“Evolution of Jurisprudence on Euthanasia and Attempt to Suicide in India (IPC Section 306 & 309)”

This article ‘Evolution of Jurisprudence on Euthanasia and Attempt to Suicide in India (IPC Section 306 & 309)’ by Praneet Pandey is a comprehensive analysis on Euthanasia and Attempt to Suicide in India.

Introduction: Defining and Differentiating Euthanasia and Attempt to Suicide

The basic dictionary meaning of the term ‘Suicide’ returns back several definitions one of which is: “The act or an instance of taking one’s own life voluntarily and intentionally”^[1]

Primarily, suicide could be called as the killing of the self but the legal definition of this ‘term’ is more akin to a ‘concept’ in jurisprudence. It involves ethical analysis of an open-minded nature to decide whether such an act is a corrupting influence over a society or simply a side-effect of one of many causes (alcoholism, depression, abetment by others, etc.)

‘Euthanasia’, on the other hand, is commonly termed as ‘mercy killing’. The similarity between death by suicide and death by euthanasia is the intention of the person willing to end their life while the difference between the two lies in the ‘action taken’ either by self or by another person. T

his difference has been explored in the case of “Naresh Marotrao Sakhre v. Union of India”^[2] “the court observed the difference between Euthanasia and suicide. It was discussed that Suicide was an act of self-destruction, to terminate one’s own life without the aid or assistance of any other human agency whereas euthanasia is different as it involves the intervention of a human agency to end one’s life.”

Types of Euthanasia^[3]:

• Active Euthanasia: Involves an ‘external source’ for ending the suffering of an individual. (eg. ‘Lethal injections’, etc.) It is considered to be illegal in most countries including India.
• Passive Euthanasia: The most common kind, it involves ‘omission’ or ‘removal’ of life-supporting elements to hasten an individual’s demise. It has now become acceptable in India under strict conditions.

A Disquisition on ‘Attempt to Suicide’ and ‘Euthanasia’:

Beginning from a social dilemma to legal lacunae, the concept of an attempt to suicide under Indian law has been through substantial revisions and litigation in the past few decades. This is due in part to the contradictions seen through a religious view, an archaic western view (that has shifted gears), and a jurisprudential view developed over the years the basis of which lies in the provisions of the Indian Penal Code of 1860. (Hereafter referred to as IPC)

Sections 306^[4] and 309^[5] of the IPC are associated with suicide with the former being a provision for punishing abetment to commit suicide and the latter meant for an attempt to suicide.

Interestingly, suicide is not a crime under the provisions of IPC but it is only the ‘attempt’ to do so that attracts punishment. The original intent behind such a provision was the preservation of human lives as ‘state subjects’ as well as the preservation of certain religious ideals of the time. The most necessary ingredient of this statue is:

• That the ‘attempt’ is intentional, i.e. attempt made without a preconceived intent to end one’s life would be outside the purview of this section. This was made apparent in a case called: “Emperor v. Mst. Dhirajia”^[6] where the court refused to criminalize the actions of a mother jumping into a well with her 6-month old child stating that the word ‘attempt’ connotes a ‘conscious effort’ on part of the person. The woman in question, having jumped into that well out of apprehensive fear of being attacked would not be charged with an attempt to end her life.
• That the accused fails to end his/her life: This is the basis for the application of Section 309 which, at its behest, is intended to penalize such attempts. Herein, we discover the jurisprudential conflict of ‘right to life as well as ‘right to die’ as would be explored in this essay in detail moving forward.

On the other hand, Section 306 of IPC is more relevant in the context of Euthanasia as it explores the possibility of participation of another person in causing death. This is an act of abetment to suicide and the punished more harshly than Section 309. Abetment means assisting in, coercing, or influencing another individual to end their life.

Collating Section 309 with the Indian Constitution: Before

Rathinam

It is to be kept in mind the ages of the two legal documents being compared for a reasonable structure of an argument to arise. The Indian Constitution is a much younger and open-ended document than the IPC and it has been designed to be more flexible than a penal code is ordinarily expected to be. A valid comparison between the two in the context of Section 209 would involve defining the scope of such a comparison:

• Would a law such as Section 309 violate the ever-transforming definition of Right to Life under Article 21?
• How far can we really stretch the fundamental right to life in the context of ‘right to end a life’ (attempt to commit suicide & the practice of Euthanasia)

R.C. Cooper^[7] convincingly established the exercise of reading the fundamental rights cohesively. This exercise had been put to use by the Bombay High Court (Maruti, 1987) in the current context with an aim to link the concept of ‘positive & negative right’ (eg. The right to not express/remain silent under Article 19) with the right to life under Article 21 to arrive at a conjoined bottom line that the right to life would include the right to not live as well.^[8]

An analogy was also drawn between the spiritual/religious practices of self-forfeiture of life in a historical sense which would, in theory, mean that the lack of legal understanding of ‘what constitutes as a punishable suicide attempt’ can render the IPC section arbitrary and against the newfound moral-legal outlook of mental health (being a valid defense in with lack of mens rea), “that the State had no right to compel a citizen to continue his life when it could not provide the necessary wherewithal to sustain himself.”^[9]

This outlook was also shared by the apex court well before Maruti, in the case of “Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and ors.”^[10] When Bhagwati J. spelt out the essence of the right under Article 21 to mean a life that is not simply a question of bare survival but of a dignified life with ‘adequate nutrition, clothes, shelter and all that goes along with it. As difficult to define this ‘adequacy’ under Article 21 may be, it has been the primary direction of the court since then to ensure imparting of fair and reasonable justice.

Later on, the Andhra Pradesh High Court (in Chenna, 1988), in its own analysis of Maruti, made an interesting observation in defense of the need for section 309. It opined while acknowledging the sensitive reasons that may compel a person to attempt suicide, that the intent of the statute was not to penalize an already distressed person but to set an ‘upper limit’ for punishments in such instances in order to avoid desensitizing the value of human life.^[11]

As for the major contentions with regard to this issue, there is a need to analyze the landmark judgments of the apex court that followed the aforementioned High Court rulings.

Legal Dichotomy from Rathinam to Gian:

The last 3 decades have seen a considerable shift in the approach adopted by the courts in India with regard to the light to life under Article 21. The meaning of the fundamental right itself has been expanding in a more libertarian direction and as such the courts can find creative room for a relatively activist stance on matters related to state control over a person’s rights.

This correlates to the concept of reasonable restrictions which is often used in the context of Article 19 against the citizenry, and which is now actively being explored against the state and its authority.

Arguably one of the first landmark instances of adjudging of the constitutional validity of IPC Section 309 as well as the scope of ‘right to life under Art. 21, was the case of “P.Rathinam v. Union Of India”^[12].

After citing a plethora of resources from sociological literature by J.S. Mill and Law Commission reports to the Bombay and Delhi High Court proceedings on the same matter, the apex court arrived at a conclusion that Section 309, in fact, did violate the essence of the Right to Life (which may be waived by choice) and that the provision of punishing an already distressed person who has failed an attempt to their life is contrary to the ideals of the constitution.

However, a constitutional bench of the Supreme Court just 2 years after Rathinam, overturned the ruling and upheld the constitutional validity of Section 309. This was the Gian^[13] case, the primary arguments advanced in this instance pertained to section 306 (abetment to suicide) but the court took this opportunity to revisit its old ruling on section 309 as well. Here, the reasoning of the court in terms of scope of the Right to life revolved around:

• The inherent difference between life and death, i.e. sanctity of human life.
• Interpreting the meaning of ‘dignified life’ to mean a life well lived ‘till the end of one’s natural life
• Excluding the right to die from the ambit of right to life on moral and social grounds.
• Leaving the issue of Euthanasia for the legislature to tinker with.

This essentially rendered the concept of ‘suicide’ an ‘unnatural action’ and upheld the necessity of section 309. “The Court also differentiated between ‘Euthanasia’ and attempt to commit suicide by saying the former may come within the purview of right to live with dignity up to the end of natural life and thus may include the right of a dying man to desire to die with dignity when his life is ebbing out, but the later in no way be equated with it to allow a person to die an unnatural death reducing the natural duration of life”^[14]

Tracing Development: Law Commission Reports to Mental Healthcare Act:

One may find traces of criticism over the validity of Section 309 as early as 1971 when the 42^nd Law Commission report so released made a remarkable recommendation to ‘repeal’ Section 309 while deeming it ‘harsh and unjustifiable’. This report was also cited by the courts in Maruti^[15] & Rathinam^[16] to strike upon ‘attempt to commit suicide as a punishable offense. ^[17]

Another reaffirmation on this front could be read in the 210^th Law Commission Report of 2008. This report reiterated the inhuman stance of section 309 against mentally unsound persons and drew attention towards the sensitivity of the issue of mental health. The recommendations of this report called for striking down section 309 while upholding section 306 (as a necessary provision in terms of Euthanasia) as well as making guidelines for the distressed people in an act of positive legislation.^[18]

All these judicial and committee-based efforts, fuelled by NGOs and activists, culminated in the passing of the Mental Healthcare Act of 2017 which aimed to prevent depressed and unstable individuals from being punished for their strife.

Section 115(1) of the said Act reads:

“Notwithstanding anything contained in Section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said code.”^[19]

The aforementioned provision is in direct clash with the provisions of Section 309 of IPC for the resorting of which the government has not taken fresh steps. Very recently (in 2020) the Supreme Court of India did pick up on this legal lacuna and maintained its previous stance (from the Common Cause) of being open to reconsideration of the Gian judgment.

Justice D.Y. Chandrachud, in the Common Cause judgment^[20], had cited the provision of the Mental Healthcare Act to highlight the need of today’s society to treat suicidal individuals with utmost care and empathy rather than ostracizing them through archaic laws for which the mental Healthcare Act is the apt and appreciable step by the government.

This brings us to another topic of relevance mentioned in the 196^th Law Commission Report of 2006, which made a direct mention of ‘euthanasia’. The report recommended the drafting of a special act for the purpose of protecting terminally ill patients ‘who refuse to take nutrition or medicine’ from the punishments under section 309 of IPC. Another important recommendation involved declaring the actions of medical personnel/doctors who help such patients in ending their lives to be ‘lawful’. This would ensure:^[21]

• That the terminally ill patients seeking a form of euthanasia aren’t punished for their actions or denied this right to die.
• That the medical staff involved in the exercise of euthanasia be protected under law from punishments for abetment of suicide. (sec. 306)

The Advent of the discourse on Euthanasia

The topic of Euthanasia is closely tied together with the legal discourse in the matters of Section 306 & 309 of IPC as well as Article 21 of the Indian Constitution. Up till Shanbaug^[22], the courts, as well as the aforementioned Law Commission Reports, were wary of the sensitivity of this exercise and this is evident in the fairly limited discussion about euthanasia found in the earlier cases like Gian and Rathinam.

The legal conversation shifted gears and took this issue seriously when Aruna Shanbaug, a former nurse who had been living in a persistent vegetative state, came to the forefront through a PIL filed by a journalist.

When the discussion shifted over from Section 309 to 306 a new series of legal issues propped up:

• Section 306 was a harsher punishment still upheld by the apex court against people who helped with euthanasia.
• It included possibilities of foul play and selfish actions by the representatives of the patient, especially if they are unable to speak and decide for themselves their fate.

The 2^nd point above is of prime relevance when it comes to legalizing euthanasia because the hesitation of the courts stemmed from those possibilities of foul play and the critics feared that legalizing passive euthanasia for unresponsive or vegetative patients would be an act of whimsical termination of a life. However, the proponents and supporters of this exercise believed that this decision would help ease/end the patient’s suffering, ease the financial burden put on the caregivers as well as the medical burden on the hospitals.^[23]

Shanbaug and Common Cause: Legal Status of Passive Euthanasia

Apart from the previously cited cases on the legality of section 309 and 306 as compared against the constitution, the most important developments with regard to euthanasia came in the way of 2 judgments of the Supreme Court, Shanbaug and Common Cause.

In Shanbaug, The apex court allowed for the exercise of passive euthanasia in India albeit under certain restrictive guidelines prescribed by it. The gist of the judgment included some very important outcomes such as:

• Declaring passive euthanasia as acceptable under provisions of Right to Life
• Leaving the matter of legalizing ‘active euthanasia’ in the hands of the legislature.
• Drafting guidelines for medical practitioners for a controlled exercise of euthanasia
• Proposing the concept of ‘Advance Directives’ or ‘Living Will’ to make legal room for the patient’s health-related decisions

Then arrived the most recent judgment (2018) of Common Cause^[24]: This was an upfront PIL that sought the declaration of the ‘right to die with dignity as a fundamental right under Article 21 of the Constitution. The apex court took this opportunity to explore the difference between active and passive euthanasia from a legal lens and also elaborated further upon the rights of individuals to consent to be euthanized under certain conditions.

An interesting aspect of Common Cause is the concurring judgment authored by Justice Chandrachud. While acknowledging the need for revisiting the judgment in Gian, he called for a relook at the precedent set in Shanbaug to better theorize as to ‘who has the authority to make decisions in matters of passive euthanasia of PVS patients’.

Nevertheless, the bottom line remains that the current jurisprudence on matters of ‘waiving away one’s right to life’ seems to be set towards allowing ‘right to death as part and parcel of Article 21.

Conclusion

As of today, passive euthanasia has been given judicial assent by the apex court and the matter of active euthanasia is pending in front of lawmakers. Out of all this, the winner seems to be the Indian Constitution as it received another boost in its flexibility to allow its subjects to define ‘life’ in a more fluid and/or natural way.

The current opinion shared by scholars, judges, and the public at large looms over having fewer and fewer legal restraints in the way people conduct their lives, and such is also the case in India.

Interestingly, even after the passing of the Mental Healthcare Act of 2017, the provision under section 309 of IPC still remains active and applicable which is a peculiar situation for the law enforcers as well as the courts.

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[1] Merriam Webster, Suicide

[2] Naresh Marotrao Sakhre And … v. Union Of India And Others, 1996 (1) BomCR 92

[3] Achal Gupta, Euthanasia — Indian View, scconline.com

[4] Non-Bailable, Court of Session, Indian Penal Code, 1860

[5] Bailable, Any Magistrate, Indian Penal Code, 1860

[6] Emperor v. Mst. Dhirajia, AIR 1940 All. 486

[7] Rustom Cavasjee Cooper v. Union Of India, 1970 AIR 564

[8] Maruti Shripati Dubal v. the State Of Maharashtra, 1987 (1) BomCR 499

[9] ibid

[10] Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others, (1981) 1 SCC 608.

(This case is meant to elaborate upon the scope of Article 21 itself so as to create a structure for an argument involving section 309.)

[11] Chenna Jagadeeswar And Anr. vs State Of Andhra Pradesh, 1988 (1) Crimes 357

[12] P.Rathinam v. Union Of India, (1994) 3 SCC 394

[13] Smt. Gian Kaur v. The State Of Punjab, 1996 2 SCC 648

[14] Constitutionality of Attempt to Commit Suicide Unlocking The Controversy, Smita Satapathy & Madhubrata, Mohanty, Medico-legal Update, January-March 2020, Vol.20, No. 1

[15] Supra, note 5

[16] Supra, note 9

[17] 42^nd Law Commission Report (1972)

[18] 210^th Law Commission Report (2011)

[19] Mental Healthcare Act, 2017, Section 115(1), egazette.nic.in

[20] Common Cause (A Regd. Society) vs Union Of India, Writ petition (Civil) No. 215 of 2005 (decided in 2018)

[21] 196^th Law Commission Report (2006)

[22] Aruna Ramchandra Shanbaug v. Union Of India, Writ (2011) 4 SCC 454

[23] The Wire, Passive Euthanasia Now a Legal Reality in India, March 2018. Thewire.in

[24] Supra, note 20

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