# P. RATHINAM/NABHUSAN PATNAIK v. UNION OF INDIA AND ANR

- **Citation:** [1994] 3 S.C.R. 673
- **Court:** Supreme Court of India
- **Decided:** 1994-04-26
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-rathinam-nabhusan-patnaik-v-union-of-india-and-anr-12148
- **Pages:** 44

## Headnote

.,.
I
P. RATHINAM/NABHUSAN PATNAIK
v.
UNION OF INDIA AND ANR.
APRIL 26, 1994
IR.M. SAHA! AND B.L. HANSARIA, JJ.]
Indian Penal Code, 1860'-Section 30<)-{)ffence of attempted
suicide-Constitutional validity of-Held, Section 309 violates ArtiC/e 21 of
A
B
the Constitution of India-ft is unconstitutional and hence void-Act of committing suicide-Cannot be said to be against regional, morality or public C
. policy-Act of atlempted suicide has no baneful effect on society-Treating
different attempts to commit suicide by same measure-Not violative of Art
14.-Section 3~Suicide and Euthanasia-Relationship between--Distinction.-Section 306 and 301)-,Aiding suicide-Self killing is different from abetting others to kill themselves.
D
Constitution of India-Altic/es 14 & 21-Right to life-Scope-Article
21 has positive conten~ight encompassed by Article can be waived-Treating different attempts to commit suicide by same measure-Not violative of
Article 14.
Crime and Tolt-iJistinction.
The two petitions were filed challe_nging the validity of Section 309
of the Indian Penal Code by contending that the same was \iolative of
Articles 14 & 21 of the Constitution and the prayer made was to declare
E
the section as void and to quash the proceedings initiated against the F
petitioner uls 309.
Dismissing the petitions, this court
HELD : 1.1. Section 309 of the Indian Penal Code deserves to be
G
effaced from the statute book to humanise our penal laws. It is a cruel and
irrational provision, and it may result iu punishing a person again (doubly)
who has suffered agony and would be undergoing ignominy because of bis
failure to commit suicide. Then an act of suicide cannot be said to be against
religion, morality or public policy, and an act or attempted suicide has no
baneful effect on society. Further, suicide or atte~pt to. commit it causes no H
673
674
SUPREME COURT REPORTS
[1994]3S.C.R.
A
harm to others, because of which state's interference with the personal
liberty of the concerned persons is not called for. [715-G-H, 716-A]
1.2. Section 309 violates Article 21, and so, it is void. May it be said
that the view taken would advance not only the cause of humanisation,
which is a need of the day, but of globalisation also, as by effacing section
B 309, this part of our criminal law will be attuned to the global wave length.
['116-B]
1.3. Suicide is intentional taking of one's. life. Different methods are
adopted in committing suicide. Even so, suicide is capable of broad defini·
tion. On a prosecution being launched it is always open to an accused to
C take plea that his act did not constitute suicide whereupon the court would
dedde this aspect also. [684-E-F]
1.4. Treating of different attempts to commit suicide by the same
measures cannot be regarded as violative of Article 14, inasmuch as the
D
nature, gravity and extent of attempt may be taken care of by tailoring the
sentence appropriately. Section 309 bas only provided the maximum sentence which is upto one year. It provides for imposition of fine only as a
punishment. [684-G-H]
C. Jagdeeswar v. State of Andhara Pradesh, (1988) Cri. LJ. 549,
E affirmed.
F
It would be wrong to think that a person attempting to commit
suicide does not get punished. He does. The agony undergone by Htim and
the ignominy to be undergone is definitely a punishment, thoui:h not a
corporal punishmeilt; but then, section 309 has provided for a sentence of
fine also. Agony and ignominy undergone would be far more paiufnl and
deterrent than fine which too may not come to be realized if th•e person
concerned were to be released on probation. (700-G]
There can. be no justification to prosecute sacrificers of th.cir lives.
G Such a prosecntion is per excellence persecution. What is required is to
reach the soul to stir it to make it cease to be cruel. Let us humanize our
laws. It is never late to do so. (703-A-EJ
Suicide is a psychiatric problem and not a manifestation of criminal
instinct. Suicide is really a 'Call for Held'

## Text

_Characters 0–39,998 of 102,857. This is a partial read: ask again with offset=39998 for what follows._

.,.
I
P. RATHINAM/NABHUSAN PATNAIK
v.
UNION OF INDIA AND ANR.
APRIL 26, 1994
IR.M. SAHA! AND B.L. HANSARIA, JJ.]
Indian Penal Code, 1860'-Section 30<)-{)ffence of attempted
suicide-Constitutional validity of-Held, Section 309 violates ArtiC/e 21 of
A
B
the Constitution of India-ft is unconstitutional and hence void-Act of committing suicide-Cannot be said to be against regional, morality or public C
. policy-Act of atlempted suicide has no baneful effect on society-Treating
different attempts to commit suicide by same measure-Not violative of Art
14.-Section 3~Suicide and Euthanasia-Relationship between--Distinction.-Section 306 and 301)-,Aiding suicide-Self killing is different from abetting others to kill themselves.
D
Constitution of India-Altic/es 14 & 21-Right to life-Scope-Article
21 has positive conten~ight encompassed by Article can be waived-Treating different attempts to commit suicide by same measure-Not violative of
Article 14.
Crime and Tolt-iJistinction.
The two petitions were filed challe_nging the validity of Section 309
of the Indian Penal Code by contending that the same was \iolative of
Articles 14 & 21 of the Constitution and the prayer made was to declare
E
the section as void and to quash the proceedings initiated against the F
petitioner uls 309.
Dismissing the petitions, this court
HELD : 1.1. Section 309 of the Indian Penal Code deserves to be
G
effaced from the statute book to humanise our penal laws. It is a cruel and
irrational provision, and it may result iu punishing a person again (doubly)
who has suffered agony and would be undergoing ignominy because of bis
failure to commit suicide. Then an act of suicide cannot be said to be against
religion, morality or public policy, and an act or attempted suicide has no
baneful effect on society. Further, suicide or atte~pt to. commit it causes no H
673
674
SUPREME COURT REPORTS
[1994]3S.C.R.
A
harm to others, because of which state's interference with the personal
liberty of the concerned persons is not called for. [715-G-H, 716-A]
1.2. Section 309 violates Article 21, and so, it is void. May it be said
that the view taken would advance not only the cause of humanisation,
which is a need of the day, but of globalisation also, as by effacing section
B 309, this part of our criminal law will be attuned to the global wave length.
['116-B]
1.3. Suicide is intentional taking of one's. life. Different methods are
adopted in committing suicide. Even so, suicide is capable of broad defini·
tion. On a prosecution being launched it is always open to an accused to
C take plea that his act did not constitute suicide whereupon the court would
dedde this aspect also. [684-E-F]
1.4. Treating of different attempts to commit suicide by the same
measures cannot be regarded as violative of Article 14, inasmuch as the
D
nature, gravity and extent of attempt may be taken care of by tailoring the
sentence appropriately. Section 309 bas only provided the maximum sentence which is upto one year. It provides for imposition of fine only as a
punishment. [684-G-H]
C. Jagdeeswar v. State of Andhara Pradesh, (1988) Cri. LJ. 549,
E affirmed.
F
It would be wrong to think that a person attempting to commit
suicide does not get punished. He does. The agony undergone by Htim and
the ignominy to be undergone is definitely a punishment, thoui:h not a
corporal punishmeilt; but then, section 309 has provided for a sentence of
fine also. Agony and ignominy undergone would be far more paiufnl and
deterrent than fine which too may not come to be realized if th•e person
concerned were to be released on probation. (700-G]
There can. be no justification to prosecute sacrificers of th.cir lives.
G Such a prosecntion is per excellence persecution. What is required is to
reach the soul to stir it to make it cease to be cruel. Let us humanize our
laws. It is never late to do so. (703-A-EJ
Suicide is a psychiatric problem and not a manifestation of criminal
instinct. Suicide is really a 'Call for Held' and there is no 'Call for
H punishment' in it. What is needed to take care of suicide pron" persons
..
RATHINAM/PATNAIK v. U.0.1.
675
are soft words and wise counseling and not stony dealing by a jailer A
'following harsh treatment meted out by a heartless prosecutor. Suicide
knows no barrier of race, religion, caste, age or sex. There is 'secularisation of suicide'. Every individual enjoys freedoms of religion under our
Constitution. There is no non-religiosity in the act or suicide so far as our
social ethos is concerned and it is this ethos, this social mores, which our
law has to reOect and respect. One who takes life may not really be taken
to have put an end to his whole life. There is nothing against religion in
what he does. [703-F, 704-A, 701-A-B, 705-A-E]
Encyclopedia of Religion, Vol. 8 (1987), referred to.
Law and morals often intersect and historically at least law and moral
were closely related and that in many areas the law continues to look upon
its function as the enforcement of morals, the reinforcement of moral
standards in society, and the punishment of moral depravity. [705-F]
B
c
Morality has no defined contours and it would be too hazardous to D
~
make a bold and bald statement that commission of suicide is. per se an
immoral act. If human being can be treated inhumanely, as a very large
.segment of our population is, which in a significate measure may be due
to wrong (immoral) act of others, charge of immorality cannot be, and in
any case should not be, levied, if such human beings or like of them, feel
and think that it would be better to end the wretched life instead of E
allowing further humiliation or torture. Those who demand virtue must
do virtue, and should see that others too do the same. [707-G-H, 708-A]
It would be a uninformed man in law who would say with any degree
of definiteness that commission of suicide is against public policy; and, F
as such, a person attempting to commit it acts against public policy.
[711-712-A]
2. Article 21 of the Constitution or India has enough or positive
content in it. The w·ord 'life; in Article 21 means right to live with human
dignity and the same not merely connote continued drudgery. It takes G
within its fold "some of the finer graces of human civilization, which makes
life worth living", and that the expanded concept of life would mean the
'tradition, culture and heritage' of the concerned persons. Right to life
embraces not only physical existence but the quality of life as understood
in its richness and fullness by the ambit of the Constitution. Physical and
mention health have to be treated as integral part or right life, because H
676
SUPREME COURT REPORTS
(1994] 3 S.C.R.
A without good health the civil and political rights assured by our constitu·
tion cannot be enjoyed. (688-F·H, 689-A·G]
Unnikrishan v. State of A.P., (1993) 1 SCC 645; Munn v. llnois, [1876)
94 US 113; Kharak Singh v. State of U.P., AIR (1978) SC 1675; Board of
Trustees, Port of Bombay v. Dilip Kumar, AIR (1983) SC 109; Vikram Dev
B Singh v. State of Bihar, AIR (1988) SC 1782; Ram Saran v. Union of India,
AIR (1989) SC 549; State of H.P. v. Umed Ram, AIR (1986) SC 847and
CESC Ltd. v. Subhas Chandra, [1992) 1 SCC 441, relied on.
2.1. The right encompassed or conferred by Article 21 can be waived.
C
Right to live of which Article 21 speak of can be said to bring in its trail
the right not to live a forced life. Though the negative aspect may be
inferable on the analogy of a rights conferred by different clauses of
Article 19, one may refuse to live, if his living be not according to the
person concerned worthliving or if the richness and fullness of life were
not to demand living further. One may rightly think that having achieved
D all worldly pleasure or happiness, he has some thing to achieve beyond
this life. This desire for communion with God may very rightly lead even
a very healthy mind to think that be would forego his right live and would
rather choose not to live. In any case, a person cannot be forced to enjoy
right to life to his detriment, disadvantage or disliking. (690-E-H]
E
Maruti Shripati Dubai v. State of Maharashtra, (1987) Crl. LJ. 743
F
(Born) (DB), overruled.
3. One of the objects of punishment to be inflicted when an offence is
committed is protection of society from the depredation of dangerous per·
sons. But insofar as suicide is concerned, this object does not get attracted
because there is not question of protection of the society from depredation
of dangerous persons, who by the very natural of things have to be those who
cause harm to others, and not to themselves. Of cour~e, one of the ihterest
of the State has to be preservation ofhuman life. (708-H, 709-A)
G
The difficult task of crime prevention would not permit the solution
to be put into a straight jacket; it has to be modulated and molded as per
time and crime. (699-H, 700-A]
4. Euthansaia is not much unrelated to the act of committing suicide
inasmuch as whenever passive euthanasia has been held to be permissible
H under the law, one of the requirements insisted is consent of the patient
/~-
-
RAlBINAM/PATNAIK v. U.0.1.
677
or of his relations in case the patient be not in a position to give voluntary A
consent. [68~,E]
The legal and other questions related to euthanasia are in many ways
different from those raised by suicide. O_ne would, therefore, be right in
making distinction logically and principle between suicide and euthanasia,
though it may be that if suicide is held to be legal, the persons pleading
for legal acceptance of passive euthanasia would have a winning point. For
the cases at hand, the justification for allowing persons to commit suicide
is not required to be played down or cut down because of any encouragement to persons pleading for legalization of mercy killing. [712-H, 713-A]
As regard the persons aiding and/or abetting suicide, the law can be
entirely different, as indeed it is -even under the Suicide Act, 1961 of
England. Self-Killing is conceptually different from abetting others to kill
themselves. They stand on different footing, because in one case a person
takes his own life, and in the other a third person is abetted to take his
life. [713-C-D]
C Jagadeshwar v. State of Andhra Pradesh, (1988) Cri. LJ. 549, partly
overruled.
5. There is no distinction between crime and tort, inasmuch as a tort
harms an individual whereas a crime is supposed to harm a society. But
then, a society is made of individuals, harm to an individual is ultimately
harm to society. Protection of society is the basic reason of treating some
acts as crime. Indeed it is one of the aims of punishment. Where there is
B
c
D
E
no feeling of security, There is no true freedom. The very definition of
'Crime' depends on the values of a given society. Crime can also be created F
or abolished with the passage of time. [695-F-H, 696-A, 697-B-D]
Ke1111y•s outlines of criminal law (19th Edn.); Hobbes in "Leviathan";
Mill, On Libe1ty; Justice Krishna Iyer, perspective in c1iminology, Law &
social change, R.S. Cavan, Criminology (2nd Edn.), Law Commission of
India, 42nd Report, Webster's Third New Intemational Dictionary (1968); G
Enoyolopaedia of Crime & Justice, volume IV, 1983 Edn.; M Ruthnaswamy,
Legislation: Principles and Practice (First Edn., 1974); Francis Bacon, Essays; Montesquieu, Spirit of Laws (1748); Blackstone, Commentaries on the
Laws of England (1765); Iliering, Best Des Romisches Rechts (The Spirit of
Roman Law); Stephen Lewin (Ed.), Crime and its Prevention; Dr. N.V. H
678
SUPREME COURT REPORTS
(1994] 3 S.C.R.
A
Paranjape, Criminology ond Penology; White Paper presented tO parliamnt
by her Majesty's Government in 1990 on the subject of "Crime, Justice and
Protecting the Public", published as Cm No. 965;
Victor Hugo, Les
Miserables; Morris Halbacks, Causes of suicidei E.S. Scheneidman,
Suicidology: Contemporary developments (1976); Dr. Dastoor, The Attitutdes
B of Society towards Suicide; Simon Lee's, Laws and Morah (1986); HLP
Hart's, Law, Liberty and Morality (1982); D.H. Lawrence, Lady Ch•tterley's
Lover; Friedman, Legal Theory (5th Edn.); Words and Phrases (Permanent
Edn. Vol. 35, 1963) and Louis Bloom Cooper and Gravin Drewery (Ed)
Law and Morality (1976), referred to.
C
B.B. Pandey, VII (1) Islamic and Comparative Law Quarterly 112
(March 1987); Faizan Mustafa, 1993 - SO, Journal Section p36; D.D.
Pandey, " Criminal Law'', 23rd Annual Survey of India Law 260(1987);
''Taking one' Life", (1986-87) 91 CWN (Journal Section); V.S. Deshpandey,
''To be or not to be", [1984] 3 sec Journal part p.10-15; R.A. Jahagirdar,
Illustrated Week(y of India (September 29, 1985); Suffolk University Law
D Review, Vol. 25 (1991); Dr. M. Indira and Dr. Alka Dhal, "Meaning of life,
'
suffering and death", read in International Conference on Health Policy,
~
Ethics and Human values, held at New Delhi in 1986; Alan A. Stone, "Tire
Right to die": New Problems for Law and medicine and Psychiatry", 37 Emroy
Law Journal 627 (198K); Ian Temy Q.C., ''Euthanasia-Is it Murder?", 21 (I)
E
Australian Journal of Forensic Sciences 2- 7 (September 1988) and Winfield, "Essays on Public Policy in the English Common Law", 42 Harvard
Law Review 76, referred to.
F
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (CRL.)
Nos. 409/86 & 419/87.
(Under Article 32 of the Constitution of India).
R. Venkataraman (NP) and Rajan Dwivedi (NP) for the Petitioners.
V.C. Mahajan, T.C. Sharma, P. Parmeswaran, D.S. Mehra, Ms. SushG ma Suri and Raj Kumar Mehta for the Respondents.
The Judgment of the Court was delivered by
HANSARIA, J. Gandhiji once observed:
H
"Death is our friend, the trust of friends. He delivers us from agony.
..
_,
RATHINAM/P,ATNAIK v. U.0.1. [HANSARIA, J.]
679
I do not want to die of a creeping paralysis of my faculties-a defeated man" A
The English poet William Ernest Henley wrote:
"I am the master of my fate, I am the captain of my soul".
2. Despite the above, Hamlet's dilemma of "To be or not to be" faces B
many a soul in times of distress, agony and suffering, when the question
asked is "To die or not to die". If the decision be to die and the same is
implemented to its fructification resulting in death, that is the end of the
matter. The dead is relieved of the agony, pain and suffering and no evil
consequences know to our law follow. But if the person concerned be
unfortunate to survive, the attempt to commit suicide may see him behind C
the bar, as the same is punishable under section 309 of our Penal Code.
3. The two petition at hand have assailed the validity of section 309
by contending that the same is violative of Articles 14 & 21 of the Constitution and the prayer is to declare the section as void. The additional D
prayer in Writ Petition (Crl.) 419/87 is to quash the proceedings initiated
against the petitioner (Nagbhusan) under section 309.
4. The judiciary of this Country had occasion to deal with the
aforesaid aspect; and we have three reported decisions of the three High
Courts of the country, namely, Delhi, Bombay and Andhra Pradesh on the E
aforesaid question. There is also ail unreported decision of the Delhi High
Court. It would be appropriate and profitable to note at the threshold what
the aforesaid three High Courts have held in this regard before we apply
our mind to the issue at hand.
5. The first in point of time is the decision of a Division Bench of F
Delhi High Court in State v. Sanjay Kumar, (1985) Cr!. Law Journal, 931,
in which the court was seized with the question as to whether the investigation of the case under section 309 should be allowed to continu•; beyond
the period fixed by section 368 Cr. P.C. Some loud thinking was done by
the Bench on the rationale of section 309. Sachar, J., as he then was, G
observed for the Bench:
"It is ironic that Section 309 !PC still continues to be in our
Penal Code ...... Strange paradox that in the age of votaries of
Euthanasia, suicide should be criminally punishable. Instead of the
society handing its head in shame that there should be such social H
A
B
c
D
680
SUPREME COURT REPORTS
[1994] 3 S.C.R.
strains that a young man (the hope of tomo•row) should be driven
to suicide, compounds its inadequacy by treating the boy as a
criminal. Instead of sending the young boy to psychiatric clinic it
gleefully sends him to mingle with Criminals ....... The continuance
· of section 309 IPC is an anachronism unworthy of a human society
l_ike ours. Medical Clinics for such social misfits certainly but police
and prisons never. The very idea is revolting. This concept seeks
to meet the challenge of social strains of modern urban and
competitive economy by ruthless suppression of mere symptoms -
this attempt can only result in failure. Need is for human, civilised
and socially oriented outlook and penology ....... No wonder so long
as society refuses to face this reality ·its coercive machinery will
invoke the provision like sectioni309 !PC which has no justification
right to continue remain on the{ statute book.
11
6. Soon came the Division Bench hecision of Bombay High Court in
Mamti Sharipati Dubai v. State of Mahhrashtra,. (1987) Cr!. Law Journal
743, in which the Bench speaking through Swant, J., as he then was, on
being approached for quashing a prosecution launched against the
petitioner under section 309 of the Penal Code on the ground of uncon~
stitutionality of the section, took the view and that the section was ultra
vires being violative of Article 14 and 21 and was therefore struck down.
E We should not the reasons for the view taken later.
,
7. Close on the heels was the decision of a Division Bench of Andhra
Pradesh High Court in C. Jagadeeswar v. State of Andhra Pradesh, (1983)
Cr!. Law Journal 549, in which on the High Court being approached against
F
the convict.ion of the appellants under section 309, inter alia, on the ground
of the section being violative of Articles 14 and 21 of the Constitution, the
Bench held that the section was valid as it did not offend any of these
articles. The Bombay view was dissented to; the reasons of which also we
shall advert later.
G
8. The unreported decision of the Delhi High Court has been noted
in the articles of Sri BB Pandey, Reader in Law. University of Delhi, as
published in Islamic and comparative Law Quarterly, Volume II (1) March,
1987 at page 112 to 120, and of Sri Faizan Mustafa, Lecturer, Department
of Law, Aligarh Muslim University, at pages 36 to 42 of 1993 - 1 SO,
H Journal Sffction. That decision was rendered in a suo motu proceeding
r.
>
•.
RATHINAM/PATNAIK v. U.0.l.IHANSARfA.J.J
681
titled as "Coun on its own Motion v. Yogesh Shanna" and registered as Crl.
A
Revision No. 230/85. The decision was rendered by Sachar, C.J. The Court
once again pointed out to the futility of creating criminal liability in suicide
cases, but instead of striking down the section or declaring it invalid, what
the learned Chief Justice did was to quash all the 119 proceedings pending
in the trial Courts on the ground that dragging of the prosecutions for years
when the victims have had enough of misery and the accused also belonged
to poorer section which added further insult to the injury, would be abuse
of the process of the court. Being of this view, each of the accused was
directed to· be acquitted.
B
9. Striking down of the section l>y the Bombay High Court has come C
to be criticised by the aforesaid Shri Pandey and Shri Mustafa, so also by
Shri DD Pandey, Research Professor, Indian Law Institute, in his article
on "Criminal Law", as at pages 260 to 270 of Vol. 23 (1987) of Annual
Survey of India Law, published by the Indian Law Institute. In the
'Editorial Note' titled 'Taking one's Life', as published at pages 37 to 40 of D
(1986-87) 91 CWN (Journal section), the Bombay decision received some
criticism.
10. Before dealing with the points raised in those writings, it would
be worthwhile to note that Shri VS Deshpande after his retirement as Chief
Justice of Delhi High Court had expressed his view on this question in his E
article titled "To be or not to be" printed at pages 10 to 15 of the Journal
part of 1984 (3) SCC. Shri Deshpande, after referring to what had been
held by this Court regarding the scope of Article 21, took the view that if
section 309 is restricted in its application to attempt to commit suicide
which are cowardly and which are unworthy, then only this section would F
be in consonance with Article 21, because, if a person having had no duties
to perform to himself or to others when he is terminaly ill, decides to end
his life and relieve himself from the pain of living and the others from the
b•:rden of looking after him, prosecution of such a person would be adding
insult to injury and it was asked "Should a Court construe Section 309 !PC
to apply to such cases?"
G
11. Some time afterwards appeared an article c: Justice R.A. Jahagirdar of Bombay High Court in the Illustrated Weekly of India (September
29, 1985) in which the learned Judge took the view that section 309 was
unconstitutional for four reasons : (1) neither academicians nor jurists are H
682
SUPREME COURT REPORTS
[1994] 3 S.C.R.
A
agreed on what constitutes suicide, much less attempted suicide; (2) mens
rea, without which to offence can be sustained, is not clearly discernible in
such acts; (3) temporary insanity is the ultimate reason of such acts which
is a valid defence even in homicides; and ( 4) individuals driven to suicide
require psychiatric care.
B
c
12. Apart from the aforesaid judicial and legal thinking on the subject
reiating to justification and permissibility of punishing a man for attempting
to commit suicide, there are proponents of the view that euthanasia (Mercy
Killing) should be permitted by law. We do not propose to refer to the
thinking on this subject, principally because the same is beyond the scope
of the present petitions and also because in euthanasia a third person is
either actively or passively involved about whom it may be said that he aids
or abets the killing of another person. We propose to make a distinction
between a attempt of a person to take his life and action of some others
to bring to an end the life of a third person. Such a distinction can be made
D on principle and is conceptually permissible.
13. Though what we propose to decide in these cases would, therefore, relate to the offence of attempted suicide, it is nonetheless required
to be stated that euthanasia is not much unrelated to the act of committing
suicide inasmuch as wherever passive euthanasia has been held to permisE sible under the law, one of the requirements insisted is consent of the
patient or of his relations in case the patient be not in a position to give
volunatry consent. The relationship between suicide and euthanasia is
come to be highlighted in a decision of the Supreme Court of Nevada (one
of the States of United States of America) in Mokay v. Berastedt, where a
F
patient filed a petition to the Court for permitting disconnection of his
respirator. The District Court, on the facts of the case, granted permission.
The State appealed to the Supreme Court of Nevada who, after balancing
the interest of the patient against the relevant State interest, affirmed the
District Courts' judgment. The Court took the view that the desire of the
patient for withdrawal of his respirator did not tantamount to suicide - the
G
san1e was rather an exercise of his constitutional and common law right to
discontinue unwanted medical treatment. This was the view taken by the
majority. One of the Judges expressed dissenting view.
14. A comment has been rr,ade on the aforesaid decision at pages
H 829 to 838 of Suffolk University Law Review, Volume 25 (1991) by stating
~
RATHINAM/PATNAIK v. U.0.1. (HANSARIA,J.]
683
that tne distinction made by the majority between suicide and euthanasia A
because of differences in motive and mental attitude, is not tenable and
the Commentator referred to the dissenting opinion in which it was observed that the patient was in fact requesting the court to sanction affirmalive act which was entirely consistent with the court's definition of suicide,
inasmuch as the majority had defined suicide as "an act or instance of B
taking one's own life voluntarily and. intentionally; the deliberate and
intentional destruction of his own life by a person of years of discretion
"
and so sound mound; one that commits or attempts his self-murder." (This
was indeed the definition given in Webster's Third New International
Dictionary, I968) ..
c
15. We may not note the reasons given by the Bombay High Court
in Shripati's case (supra) for striking down the section as violation of
Article 21. These reasons are basically three: (1) Article 21 has conferred
a p:isitive right to live which carries with it the negative right not to live.
In this connection it has been first stated that the fundamental rights are D
..,,
to be read together as held in RC. Cooper v. Union of India, AIR (1970)
SC 1318. Mention was then made of freedom of speech and expression, as
J
to which it was observed that the same includes freedom not to speak and
to remain silent. Similarly, about the freedom of business and occupation,
it was stated that it includes freedom not to do business. (2) Notice was
E
then taken of the various causes which lead people to commit suicide.
These being mental diseases and imbalances, unbearable physical ailments,
affliction by socially dreaded diseases, decrepit physical condition disabling
the person from taking normal care of his body and performing the normal
chores, the loss of all senses or of desire for the pleasures of any of the
"
senses, extremely cruel unbearable conditions of life making it painful to F
•
live, a sense of shame or disgrace or a need to defend one's honour or a
sheer loss of interest in life or disenchantment with it, or a sense of
fulfilment of the purpose for which one was born with nothing more left to
do or to be achieved and a genuine urge to quit the world at the proper
moment. (3) The Bench thereafter stated that in· our country different G
forms of suicide are known. These being: Johars (mass suicides or self-immolation) of ladies from the royal houses to avoid being dishonoured by
the enemies; Sati (self-immolation by the widow on the burning pyre of her
deceased husband); Samadhi (termination of one's life by self-restraint on
breathing); Prayopaveshan (Starving unto death); and Atmarpana (selfsacrifice). It was also observed that the saints and savants, social, political H
684
SUPREME COURT REPORTS
(1994] 3 S.C.R.
A
and religious leaders have immolated themselves in the past and do so even
today by one method or the other and society has not only not disapproved
of the practice but has eulogised and commemorated the practitioners. It
may be pointed out that the Bench made a distinction between "suicide"
and "mercy-killing"; so also, between suicide and aiding or abetting the
B same.
16. The Bombay High Court held section 309 as violation of Article
14 also mainly because of two reasons. First, which act or acts in series of
acts will constitute attempt to suicide, where to draw the line, is not know
- some attempts may be serious while other non-serious. It was stated that
C in fact philosphers, moralists and socialogists were not agreed upon what
constituted suicide. The want of plausible definition or even guidelines,
made section 309 arbitrary as per the learned Judges. Another reason given
was that section 309 treats all attempts to commit suicide by the same
measure without referring to the circumstances in which attempts are
D made.
17. The first of the aforesaid reasons is not sound, according to us,
because whatever differences there may be as to what constitutes suicide,
there is no doubt that suicide is intentional taking of one's life, as stated
at page 1521 of Encyclopaedia of Crime and Justice, Volume IV, 1983 Edn.
E
Of course, there still exists difference among suicide researchers as to what
constitute suicidal behaviour, for example, whether narcotic addiction,
chronic alcoh9lism, heavy cigarrette smoking, reckless driving, other risk
taking behaviours are suicidal or not. It may also be that different methods
are adopted in committing suicide, for example, use of fire arms, poisoning
F
especially by drugs, over doses, hanging, inhalation of gas. Even so, suicide
is capable of a broad definition, as has been given in the aforesaid
Webster's Dictionary. Further, on a prosecution being launched it is always
?pen to an accused to take the plea that his act did not constitute suicide
whereupon the Court .would decide this aspect also.
G
18. In so far as treating of different attempts to commit suicide by
the same measure is concerned, the same also cannot be regarded as
violative of Article 14, inasmuch as the nature, gravity and extent of attempt
may be taken care of by tailoring the sentence appropriately. It is worth
pointing out that Section 309 has only provided the maximum sentence
H which is upto one year. It provides for imposition of fine only as a
RAlHINAM/PATNAIK v. U.0.l. [HANSARIA, J.]
685
pumshment. It is this aspect which weighed with the Division bench of A.
T
Andhra Pradesh High Court in its aforesaid decision to disagree with the
Bombay view by stating that in certain cases even Probation of Offenders
Act can be pressed into service, whose section 12 enables the Court to
ensure that no stigma or disqualification is attached to such a person. (see
para 32 of the judgment).
H
19. We agree with the view taken by the Andhra Pradesh High Court
as regards section 309 qua Article 14. But the Bombay Bench itself was
•
more involved with Article 21 and violation of it by section 309, the reasons
whereof have been noted. Whether these are sound and tenable, would be
our real consideration.
c
20. The Bombay High Court' decision led some thinkers to express
their own views. We have noted who they were. The broad points of their
objection/criticism were these: (1) suicide is an act against religion; (2) it
is immoral; (3) produces adverse sociological effect; ( 4) it is against public c
policy (this has also been the main argument of the counsel of Union of
~
India before us); (5) it damages monopolistic Power of the State, as State
,
alone can take life; and ( 6) it w0uld encourage aiding and dbetting of
suicide and may ever lead to 'constitutional cannibalism'.
21. We shall in due course see whether the aforesaid objections E
raised against the Bombay judgment are valid. Concerned as we are with
the broad contention that section 309 in violative of Article 21, we shall
first inform ourselves as to the content and reach of this Article and then
answer in a general way as to whether a person residing in India has a right
to die. Section 309 being a part of our enacted law, we would desire to F
,.
know what object a law seeks to achieve. This section having made attempt
•
to commit suicide an offence, we shall ask the question 'as to why is a
particular act treated as crime and what acts are so treated. We shall then
apply our mind to the purposeful query as to how a crime came can be
prevented. Being seized v.ilh the crime of 'attempted suicide', we shall G
apprise ourselves as to why suicides are committed and how can they be
really prevented. We would also desire to know what type of person have
been committing suicides and what has been their motivations. We would
then view the act of committing suicide in the background of our accepted
social ethos. Having done so, we shall take up the points of criticism noted
above one by one and express our views on the same.
H
686
SUPREME COURT REPORTS
[1994] 3 S.C.R.
A
22. Having known that the Law Commission of India had in its 42nd
B
Report of 1971 recommended deletion of section 309, we shall put on
record as to why was this recommendation made and how was the same
viewed by the Central Government; and what steps, if any, were taken by
it to implement the recommendation. What is the present thinking of the
Union of India shall also be taken note of.
23. Finally, we shall open our mental window a little to allow breeze
to come from other parts of the world, inter alia, because Gurudev
(Rabindranath Tagore, the Noble laureate) Wanted us to do so. Globalisation has, in any case, been accepted by us in some other fields of our
C activities. We have stated opening of this window "a little" because we
propose to confine ourselves to known whether attempt to commit suicide
is presently a crime only in two other countries of the globe - they being
United Kingdom and United States of Amedca. The reasons of our selecting these two countries shall be indicated when we shall advert to our
'global view' query. It may only be stated here that we are opening the
D
window only a little, as, the little air that would pass through the little
apertue would be enough, in our view, to enable us to have· broad
knowledge of global view on the subject under consideration.
24. The aforesaid mental odyssey would take us through a long path
before we would reach our destination, our conclusion. Finale would,
E
however, come after we have answered or known the following :
F
(1) Has Article 21 any positive content or is it merely negative in its
reach?
(2) Has a person residing in India a right to die?
(3) Why is a Law enacted? What object (s) it seeks achieve?
(4) Why is a particular act treated as crime? When acts are so
treated?
G
(5) How can crime be prevented?
(6) Why is suicide committed?
(7) Who commits suicide? Secularisation of suicide.
H
(8) How suicide-brone persons should be dealt with?
) •
•
RATHINAM/PATNAIK v. U.0.1. [HANSARIA,J.]
687
(9) Is suicide a non-religious act?
(10) Is suicide immoral?
(11) Does suicide produce adverse sociological effects?
(12) Is suicide against public policy?
(13) Does commission of suicide damage the monopolistic power of
the State to take life?
(14) Is apprehension of 'constitutional cannibalism' justified?
A
B
c
(15) Recommendation of the Law Com\nission of India and follow
up steps taken, it any.
(16) Global view : What is the legal pos11lon in other leading
countries of the world regarding the matter at hand?
25. The aforesaid questions, which have been framed keeping in mind
the information we thought necessary to enable us to decide the important
matter at hand to our satisfaction, have been listed as above keeping in
view their comparative importance for our purpose - the most important
being the first and so on; and we propose to answer theni in the same
sequence.
(1) Has Article 21 any positive content or is it merely negative in its
reach?
26. This question is no longer res integra inasmuch as a Constitution
Bench of this Court in Unnikrishan v. State of Andhra Pradesh, [1993] 1
SCC 645 (in which right to receive education upto the primary stage has
been held to be a call of Article 21) has virtually answered this question ..
This would be apparent from what was stated by Mohan, J. in paragraph
19 and hy Jeevan Reddy, J; in paragraph 170. In paragraph 30, Mohan, J.
D
E
F
has mentioned about the rights which have been held to be covered under G
Article 21. These being :
(1) The right to go abroad. Satwant Singh Sawhney v. D. Ramarathnam APO, New Delhi.
(2) The right to privacy. Govind v. State of MP., In this case reliance H
688
SUPREME COURT REPORTS
[1994] 3 S.C.R.
A
was placed on the American decision in Griswold v. Connecticut.
B
(3) The right against solitary confinement. Sunil Batra v. Delhi Administration.
( 4) The right against the fetters. Charles Shobraj v. Supdt. Central Jail.
(5) The right to legal aid. M.H. Hoaskot v. State of Maharashtra.
(6) The right to speedy trial. Hussainara Khatoon v. Home Secretary,
State of Bihar.
C
(7) The right against handcuffing. Prem Shankar Shukla v. Delhi
Administration.
(8) The right against delayed execution. TV. Vatheeswaran, v. State
of T.N.
D
(9) The right against custodial violence. Sheela Barse v. State of
E
Maharashtra.
(10) The right against public hanging. A.G. of India v. Lachma Devi.
(11) Doctor's assistance. Paramanand Katra v. Union of India.
(12) Shelter. Shantistar Builders v. NK Totame.
27. The aforesaid is enough to state that Article 21 has enough of
positive content in it. As to why the rights mentioned above have been held
covered by Article 21 need not be gone into, except stating that the
F
originating idea in this regard is the view expressed by Field J. in Munn v.
Illnois, (1876) 94 US 113, in which it was held that the. term 'life' (as
appearing in the 5th and 14th amendments to the United States Constitution) means something more than 'mere animal existence'. This view was
accepted by a Constitution Bench of this Court in Kharak Singh v. State of
G
U.P., AIR (1978) SC 1675 (paragraphs 56 and 26), to which further leaves
were added in Board of Trnstees Pon of Bombay v. Dilip Kumar, AIR
(1983) SC (1983) SC 109 (paragraph 13); Vikram Dev Singh v. State of
Bihar, AIR (1988) SC 1782 (paragraph 5); and Ram Saran v. Union of
India, AIR (1989) SC 549 (paragraph 13). In these decisions it was held
that the word 'life' in Article 21 means right to live with human dignity and
H the same not merely connote continued drudgery. It takes within its fold
•
r
,
' ..
)
.....c
' +
1
RATHINAM/PAlNAIK v. U.0.1. (HANSARIA,J.]
689
"some of the finer graces of human civilization, which makes life worth A
living". and that the expanded concept of life would mean the "tradition,
culture and heritage" of the concerned person.
28. It would be relevant to note the decision in State of Himacha/
Pradesh v. Urned Ram, AIR (1986) SC 847. It was observed there in
paragraph 1 that the right to life embraces not only physical existence but B
the quality of life as understood in its richness and fullness by the ambit of
the Constitution; and. for residents of hilly areas access to road held to be
access to life itself, and so necessity of road communication in the
reasonable condition was held to be a part of constitutional Imperatives,
because of which the direction given by the Himachal Pradesh High Court C
to build road in the hilly areas to enable its residents to earn livelihood was
upheld. What can be more positive and kicking?
29. We may also refer to the article of Dr. M. Indira and Dr. Alka
Dhal under the Caption : "Meaning of life, suffering and death" as read in
D
the International Conference on Health Policy, Ethics and Hwt1an Value
held at New Delhi in 1986. This is what the learned authors stated about
life in their article :
" Life is not mere living but living in health. Health is not the
absence of illness but a glowing vitality-the feeling of wholeness E
with a capacity for continuous intellectual and spiritual growth.
Physical, social, spiritual and psychological well being are intrinsica11y inter woven into the fabric of life. According to Indian
philosophy that which is born must die. Death is the only certain
thing in life."
F
30. May it be said that in CESC Ltd. v. Subhash Chandra, [1992) 1
SCC 441, it has been opined by Ramaswamy, J. (who is, of course, a
minority Judge) that physical and mental health have to be treated as
integral part of right to life, because without goods health the civil and
political rights assured by our Constitution cannot be enjoyed.
G
(2) Has a person residing in India right to die?
31. If a person has a right to live, question is whether he has right
not to live. The Bombay High Court stated in paragraph 10 of its judgment
that as all the fundamental rights are to be read together, as held in RC H
690.
SUPREME COURT REPORTS
(1994] 3 S.C.R.
A Cooper v. Union of India, AIR (1970) SC 1318, what is true of one
fundamental right is also true of another fundamental rights. It was then
stated that it is not, and cannot be, seriously disputed that fundamental
rights have their positive as well as negative aspect. For example, freedom
of speech and expression includes freedom not to speak.