VERY IMPORTANT POINTS
1. Sections 306 and 309 , Indian Penal Code, are constitutionally valid.
2. Article 21 of the Constitution of India does not include the right to die .
3. The right to die , if any, is inherently inconsistent with the right to life as is death with life .
4. 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.
5. 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 .

Headnote:Constitution of India-Article 21-Indian Penal Code, 1860- Section 309-Attempt to commit suicide-Constitutional validity- Scope of Article 21-Whether scope of Article 21 also includes right to die ?-(No) - Right to die , if any, is inherently inconsistent with right to life : P. Rathinam s case: 1994(3) SCC 394 : Overruled.
       Held : When a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within the protection of the right to life under Article 21. The significant aspect of sanctity of life is also not to be overlooked. 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 protection of life . Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, we find it difficult to construe Article 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 Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life . With respect and in all humility, we find no similarily 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 Article 21. The decisions relating 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 Article 21. (Para 16)
       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 . (Para 17)
       Further held : That the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life. (Para 19)
       Protagonism of euthanasia on the view that existence in persistent vegetative state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of sanctity 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. (Para 18)
       (ii) Constitution of India-Article 14-Indian Penal Code, 1860- Section 309-Attempt to commit suicide-Constitutional validity- Whether Article 14 is violated by Section 309 ?-(No).
       Held, 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. (Para 25)
       Futher held that right to die is not included in the right to life under Article 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 Article 21 can be pressed into service to support the challenge based on Article 14. It cannot, therefore, be accepted that Section 309 is violative either of Article 14 or Article 21 of the Constitution. (Para 27)
       (iii) Constitution of India-Articles 14 and 19-Indian Penal Code, 1860-Section 306-Abetment of suicide-Constitutional validity- Held, Section 306 is constitutionally valid-Assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the interest of society-Such a provision is considered desirable to also prevent danger inherent in the absence of such a penal provision.
       Held : Section 306 prescribes punishment for abetment of suicide while Section 309 punishes attempt to commit suicide . Abetment of attempt to commit suicide is outside the purview of Section 306 and it is punishable only under Section 309 read with Section 107, IPC. 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. 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 attempts to commit suicide do not avail for the benefit of another person assisting in the commission of suicide or in its attempt. (Para 31)
       Further held : The abettor is viewed differently, inasmuch as he abets the extinguishment of life of another person, and punishment of abetment is considered necessary to prevent abuse of the absence of such a penal provision. (Para 32)
       (iv) Indian Penal Code, 1860- Sections 306 and 309- Abetment of suicide and attempt to commit suicide -Section 306 enacts a distinct offence which can survive independent of Section 309-Neither of the two provisions is constitutionally invalid. (Paras 31, 36 & 38)

JUDGMENT

J.S. Verma, J.-Leave granted in special leave petitions.

2. The appellants Gian Kaur and her husband Harbans Singh were convicted by the Trial Court under Section 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 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 R.I. for three years. These appeals by special leave are against their conviction and sentence under Section 306, IPC.

3. The conviction of the appellants has been assailed, inter alia, on the ground that Section 306, IPC is unconstitutional. The first argument advanced to challenge the constitutional validity of Section 306, IPC rests on the decision in P. Rathinam v. Union of India and Anr.1 by a Bench of two learned Judges of this Court wherein Section 309, IPC had 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, IPC 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, IPC penalising assisted suicide is equally violative of Article 21. This argument, it is urged, is alone sufficient to declare that Section 306, IPC also is unconstitutional being violative of Article 21 of the Constitution.

4. One of the points directly raised is the inclusion of the right of die within the ambit of Article 21 of the Constitution, to contend that any person assisting the enforcement of the right to die is merely assisting in the enforcement of the fundamental right under Article 21 which cannot be penal; and Section 306, IPC making that act punishable, therefore, violates Article 21. In view of this argument based on the decision in P. Rathinam, a reconsideration of that decision is inescapable.

5. In view of the significance of this contention involving a substantial question of law as to the interpretation of Article 21 relating to the constitutional validity of Section 306, IPC which requires reconsideration of the decision in P. Rathinam, the Division Bench before which these appeals came up for hearing has referred the matter to a Constitution Bench for deciding the same. This is how the matter comes before the Constitution Bench.

6. In additional to the learned counsel for the parties and the learned Attorney General of India who appeared in response to the notice, we also requested Shri Senior Advocates to appear as amicus curiae Fali S. Nariman and Shri Soli J. Sorabjee, in this matter. All the learned counsel appearing before us have rendered great assistance to enable us to decide this ticklish and sensitive issue.

7. We may now refer to the submissions of the several learned counsel who ably projected the different points of view.

Shri Ujagar Singh and Shri B.S. Malik appeared in these matters for the appellants to support the challenge to the constitutional validity of Sections 306 and 309, IPC. Both the learned counsel contended that Section 306 as well as Section 309 are unconstitutional. Both of them relied on the decision in P. Rathinam. However, Shri Ujagar Singh supported the conclusion in P. Rathiram of the constitutional invalidity of Section 309, IPC only on the ground of violation of Article 14 and not Article 21. Shri B.S. Malik contended that Section 309 is violative of Articles 14 and 21. He strongly relied on the ground based on Article 21 in P. Rathinam for holding Section 309 to be invalid. He urged that right to die being included within the ambit of Article 21, assistance in commission of suicide cannot be an offence

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1996 Supreme(SC) 633

Cases Referred (6)