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To be, or not to be? A Reality Check to Suicide Legislation in India

Memorable and intriguing, "To be, or not to be" is the opening phrase of a Shakespeare soliloquy uttered by Prince Hamlet in the play Hamlet. Condensing profound concepts, here’s what Shakespeare writes:

“To be, or not to be: that is the question: Whether ’tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles, And by opposing end them? To die: to sleep;”

Well, some people choose to die, to sleep. Is it an extreme expression of liberty?

Taking away one’s life as a conscious decision has always been criticized across history. Apart from the social stigma and discouragement, it is also criminalized in around 24 countries across the world, India being one amongst them. Anyone who survives an attempted suicide can be booked under Section 309, Indian Penal Code, which deals with “Attempt to commit suicide”. It punishes the survivor with simple imprisonment for a term which may extend to one year or with fine, or with both.

However, we need to dissect suicide as a sociological problem and then observe whether or not it should be punishable or whether the law in force is actually helping to combat this challenge.

Suicide: Not a Crime

First things first, suicide is not a crime. The basic aspects of criminal activity include “mens rea: The guilty mind” and “actus reus: an act or omission which leads to the completion of an offence”. Both mens rea, as well as actus reus, together are important to create an offence. Also, there must be an injury caused to a “person”. Whether or not the “person” can be the person himself is debatable. Can a person commit a crime against himself and can State intervene? In my opinion, in case of Suicide or attempt to commit it, no harm is caused to others, because of which State’s interference with the personal liberty of the concerned person is not called for. When the completed act is not criminal, i.e. suicide there can be no crime in the attempt to commit it.

A Mental Health Issue

Research suggests that psychiatric illness constitutes a major cause for nonfatal suicidal behavior. Risk factors include depression and other mental disorders. Other risk factors are childhood adversities such as sexual/physical abuse, abuse of alcohol or drugs, stressful life events such as death of a loved one, loss of a job or relationship, financial bankruptcy, imminent criminal prosecution and suffering from, or having recently been diagnosed with, a terminal illness. Temporary insanity can also be the ultimate reason of such acts which is a valid defence even in homicides.

Suicide, as has already been noted, is a psychiatric problem and not a manifestation of criminal instinct. Suicide is really a "call for help" to which we shall add that there is no "call for punishment" in it. So what is needed to take care of suicide-prone persons are soft words and wise counseling (of a psychiatrist) and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor.

The stigma: Morality, Religion and Public policy

Usually, the psychology of suicide being deemed to be an undesirable act is more or less based on our social development that is shaped by various faculties like morality, religion and public policy. However, we need to check the depths of all those faculties.

Morality has no defined contours and it would be too hazardous to make a bold and bald statement that commission of suicide is per se an immoral act. What is moral or immoral has kept changing ever since the beginning of time, across societies. As much as we condense this concept and give it a more elaborate authority by implementing it in law, we might end up in a web of questions that would be urged to be decided on ‘perceived morality of the majority’. We must not let public morality solely determine acts as good or bad, the Court must lay down a certain parameter of ‘legal morality’ in which rights and interests of people are balanced as much as possible.

The religious belief that only God should have the right to dictate the end of life of a person and when a person attempts to end the life himself or herself, and that it should be considered as a sinful act raises a thought that the belief in God and sin is purely variable on the belief system of the person. Can anyone who doesn’t even believe in God be punished for committing a ‘sin’? We must recognize religious concepts subconsciously creating bias in our brains against suicide and we must let go of the emotions that these cause.

The most common justification of criminalizing suicide is for “public policy”. However, "Public policy' is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legal rights; it is capable of being understood in different senses, according to education habits, talents and dispositions of each person, who is to decide whether an act is against public policy or not. To allow this to be a ground of judicial decision, would lead to the greatest uncertainty and confusion.

Section 309: A Failure

The most common justification for keeping Section 309 in the code is “deterrence”. Let’s have a look at how much of deterrence has been caused by it.

About 800,000 people die by suicide worldwide every year, of these 135,000 (17%) are residents of India, a nation with 17.5% of world population. According to WHO data, the age standardized suicide rate in India is 16.4 per 100,000 for women (6th highest in the world) and 25.8 for men (ranking 22nd).

While the level of awareness about existence of section 309 cannot be deemed to be too high, a significant proportion are aware of its existence, but not deterred to make a suicidal attempt. A study of 200 attempted suicides in a General Hospital Emergency facility revealed that 46.2% males and 26.6% females were aware of the existing law before making the attempt.

Also, any person who wants to kill himself and is aware of the penal procedure for failure of the attempt, would definitely make a more concrete effort to die. In a way, this provision only pushes the person to try harder.

To The Rescue : Mental Healthcare Act, 2017

According to a study conducted by the National Institute of Mental Health and Neurosciences, 1 in 40 and 1 in 20 people are suffering from the past and current episodes of depression in India. In spite of this big burden of mental health issues, unfortunately, it continues to be misunderstood in developing countries like India. The new Mental Healthcare Act 2017 rescinds/revoked the existing Mental Healthcare Act 1987. The new act defines “mental illness” as a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs.”

It decriminalizes suicide attempt by a mentally ill person. It also imposes on the government a duty to rehabilitate such person to ensure that there is no recurrence of attempt to suicide. It is reasonable to insist that public health policy makers consider planning programs to increase awareness regarding Sec 115 of MHCA.

Ignorance can be removed through media and hospital-based efforts. In conclusion, even after 155 years of implementation of Sec 309 IPC, awareness is very poor. Sec 115 of MHCA will also fail if steps are not taken to increase the awareness.


Suicide needs to be treated as a sociological issue as it is, and not a criminal one. The law in force has not only failed at causing deterrence but it also motivates the person to try harder to kill himself because if he survives, he has to do rounds around police stations and Courts for quite a lot of time.

While we all are influenced by our notions of morality, religion and ideas of public policy, we need to take an unbiased approach to understand why a human self-destructs and what motivates him that much. Survivors need rehabilitation instead of prison and of course, acceptance in the society. Mental health awareness is needed by us all, whether or not we are suffering from depression, or other mental health issues. Why does it only happen that mental health is discussed only when a celebrity chooses not to live?

The question is not whether or not suicide should be made legal. The question is why should a survivor be punished after he has already been traumatized.

One of the fears expressed when all countries in Europe and North America decriminalized attempted suicide was that suicide rates may increase. There are no indications whatsoever that there was an increase in suicides following decriminalization, and in many instances it is thought that suicide decreased since more suicidal individuals received the help they need. Other countries such as Singapore or India, which still imprison some suicide attempters, do not appear to have any benefits from those practices.

Having observed all these things, I conclude that “to be or not to be” is purely subjective for every person. A person has power over his “self”: physical, as well as mental. One can choose either ways. If someone chose to do it, we should say “He passed away” with all due respect, and not comment until we find ourselves in their shoes.

Written by Marina Nasreen, a fourth year law student at University of Kashmir; Legal Intern at S. Bhambri & Associates (Advocates), Delhi.

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