The debate whether section 309 of the Indian Penal Code (IPC) that criminalises attempt to commit suicide should go from the statute book is just as important as effacing section 377 and yet it has not drawn half as much attention.
Consider the commonalities shared by both sections: both date back to a pre-constitutional, colonial era; have survived judicial scrutiny based on constitutional tests and; have influenced India’s highest court to solicit legislative consideration in revisiting the law in view of global developments.
The bill introduces several changes to the mental healthcare system in India to bring the existing scheme of laws in line with the U.N. Disability Convention which India ratified in 2007. However, the frowning part of the bill is section 124, which although seems to appear generous at first instant in that it decriminalises attempt to commit suicide, is set to leave suicide survivors, particularly women, in a far worse state of existence.
The existing section 309 allows the police to imprison or impose fines on any person who “attempts to commit suicide and does any act towards the commission of such offence”. The conviction rate under section 309, however, is so low that attempted suicide is barely considered a crime. This is because officials tend to always take cases of attempted suicide with a pinch of sympathy.
Section 124 of the bill introduces two significant changes to the existing jurisprudence on the subject.
The first change is that attempted suicides will now be decriminalised, that is, suicide survivors will no longer be punished under section 309.
The second crucial change is the incorporation of a legal ‘presumption’ where all suicide survivors shall be ‘presumed’ to be suffering from mental illness at the time of attempt. The presumption, however, is not conclusive and can be rebutted.
Under the Indian rules of evidence, this implies that the onus to prove mental soundness will be on the suicide survivors against whom the presumption will lie. In other words, all suicide survivors will be deemed to be suffering from mental illness unless the contrary is proved to the satisfaction of the competent authority.
The move to decriminalise attempted suicides perhaps came after Justice Katju’s observation in the case of Aruna Shanbaug that the Parliament should delete section 309 “as it has become anachronistic”. “A person attempts suicide in a depression, and hence he needs help, rather than punishment”, Justice Katju observed.
In light of this development, decriminalising attempted suicide is, of course, a step in the right direction. However, section 124 of the bill is unreasonable in effect, if not in intent. This is because there is no proportionality between the means adopted and the legitimate end that section 124 of the bill seeks to achieve. Let us take the example of attempted suicide by women facing domestic violence at their in-laws – one of the major risk factors for suicide in Indian household.
The theory that such cases will be covered under the abetment provisions of the IPC is misplaced. This is because the victim may be considered, by operation of the legal presumption, inefficient to give evidence in a court of law to support her case unless she discharges the burden to prove her sound state of mind.
The presumption in such cases is more burdensome to discharge given the mental trauma that the victim undergoes coupled with indifferent family members, relatives and the apparent inefficiency with which healthcare institutions work. Besides, the bill provides for compulsory medical treatment, with or without consent, which invites further institutional abuse and undue encroachment upon victim’s dignity and self-autonomy.
It is appalling to see how the bill shifts the focus on suicide law from a “rights” issue to a “disability” issue. The bill fails to appreciate that mental illness is only one of the many driving factors behind attempted suicides. By incorporating a legal presumption of mental illness, the bill not just trivialises the law on abetment to commit suicide, but also disempowers victims of domestic violence who have to unnecessarily yet compulsorily go through the stigmatized experience of mental health care system in India.
Even worse, the everlasting fear of institutionalisation may encourage those attempting suicide to, in fact, succeed.