section-309-ipc-questions-and-issues-around-an-archaic-section-of-the-law-summary

Context: According to few reports, one of the most archaic laws that punish attempts to commit suicide Section 309 of the Indian Penal Code (IPC), continues to exist in the statute book and is often misused, contrary to popular perception that it has been repealed.

Section 309 of IPC

  • Background
    • The law, brought in by the British in the 19th century, reflected the thinking of the time when killing or attempting to kill oneself was considered a crime against the state, as well as against religion.
  • Who can be booked?
    • Anyone who survives an attempted suicide can be booked under Section 309 IPC, which deals with “Attempt to commit suicide”.
  • Punishments associated
    • The person shall be punished with simple imprisonment for a term which may extend to one year (or with fine, or with both).

Reduced scope for the use of Section 309 IPC by The Mental Healthcare Act (MHCA), 2017

  • Section 309 continues to remain in the IPC. However, The Mental Healthcare Act (MHCA), 2017, which came into force in July 2018, has significantly reduced the scope for the use of Section 309 IPC.
  • The MHCA made the attempt to commit suicide punishable only as an exception.
  • Section 115(1) of The MHCA: “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) of The MHCA: “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.”

Issues of use of section 309 of IPC:

  • The restrictions put on the use of section 309 of IPC under the provisions of the MHCA do not seem to be enough as there are continued reports of its use by police forces across the country.
  • Also, there is a lack of awareness among officers at the level of the police station about the relatively new MHCA, and they simply go by the IPC. 
    • However, the charge under Section 309 is often dropped subsequently, following consultations with senior police officers.

Arguments against retaining section 309

Arguments in favor of retaining section 309

May prove detrimental in the golden hour

  • Use of this Section can potentially deprive a victim of treatment in the golden hour, as hospitals wait for a go-ahead from police in what would be seen as a “medico-legal case”.

Misusing the situation

  • It is possible that unscrupulous hospital authorities may misuse this situation and charge extra to speed up the case by not informing the police; similar extortion is possible on the part of corrupt police personnel as well.

Chances of harassment

  • All of this is in addition to the trauma and harassment that an already severely distressed individual and people around
  • Only 24 countries around the world have a section such as this in their laws.
  • According to the reports, there were occasions when people showed up at government offices and threatened to kill themselves if their demands were not met. 
    • It is in these cases, where we suspect that the person does not intend to commit suicide but is using the threat as a way to unfairly pressure or blackmail the system, that this section is used.
  • Section 309 IPC can be redefined in such a manner where it can still be leveraged in law and order situations, and not be used against those who are suffering from genuine mental health issues.

Previous attempts to repeal section 309 of IPC

  • In 1971, the Law Commission in its 42nd Report recommended the repeal of Section 309 IPC. 
  • The IPC (Amendment) Bill, 1978, was even passed by Rajya Sabha, but before it could be passed by Lok Sabha, Parliament was dissolved, and the Bill lapsed.
  •  ‘Gian Kaur vs State of Punjab’, 1996:A Constitution Bench of the Supreme Court upheld the constitutional validity of Section 309.
  • Law Commission 210th Report: It said that an attempt to suicide needed medical and psychiatric care, and not punishment.
  • In March 2011, the Supreme Court too recommended to the government that it should consider the feasibility of deleting the section.
  • In 2014, replying to a question in Rajya Sabha, the then Minister of State had said the government had decided to drop Section 309 from the IPC after 18 states and 4 Union Territories had backed the recommendation of the Law Commission. 
    • However, the matter did not reach its logical conclusion.

Source:https://indianexpress.com/article/explained/sec-309-ipc-questions-and-issues-around-an-archaic-section-of-the-law-6468338/

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