1986 Supreme(Bom) 269

IN THE HIGH COURT OF BOMBAY
P.B. Sawant B.G. Kolse-Patil, JJ.
Maruti Shripati Dubal.... Petitioner.
Versus
State of Maharashtra.... Respondents.
Criminal Writ Petition No. 641 of 1986, decided on 24/25-9-86.
Advocates appeared :
S.V. Bhat with Bhushan Bahal Harihar Bhave, for petitioner.
N.M. Kachare, P.P., for State.
V.D. Govilkar, for Attorney General of India.

Headnote:Article 21-Fundamental rights have their positive as well as negative aspects, such as freedom of speech and expression Includes freedom not to sped and to remain silent, freedom of business or occupation includes freedom not to do business and to close down the existing business etc. - From this it must follow that right to live as recognised by Article 21 will include not to live or not to be forced to live, in other words it would include a right to die or to terminate ones life.

       It is not and cannot be seriously disputed that the fundamental rights have their positive as well as negative aspects. For example, the freedom of speech and expression includes freedom not to speak and to remain silent. The freedom of association and movement likewise includes the freedom not to join any association or to move anywhere. Freedom of business and occupation includes freedom not to do business and to close down the existing business. If any authority is needed for this proposition. If this is so, logically it must follow that right to live as recognised by Article 21 will include also a right not to live or not be forced to live. To put it possitively it would include a right to die, or to terminate ones life.

       Section 309-Mercy Killing-Not suicide-An attempt at mercy killing is not covered by provisions under Section 309 Euthanasia or mercy killing is nothing but homicide and is an offence unless specifically excepted. Provisions under Sections 306 and 305 can certainly take care of situations and threats posed by death baiters.

       Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating ones own life by ones own act and without the aid or assistance of any other human agency. Euthanasia or mercy killing on the other hand means and implies the intervention of other human agency to end the life. Mercy-killing thus is not suicide and an attempt at mercy-killing is not covered by the provisions of Sections 309. The two concepts are both factually and legally distinct. Euthanasia or mercy-killing is nothing but homicide, whatever the circumstances in which it is effected. Unless it is specifically excepted it cannot hut be an offence. Our Penal Code further punishes not only abetment of homicide but also abetment of suicide. Section 306 makes abetment of suicide of any person whereas Section 305 makes abetment of suicide of child or insane person, an offence and prescribes different punishments for two. These provisions can certainly take care of situations or threats posed by death baiters. If however any further safeguards were needed they can be bad by enacting such provisions was in Section 2 of the English Suicide Act of 1961 which makes criminally liable a person who aids abets counsels or procures the suicide of another or an attempt by another to commit suicide.

       Section 309-Constitution of India, Article 14-Attempt to commit suicide -Provisions of Section 309 arbitrary and violative of Article 14 of the constitution - Equality guaranted by Article 14 violated by Section 309, I. P. C.

       Durkheim has classified suicides on the basis of the disturbance in the relationship between society and the individual in three types: (i) Egoistic suicide which results when abnormal individualism weakens societys control over him. The individual, in such cases lacks concern for the community with which he is inadequately involved. (2) Altruistic suicide which is due to an excessive sense of duty to community and (3) Anomic suicide which is due to societys failure to control and regulate the behaviour of individuals. This classification is not regarded as adequate by may, but gives us the board causative factors of suicide.

       There is further no situation or no experience to which suicide is the only possible reaction. Different persons react differently to different situations and experiences, depending upon their personality traits. That is why a suicidal act cannot be explained by the situation alone and all persons in the same situation and facing the same experience cannot be painted by the same brush.

       It is estimated that about one third of the people who kill themselves have been found to have been suffering from mental illness requiring psychiatric treatment. Depressive Illness with a feeling of worthlessness and despair and a wise to die accompany most of the mental disorders. But even in this condition the usage to commit Suicide vanes. Schizophrenia which is one of the other major mental disorders also takes an above-average toll of suicides. Most of the rest have unstable and vulnerable personalities Abnormal personalities with aggressive tendencies show increased liability to suicide. Frustration, loss of social status, social isolation, inability to cope up with the stress and strain are still other factors of the like nature responsible for suicides.

       But in ,addition to these, there are other equally important factors which we have pointed out earlier, such as extreme mental and physical nature or cruelty, inhuman and unbearable living conditions, poverty, unemployment and inability to make living for oneself and the dependents, affliction by incurable or socially dreaded diseases: physical incapacitation to perform eyen bodity chores; need to defend ones honour or to save oneself from social disgrace, protest against certain acts or practices; vindication of certain causes, principles or rights; a sense of fulfilment and a genuine desire to take leave of the wordly affairs and so on The list which is not meant to be exhaustive only illustrates the different mental, physical and social causes which may lead different individuals to attempt to commit suicide for different ends and purposes. There is nothing common between them. Section 309 however makes no distinction between them and treates them alike.

       The arbitrariness of the section becomes more obvious when it is realised that some individuals resort to suicide to escape from the crued conditions of life which are every moment a punishment to them. The deliverance from such mundance-existence is in reality a boon to them. Yet, society which is either unable or indifferent to improving his conditions of life, seeks to punish him for his attempt at self-half or self deliverance.

       Suicide involves no damage to person or property of others. If destructions of ones property or its deliverance to others for a cause or no cause is not an offence, there is no reason why sacrifice of ones body for .a cause or without a cause or for the mere deliverance of it should be regarded as an offence. Much less an attempt at doing so. Ones life, ones body with all its limbs are certainly ones property and he is the sole master of it. He should have the freedom to dispose it of as and when he desires. Even at present the relevant statutes permit donation by individual of certain parts of his .body under certain conditions, thereby recognising tile right of the individual to deal with his body as he chooses.

       The discriminatory nature of Section 309 becomes particularly prominent when its provisions are compared with Section 300 of the Penal Code. While defining murder, the legislature has taken pains to make a distinction between culpable homicide amounting to murder and one not amounting to murder and has prescribed different punishments for the two. However, Section 309 prescribes the same punishment to all individuals irrespective of the different sets of circumstances under which the suicide attempt is made. This is strange although murder is a more heinous offence with consequences to the other member or members of the society.

       We are, therefore, of the view that the provisions of Section 309 being arbitrary are ultra vires Article 14 of the Constitution.

       That takes us to the last contention which seeks to assail the very basis of the punishment prescribed by Section 309. The Section 309 punishes the attempt to commit suicide with sample imprisonment for a term which may extent to one year or with line or with both. We have already enumerated the different sets of circumstances in which a person may attempt to commit suicide. If the purpose of the prescribed punishment is to prevent the prosecutive suicides by deterrence, it is difficult to understand how the same can be achieved by punishing those who have made the attempts. Those who make the suicide-attempt on account of the mental disorders require psychiatric treatment and not confinement in the prison cells where their condition is bound to worsen leading to further mental derangement. Those on the other hand who make the suicide-attempt on account of acute physical ailment, incurable diseases, torture or decrepit physical state induced by old age or disablement need nurshing homes and not prisons to prevent them from making the attempt again. No deterrence is further going to hold back those who want to die for a social or political cause or to leave the world either because of the lose of interest in life or for self-deliverance. Thus in no case the punishment serves the purpose and in some cases it is bound to prove self-defeating and counter-productive. On this account also the provisions of the section are unreasonable and arbitrary.

       Section 309 - Suicide-Definition-The want of plausible definition and even of guide lines to distinguish the felonous from non-felonous act itself therefore, makes provisions of Section 309 arbitrary and violative of Article 14 - The equality guaranted by Article 14 stands further violated by the provisions of Section 309 because it treates all attempts to commit suicide by the same measure without regard to the circumstances in which attempts made.

       Suicide is not defined in the Penal Code. In a broader sense any act which takes a person further from life and nearer to death can be regarded as felony, As the famous American, psychiatrist, Carl Menninger in his book "Man Against Himself" has interpreted it, every kind of behaviour inimical to health and life can be described as the expression of the death instinct directed against the self, and suicide can he termed as the extreme manifestation of the said instinct. Some times the term "partial suicide" has been used for self multilation and "chronic suicide" for habitual behaviour injurious to life, such as alcohol and drug addition There is also a distinction sometimes made between "fatal" suicide and "attempted" suicide or non fatal suicidal act. If these definitions are accepted, every act or a step taken by a person which takes him nearer his death or brings about the end of his life ultimately, has to be characterised as suicidal or an attempt at suicide. This throws up a wide variety of questions. Which act or acts or in a series of acts will constitute suicide or attempt to commit it? Where do we draw the line? What may be injurious to one may be good for another. What may constitute a felony in one case may be an innocent act in other cases.

       And, pray, how do you probe the mind of the individual to decipher his intention and by reference to which act of his? He might recoil or withdraw from the fatal act at one but the last stage. The fatal act might further have been committed by an individual quit innocently or without any intention to commit suicide. On what basis is the inference to be drawn? The intention no doubt is to be inferred from the various circumstances including the means adopted for committing suicide. But that may be of doubtful validity. For, the mere acts themselves may not indicate a definite intention and different persons may resort to the same act or acts with different intention and not necessarily with a view to terminate ones life. Some attempts may be serious.

       While other non-serious. These and other questions must arise while attempting to provide even a workable definition of suicide and more so while defining an attempt to commit. In fact philosophers, moralist and sociologists are not agreed upon what constitutes suicide. What may be considered suicide in one community may not be considered so in another community and the different acts, though suicidal may be described differently in different circumstances and at different times in the same community as we have seen earlier. While some suicide are eulogised, ethers are condemned. That is why perhaps wisely no attempt has been made by the legislature to define either. But the difficulty in providing a plausible definition cannot certainly be passed in favour of the validity of the provision particularly when it is penal. The want of a plausible definition and even of guidelines to distinguish the felonous from the non-felonous act itself therefore, makes the provisions of Section 309 arbitrary and violative of Article. 14. As is rightly said arbitrariness and equality are enemies of each other.

       The equality guaranteed by Article 14 stands further violated by the provisions of Section 309 because it treats all attempts to commit suicide by the same measure without regard to the circumstances in which the attempts are made.