Section 309 of IPC

Source: By Mohamed Thaver: The Indian Express

Soon after the suicide of actor Sushant Singh Rajput, the conversation moved around the sensitivity with which issues surrounding mental health should be handled. However, one of the most archaic laws that punishes attempts to commit suicideSection 309 of the Indian Penal Code (IPC) — contrary to popular perception that it has been repealed, continues to exist in the statute book and, as reports suggest, is often misused. Anyone who survives an attempted suicide can be booked under Section 309 IPC, which deals with “Attempt to commit suicide”.

The section reads: “Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year (or with fine, or with both)”.

The law, brought in by the British in the 19th century, reflected the thinking of the time, when killing or attempting to kill oneself was considered a crime against the state, as well as against religion.

But wasn’t Section 309 repealed a few years back?

No. The section continues to remain in the IPC. What has happened though, is that The Mental Healthcare Act (MHCA), 2017, which came into force in July 2018, has significantly reduced the scope for the use of Section 309 IPC — and made the attempt to commit suicide punishable only as an exception.

Section 115(1) of The MHCA says: “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.

Section 115(2) says that “The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.”

But this seems as good as repealed, even if the section does continue to be in the IPC?

Not quite. The restrictions put on the use of this section under the provisions of the MHCA — as opposed to it being removed from the statute all together — do not seem to be enough simply because of continued reports of its use by police forces across the country.

In one recent example, on June 8, a runaway couple allegedly attempted suicide at Ashoknagar police station in Bengaluru by consuming hair dye. Local media reported that they were booked under Section 309. Again, on May 20, an inmate at Gurgaon’s Bhondsi jail who had allegedly tried to kill himself with a pair of scissors, was reported to have been booked under Section 309 IPC.

Several senior police officers said that on many occasions, there is lack of awareness among officers at the level of the police station about the relatively new MHCA, and they simply go by the IPC. However, the charge under Section 309 is often dropped subsequently, following consultations with senior officers, said Harssh Poddar, Superintendent of Police, Beed.

What problems can arise out of the use of this Section?

Chennai based psychiatrist Dr Laxmi Vijaykumar, who is also a member of the WHO’s Network on Suicide Research and Prevention, said that use of this Section can potentially deprive a victim of treatment in the golden hour, as hospitals wait for a go-ahead from police in what would be seen as a “medico-legal case”.

It is possible that unscrupulous hospital authorities may misuse this situation and charge extra to “hush up” the case by not informing the police; similar extortion is possible on the part of corrupt police personnel as well.

All of this is in addition to the trauma and harassment that an already severely distressed individual and people around him/her would likely be going through. Only 24 countries around the world have a section such as this in their laws, experts said.

But is there another side to this story?

It is possible that there might be one — and this is where the argument in favour of Section 309 IPC co-existing with the provisions of the MHCA, 2017, comes in.

A veteran police officer who declined to be identified said there were occasions when people showed up at government offices and threatened to kill themselves if their demands were not met. “It is in these cases, where we suspect that the person does not intend to commit suicide but is using the threat as a way to unfairly pressure or blackmail the system, that this section is used.”

A senior IPS officer said, “If 309 is repealed, there will be no provision to take action against those who intend to create trouble of this sort.” SP Poddar said: “Section 309 IPC can be redefined in such a manner where it can still be leveraged in law and order situations, and not be used against those who are suffering from genuine mental health issues.”

What attempts have been made to repeal Section 309 in the past?

Dr Vijaykumar, who has been advocating that the section be repealed, said that the process has been ongoing for years.

In 1971, the Law Commission in its 42nd Report recommended the repeal of Section 309 IPC. The IPC (Amendment) Bill, 1978, was even passed by Rajya Sabha, but before it could be passed by Lok Sabha, Parliament was dissolved, and the Bill lapsed.

In ‘Gian Kaur vs State of Punjab’, 1996, a Constitution Bench of the Supreme Court upheld the constitutional validity of Section 309. However, in 2008, the Law Commission in its 210th Report, said that an attempt to suicide needed medical and psychiatric care, and not punishment. In March 2011, the Supreme Court too recommended to Parliament that it should consider the feasibility of deleting the section.

In 2014, repling to a question in Rajya Sabha, then Minister of State for Home Haribhai Parthibhai Chaudhary said the government had decided to drop Section 309 from the IPC after 18 states and 4 Union Territories had backed the recommendation of the Law Commission. The matter did not, however, reach its logical conclusion.