It seems a monstrous procedure to inflict further suffering on even a single individual who has already found life so unbearable, his chances of happiness so slender, that he has been willing to face pain and death in order to cease living. That those for whom life is altogether bier should be subjected to further bierness and degradaon seems perverse legislaon.A cng on the view that such persons deserve the acve sympathy of society and not condemnaon or punishment, the Brish Parliament enacted the Suicide Act in 1961 whereby aempt to commit suicide ceased to be an offence.
16.33 We included in our Quesonnaire the queson whether aempt to commit suicide should be punishable at all. Opinion was more or less equally divided. We are, however definitely of the view that the penal Provision is harsh and unjusfiable and it should be repealed.” (emphasis supplied)
16. A Bill was introduced in 1972 to amend the Indian Penal Code by deleng Secon 309. However, the Bill lapsed and no aempt has been made as yet to implement that recommendaon of the Law Commission.
17. The desirability of retaining Secon 309 in the statute is a different maer and non- sequitur in the context of constuonal validity of that provision which has to be tested with reference to some provision in the Constuon of India. Assuming for this purpose that it may be desirable to delete Secon 309 from the Indian Penal Code for the reasons which led to the recommendaon of the Law Commission and the formaon of that opinion by persons opposed to the connuance of such a provision, that cannot be a reason by itself to declare Secon 309 unconstuonal unless it is held to be violave of any specific provision in the Constuon. For this reason, challenge to the constuonal validity of Secon 309 has been made and is also required to be considered only with reference to Arcles 14 and 21 of the Constuon. We, therefore, proceed now to consider the queson of constuonal validity with reference to Arcles 14 and 21 of the Constuon. Any further reference to the global debate on the desirability of retaining a penal provision to punish aempted suicide is unnecessary for the purpose of this decision. Undue emphasis on that aspect and parcularly the reference to euthanasia cases tends to befog the real issue of the constuonality of the provision and the crux of the maer which is determinave of the issue.
18. In P. Rathinam it was held that the scope of Arcle 21includes the ‘right to die’. P. Rathinam held that Arcle 21 has also a posive content and is not merely negave in its reach. Reliance was placed on certain decisions to indicate the wide ambit of Arcle 21 wherein the term life’ does not mean ‘mere animal existence’ but right to live with human dignity’ embracing quality of life. Drawing analogy from the interpretaon of freedom of speech and expression’ to include freedom not to speak, freedom of associaon and movement’ to include the freedom not to join any associaon or to move anywhere, freedom of business’ to include freedom not to do business, it was held in P. Rathinam that logically it must follow that right to live would include right not to live, i.e., right to die or to terminate one’s life. Having concluded that Arcle 21 includes also the right to die, it was held that Secon 309. IPC was violave of Arcle 21. This is the only basis in P. Rathinam to hold that Secon 309, IPC is unconstuonal.
‘Right to die‘ – Is it included in Arcle 21?
19. The first question is: Whether, the scope of Article 21 also includes the ‘right to die’?
Article 21 is as under: Article 21
21. Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.”
20. A significant part of the judgment in P. Rathinam on this aspect is as under: If a person has a right to live, queson is whether he has right not to live. The Bombay High Court stated in paragraph 10 of its judgment that as all the fundamental rights are to be read together, as held in R.C. Cooper v. Union of India [(1970) 1 SCC 248] what is true of one fundamental right is also true of another fundamental right. It was then stated that is not, and cannot be, seriously disputed that fundamental rights have their posive as well as negave aspects. For example, freedom of speech and expression includes freedom not to speak. Similarly, the freedom of associaon and movement includes freedom not to join any associaon or move anywhere. So too, freedom of business includes freedom not to do business. It was, therefore, stated that logically it must follow that the right to live will include right not to live, i.e., right to die or to terminate one’s life.
Two of the above named and critics of the Bombay judgment have stated that the aforesaid analogy is “misplaced”, which could have arisen on account of superficial comparison between the freedoms, ignoring the inherent difference between one fundamental right and ,the other. It has been argued that the negative aspect of the right to live would mean the end or extinction of the positive aspect, and so, it is not the suspension as such of the right as is in the case of ‘silence’ or ‘non-association’ and ‘no movement’. It has also been stated that the right to life stands on different footing from other rights as all other rights are derivable from the right to live.
The aforesaid cricism is only parally correct inasmuch as though the negave aspect may not be inferable on the analogy of the rights conferred by different clauses of Arcle 19, one may refuse to live, if his life be not according to the person concerned worth living or if the richness and fullness of life were not to demand living further. One may rightly think that having achieved all worldly pleasures or happiness, he has; some thing to achieve beyond this life. This desire for communion with God may very rightly lead even a very healthy mind to think that he would forego his right to live and would rather choose not to live. In any case, a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking.Keeping in view all the above, we state that right to live of which Arcle 21 speaks of can be said to bring in its trail the right not to live a forced life.
In this context, reference may be made to what Alan A. Stone, while serving as Professor of Law and Psychiatry in Harvard University stated in his 1987 Jonas Robitscher Memorial Lecture in Law and Psychiatry, under the caption ‘The Right to Die: New Problems for Law and Medicine and Psychiatry’. (This lecture has been printed at pp.627 to 643 of Emory Law Journal, Vol.37, 1988). One of the basic theories of the lecture of Professor Stone was that right to die inevitably leads to the right to commit suicide.” (emphasis supplied) (Pages 409-410)
21. From the above extract, it is clear that in substance the reason for that view is, that if a person has a right to live, he also has a right not to live. The decisions relied on for taking that view relate to other fundamental rights which deal with different situaons and different kind of rights. In those cases the fundamental right is of a posive kind, for example, freedom of speech, freedom of associaon, freedom of movement, freedom of business etc. which were held to include the negave aspect of there being no compulsion to exercise that right by doing the guaranteed posive act. Those decisions merely held that the right to do an act includes also the right not to do an act in that manner. It does not flow from those decisions that if the right is for protecon from any intrusion thereof by others or in other words the right has the negave aspect of not being deprived by others of its connued exercise e.g. the right to life or personal liberty, then the converse posive act also flows there from to permit expressly its disconnuance or exncon by the holder of such right. In those decisions it is the negave aspect of the right that was invoked for which no posive or overt act was required to be done by implicaon. This difference in the nature of rights has to be borne in mind when making the comparison for the applicaon of this principle.
22. When a man commits suicide he has to undertake certain posive overt acts and the genesis of those acts cannot be traced to, or be included within the protecon of the ‘right to life’ under Arcle 21. The significant aspect of ‘sancty of life’ is also not to be overlooked. Arcle 21 is a provision guaranteeing protecon of life and personal liberty and by no stretch of imagination can extinction of life be read to be included in ‘protection of life’. Whatever may be the philosophy of perming a person to exnguish his life by comming suicide, we find it difficult to construe Arcle 21 to include within it the right to die as a part of the fundamental right guaranteed therein. ‘Right to life’ is a natural right embodied in Arcle 21 but suicide is an unnatural terminaon or exncon of life and, therefore, incompable and inconsistent with the concept of right to life. With respect and in all humility, we find no similarity in the nature of the other rights, such as the right to freedom of speech etc. to provide a comparable basis to hold that the ‘right to life’ also includes the ‘right to die’. With respect, the comparison is inapposite, for the reason indicated in the context of Arcle 21. The decisions relang to other fundamental rights wherein the absence of compulsion to exercise a right was held to be included within the exercise of that right, are not available to support the view taken in P. Rathinam qua Arcle 21.
23. To give meaning and content to the word ‘life’ in Arcle 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which exnguishes it and is, therefore, inconsistent with the connued existence of life resulting in effacing the right itself. The ‘right to die’, if any, is inherently inconsistent with the ‘right to life’ as is ‘death’ with ‘life’.
24. Protagonism of euthanasia on the view that existence in persistent vegetave state (PVS) is not a benefit to the paent of a terminal illness being unrelated to the principle of ‘sancty of life’ or the right to live with dignity’ is of no assistance to determine the scope of Article 21 for deciding whether the guarantee of ‘right to life’ therein includes the ‘right to die’. The right to life’ including the right to live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the ‘right to die’ with dignity at the end of life is not to be confused or equated with the right to die an unnatural death curtailing the natural span of life.
25. A queson may arise, in the context of a dying man, who is, terminally ill or in a persistent vegetave state that he may be permied to terminate it by a premature exncon of his life in those circumstances. This category of cases may fall within the ambit of the ‘right to die’ with dignity as a part of right to live with dignity, when death due to terminaon of natural life is certain and imminent and the process of natural death has commenced. These are not cases of exnguishing life but only of accelerang conclusion of the process of natural death which has already commenced. The debate even in such cases to permit physician assisted terminaon of life is inconclusive. It is sufficient to reiterate that the argument to support the view of perming terminaon of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Arcle 21 to include therein the right to curtail the natural span of life.
26. We are, therefore, unable to concur with the interpretaon of Arcle 21 made in P. Rathinam. The only reason for which Secon 309 is held to be violave of Arcle 21 in P. Rathinam does not withstand legal scruny. We are unable to hold that Secon 309 I.P.C. is violave of Arcle 21.
27. The only surviving queson for consideraon now is whether Secon 309 IPC is violave of Arcle 14, to support the conclusion reached in P.Rathinam.
28. The basis of the decision in P. Rathinam, discussed above, was not supported by any of the learned counsel except Shri B.S. Malik. On the basis of the decision in P.Rathinam it was urged that Secon 306 also is violave of Arcle 21, as menoned earlier. On the view we have taken that Arcle 21 does not include the right to die’ as held in P. Rathinam, the first argument to challenge the constuonal validity of Secon 306, IPC also on that basis fails, and is rejected.
Arcle 14 – Is it violated by Secon 309, I.P.C.?
29. We would now consider the constuonal validity of Secon 309 with reference to Arcle 14 of the Constuon. In substance, the argument of Shri Ujagar Singh, Shri B.S. Malik and Shri Soli J. Sobrajee on this point is that it is a monstrous and barbaric provision which violates the equality clause being discriminatory and arbitrary. It was contended that aempted suicide is not punishable in any other civilized society and there is a strong opinion against the retenon of such a penal provision which led the Law Commission of India also to recommend its deleon. Shri Sorabjee contended that the wide amplitude of Arcle 14 together with the right to live with dignity included in Arcle 21, renders Secon 309 unconstuonal. It is in this manner, invoking Arcle 21 limited to life with dignity (not including therein the right to die) that Shri Sorabjee refers to Arcle 21 along with Arcle 14 to assail the validity of Secon 309, IPC. The conclusion reached in P. Rathinam is supported on this ground.
30. We have formed the opinion that there is no merit in the challenge based even on Arcle 14 of the Constuon. The contenon based on Arcle 14 was rejected in P. Rathinam also. It was held therein as under:The Bombay High Court held Secon 309 as violaon of Arcle 14 also mainly because of two reasons. First, which act or acts in series of acts will constute aempt to suicide, where to draw the line, is not known – some aempts may be serious while others non- serious. It was stated that in fact philosophers, moralists and sociologists were not agreed upon what constuted suicide. The want of plausible definion or even guidelines, made Secon 309 arbitrary as per the learned Judges. Another reason given was that Secon 309 treats all aempts to commit suicide by the same measure without referring to the circumstances in which aempts are made.
The first of the aforesaid reasons is not sound, according to us, because whatever differences there may be as to what constutes suicide, there is no doubt that suicide is intenonal taking of one’s life, as stated at p.1521 of Encyclopaedia of Crime and Jusce, Vol. IV, 1983 Edn. Of course, there sll exists difference among suicide researchers as to what constutes suicidal behavior, for example, whether narcoc addicon, chronic alcoholism, heavy cigaree smoking, reckless driving, other risk- taking behaviors are suicidal or not. It may also be that different methods are adopted for comming suicide, for example, use of fire-arm, poisoning especially by drugs, overdoses, hanging, inhalaon of gas. Even so, suicide is capable of a broad definion, as has been given in the aforesaid Webster’s Diconary. Further, on a prosecuon being launched it is always open to an accused to take the plea that his act did not constute suicide where-upon the court would decide this aspect also.
In so far as treang of different aempts to commit suicide by the same measure is concerned, the same also cannot be regarded as violave of Arcle 14, inasmuch as the nature, gravity and extent of aempt may be taken care of by tailoring the sentence appropriately. It is worth poinng out that Secon 309 has only provided the maximum sentence which is up to one year. It provides for imposion of fine only as a punishment. It is this aspect which weighed with the Division Bench of Andhra Pradesh High Court in its aforesaid decision to disagree with the Bombay view by stang that in certain cases even Probaon of Offenders Act can be pressed into service, whose Secon 12 enables the court to ensure that no sgma or disqualificaon is aached to such a person. …We agree with the view taken by the Andhra Pradesh High Court as regards Secon 309 qua Arcle 14. (Page 405) (emphasis supplied) With respect, we are in agreement with the view so taken qua Arcle 14, in P. Rathinam.
31. We have already stated that the debate on the desirability of retaining such a penal provision of punishing attempted suicide, including the recommendation for its deletion by the Law Commission are not sufficient to indicate that the provision is unconstitutional being violative of Article 14. Even if those facts are to weigh, the severity of the provision is mitigated by the wide discretion in the matter of sentencing since there is no requirement of awarding any minimum sentence and the sentence of imprisonment is not even compulsory. There is also no minimum fine prescribed as sentence, which alone may be the punishment awarded on conviction under Section 309, IPC. This aspect is noticed in P. Rathinam for holding that Article 14 is not violated.
32. The reported decisions show that even on convicon under Secon 309, IPC, in pracce the accused has been dealt with compassion by giving benefit under the Probaon of Offenders Act, 1958 or Secon 562 of the Code of Criminal Procedure, 1908 corresponding to Secon 360 of the Criminal Procedure Code, 1973 : Barkat v. Emperor, AIR 1934 Lah. 514; Emperor v. Dwarka Pooja, 14 Bom.L.R. 146; Emperor v. Dhirajia, AIR 1940 All 486; Ram Sunder v. State of Uar Pradesh, AIR 1962 All. 262; Valenno v. State, AIR 1967 Goa 138; Phulbhai v. State of Maharashtra, 1976 Cr.L.J. 1519; Maharani v. State of M.P., AIR 1981 SC 1776; Rukhmina Devi v. State of U.P., 1988 Cr.L.J. 548. The above quoted discussion in P. Rathinam qua Arcle 14 is sufficient to reject the challenge based on Arcle 14.
33. We may briefly refer to the aid of Arcle 21 sought by Shri Sorabjee to buress the challenge based on Arcle 14. We have earlier held that right to die is not included in the `right to life’ under Arcle 21. For the same reason, right to live with human dignity cannot be construed to include within its ambit the right to terminate natural life, at least before commencement of the natural process of certain death. We do not see how Arcle 21 can
be pressed into service to support the challenge based on Arcle 14. It cannot, therefore, be accepted that Secon 309 is violave either of Arcle 14 or Arcle 21 of the Constuon.
34. It follows that there is no ground to hold that Secon 309, IPC is constuonally invalid. The contrary view taken in P. Rathinam on the basis of the construcon made of Arcle 21 to include therein the right to die cannot be accepted by us to be correct. That decision cannot be supported even on the basis of Arcle 14. It follows that Secon 309, IPC is not to be treated as unconstuonal for any reason. Validity of Secon 306 I.P.C.
35. The queson now is whether Secon 306, IPC is unconstuonal for any other reason. In our opinion, the challenge to the constuonal validity of Secon 309, IPC having been rejected, no serious challenge to the constuonal validity of Secon 306 survives. We have already rejected the main challenge based on P. Rathinam on the ground that ‘right to die’ is included in Article 21.
36. It is significant that Secon 306 enacts a disnct offence which is capable of existence independent of Secon 309, IPC. Secons 306 and 309 read as under:
306. Abetment of suicide – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either descripon for a term which may extend to ten years and shall also be liable to fine.
309. Aempt to commit suicide – Whoever aempts 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.
37. Secon 306 prescribes punishment for abetment of suicide while Secon 309 punishes aempt to commit suicide. Abetment of aempt to commit suicide is outside the purview of Secon 306 and it is punishable only under Secon 309 read with Secon 107, IPC. In certain other jurisdicons, even though aempt to commit suicide is not a penal offence yet the abeor is made punishable. The provision there provides for the punishment of abetment of suicide as well as abetment of aempt to commit suicide. Thus, even where the punishment for aempt to commit suicide is not considered desirable, its abetment is made a penal offence. In other words assisted suicide and assisted aempt to commit suicide are made punishable for cogent reasons in the interest of society. Such a provision is considered desirable to also prevent the danger inherent in the absence of such a penal provision. The arguments which are advanced to support the plea for not punishing the person who aempts to commit suicide do not avail for the benefit of another person assisng in the commission of suicide or in its aempt. This plea was strongly advanced by
the learned Aorney General as well as the amicus curiae Shri Nariman and Shri Sorabjee. We find great force in the submission.
38. The abeor is viewed differently, inasmuch as he abets the exnguishment of life of another persons and punishment of abetment is considered necessary to prevent abuse of the absence of such a penal provision. The Suicide Act, 1961 in the English Law contains the relevant provisions as under:
1. Suicide to cease to be a crime. – The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated. NOTE Suicide. “Felo de se or suicide is, where a man of the age of discreon, and compos mens, voluntarily kills himself by stabbing, poison or any other way” and was a felony at common law: see 1 Hale PC 411-419, This secon abrogates that rule of law, but, by virtue of s 2(1) Post, a person who aids abets, counsels or procures the suicide or aempted suicide of another is guilty of a statutory offence.The requirement that sasfactory evidence of suicidal intent is always necessary to establish suicide as a cause of death is not altered by the passing of this Act : see R. v. Cardiff Coroner, ex p Thomas [1970] 3 All ER 469, [1970] 1 WLR 1475.
2. Criminal liability for complicity in another’s suicide. – (1) A person who aids, abets, counsels or procures the suicide of another, or an aempt by another to commit suicide, shall be liable on convicon on indictment to imprisonment for a term not exceeding fourteen years.” (emphasis supplied) other countries. The Supreme Court of Canada in Rodriguez v. B.C. (A.G.) [107 D.L.R. (4th Series) 342] states as under: This disncon is well recognized and is brought out in certain decisions of Sancty of life, as we will see, has been understood historically as excluding freedom of choice in the self-inflicon of death and certainly in the involvement of others in carrying out that choice. At the very least, no new consensus has emerged in society opposing the right of the state to regulate the involvement of others in exercising power over individuals ending their lives. (at page 389)
40. Airedale N.H.A. Trust v. Bland [1993 (2) W.L.R. 316 (H.L.)] was a case relang to withdrawal of arficial measures for connuance of life by a physician. Even though it is not necessary to deal with physician assisted suicide or euthanasia cases, a brief reference to this decision cited at the Bar may be made. In the context of existence in the persistent vegetave state of no benefit to the paent, the principle of sancty of life, which it is the concern of the State, was stated to be not an absolute one. In such cases also, the exisng crucial disncon between cases in which a physician decides not to provide, or to connue to provide, for his paent, treatment or care which could or might prolong his life, and those in which he decides, for example, by administering a lethal drug, acvely to bring his paent’s life to an end, was indicated and it was then stated as under: (All ER p.867: WLR p.368)
But it is not lawful for a doctor to administer a drug to his paent to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be [see R. v. Cox (unreported), 18 September, 1992] per Ognall, J. in the Crown Court at Winchester. So to act is to cross the Rubicon which runs between on the one hand the care of the living paent and on the other hand euthanasia -acvely causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law. It is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful but that result could, I believe, only be achieved by legislaon which expresses the democrac will that so fundamental a change should be made in our law. and can, if enacted, ensure that such legalized killing can only be carried out subject to appropriate supervision and control…. .(emphasis supplied) (at page 368)
41. The desirability of bringing about such a change was considered to be the funcon of the legislature by enacng a suitable law providing therein adequate safeguards to prevent any possible abuse.
42. The decision of the United States Court of Appeals for the Ninth Circuit in Compassion in Dying v. State of Washington [49 F.3d 586] which reversed the decision of United States District Court. W.D. Washington reported in 850 Federal Supplement 1454, has also relevance. The constuonal validity of the State statute that banned physician assisted suicide by mentally competent terminally ill adults was in queson. The District Court held unconstuonal the provision punishing for promong a suicide aempt. On appeal. that judgment was reversed and the constuonal validity of the provision was upheld.
43. This cauon even in cases of physician assisted suicide is sufficient to indicate that assisted suicides outside that category have no raonal basis to claim exclusion of the fundamental of sancty of life. The reasons assigned for aacking a provision which penalizes aempted suicide are not available to the abeor of suicide or aempted suicide. Abetment of suicide or aempted suicide is a disnct offence which is found enacted even in the law of the countries where aempted suicide is not made punishable. Secon 306 I.P.C. enacts a disnct offence which can survive independent of Secon 309 in the I.P.C. The learned Aorney General as well as both the learned amicus curiae rightly supported the constuonal validity of Secon 306 I.P.C.
44. The Bombay High Court in Naresh Marotrao Sakbre v. Union of India [1895 Crl.L.J. 96] considered the queson of validity of Secon 306 I.P.C. and upheld the same. No decision holding Secon 306 I.P.C. to be unconstuonal has been cited before us. We find no reason to hold either Secon 309 or Secon 306 I.P.C. to be unconstuonal.
45. For the reasons we have given, the decisions of the Bombay High Court in Maru Shripa Dubal v. State of Maharashtra [1987 Crl. L.J. 743] and of a Division Bench of this Court in P. Rathinam, wherein Secon 309 I.P.C. has been held to be unconstuonal, are not correct. The conclusion of the Andhra Pradesh High Court in Chenna Jagadeeswar v. State of Andhra Pradesh [1988 Crl.L.J. 549] that Secon 309 I.P.C. is not violave of either Arcle 14 or Arcle 21 of the Constuon is approved for the reasons given herein. The quesons of constuonal validity of Secons 306 and 309 I.P.C. are decided accordingly, by holding that neither of the two provisions is constuonally invalid.
46. These appeals would now be listed before the appropriate Division Bench for their decision on merits in accordance with law treang Secons 306 and 309 I.P.C. to be constuonally valid.
