December 18, 2010

Career in Criminal Law; options and choices

Are you looking to build a career in criminal law practice or research? Here are the top Seven Wonders that you should visit to fulfill your interest in criminal law scholarship. The short note, speaks for itself. Read on.
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1. Criminal Law Practitioner / Litigation - If you want your neighbours to envy your dignity, if you want people to think twice before casting foul remarks on you, and if you want to earn some good money, read on. The idea is to start a small office at your own residence, make contacts at local police stations, know your clients, get involved in local politics and the field is yours. Take every case that comes before you, be it a bail or a maintenance case, and see how quickly you shine in your district. Make sure you have good research skills and kick ass precedents with you, and when you argue before a Judge, be humorous. Criminal litigation, they say, is highly rewarded and your earn from the first day itself. Slog your ass for two years, sweat, and then see the results. After all, when the Tatas and Birlas mess with the IPC, CrPC or Evidence, AZB or Amarchand will not come for rescue. Well, neither will you. But make sure five years down the line you at least stand against those who take up their cases.

Don't go and work under a Senior Lawyer. Don't waste your time. Work teaches work. Start practicing independently. They say that joining a Senior helps you understand the court procedure properly. Heck ! What were you doing in the last four or five years at a law school? Internships. Yes. Intern properly under a top notch lawyer to learn the way petitions are drafted, his way of arguing, how he impresses a Judge. Intern also under a Munsi/office clerk to know the court procedure. So that right after your law school with some internship experience, you are able to work independently. Work for yourself. This increases efficiency. 

2. Judicial Clerkship under Appellate Courts (Criminal Division) - If you have the slightest belief in the judiciary, read on. Judicial Clerkships will help you in every field you wish to pursue. If you want to pursue your masters in criminal laws from a top UK or US University, that too on a full Scholarship, go for a Judicial Clerkship (JC). Try to do it under a Judge of High Court or Supreme Court. Easiest way to find out reputed and knowledgeable Judges in criminal laws is to browse on some landmark judgment on criminal laws and look who had written the majority judgment. It is advised to address a letter to the Registrar but direct talking to the Judge is not discouraged. For an official position after you graduate, there is a call for application for the post of Research Assistant and the Registrar of the SC notifies the same to recognised law schools as also on the SCI website. Know about JC more here.

You can also be a clerk/research assistant to a retired Judge where you don't have to bother about court room etiquettes. In West Bengal, Justice D K Basu (famous for his Guidelines on Police Torture) is heading the Legal Aid Services. It is a civil society organisation and don't confuse it with State Legal Services Authority. Students from West Bengal Law Schools can apply for internships which is also very rewarding (in terms of stipends). Wait, never forget to ask a Judge you worked for, to write a personal recommendation letter for you. 

3. Lecturer in Criminal Laws - If you are crazy about teaching, and want to be closer to home, read on. Lecturers in big law schools are highly paid. There are other merits like - feeling a sense of responsibility and innovation, meeting classroom challenges, getting research grants from outside sources, respect in fraternity, among others. But the most important part in law teaching is (unless you have some real high aims in life) that you can join a university that is the best in your home town.

You would need a Masters in Law from a recognised University. You can also be a Tutor in a law varsity in the UK if you have a reputed LLM Degree from the UK. Not to say, your promotion chances are awesome if show a standard level of dedication. You are advised to complete a Refreshers Course that is available for improving chances of promotion. If you are a student enrolled in a law university, catch with the criminal law professors and convince them to offer you classroom teaching for a month or two in any subject of your interest. Plus, there are tutorials in almost all law schools and if you successfully complete the programme, it guarantees a teaching job in any good University.

4. Joining Law Firms specializing in Criminal Laws - If you are looking for a job in your field which gives you an air conditioned room and a cosy chair, read on. You can still be smart with a corporate attire and look similar to your friends in AZB, AMSS or Trilegal. At the same time, you get to work and specialize in your area of interest. You earn the same money as yours friends do in big law firms but the difference is you don't have to be in a law firm only for the sake of a lucrative job (not in all cases). This position will usually demand you to sit and aid in research and draft petitions. Law firms normally have lawyers on an  independent basis who represent the firm in courts. Not all firms in India practice in criminal litigation. But there are firms like O P Khaitan and Co., Rajesh Sangani Law Firms, Jotwani Associates, Trustman and Co., Leges Juris Associates, B. S. Jain and Co. which are worth the consideration. But if you think you can impress a Judge with your eloquence, refer Point No. 1.

5. Research Fellowships or Research Assistantships - If you are interested in doing studies that will impact the criminal justice system, on a fellowship/grant, read on. Various law schools in India, UK and US among others have a Centre for Criminal Justice Studies. To be specific, in USA, Centre for Crime and Justice at NYU, International Center for Criminal Justice at HLS, Criminal Justice Policy and Management at Harvard Kennedy School, Stanford Criminal Justice Center, SLS, Brennan Center for Justice at NYU, and in the UK the Centre for the Study of Human Rights at LSE, Criminal Justice Centre at Warwick, Centre for Criminal Laws at UCL, Centre for Criminal Justice Studies, Leeds. In India, go for Centre for Penology, Criminal Justice and Police Studies at Gindal Global Law School.

The Director/Faculty Advisor of the Centre can be easily contacted through emails. The contact details are provided in the respective websites. Some of the Centres also provide student internships, although they are normally unpaid positions. Well, it depends how diligently you use this information to get a position in any of these Centres. They will not entertain your Statement of Purpose unless it shows demonstrated interest in criminal law with substantive evidence in the form of publications, conference papers and moots. If selected for a fellowship, you get the opportunity to research under the Center and also take classes. Chances are they will absorb you. To have a general overview of potential applications for research internship, see this post.

6. Joining organisations dedicated to Criminal Justice - If you want to involve yourself in high quality research in criminal justice and human rights under the supervision of bright minds, read on. Although not lucrative in first instant, these research positions can change your life style for sure. You not only get to work with the most influential people in India but also get an opportunity to become a change-maker. Be it constant writing on criminal justice issues in newspaper columns, member of Working Paper Series, part of Policy Comments, your interest in criminal law scholarship will best be served. Some of the noted positions for this area are Commonwealth Human Rights Initiative (CHRI), Criminal Justice Initiative at Human Rights Law Network (HRLN), Victims Rights at Lawyers Collective, International Relations and Security under Ved Marwah (Centre for Policy Research), Institute of Social Sciences, New Delhi.

7. Starting your own criminal law firm (Courtesy - Adil Sir) - If you have earned a good amount of money through any of the above six means, read on. Before that, please browse through some good posts on how to start your own law firm. It is suggested to earn some money before starting your own law firm. Try to connect with law graduates who are interested in opening partnership businesses. The way a start up firm operates is city by city . The idea is to build enough of clientele for one, along with goodwill and revenue that comes from it and use it in another .

But how ? So normally to begin with a team, start with one city in mind. Considering you are a fresh start-up firm, the idea is to get a good flow of clients. You also have to identify why a person or a client would not just come to you but stick with you. You must understand that the way the market will judge you is in terms of how much field experience or goodwill you carry. To the clients, you must look first a professional lawyer in terms of experience and expertise for them to trust their cases in you. Performance comes later. If you can get a good flow of clients, which normally happens through alliances / connections/ or outsourcing, the performance and the goodwill carries as a word of mouth.

Launching yourself - The reason one would work with you is Cheaper and Faster. But your team has to be right, lot of marketing is required first year, and yes you need to network with the right group. It is never easy to launch yourself. But once you do, the returns are good. If you are qualified it will boil down to personality , merit and drive. It boils down to how efficient is your team. If you think its more of smoke than fire, the market will know it sooner than later. Remember, being neutral is better than bad goodwill.

Scary Start ? Do what your heart tells you, if you feel its right that is all that matters. But do your ground work well. Use your mind than be emotional about the whole thing. Do a good blueprint of what you want. Stare at it and re read it again. Get a very clear idea of what you want, and make sure the steps are correctly walked or charted. I am sure if your groundwork is done right , things should fall in place. After all, it does not take scientists to build a career in criminal law.

October 6, 2010

Protection Against Sexual Harassment Bill

In this guest post, Rishabh Goenka of the National University of Juridical Sciences discusses the Sexual Harassment Bill. He is also a Member, Society for Advancement of Criminal Justice (SACJ), NUJS for the academic year 2010-2011.

I.Preliminary
The Protection of Woman against Sexual Harassment at Workplace Bill, 2007 – Drafted by Ministry of Women and Child Development
II.Constitutional Mandate and Law on Prevention of Sexual Harassment at Workplace
A.     Constitutional Approach

2.1  This law is to be considered keeping in mind the large number of working women in our country  and various problems faced by them and towards creating a just and secure working environment.
2.2  Constitution affords equal rights of work, life and liberty to all [Articles 14, 19(g) & 21]. The same, however, have been constantly undermined in the cases relating to sexual harassment at workplace, be it domestic, office or factory. Art. 15(3) empower the legislature to make special laws for woman, which has been done in this case.
2.3  Directive Principles of State Policy [Articles 39(a), 39(e), 41] enshrined in the constitution, foster the concept of right to work and prevention of exploitation on economic grounds.
2.4  One of the Fundamental Duties as enshrined in Art. 51A (e) of the constitution is to renounce practices derogatory to the dignity of women.
2.5  It is to be noted that men also face sexual harassment at workplaces and thus, the law can be more gender neutral if it includes males as aggrieved party as well.

B.     Legislations

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2.6  Indian Penal Code [Sections 209, 354, 509] is generally used in cases of sexual harassment at workplace. It is interesting to note that in Giridhar Gopal Case (1953) Cr L J 964, it was held that under section 354, IPC modesty is only possessed by woman. Thus, were considered inviolate and not the repository of socially recognised attributes that shames them or society. It is interesting, however, that the judgment holds that both men and women are capable of outraging women’s modesty[1]. In the present scenario, where even our constitution considers individual as the unit of analysis, irrespective gender, this law comes as a reiteration of the wrong point made more than 50 years ago that only women can be harassed.
2.7  Indecent Representation of Women (Prohibition) Act, 1987 is another tool in the hands of victims to seek justice.
C.     Case Laws

2.8  Vishaka v. State of Rajasthan
2.9  R D Bazaj v. KPS Gill
2.10     Apparel Export Promotion Council v. A K Chopra
2.11          U S Verma, Principal, Delhi Public School Society v. National Commission for Women AND Jayshri Kannan and ors. V. U S Verma and ors.     MANU/DE/2639/2009
2.12          S Chitra v. The Director of Fire Services           MANU/TN/2542/2009
2.13          M K Sharma and Anr. v. Sangeeta Gupta and Ors. AND Navneet Kaur v. Sangeeta Gupta            MANU/DE/0304/2009
2.14          Ms. Gloria Kumar v. Central Information Commission   MANU/CI/0318/2008
2.15          G Pushkala v. High Court of Judicature of Madras rep. by its Registrar General, K. Muthukumaraswamy, Deputy Registrar Tribunal CLAA    MANU/TN/8512/2007
2.16          Samridhi Devi v. Union of India and Ors.          MANU/DE/1953/2005

III.             The Protection of Woman against Sexual Harassment at Workplace Bill, 2007
3.1  Statement of Objects and Reasons (SOR) carry limited interpretational value. [ State of West Bengal v. Subodh Gopal, AIR 1954 SC 92)
3.2  The long title has interpretative value [Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369]
3.3  The Long Title of the Bill  :
to provide for prevention and redressl of sexual harassment of women at workplace and for matters connected therewith or incidental thereto.
3.4  There is no legislative motivation for acknowledging or redressing sexual harassment faced by men at workplaces.
3.5  The Act would come into force only after government notification.
Substantive Provisions
i)        Section 4
3.6  As per this section 4(2)(a), employer is supposed to constitute a committee with a senior level women official as the Chairperson. In case of non-availability, Chairperson is to be appointed from a sister organisation or a non-governmental organisation. This section has 2 problems : -
a)      Many of the small scale organisations do not have sister organisations working with them. In such a case, only option available is to appoint the Chairman from a NGO. Now, this would be presupposing that some or the other NGO is working at every nook and corner of the country. A viable option here is making woman police officers also eligible for the post of Chairman.
b)      Chairperson can be appointed from a NGO, which is not working in the area where the office is situated.

Also, since the Chairperson is entitled to some remuneration, is the post of  Chairperson of ICC in a governmental organisation qualifies as office of profit?

ii)       Section 9
3.7  As per Section 9(3) enquiry should be completed within 90 days. What were the considerations while deciding the time limit? Isn’t it excessive?

iii)     Section 11

3.8  Section 11(4) proviso :                                                                                                                                     Provided that where the employer or the District Officer is not in agreement with any conclusion arrived at or recommendation made by the committee or the Local Committee, he may alter the conclusion or recommendation in consultation with the committee or the Local Committee, as the case may be, and the parties concerned in such manner as may be decided in the consultation and shall act upon the recommendation within ninety days of completion of the consultation.                                              

       It shall be specified whether consultation entails concurrence as well. If not, then the whole purpose of the law would be defeated as the employer would have the final say in every case.                                                                                                                    
We propose proviso to 11(4) should read as :                                                                     Provided that where the employer or the District Officer is not in agreement with any conclusion arrived at or recommendation made by the committee or the Local Committee, he may alter the conclusion or recommendation with the permission of the committee or the Local Committee, as the case may be, and the parties concerned in such manner as may be decided in the consultation and shall act upon the recommendation within ninety days of completion of the consultation.        

iv)     Section 14
3.9  Section 14 oust the applicability of RTI Act. Few questions : -                                                         Can a legislation enacted after enactment of RTI Act be out of its purview?               Will it lead to compromise on transparency?                                                           
 Sec. 22 of the RTI Act gives it an overriding effect on any other law. It reads as follows :
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
The information prohibited under Section 14 of the Bill can be denied under Sections 8(e) and 8(j). Thus, there is no apparent conflict between both the laws. Under RTI, however, there are some exceptions to Sections 8(e) and 8(j), mentioned within the section themselves. These exceptions are not provided in the Bill, and thus to that extent the Bill is inconsistent with RTI.
3.10          The Bill contains no provision of mediation or conciliation. Sometimes, a warning is more effective than punishment.

International Seminar on 'Relevance of the Indian Penal Code in Controlling and Combating Crime in Modern Age'

Special Thanks to Prof. K A Pandey, Professor at RMNLU for sharing the information.


Ram Manohar Lohiya National Law University (RMNLU), Lucknow, UP, India is organising a two day International Seminar, commemorating 150th Anniversary of the Indian Penal Code on 14th and 15th of December, 2010.

The discussion would revolve around the following issues:-

1. Ideology, History and Philosophy of IPC
2. Law and Morality Debate in the context of IPC with special emphasis on Suicide and Homosexuality
3. Punishment in IPC with special emphasis on Death Penalty
4. Reforms in Homicide Law
5. Offences against Religion and Public Tranquility
6. IPC, Judicial Law Making and Agenda for Reforms.

Full Paper (not exceeding 2000 words), along with an abstract (not exceeding 200 words) must be electronically submitted at ka_pandey@rmnlu.ac.in latest by November 15, 2010. Only selected papers will be allowed for presentation. List of selected papers will be uploaded on University Website by November 30, 2010.

The last date for Registration is December 7, 2010 and the Fee is Rs. 500 for students. Accomodation is available on a first come first serve basis for students in the Hostels on a nominal charge. Fee includes food.

Basis of criminal responsibility

Anupama Sharma at National University of Juridical Sciences discusses the basis of criminal responsibility in India. She is also a Member, Society for Advancement of Criminal Justice (SACJ), NUJS for the academic year 2010-2011.
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Crime is “any conduct which a sufficiently powerful section of any given community feels to be destructive of its own interests, as endangering it’s safety, stability or comfort, it usually regards as especially heinous and seeks to repress with corresponding severity; if possible it secures that the forces which the sovereign power in the state can command shall be utilized to prevent the mischief or to punish anyone who is guilty of it.”[1] To protect the interests of the society we have a mechanism designed which ensures that the security and safety of the citizens is not in danger. In order to determine whether a given activity is a crime or not a certain strategy is followed. The maxim actus non facit reum nisi mens sit rea means; “an act does not make a person guilty of his crime unless his mind be also guilty.” [2] This is one of the prime maxims of criminal law which governs the ascertaining of an act to be a crime. The two main components of a crime are:
1. Actus Reus i.e. the act (physical component) and
2. Mens rea i.e. the guilty mind (mental state).
Whenever a crime is said to have been constituted there is for sure an act involved which is termed as actus Reus…but it is not always true that the intention of the parties to a crime is guilty. For mens rea there is involved a subjective inquiry into the actual state of mind of the accused during the time of commission of the offense. In such situations there arises a question as to whether the act should not be considered as a crime on the mere basis that there is no mens rea or to make an alternative that survives even without mens rea.
The law regarding crime was framed long back but the society changes with time and so does the situations arising .Thus the law previously made could not have foreseen all the possible criminal activities and these complicacies. Therefore, the law should not be rigid with the fact that an act would become a crime only when there is mens rea because in such a situation there is a possibility that many crimes might go unnoticed. That is the reason why the Orthodox Theory of Crime which called for the importance of both the ‘act’ and ‘mental state’ was altered by the Revised Theory which adapted itself as per the present needs and made law to this respect a bit flexible.
The main area where the need of mens rea has been relaxed is the “strict liability which is “a criminal liability for conduct unaccompanied by fault, that is, without a requirement that the actor have any particular mental state.”[3] Strict liability offenses can be interpreted as legislative -judgments that persons who intentionally engage in certain activities and occupy some peculiar or distinctive position of control are to be held accountable for the occurrence of certain consequences.[4] These strict liability concepts where intention is irrelevant and where the defenses of ignorance and mistake are excluded are better termed as “objective liability” as here the state of mind is judged by the standard of the notional “reasonable man”. And strict liability extends to the class of persons who may be held liable for an offence to include all those who committed the prohibited act, however involuntarily or inadvertently, within the limits defined by the doctrine.” [5]

In the Indian Penal Code, with the description of various kinds of crimes the degree and relevance of mens rea has been given like “intention” or “knowledge” for murder and ‘dishonestly” for theft but still there have been cases where the courts have not considered mens rea as an indispensible component of crime and convicted the accused even in the absence of mens rea. While at the same time, there have been instances where common law judges emphasized the need for mens rea saying that “unless a statue either clearly or by necessary implication rules out mens rea as a constituent part of a crime”[6]  the court should not find a man guilty for that crime without the guilty intention. But the need of strict liability principle was emphasized by Lord Salman in his judgment in Alphacell Ltd. V. Woodward [7] saying that if there could be no conviction under 1951 Act without proving that “the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred the relief of many riparian factory owners.” To add to this, Perkin claims that “in fact, it is no longer proper to say that offence mala prohibita are enforced on the basis of liability without fault. They are enforced on the basis that the fault is presumed unless the defendant introduces evidence to establish clearly that there was no fault.”[8] And also it is contented that fault element is unimportant because strict liability does not really constitute “true crimes” but are deemed as “violations”, “quasi crime’’, “civil offences”, “public welfare offences” or “regulatory offences”.

Some of the cases dealing with the non consideration mens rea are;

1. United States v. Balint[9] : The defendant was indicted under a statute which made it unlawful to sell narcotics without a written order. The defendant claimed that the indictment was insufficient because it failed to allege that he had known that the drugs sold were narcotics. The United States Supreme Court held that his conviction did not deny due process.[10]

2. State v. Lindberg[11] : The statute in question provided that "every director and officer of any bank ... who shall borrow ... any of its funds in an excessive amount ... shall... be guilty of a felony.'" The defendant contended that he had borrowed the money in question only after he had been assured by another official of the bank that the money had come from a bank other than his own. But the court held that the reasonableness of the defendant’s mistake was not a defense.[12]

3. Regina v. Prince[13] : Here, prince was held liable for unlawfully taking and marrying a girl under 16 years of age. The contention of prince about no guilty intention and lack of knowledge of the correct age was not accepted by the court. The majority of the court interpreted the statute to make the reasonableness of a belief as to the girl age irrelevant, and found Prince guilty.

4. M.H. George v. State of Maharashtra.:[14] Here, it was held that the mental state and the knowledge component of the accused don’t matter; mere bringing of gold would constitute an offence.

Although case laws support the need of strict liability principle there are certain criticisms -

·        It is not coherent with the purpose of criminal law.
·        It is against the standards of criminal culpability that prevails in a community.
·        The practical effect of strict liability offenses is simply to create that anomalous situation in which persons not morally blamed by the community are nevertheless branded criminal.[15]

The justifications on the other hand for the strict liability concept are -

·        A person being aware of the fact that certain criminal consequences might be imposed for certain consequences then the person would work with greater caution compared to the applicability of lesser standards.
·        If the strict liability principle is not followed the penalty would be lesser which would have quite a minimal deterrence effect.[16]

Conclusion:

To conclude, it is supported herein that the law should not be rigid and should be flexible enough to mould as per the changing scenario. The issue about fault being the basis for criminal responsibility can be answered saying that the main purpose of criminal law is to eliminate and punish the crime and for that matter if it is evident that an act committed deems to be crime but the state of mind behind it is not guilty but is negligence then that act could not be left unnoticed on the mere fact that there is no mens rea. Thus, to conclude it is situational and no such rigidity should prevail that fault has to be there to form a crime.



[1] Kenny’s Outlines Of Criminal Law,jw 18th Ed, Cambridge,pp 2, Cecil Turner (Ed),
[2] Elizabeth A. Martin |A Dictionary Of Law | 2002
[3] Wayne Lafave And Austin Scott, Criminal Law, p.218.
[4] Hein Online -- 12 Stan. L. Rev. 743 1959-1960
[5]: Francis G. Jacobs, The basis of responsibility.
[6] As said by Lord Goddard, CJ.
[7] (1972) 2 ALL ER 475.
[8] Perkins, “disquieting,” p. 1079.
[9] 258 Us. 250 (1922).
[10] Hein Online -- 12 Stan. L. Rev. 743 1959-1960
[11] 125 Wash. 51,215 Par. 41 (1923).
[12] ibid                       
[13] 13 Cox Crim. Cas. 138 (1875).
[14] AIR 1965 SC 722.
[15] Hall, General Principles Of Criminal Law 302-3 (1947)
[16] Hein Online -- 12 Stan. L. Rev. 743 1959-1960

‘Attempt to Commit Suicide’; Legalization Of ‘Euthanasia’ In India

On attempt to commit suicide and related laws in India, we are pleased to bring a guest post by Aditi, a second year student at National University of Juridical Sciences, India. 
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Life and death often come to represent two ‘opposite charged’ electrodes of the social circuit from which most of the social and legal systems derive their substance on one hand, and regulate the flow from the positive electrode of life to the negative electrode of death on the other. The deliberate positive representation of life here itself points out towards the sanctity the social values have gradually attached to it. Its protection and preservation forms the basic ethic of all mechanisms of the society. But, shifting our focus from the broader view of social trends to a more individualistic pattern often puts to question the role of these institutions viz the interest of the individual himself/ herself in controlling the flow of his/ her own life. Similar questions have being coming up lately in different parts of the world, India being no exception. The constitutional law guarantees the right to life and personal liberty under Article 21 and penalises the act of committing suicide under section 309 of the Indian penal code. As such it theoretically denies any self control of an individual over his life. But when it comes to practical interpretation, the position has changed courses from regarding the sanctity of life on supreme pedestal to deducing the right to die as a negative aspect of the right to life itself. As a result, the blurred picture presented by legal advancements in this direction has led to a vigorous debate concerning the legalisation of concepts like suicide and mercy-killing and hence, the right to die. As such, defining a clear scope of criminalization attempt to suicide in a scenario where the concept as controversial as that of euthanasia has started influencing the global social order seems a hard nut to crack.
Right to Life v. Right to Die: Current Trends
The only part of the conduct of any one for which he is amenable to the society is that which concerns others. In the part which merely concerns him, his independence is, of right, absolute” [1]
The issue of right to die basically strives to achieve this sense of absolute control over one’s life by giving an individual the liberty to end it as and when he decides. In India, the constitution guarantees a right to life which has gradually received the widest possible interpretation under judiciary. Right to life, which is described under Article 21 of the constitution, not only aid the citizens to claim a dignified life against the state, but it also correspondingly vests power in the state to control this right to aid the functioning of law[2]. As such, it can be said that the state derives its obligation, and sense of working as well as its power from Article 21 as all the other major constituents of the legal and constitutional framework circle around the right to life. It is this power of the state to control the right to life on an individual level that the right to die seeks to transfer into the hands of the individual.
A right to die in a country which expressly guarantees a right to life construed in widest possible terms clearly puts forward the conflict involved. However, the advocates of the right to die often direct the conflict into a new direction by construing the right to die from within the ambit of right to life, viewing it as a complimentary aspect to the right to life and often tend to extend the wide ambit of Article 21 to include the right to die, not as a contrary but as a complimentary aspect.
 The take of judiciary in this regard also presents a blurred picture in this regard. Initial discussion on this issue was undertaken by the courts in various cases like P.Rathinam v Union of India[3] and MS Dubal v State of Maharashtra[4] where the Supreme Court approved the right to die as an aspect of article 21. Discussing more issues of the same genre, the court also held section 309 unconstitutional. But this view of the court didn’t persist for long as within 2 years the Rathinam judgment was overruled in the case of Gian Kaur v. state of Punjab[5]which highlighted the inconsistency of both the concepts and held that right to die cannot be construed from the right to life under Article 21. But the inconsistency in law did not end here as the decision of the court in this case counts as obiter dicta and not the ratio. Although the dictum of Supreme Court is binding, this judgment is also inconsistent with the recommendation of the 42nd Law Commission Report and has been criticized in its 210th Report.
Although clear lines cannot be drawn in the issue of right to die, and the condition and justification under legal heads present an ambiguous picture[6], nevertheless, this seemingly inconclusive debate has triggered further more issues of the same genre, including suicide attempt and euthanasia.
Section 309 IPC: validity and scope
Section 309 IPC criminalizes the act of commission of suicide. The basic motive behind introduction section 309 was to preserve the moral significance attached to life[7], and also discourage this self destructive practice of suicide for the welfare of the individual and other social elements affected by his act including his family. This reasoning though held a very strong ground initially, is losing its relevance now. Attempt to suicide has gradually come to be looked upon on sympathetic grounds rather than criminal. It is argued that a person in such a state of mind which compels him to end his life needs assistance and support rather than criminal punishment and guilt to further add to his miseries.[8] The deterrence effect also does not appeal much as the one who has decided to end his/her life will hardly be affected by such laws which will be at the end only be implemented on the ones which do not succeed and will be further subject them to more pressure. Suicide is one of the important factors contributing to premature or unnatural end of precious human lives. It is a global problem and the World Health Organization has in regard to attempted suicide expressed the view that punishing with imprisonment a behaviour consequent to either a mental disorder or a social difficulty gives completely a wrong message to the population[9]. But the WHO also expresses its concerns towards discouraging the practice of suicide. With the legalisation of suicide commission, this interest among others may suffer.  
The Concept of Euthanasia: A Further Extension of Right to Die
With right to die and suicide gaining support to be legalised, another issue of the same genre that directly pops up is the much more controversial issue of euthanasia or mercy killing. With quite similar objectives as that of the earlier discussed issues, it changes footing on the point that in this case it is not the person himself that directly exercises the liberty to end his life. It often needs assistance, which is most likely to be derived from the physician himself on consent of the patient. But this dimension of euthanasia further adds to the complexities of the issue[10]. The need for euthanasia is often argued relating to the highly degraded conditions that may be reached under many deadly medical ailments which question the right to live with dignity as construed by the Supreme Court[11]. But its implementation with a minimum scope of misuse is a tough task to accomplish. The conditions that may be put so as to regulate the scope of this concept also may fail the test of time due to the ambiguous nature of the terms and conditions involved and the inability in quantifying the conditions[12]. Also, the stakes in this case are too high to be put to test. Hence, the concept of euthanasia though a necessity in certain cases, is too raw a concept to be approved legally and requires modifications with respect to its applicability before it becomes a part of the legal system.
Conclusion
Analysing the possible legal position in case of attempt to suicide with issues like euthanasia as background, it may be concluded that suicide in itself is a negative act. The arguments supporting its decriminalization also oppose criticize the criminal aspect attached to it and not the negativity of the act. As such, it still remains a concern in the society. Decriminalization will not only portray suicide as an act favoured by law but may also generate positive response for a general Right to die which covers a diverse range of situations and as we can see from the single example of euthanasia, not each of them can practically be applied. Hence, right to die as a concept is too abstract to be directly applied and its inclusion in the legal system require critical analysis of the possible ambit it may acquire. Keeping this in view, complete decriminalization of suicide may not be favoured. Instead of striking off section 309, a better option would be to modify its terms so as to exclude the punishing element and construe it in a victim friendly approach, so as to do away with the inconsistencies in this direction and at the same time avoid psychological instigation of debates on raw concepts of legal system.


[1] J.S. Mill
[2] Article 21, Constitution of India: No person shall be deprived of his life or personal liberty except according to procedure established by law.
[3]  AIR 1994 SC 1844
[4] 1987 Cri L J 743
[5]  AIR 1946 SC 946
[6] See Abhik Majumdar, The Right to Die: Indian experience. A ‘right” to die may lead to major conflicts between individuals and the state when it comes to the obligations imposed on the state corresponding to a right. As such, unclear perspectives in this direction may contribute to further issues of inconclusive debate.
[7] owing to the mythological and orthodox beliefs prevalent among the Indian masses at that time
[8] P Rathinam v Union of India, AIR 1994 SC 1844
[9]210th  Law commission report, October 2008
[10] Firstly, it questions the capacity of the patient to consent for euthanasia. Moreover, in case of involuntary euthanasia where the patient is in a persistent vegetative state and cannot consent by himself, the act of euthanasia is further challenged (refer the recent case of Aruna Shambag). Secondly, even in case of a competent consent (voluntary Euthanasia), the physician faces a dilemma as he undergoes conviction either ways, whether he practices euthanasia or not, under culpable homicide or battery respectively.      
[11] Gian Kaur judgment Supra note 4
[12] For instance, terminal illness may be put as a condition but it will be difficult to precisely characterize terminal illness in objective senses