On decriminalization of Section 309, IPC
Tweisha Mishra, Student of Law, National Law Institute University, Bhopal
Suicide as a phenomenon, in the present article, is focused on adolescent or teenage suicides, which are increasing at rapid rates, thus raising a cause of concern. Suicide has been studied with reference to the eminent French sociologist, Emile Durkheim’s theory on Suicide, which was explained in his book, Le Suicide (1897). This theory has been considered to be highly relevant to the present study.
The aim of this article is to explore suicide, not as a crime but as a sociological phenomenon that requires our immediate attention. This is done by analyzing suicide as theorized by Durkheim. Suicide has been defined, its types and causes explained and various prevention programs in operation have been referred to. In addition, the position of law in India has been analyzed with reference to various cases in which the question of the criminality of attempt to commit suicide has been raised.
English word adolescence is derived from the Latin term adolescere which means ‘growing to maturity’. It is a transitional stage of physical and psychological human development that generally occurs during the period from puberty to legal adulthood [age of majority] ((Macmillan Dictionary for Students, Macmillan, Pan Ltd. (1981), page 14, 456)). Adolescent is a person who is considered to be neither a child nor an adult. Period of adolescence generally begins from the age of twelve and goes on till twenty. In Western societies adolescence period is also referred to as ‘the teenage years’. The label teenager is popularly associated with the characteristic behaviour patterns of young adolescents. In the words of Jersild, adolescence is “the period through which a growing person makes transition from childhood to maturity ((Sharma, Ramnath. Psychological Problems of Adolescence. Advanced Applied Psychology, Vol.1. New Delhi: Atlantic Publishers and Distributors. 2004)).” During this period, the adolescent is active and unstable. Suicides in teenagers are not a new phenomenon, but the frequency of their commission in recent times is certainly a reason for worry.
The US recorded an 18% increase in teen suicide in the last couple of years, while youth (10 to 29 years) account for more than half of 312 suicides in India daily. A study conducted by CMC, Vellore indicates that Indian urban hubs such as Chennai record the highest suicide rates among teenagers in the world. This is a fact borne out by the National Crime Records Bureau’s figures for 2005; the number of children under 14 across India who committed suicide stood at 1328 boys and 1257 girls ((National Crime Records Bureau, Ministry of Home Affairs. Accidental Deaths and Suicides in India, 2013, page 169-189)). Suicide rates are nowadays disturbingly high among teenagers, and this is a grave and contemplative issue. Suicide rates have increased sharply among U.S. adolescents in recent decades and are now about 15 per 100,000 for boys and 3 per 100,000 for girls. It is the third leading cause of death for adolescents of fifteen to nineteen years old, accounting for 14 percent of all deaths in this age group. Suicide is very often, an impulse among adolescents, for example, after a highly stressful event. Teen lovers sometimes agree to kill themselves if they cannot be together. According to a psychological study, most adolescents who commit suicide – about 80 percent – have long-standing mental health problems such as depression, externalizing behaviour disorders, or substance abuse. The problem of increasing tendency among youth to commit suicide has been raised in Parliament recently. Some of the important terms used in this article are defined here. Suicide refers to the act of deliberately killing oneself. Para-suicide is the apparent attempted suicide without the actual intention of killing oneself. This also includes the attempts at suicide that did not succeed. Suicidal Ideation is the thinking about suicide without actually making plans to commit suicide. In this article, the author seeks to investigate the sociological causes of suicides among adolescents and suggest measures in which such cases may be prevented and avoided in future. Important recent statistics are described here.
Incidence and rate of suicides during the decade (2002–2012):More than one lakh persons (1,35,445) in the country lost their lives by committing suicide during the year 2012. The number of suicides in the country during the decade (2002–2012) has recorded an increase of 22.7%. The population has increased by 15.5% during the decade but the rate of suicides in 2012 was 11.2%. Causes of suicide include ‘family problems’ and ‘illness’, accounting for 25.6% and 20.8% respectively, are the major causes of suicides among the specified causes. ‘Drug abuse/addiction’ (3.3%), ‘love affairs’ (3.2%), ‘bankruptcy or sudden change in economic status’ (2.0%), ‘poverty’ (1.9%) and ‘dowry dispute’ (1.6%) were the other causes of suicides. It is also observed that social and economic causes have led most of the males to commit suicide whereas emotional and personal causes have mainly driven females to end their lives. Around 34.6% suicide victims were youths in the age group of 15-29 years and 33.7% were middle aged persons in the age group 30-44 years ((Id.)).
DURKHEIM’S THEORY OF SUICIDE
Le Suicide was a groundbreaking book in the field of sociology, written by French sociologist Émile Durkheim and published in 1897. He defines suicide as follows:
The term suicide is applied to all cases of death resulting directly or indirectly from a positive or negative act of the victim himself, which he knows will produce this result ((Durkheim, Emile. Suicide: A Study in Sociology. Trans. John Spaulding and George Simpson. Glencoe, Illinois: Free Press, 1952)).
The significance of his work in the history of sociology cannot be denied due to two principal reasons. One, it was the first attempt to apply a set of systematic principles of scientific investigation to a specific social phenomenon (suicide). These principles had been explained by Durkheim in his earlier book, The Rules of Sociological Method (1895). Two, having outlined the principles involved in the scientific study of society, Durkheim attempted to demonstrate the way in which we could apply those principles to the study of any social phenomenon. Durkheim argued that a phenomenon such as suicide could be analysed scientifically and the causes of that phenomenon explored. He believed that, in order to understand social life we had to analyse human behaviour in terms of its social characteristics. Following Comte, he viewed societies as “social systems” – systems that could only be fully understood in terms of the inter-relationship between various parts of the social. For Durkheim, society appeared to be something that existed in its own right, separate from the ideas, hopes and desires of its individual members.
Durkheim’s study of suicide was, and remains, an important example of the way in which sociological knowledge and methodological principles can be used to challenge commonly-accepted or “taken-for-granted” ideas about the nature of the social world. As he argued:
Since suicide is an individual action affecting the individual only, it must seemingly depend exclusively on individual factors, thus belonging to psychology alone. Is not the suicide’s resolve usually explained by his temperament, character, antecedents and private history? … If, instead of seeing in them (that is, suicides) only separate occurrences unrelated and to be separately studied, the suicides committed in a given society during a given period of time are taken as a whole, it appears that this total is not simply a sum of independent units, a collective total, but is itself a new fact sui generis (that is, unique in some way), with its own unity, individuality and consequently its own nature – a nature, furthermore, dominantly social ((Id.)).
From the above, it is explained why Durkheim considered it important to study suicide as a collective, as opposed to an individual, phenomenon. In his book, he arrived at various conclusions by exploring the differing suicide rates among Protestants and Catholics, arguing that stronger social control among Catholics resulted in lower suicide rates. His conclusions on suicide rates among various sections of society include:
- Suicide rates are higher in men than women (although married women who remained childless for a number of years ended up with a high suicide rate).
- Suicide rates are higher for those who are single than those who are married.
- Suicide rates are higher for people without children than people with children.
- Suicide rates are higher among Protestants than Catholics and Jews.
- Suicide rates are higher among soldiers than civilians.
- Suicide rates are higher in times of peace than in times of war.
In his work, he also distinguished four subtypes of suicide. These include egoistic, altruistic, anomic and fatalistic suicides.
Egoistic suicide is primarily concerned with the lack of a sense of belonging, as well as integration with the society. It gives birth to feelings of apathy, stress and depression. It is the result of weakening bonds that generally integrate individuals into the society, and was called by Durkheim as ‘excessive individuation’.
Altruistic suicide can be considered as the exact opposite of egoistic suicide. It is the product of excessive integration, of being overpowered by a group’s aims and concerns. The individual is perceived to be inferior to the society as a whole. His needs are thus, inferior to those of the society.
Anomic suicide is the result of major upheavals in the social or economic status of the individual. It results in a feeling of directionlessness and demoralization. It is the most common type of suicide in present day society, being a consequence of sudden transformations in the material world, as well as declining trends of emotional bonds and community living.
Fatalistic suicide takes place when a person is excessively regulated, when their futures are pitilessly blocked and passions violently choked by oppressive discipline ((Harriford, Diane, and Thomson, When the Center is on Fire, pg.167)). It occurs in excessively oppressive societies, causing people to prefer to dying to carrying on living within such a society.
Such classification of the types of suicides is fundamentally based on the degrees of imbalance between two forces: social integration and moral regulation. This is considered to be highly relevant even in the modern society. The next section presents the various causes that sociologists of different times have attributed to suicides.
CAUSES OF SUICIDE AMONG YOUTH
In Durkheim’s society, children and teenagers were the groups that had a low suicide rate. This is something that has changed today and there appears to be an unusually rapid proliferation of suicides in children and teenagers throughout the globe over the last few decades. By identifying the type of suicide as suggested by Durkheim, that these young people are committing, it may be possible to find the cause for such an increase and implement the necessary procedures to help prevent the phenomenon ((Bridge J.A., Goldstein T.R., Brent D.A. Adolescent Suicide and Suicidal Behavior. J. Child. Psychol. Psychiatry. 2006;47:372–394)).
Of all the types of suicide that Emile Durkheim wrote about in his groundbreaking work, Suicide: a Study in Sociology, there are two that seem to be behind teenage suicides in the twentieth and twenty-first centuries. These two types of suicide are altruistic and anomic, with anomic being the form that has the most relevance in analysis of teenage suicides. Durkheim describes this type as resulting from a low regulation and integration of the individual into the society. Among the different factors leading to anomic suicides among teenagers, the most common is major readjustments in the social order, an inability to fulfill a person’s needs, a lack of compassion from fellow humans, a lack of aims in life, a continually transforming society, and a lack of discipline and regulation. Primary causes have been explained in brief.
Stress and Depression: Many causes, including academic pressure and peer pressure, cause stress in adolescents. Biochemical changes in the brain trigger depression, which manifests itself in different forms. Vidyadhar Bapat, a known psychotherapist has studied the temperament, strength and weaknesses of the teenagers which make them susceptible to depression. He comments, “due to their sensitivity, teenagers feel a void when what they get is completely different from what they expected ((Birajdar, Laxmi. The Many Pitfalls of Teens Life. Times City. Sunday Times of India. June 1, 2008)).”
Gender: In Western countries, the rates of suicide are higher in adolescent boys than adolescent girls (ratio of 5:1), whereas the rates of suicidal ideation and attempted suicide are higher in girls (ratio of 3:1). Reasons for such patterns include higher suicidal intent, use of more violent methods, higher prevalence of antisocial disorder and substance abuse, and greater vulnerability to stress factors, such as legal troubles, financial difficulties, and personal losses among boys. Boys may also have more difficulties in seeking help and communicating their distress.
Teenage Pregnancies and Venereal Diseases: Teenage pregnancies and venereal diseases are considered as serious problems faced by the teenagers. This can severely and all of a sudden disrupt their education as well as health. Moreover, becoming pregnant at such an early age can also have seriously negative effects on a girl’s health and mental well-being.
Family Factors: Research has suggested that family environment is an important factor in predicting suicidal behaviors. The relevant family-related risk factors include parental psychopathology, family history of suicidal behavior, family discord, loss of a parent to death or divorce and poor quality of the parent-child relationship.
Physical and Sexual Abuse: There is a grave association between childhood abuse and suicidal tendencies for both boys and girls. Exposure to physical and, especially, sexual abuse in childhood leads to a significant increase in poor mental health outcomes, including suicidal ideation and behavior, experienced at ages 16 to 25. The risk is increased if the child is sexually abused by an immediate family member or the sexual abuse is repeated over time. The greater the severity of the abuse, the higher the risk of suicide attempts.
PROGRAMS FOR PREVENTION
Despite the increasing trend of suicidal tendencies among adolescents across the world due to causes discussed earlier, there have been important measures to prevent and curb suicides among youth. For this, attention has been focused on school-based programs for identifying students susceptible to depression and anxiety, and referring them to psychological health institutions. The teachers of the target schools act as ‘gatekeepers’ to identify and refer such children. This program is worthy of appreciation because many adolescents do not convey their conditions to adults, or express clearly their mental state. Through this approach, it becomes possible to study the behaviours and take effective measures in order to prevent commission of suicide. In Canada, many prevention programs focused on protection of ethnic minorities such as native Indians have been implemented to promote their interests and values and save them from extinction. There are some plans that are based on Durkheim’s study and attempt to provide teenagers with the resources as well as the education to counter the primary causes leading to suicides among them. They also try to provide solutions for the despair, anxiety, helplessness and depression among youth. They educate adolescents to express themselves and communicate their need for support to those who are capable of extending such help. They encourage teenagers not to be embarrassed by their vulnerable conditions. One such appreciable effort, named ‘Suicide Shouldn’t Be a Secret’ has been developed in Colorado, and is based on Durkheim’s research. This campaign conveys this message in the adolescents’ own words and provides resources using modern technology that is within the access of teenagers across America, such as the internet. The program has an online resource that shows the warning signals that family and friends of such teenagers should be careful about and also lists the important phone numbers that the teenagers can call if they need to discuss their problems with someone.
In India, national suicide prevention measures are oriented towards school education programs, crisis center hotlines, screening programs that seek to identify susceptible adolescents, media guidelines (suicide prevention strategies that involve educating media professionals about the prevalence of copy-cat suicides among adolescents) and efforts to limit access to firearms. These programs have been helpful in showing that people with suicidal tendencies are inclined to show signs of emotional and mental anxiety. The identified individuals may be referred for efficient and effective treatment. Referring individuals at risk to mental health services and institutions can save many lives in time, and provide proper care to the individuals that they need so desperately.
One noteworthy project to prevent suicides is ‘Strategies to Prevent Suicide (STOPS) Project’ of Suicide Prevention International (SPI). In 2006, the Planning Committee, composed of Herbert Hendin, José Bertolote, Michael Phillips, and Danuta Wasserman developed the STOPS Project in Asia ((Herbert Hendin et al. Suicide and Suicide Prevention in Asia, World Health Organization, 2008 http://www.who.int/mental_health/resources/suicide_prevention_asia.pdf)). This program has consulted various experts engaged in suicide prevention programs across Asian countries that have undertaken strategies to curb suicides, not just in the public sector but also by non-governmental organizations. The objective of the program is to stimulate and improve suicide prevention initiatives in participant Asian countries and to help develop, implement, and fund suicide prevention initiatives that seem likely to be effective. Initiatives that have effective evaluation measures are highlighted to serve as a model for others. STOPS is currently focused on three South Asian countries (India, Sri Lanka, and Thailand), belonging to the WHO South-East Asia Region, one country belonging to the WHO Eastern Mediterranean Region (Pakistan), and eight countries (Australia; China; Japan; Malaysia; New Zealand; the Republic of Korea; Singapore; Vietnam; and China, Hong Kong, Special Administrative Region [Hong Kong SAR]), belonging to the WHO Western Pacific Region.
LEGAL PROVISIONS IN INDIA
The relevant sections of the Indian Penal Code that discuss suicide are 306 (abetment of suicide) and 309 (attempt to commit suicide). Section 306 states:
If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Attempted suicide, though a failed act usually carries more importance than suicide, a successful act, since attempt to commit suicide constitutes an offence under Section 309 of Indian Penal Code. It states:
Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for term which may extend to one year [or with fine, or with both].
In England, the Suicide Act 1961 abrogated the law laying down that attempt to commit suicide is an offence. Although suicide is no longer an offence in itself, any person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, is guilty of an offence and liable on conviction on indictment to imprisonment for a term which may extend to 14 years ((Halsbury’s Laws of England, 4th ed. 2000 Reissue, Vol. 11(1), Para 106)).
The provisions of Section 309 have given rise to numerous conflicting opinions on the desirability of making attempt to suicide punishable. On one hand, it is considered that Article 21 of the Constitution of India guarantees protection of life and personal liberty. By declaring an attempt to commit suicide a crime, the IPC upholds the dignity associated with human life which is as precious to the State as it is, to its holder and the State cannot turn a blind eye to a person trying to kill himself. On the other hand, a section of people feels that the provision is irrational and brutal as it provides double punishment to an individual already in distress. The conditions that led him to attempt to end his own life are further aggravated by imposing a cruel punishment or fine or both on the troubled individual. The Mental Health Care Bill was introduced to the Rajya Sabha on August 19, 2013 and provides, in Article 124, that:
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 be suffering from mental illness at the time of attempting suicide and shall not be liable to punishment under the said section.
It also provides that the Government shall have the duty to provide medical care to any such person attempting suicide. The Bill, therefore, does not repeal Section 309 of the Indian Penal Code, but merely provides the presumption of mental illness ((The Mental Health Care Bill 2013. Ministry of Health and Family Welfare. Union of India 2013)).
In 1981, the Delhi High Court condemned the section by calling it ‘unworthy of human society’. In 1986, the Bombay High Court in Maruti Shripati Dubal v. State of Maharashtra ((1987 CriLJ 743)), ruled that Section 309 is ‘ultra-vires’ as it is violative of Articles 14 and 21 of the Constitution of India. It supported its decision with an example. The Court said:
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. The freedom of business and occupation includes freedom not to do business and to close down the existing business. If this is so, logically it must follow that right to live as recognized by Article 21 of the Constitution will include also a right not to live or not to be forced to live. To put it positively, Article 21 would include a right to die, or to terminate one’s life.
The High Court further observed that the notion of ending one’s own life is not something which is entirely novel to the history of humankind. Religions like Hinduism and Jainism have approved the act as well as condemned it based on carrying circumstances. Buddhism has remained ambivalent on the issue. Neither the Old nor the New Testament condemn suicide as an act. It is significant that the High Court referred to the French sociologist, Emile Durkheim, and his classification of the types of suicides in its judgment. It quoted the explanations given by Durkheim of egoistic, altruistic and anomic suicides by considering them relevant to the present case. It also observed that imprisoning people who attempted suicide on account of mental illnesses would only lead to further derangement of the individuals. What they really need is proper psychiatric care, not punishment. Moreover, those who attempt to kill themselves due to terminal diseases, or grave physical state because of old age or physical disablement need homes for care of such people and not prisons.
However, the Andhra HC held that it is a valid section, by giving the reason that it does not ‘offend’ the said Articles. In the 1994 case of P. Rathinam v. Union of India ((AIR 1994 SC 1844)), a Supreme Court bench consisting of two judges, Justice R M Sahai and Justice B L Hansaria, held the section to be void. Quoting from a lecture of Harvard University Professor of Law and Psychiatry, Alan A Stone, the Supreme Court noted that right to die inevitably leads to the right to commit suicide. They said: the right to live (under Article 21 of the Constitution of India) can be said to bring in its trial the right not to live a forced life.
On the contrary, in March 1996, a Supreme Court bench consisting of five judges declared that attempted suicide is an offence under the IPC, overruling the previous bench. The case involving this question was Gian Kaur v. State of Punjab ((AIR 1996 SC 946)), where the Court overruled the decisions in Maruti Shripati Dubal and P. Rathinam, ruling that Article 21 cannot be interpreted to include within it the ‘right to die’, and thus, it cannot be said that section 309, IPC is violative of Article 21. It said:
‘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’. The comparison with other rights, such as the right to ‘freedom of speech’, etc., is inapposite… The right to die, if any, is inherently inconsistent with the right to life, as is death with life.
The Gian Kaur judgment reasoned that unhappiness is a cause behind suicides. However, a few scholars disagree with this judgment and argue by asking a question: Would the Court pronounce a medical condition as illegal if it is a symptom of depression and unhappiness? If not, then why is attempted suicide, which is a symptom of underlying psychiatric disorders, illegal? Depression is the commonest diagnosis associated with suicidal attempt like other common diagnoses such as alcoholism, drug abuse, Schizophrenia, etc. All these disorders require medical and/or psychological therapy ((Ahuja N. A Short Textbook of Psychiatry. 4th ed. New Delhi: Jaypee Brothers; 1999: p.203-210)). McNaughten’s rule may be found relevant when interpreting the criminality of Section 309. This rule is represented in Section 84 of the Indian Penal Code. It says:
Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to Law.
Thus, through this argument, attempted suicide is not considered to be an offence since the person at the time of commission, is covered by Section 84. Moreover, a person suffering from grave psychological illness cannot be expected to consider the legal consequences of his act. Thus, the law in such cases, fails to act as a deterrent. Supporters of this theory ask: Does the State today have a right to force a person to stay alive, when the State itself cannot provide him means of a decent livelihood?
An Association at the global level, The International Association for Suicide Prevention, also observed that attempt to suicide needs to be decriminalized and the individuals with suicidal tendencies should be provided with immediate help and care, and that imposing punishment on such individuals only worsens their situation. The Association sponsors the ‘World Suicide Prevention Day’ in order to attract global attention to its immediate objective on September 10 every year. Acting on the view that such persons deserve the active sympathy of society and not condemnation or punishment, the British Parliament enacted the Suicide Act in 1961 whereby attempt to commit suicide ceased to be an offence ((Justice A. R. Lakshmanan, Humanization and Decriminalization of Attempt to Suicide, Report No. 210, October 2008. http://lawcommissionofindia.nic.in/reports/report210.pdf)). Clause 126 of the Indian Penal Code (Amendment) Bill, 1972, introduced in the Council of States on 11.12.1972, provided for the omission of section 309. It was stated in the ‘Notes on Clauses’ appended to the Bill that the said penal provision is harsh and unjustifiable, and that a person making an attempt to commit suicide deserves sympathy rather than punishment. As the House of the People was dissolved in 1979, the Bill, though passed by the Council of States, lapsed.
However, the debate regarding the section has now been stabilized. In December 2014, the government decided to decriminalize ‘attempt to suicide’ by deleting Section 309 of the Indian Penal Code. Minister of State for Home, Haribhai Parathibhai Chaudhary said that the government had decided to drop Section 309 from the IPC after 18 states and 4 Union territories backed the recommendation of the Law Commission of India in this regard. In his words:
Law Commission of India, in its 210th Report, had recommended that Section 309 (attempt to commit suicide) of IPC needs to be effaced from the statute book. As law and order is a state subject, views of States/UTs were requested on the recommendations of the Law Commission. 18 states and 4 Union territory administrations have supported that Section 309 of the IPC may be deleted. Keeping in view the responses from the states/UTs, it has been decided to delete Section 309 of IPC from the statute book ((Bharti Jain, Government decriminalizes attempt to commit suicide, removes section 309, TOI, December 10, 2014. http://timesofindia.indiatimes.com/india/Government-decriminalizes-attempt-to-commit-suicide-removes-section-309/articleshow/45452253.cms)).
It was observed that many countries including those in Europe and North America have decriminalized attempt to suicide. WHO, the International Association for Suicide Prevention, and Indian Psychiatric Society have also recommended the above stated decriminalization. Thus, in view of these recommendations, the Government finally took the bold step of initiating steps to repeal the ‘anachronistic’ law.
Suicide remains an grave psychological problem and a major cause of death in young people. The role of social factors in suicidal behavior has for long been established. It is very necessary that the causes of suicides be studied in depth, and appropriate measure to curb the act be enacted. Various views on the debate concerning decriminalization of attempt to suicide (covered by Section 309 of IPC) were expressed in the paper. This research welcomes the latest move of the government in favor of repealing the harsh and unreasonable section. It was highly necessary not to subject already troubled individuals to further pain and humiliation. This is a step that would go a long way in preventing suicides. However, only this is not enough. It is imperative that both governmental and non-governmental organizations pursue programs for the identification of such individuals who might be at risk of committing suicides and providing them with the requisite medical care. This would be more effective in the situations where individuals inclined towards committing suicides can be identified at a young age, during their adolescence so that they may be counseled in a more effective way. In this context, the concepts propagated by the classical theories of Durkheim and Erickson are still highly relevant today. Some such organizations are already at work and have done some commendable work in the field, but there is a need to establish more such organizations and expand their reach so as to bring more troubled individuals into their fold.