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    A Need for Decriminalizing Section 309 – Fighting Mental Problems

    This article on, ‘A Need for Decriminalizing Section 309 – Fighting Mental Problems‘; is written by Parvraj Patni. He is a 1st Year Student in LL.B. (Hons.) from Jindal Global Law School.


    Suicide is an act of taking one’s own life. Section 309 of the Indian penal code criminalises the act of attempting suicide. The reasons given for that have been very well explained in Gian Kaur vs. the State of Punjab [see here]. In this case, the court struck down the decision of the P. Rathinam case [see here] and set aside the extension given to Article 21 [see here] of the right to life and personal liberty.

    This stand of the court was taken in the lieu that this will deter people from committing suicide; but 93% of suicide attempters were found to suffering from Mental Issues; as shown in Adinkrah M’s Criminal Prosecution of suicide attempt survivors in Ghana [see here]. According to a report from WHO; around 8 lakh people die from suicide every day and up to 25 times as many make a suicide attempt. India contributes to around 34% of the suicides around the world as published in Vijdan Mohmadd’s; “In 2019, a person died every four minutes due to suicide” [see here].

    Most of these were backed up by mental issues. A recent attempt to partially decriminalise this section has been made by the government through the mental healthcare act 2017 [see here] which says that “any person who attempts to commit suicide shall be thought to suffering through heavy stress and thus not guilty unless proven otherwise”. The first and the foremost question that arises is; what is the threshold of severe stress while deciding the case of attempt to suicide ?

    Studies Based on Statistics

    The conviction rate of a suicide attempt is nearly 30%; these are those cases where it was proved that the attempter was not under severe stress, says Shiv Sahay Singh.[see here] If a person is trying to end his /her ‘own’ life then even a layman can understand that he is either under severe stress or suffering through mental issues. This precedent of conviction is so irrational as well as disturbing. Random 4 people deciding if the “accused” is under severe stress; or not by balancing those factors which they weren’t even part of.

    The judiciary cannot completely be aware of the whole picture of one’s personal life. The only logical thing is to understand the stress of the individual. Although, that doesn’t seem possible due to laid down stigmas for mental health in our society.

    The reason?

    The wrong precedent can also be credited to the stigma that our country has regarding mental issues and suicide. We are so reluctant in accepting that people can suffer through mental pain. Most of the attempters are regarded as attention seekers, weaklings and some even go to the extent of calling them ‘psycho’.

    The Indian penal code was formulated in 1860 during the time of the British regime; and an attempt to suicide is there in the code since then. Ironically, the suicide attempt has been completely decriminalised in Britain since 1961; and well we are partially there in 2017.

    Outdated section 309

    One of the reports by the Indian Psychiatry journal [see here]; mentions a case of a 40-year-old man who attempted suicide by drinking pesticide; in which he was later convicted of an attempt to suicide under Section 309. This type of cases is not rare in India when we know how high the rate of suicide is in our country.

     Convicting someone for this crime has no rationality behind this because when you put someone in jail for this, you are sending him/her into more misery and worse than this is that it can never be predicted what the court will think of as severe stress. It was found that 78% of people are at more risk who have attempted suicide once and more in the Indian Psychiatry journal. This fact shows that sending someone to jail for an attempt to suicide makes no sense at all because we all know how the conditions of our jails are the possibility of counselling and help.

    Before the commencement of the MHCA (Mental Health Care Act), few judgements tried to decriminalise attempt at suicide but were overruled by SC. One of the main reasons SC cited that the right to life doesn’t vis-à-vis leads to the right to die, says Adinkrah.

    Though there is a landmark report of the law commission of India in which it said that “the continuance of Section 309 I.P.C. (Criminalizing Suicide) is an anachronism unworthy of a human society like ours [see here].”Another landmark judgement was of P. Rathinam whereby the court had struck down section 309 as unconstitutional. This case gave the extension to fundamental right in Article 21 by saying the Right to life is also a right to die. This was later overruled as above mentioned.


    Judgment like P. Rathinam was far ahead of its time; if we see it from the context of suicide in Indian Society and the Indian judiciary. The patriarchal role that the court plays by interfering in a very personal matter of choice to live or die. It shows that there is a lot of stigmas attached to suicide.  Attempt to suicide calls for complete decriminalisation and the state should focus on providing counselling; and better mental healthcare rather than imprisoning someone to lifelong misery.

    The basic needs of healthcare should not be limited to just physical healthcare; but rather mental healthcare as well. The happiness index, the working condition ratings, the brain drain data; all depicts that people are not happy in the greatest democracy of the world. Right to basic healthcare as a fundamental right is a farfetched dream; but an attempt to include mental healthcare and counselling in directive principles can go a long way for people in India.

    The mere inclusion of the concerned section in the MHCA act is not enough. To even allow the courts to have a scope of conviction in suicide cases is beyond humanity. The whole section needs to be declared null and void.

    References Cited Listed


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