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Acting on the plea of an animal rights NGO in search of measures to forestall individuals attempting to commit suicide by leaping into animal enclosures in zoos, a bench of Chief Justice S A Bobde and Justices A S Bopanna and V Ramasubramanian mentioned it had seen the dichotomy between IPC Section 309 and Section 115 of the MH Act and requested solicitor common Tushar Mehta to get a response from the Centre.
The SC mentioned this dichotomy can be addressed together with the pending difficulty of testing the constitutional validity of Section 309. The debate on the ethics and legality of punishing survivors of suicide bids has led to a number of jurisdictions internationally decriminalising the offence, which continues to draw punishment underneath the 160-year-old IPC. However, in 2018, the SC, in a landmark judgment, had mentioned its 1996 ruling within the Gian Kaur case saying “the right to live with dignity did not include the right to die” required reconsideration.
While Section 309 of the IPC offered that “whoever attempts to commit suicide and does any act towards the commission of such offence shall he punished with simple imprisonment for a term which may extend to one year”, Section 115 of the MH Act 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) provides, “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.”
The bench’s order mentioned, “Issue notice to the attorney general, calling upon the Union of India to justify the validity of Section 115 of the Mental Healthcare Act, 2017, which virtually negates Section 309 IPC.” The SC appointed senior advocate ANS Nadkarni as amicus curiae to help the court docket.
On March 9, 2018, a five-judge Constitution bench had permitted passive euthanasia for these in a vegetative state and had validated ‘living will’. One of the judges on the bench, Justice D Y Chandrachud, had mentioned the punishment for failed try and suicide “may require to be revisited in future in view of domestic and international developments pointing towards decriminalisation of suicide”.
He had mentioned, “It (the MH Act) regards a person who attempts suicide as a victim of circumstances and not an offender, at least in the absence of proof to the contrary, the burden of which must lie on the prosecution. Section 115 marks a pronounced change in our law about how society must treat and attempt to commit suicide. It seeks to align Indian law with emerging knowledge on suicide, by treating a person who attempts suicide being need of care, treatment and rehabilitation rather than penal sanctions.” He had mentioned the problem of whether or not proper to life included the appropriate to die needed to be determined in separate proceedings.