SMT. GIAN KAUR ETC. ETC. A

v.

THE STATE OF PUNJAB ETC. ETC.

MARCH 21, 1996

[J.S. VERMA, G.N. RAY, N.P. SINGH, FAIZAN UDDIN B

AND G.T. NANA VAT!, JJ.]

Constitution of India, 1950 :

~ A1ticle 21--lnterpretation of-Right to life-Scope of-Held does not C

include right to die-Any aspect which makes life dignified is included in right

to life but not that which extinguishes it-Negative aspects included in other

freedoms under Anicle 19-Held inapplicable to Article 21.

Indian Penal Code, 1860:

Section 309--Suicide-Attempt--Pwiishment fo,.._provision held not

violative

of

Arlie/es 14 and 21.

Y Section 306-Abetment of suicide-Punishment fo,.._provision held not

D

unconstitutional--Abetment of suicide and attempt to suicide-Held two

distinct offences-Held Section 306 can survive independent of Section 309. E

The appellant and her hnsband were convicted by the trial Conrt

under Section 306 of Indian Penal Code, 1860 for abetting the commission

of suicide. Their conviction was upheld by the High Court. In appeal to

this

Court it was contended that 'right to die' being included in Article 21

of the Constitutio.n as held in

P. Rathinam v. Union of India & Anr., [1994)

3 SCC 394 declaring Section 309 IPC to be unconstitutional, any person

abetting the commission of suicide

by another is merely assisting in the

enforcement of the fundamental right under Article 21; and, therefore,

Section

306 !PC penalising assisted suicide is equally violative of Article

F

21. In view of the fact that the argument was based on the decision in P. G

Rathinam's case the Court felt the need to reconsider that decision.

Accordingly the

matter was referred to a Constitution Bench along

with the connected appeals. On the questions (i) whether Sections 306 and 309 of the Indian H

697

698 SUPREME COURT REPORTS (1996] 3 S.C.R.

A Penal Code, 1860 are constitntionally valid and (ii) whether 'right to life'

enshrined in Article

21 of the Constitution includes 'right to die' :

Disposing of the appeals this Court

HELD :

1.

Section 309 of the Indian Penal Code, 1860 is not violative

B of Article 21 of the Constitution. [720-B-C]

2. Article 21 is a provision guaranteeing protection of life and per­

sonal liberty and by no stretch of imagination can 'extinction of life' be read

to

be included in 'protection of life'. Whatever may be the philosophy of

C permitting a person to extinguish his life by committing suicide, it is dif-

Ii.

ficult to construe Article 21 to include within it the 'right to die' as a part of

the fundamental right guaranteed therein. 'Right to life'

is a natural right

embodied in Article

21 but suicide is an unnatural termination or extinction

of life and, therefore, incompatible and inconsistent with the concept of

'right to life'. When a man commits suicide

he has to undertake certain

D positive overt acts and the genesis of those acts cannot be traced to, or be

included within the protection of the 'right to life' under Article 21. The

significant aspect of sanctity of

lite is not to be overlooked. [711-E-F]

3. There is no similarity in the nature of the other rights, such as

E the right to 'freedom of speech' etc. to provide a comparable basis to hold

that the 'right to life' also includes the 'right to die'. The comparison is

inapposite. The interpretation of Article

21 made in P. Rathinam's case

cannot

be agreed to. The only reason for which

Section 309 is held to be

violative of Article 21 in P. Rathinam's case does not withstand legal

scrutiny. [711-G;

712-H]

F

4. To give meaning and content to the word 'life' in Article 21, it has

been construed as life with human dignity.

Any aspect of life which makes

it dignified may be read into it but not that which extinguishes it and is,

therefore, inconsistent with

the continued existence of life resulting in

G effacing the right itself. The 'right to die', if any, is inherently inconsistent

with the 'right to die' as

is 'death' with 'life'. [712-A-B]

S. Protagonism of euthanasia on the view that existence in persistent

vegetative state

(PVS) is not a benefit to the patient of a terminal illness

being unrelated to the principle of 'sanctity of life'

or the 'right to live with

H dignity' is of no assistance to determine the scope of Article 21 for deciding

,·

;

G. KAUR v. STATE 699

whether the guarantee of 'right to life' therein includes the 'right to die'. The A

'right to life' including the right to live with human dignity would mean the

existence

of such a right upto the end of natural life. This also includes the

right to a dignified life upto the point of death including a dignified

proce·

dure of death. In other words, this may include the right of a dying man to

also

die with dignity when his life is ebbing out. But the 'right to die' with B

dignity at the end

ol"life is not to be confused or equated with the 'right to

die' an unnatural death curtailing the natural span

of life.

[712-C·D)

6. A question may arise, in the context of a dying man, who is,

terminally

ill or in a persistent vegetative state that he may be permitted

to terminate

it by a premature extinction of his life in those circumstances. C

This category of cases may fall within the ambit of the 'right to die' with

dignity as a

part of right to

live with dignity, when death due to termination

of natural life

is certain and imminent and the process of natural death

has

commenced. These are not cases of extinguishing life but only ·of

accelerating conclusion of the process of natural death which has already

commenced. The debate

even in such cases to permit physician assisted D

termination of

life is inconclusive. It is sufficient to reiterate that the

argument to support the

view of permitting termination of life in such

cases to reduce the period of suffering during the process of certain

natural death

is not available to interpret Article 21 to include therein the

right to curtail the natural span of life.

[712-E·G) E

P. Rathinam v. Union of India & Anr., [1994] 3 SCC 394 and Marnti

Shripati Dubai v. State of Maharashtra, (1987) Crl. LJ. 743, overruled.

State v. Sanjay Kumar Bhatia, (1985) Crl. LJ. 931; Mt. Barkat ·v.

Emperor, AIR (1934) Lah. 514; Emperor v.Dwarka Pooja, 14 Born. L.R. 146; F

Emperor v. Mt Dhirajia, AIR (1940) All. 486; Ram Sunder v. State of UP.,

AIR (1962) All. 262; Valentino v. State, AIR (1967) Goa 138; Phulbltai v.

State of Maharashtra, (1976) Crl. L,J. 1519; Radharani v. State of M.P., AIR

(1981) SC 1776 and Rukmina Devi v. State of UP., (1988) Crl. LJ. 548,

referred to.

Encyclopaedia of Crime and Justice, Vol. IV p. 1521, (1983) Edn.,­

referred to.

Chenna Jagadeeswar and Anr. v. State of Andhra Pradesh, (1988) Crl.

G

L. J. 549, approved. H

700 SUPREME COURT REPORTS [1996] 3 S.C.R.

A F. Max Muller Ed. Laws of Manu translated by George Buhler, (1967

Reprint) Vol. 25, p 204; H. Romi/ly Fedden; Suicide (London, 1938) 42; "The ,..

Right to Die: New Problems for law and Medicine and Psychiatry'~ 37 Emory

Law Joumal 627 (1988) referred to.

B

7. It cannot he said that Section 309 of the Indian Penal Code is

violative of Article

14. Article 21 cannot be pressed into service to support

the challenge based on Article 14.

(715-GJ

8. The debate on the desirability of retaining a penal provision of

punishing attempted suicide, including the recommendation for its dele-

c

tion by the Law Commission are not sufficient to indicate that the

provision is unconstitutional being violative of Article

14. Even if those

facts

are to weigh, the severity of the provision is mitigated by the wide

discretion in the matter of sentencing since there is no .requirement of

awarding any minimum sentence

and the sentence of imprisonment is not

D

even compulsory. There is also no minimum fine prescribed as sentence,

which alone may be the punishment awarded on conviction under Section

309 IPC. This aspect is noticed in P. Rathinam's case for holding that

•

Article 14 is not violated. (715-B-C)

"V

P. Rathinam v. Union of India & Anr., [1994) 3 SCC 394, affirmed.

~

E

(To the extent it holds that Section 309 IPC is not violative of Article 14).

9. The desirability of retaining Section 309 in the statute is a different

matter

and non-sequiture in the context of constitutional validity of that

provision which has to be tested with reference to some provision in the

Constitution

oflndia. Assuming for this purpose that it may be desirable to

F delete Section

309 from Indian Penal Code for the reasons which led to the

~

recommendation of the Law Commission and the formation of that opinion

by persons opposed to the continuance of such a provision,

that cannot be

a reason by itself to

declare Section 309 unconstitutional unless it is held to

be violative of any specific provision in the Constitution. (708-D·EJ

G

10. The challenge to the constitutional validity of Section 309 IPC

having been rejected, no serious challenge to the constitutional validity of

>r"

Section 306 survives. Section 306 enacts a distinct offence which is capable

of existence independent of Section 309 IPC. Section 306 prescribes punish-

'

ment for 'abetment of suicide' while Section 309 punishes 'attempt to com-

H mit suicide'. Abetment of attempt to commit suicide is outside the purview

I

•

G. KAUR v. STATE 701

of Section 306 and it is punishable only under Section 309 read with Section A

107 IPC. Even where the punishment for attempt to commit suicide is not

considered desirable, its abetment is made a penal offence. In other words

assisted suicide and assisted attempt to commit suicide are made punish·

able for cogent reasons in the interest of society. Such a provision is

considered desirable to also prevent the danger inherent in the absence of

such a penal provision. The abettor

is viewed differently, inasmuch as he

B

abets the extinguishment of life of another person, and punishment of

abetment is considered necessary to prevent abuse of the absence of such

a penal provision. [716-B·C; G-~; 717-A; C]

11. Assisted suicide outside the category of physician assisted suicide C

have no rational basis to claim exclusion of the fundamental principle of

sanctity of life. The reasons assigned for attacking a provision which

penalises attempted suicide are not available to the abettor of snicide

or

attempted suicide. Abetment of suicide or attempted suicide is a distinct

offence which

is found enacted even in the law of the countries where

attempted suicide is not made punishable. Section

306 IPC enacts a distinct D

offence which can survive independent of Section 309 in the IPC. Section

306 IPC is not unconstitutional. [719-E-G]

Naresh Marotrao Sakhare and Anr. v. Union of India & Ors., (1995)

Crl. L.J. 96, approved.

Rodriguez v. B.C. (A.·G.), 107 D.L.R. (4th Series) 342; Compassion in

Dying

v.

State of Washington, 49 F. 3d 586 andAiredale N.HA. Trnst v. Bland,

(1993) 2 WLR 316 (H.L.), referred to .

R. v. Cardiff Coroner, er P. Thomas, (1970] 3 All ER 469 = (1970) 1

WLR

1475 and Reg. v.

Cox 18 September, 1992 (unreported), cited.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

274 of 1984 Etc. Etc.

E

F

From the Judgment and Order dated 20.2.84 of the. Punjab & G

Haryana High Court in Crl. A No. 629-SB of 1982.

K.T.S. Tulsi, B.S. Malik, K.N. Shukla, M.K. Banerjee, Soli J. Sorabjee

and F.S. Nariman, (Sanjay Bansal) for G.K. Bansal AS. Sohal, M.C.

Dhingra, A.K. Sanghi K.K. Gogna, H.M. Singh, S.K. Gambhir, Vivek

Gambir, Dr. Meera Aggarwal, R.C. Mishra, Eorael Ali, H.S. Phoolka, H

702 SUPREME COURT REPORTS (1996) 3 S.C.R.

A Dipak Bhattacharya, Rathan Das, (Sushi! Bajaj) for R.S. Suri, S.M. Jadhav,

D.M. Nargolkar, B.S. Banthia, Uma Nath Singh and P. Parmeswarn for the

Appearing parties.

The judgment of the Court were delivered

by

B J.S. VERMA, J. Leave granted in special leave petitions.

The .appellants Gian Kaur and her husband Harbans

Singh were

convicted by the Trial Court under Section 306, Indian Penal Code, 1860

(for short "!PC") and each sentenced to six years R.I. and fine of Rs. 2,000,

or, in default, further R.I for nine months, for abetting the commission of

C suicide by Kulwant Kaur. On appeal to the High Court, the conviction of

both has been maintained but the sentence of Gian Kaur alone has been

reduced to R.I. for three years. These appeals

by special leave are against

their conviction and sentence under section

306, !PC.

The conviction of the appellants has been assailed, inter alia, on the

D ground that Section 306, IPC is unconstitutional. The first argument ad­

vanced to challenge the constitutional validity of Section 306, !PC rests on

the decision in P. Rathinam v. Union of India and Anr., 1994 (3) SCC 394,

by a Bench of two learned Judges of this Court wherein Section 309, !PC

has been held to be unconstitutional as violative of Article 21 of the

E Constitution. It is urged that 'right to die' being included in Article 21 of

the Constitution as held in P. Rathinarn declaring Section 309, !PC to be

unconstitutional, any person abetting the commission of suicide

by another

is merely assisting in the enforcement of the fundamental right under

Article

21; and, therefore,

Section 306, !PC penalising assisted suicide is

F

equally violative of Article 21. This argument, it is urged, is alone sufficient

to declare that Section 306, !PC also is unconstitutional being violative of

Article

21 of the Constitution.

One of the points directly raised is the inclusion of the 'right to die'

within the ambit of Article

21 of the Constitution, to contend that any

G person assisting the enforcement of the 'right to die' is merely assisting in

the enforcement of the fundamental right under Article

21 which cannot

•

be penal; and Section 306, !PC making that act punishable, therefore, ,,,_.~

violates Article 21. In view of this argument based on the decision in P:

Rathinam, a reconsideration of that decision is inescapable.

H In view of the significance of this contention involving a substantial

•

G.KAURv. STATE[VERMA,J.] 703

question of law as to the interpretation of Article 21 relating to the A

constitutional validity of Section 306, LP .C. which requires reconsideration

of the decision in P. Rathinam, the Division Bench before which these

appeals came up for hearing has referred the matter

to a Constitution

Bench for deciding the same. This

is how the matter comes before the

Constitution Bench.

B

In addition to the learned counsel for the parties and the learned

Attorney General of India

who appeared in response to the notice, we also

requested Shri Fali

S. Nariman and Shri Soli J. Sorabaj_ee, Senior Advo­

cates to appear

as amicus Curiae in this matter. All the learned counsel

appearing before

us have rendered great assistance to enable us to decide C

this ticklish and sensitive issue.

We

may now refer to the submissions of the several learned counsel

who ably projected the different points of view.

Shri

Ujagar Singh and Shri B.S. Malik appeared in these matters for D

·' the appellants to support the challenge to the constitutional validity of

Section 306 and 309, !PC. Both the learned counsel contended that Section

)' 306 as well as Section 309 are unconstitutional. Both of them relied on the

decision in P. Rathinam. However, Shri Ujagar Singh supported the con­

clusion in P. Rathinam of the constitutional invalidity of Section 309, !PC E

only on the ground of violation of Article 14 and not Article 21. Shri B.S.

Malik contended that Section 309 is violative of Articles 14 and 21. He

strongly relied on the ground based on Article

21 in

P. Rathinam for

holding Section 309 to be invalid. He urged that 'right to die' being

included within the ambit of Article

21, assistance in commission of suicide -y cannot be an offence and, therefore, Section 306, !PC also is violative of F

Article 21. He contended that Section 306 is unconstitutional for this

reason alone. Shri S.K. Gambhir appearing in one of the connected matters

did not advance any additional argument.

The learned Attorney General contended that Section 306 !PC con­

stitutes a distinct offence and can exist independently of Section 309, !PC. G

The learned Attorney General did not support the decision in P. Rathinam

and the construction made of Article 21 therein to include the 'right to die'.

Shri F.S. Nariman submitted that Sections 306 and 309 constitute inde­

pendent substantive offences and Section 306 can exist independently of

Section 309. Shri Nariman then contended that the desirability of deleting H

704 SUPREME COURT REPORTS [1996] 3 S.C.R.

A Section 309 from the IPC is different from saying that it is unconstitutional.

B

He also submitted tliat the debate on euthanasia is not relevant for decid­

ing the question of constitutional validity of Section 309. He submitted that

Article

21 cannot be construed to include within it the so called 'right to

die' since Article

21 guarantees protection of life and liberty and not its

extinction.

He submitted that

Section 309 does not violate even Article 14

since the provision of sentence therein gives ample discretion to apply that

provision with compassion to an unfortunate victim of circumstances at­

tempting to commit suicide. Shri Nariman referred to the reported

decisions to indicate that the enforcement of this provision by the courts

has been with compassion to ensure that

it is not harsh in operation.

Shri

C Nariman submitted that the decision in P. Rathinam requires reconsidera­

tion

as it is incorrect.

Shri Soli J. Sorabjee submitted that Section 306 can

survive independently of Section 309, IPC as it does not violate either

Article

14 or Article 21.

Shri Sorabjee did not support the construction

made of Article

21 in

P. Rathinam to include therein the 'right to die' but

D he supported the conclusion that Section 309 is unconstitutional on the

ground that it violates Article

14 of the Constitution.

Shri Sorabjee sub­

mitted that it has been universally acknowledged that a provision to punish

attempted suicide

is monstrous and barbaric and, therefore, it must be held

to be violative of Article

14 of the Constitution.

Shri Sorabjee's argument,

therefore,

is that

Section 306, !PC must be upheld as constitutional but

E Section 309 should be held as unconstitutional, not as violative of Article

21 as held in P. Rathinam but being violat:ve of Article 14 of the Constitu­

tion.

He also sought assistance from Article 21 to support the argument

based on Article

14.

F

At this stage, it would be appropriate to refer to the decisions

wherein the question of constitutional validity of

Section 309, !PC was

considered.

Maruti Shripati Dubai v. State of Maharashtra, [1987] Cr!. L.J. 743, is

the decision by a Division Bench of the Bombay High Court. In that

G decision, P.B. Sawant, J., as he then was, speaking for the Division Bench

held that Section 309 !PC is violative of Article 14 as well as Article 21 of

the Constitution. The provision

was held to be discriminatory in nature and

also arbitrary so as to violate the equality guaranteed

by Article 14. Article

21 was construed to include the 'right to

die', or to terminate one's own

H life. For this reason it was held to violate Article 21 also. ·

G. KAUR v. STATE [VERMA, J.] 705

State v. Sanjay Kumar Bhatia, [1985] Cr!. LJ. 931, is the decision of A

the Delhi High Court. Sachar, J., as he then was, speaking for the Division

Bench said that the continuance of Section 309 !PC is an anachronism

unworthy of human society like ours. However, the question of its constitu­

tional validity with reference to any provision of the Constitution

was not

considered. Further consideration of this decision

is, therefore, not neces- B

sary.

Chenna Jagadeeswar and Another v. State of Andhra Pradesh, 1988

Cr!. L.J. 549, is the decision by a Division Bench of the Andhra Pradesh

High Court. The challenge to the constitutional validity of Section

309 !PC

was rejected therein. The argument that Article 21 includes the 'right to C

die' was rejected. It was also pointed out by Amareshwari, J. speaking for

the Division Bench that the Courts have sufficient power power to see that

unwarranted harsh treatment or prejudice

is not meted out to those who

need care and attention. This negatived the suggested violation of Article

14.

The only decision of this Court is

P. Rathinam by a Bench of two

learned Judges. Hansaria, J. speaking for the Division Bench rejected the

challenge

to the constitutional validity of Section

309 based on Article 14

D

but upheld the challenge on the basis of Article 21 of the Constitution. The

earlier decisions of the Bombay High Court and the Andhra Pradesh High

E

Court were considered and agreement was expressed with the view taken

by the Andhra Pradesh High Court

as regards Section

309 qua Article 14.

The decision then proceeds to consider the challenge with reference to

Article

21 of the Constitution. It was held that Article 21 has enough

positive content in it so that

it also includes the 'right to die' which F

inevitably leads to the right to commit suicide. Expressing agreement with

the view of the Bombay High Court in respect of the content of Article

21,

it was held as under :

"Keeping in view all the above, we state that right to live of

which Article

21 speaks of can be said to bring in its trail the right G

not to live a forced life."

(Page 410)

The conclusion of the discussion was summarised as under : H

706

A

B

c

SUPREME COURT REPORTS [19%] 3 S.C.R.

"On the basis of what has been held and noted above, we state

that Section 309 of the Penal Code deserves to be effaced from

the statute book to humanise our penal laws.

It is a cruel and

irrational provision, and it

may result in punishing a person again

(doubly) who has suffered agony and would be undergoing

ig­

nominy because of his

failure to commit suicide. Then ·an act of

suicide cannot be said to be against religion, morality or public

policy, and an act

of attempted suicide has no baneful effect on

society. Further, suicide or attempt to commit it causes no harm

to others, because

of which

State's interference with the personal

liberty

of the persons concerned is not called for.

We, therefore, hold that

Section 309 violates Article 21, and

so, it

is void. May it be said that the view taken by us would advance

not only the cause

of humanisation, which is a need of the day, but

of globalisation also, as by effacing

Section 309, we would be

D attuning this part of our criminal law to the global wavelength."

(Page 429)

At this stage it may be mentioned that reference has been made in

P. Rathinam and the Bombay High Court decision to the debate relating

E to euthanasia, the sociological and psychological factors contributing to

suicidal tendencies and the global debate on the desirability of not punish­

ing 'attempt to commit suicide'. The absence

of provisions to punish

attempted suicide in several jurisdictions has also been noticed. The

desirability of attempted suicide not being made a penal offence and the

F recommendation of the Law Commission to delete

Section· 309 from the 't

G

H

Indian Penal Code has also been adverted to. We may refer only to the

recommendation contained in the 42nd Report (1971) of the Law Commis-

sion

of India which contains the gist of this logic and was made taking into

account all these aspects. The relevant extract

is, as under :

"16.31

Section 309 penalises an attempt to commit suicide. It may

be mentioned that suicide . was regarded as permissible in some

circumstances in ancient India. In the Chapter

on ''The hermit in

the forest", Mann's Code

(See : Laws of Mann, translated by

George Buhler, Sacred Books of the East edited by F. Max Mnller,

(1967 Reprint) Vol.

25, page

204, Shilokas 31 and 32) says -

G.KAURv. STATE[VERMA,J.] 707

-1

"31. Or let him walk, fully determined and going straight on, in A

a north-easterly direction, subsisting on water and air, until his

body sinks to rest.

32. A Brabmana having got rid of bis body by one of those

modes (i.e. drowning, precipitating burining or starving) practiced

B

by the great sages, is exalted in the world of Brahamana, free from

sorrow

and fear".

Two commentators

of Mann, Goverdhana and Kulluka

(See

)/

Medhatithi's commentary on Manu), say that a man may undertake

the

mahaprasthana (great departure) on a journey which ends in c

death, when be is incurably diseased or meets with a great misfor-

tune, and that, because it is taught

in the Sastras,

il is not opposed

to the Vedic rules which forbid suicide (See : Laws of Manu,

translated by George Buhler, Sacred Books of the East edited by

F. Max Muller, (1967 Reprint) Vol.

25, page

204, foot note 31).

D

'

To this Max Muller adds a note as follows : (See : Ibid)

f "From the parallel passage of Apas tambha II, 23, 2, it is,

however, evident that a voluntary death by starvation was con-

sidered the befitting conclusion

of a hermit's life. The antiquity

and general prevalence

of the practice may be inferred from the

E

fact that the Jaina ascetics, too, consider it particularly

meritorious."

• 16.32 Looking at the offence of attempting to commit suicide, it

1

bas been observed by an English writer : (See : H. Romilly Fedden:

Suicide (London, 1938), page 42). F

"It seems a monstrous procedure to inflict further suffering on

even a single individual who has already found life so unbearable,

his chances of happiness so slender, that he bas been willing to

face pain and death in order to cease living. That those for whom

G

t-·y life is altogether bitter should be subjected to further bitterness

and degradation seems pervers_e legislation." ·

Acting on the view·tbat such persons deserve the active sympathy

of society and not condemnation or punishment, the British Par-

liament enacted the Suicide Act in 1961 whereby attempt tc. H

708

A

B

SUPREME COURT REPORTS [1996] 3 S.C.R.

commit suicide ceased to be an offence.

16.33 We included in our questionnaire the question whether

attempt to commit suicide should be punishable at

all. Opinion

was more or less equally divided. We are, however, definitely of the

view that the penal provision is harsh and unjustifiable and it should

be

repealed."

(emphasis supplied)

A Bill

was introduced in 1972 to amend the Indian Penal Code by deleting

C Section

309. However, the Bill lapsed and no attempt has been made as

yet to implement that recommendation of the Law Commission.

The desirability of retaining Section 309 in the Statute is a different

matter and non-sequiture in the context of constitutional validity of that

provision which has to be tested with reference to some provision in the

D Constitution of India. Assuming for this purpose that it may be desirable

to delete

Section 309 from the Indian Penal Code for the reasons which

led to the recommendation of the Law Commission and the formation of

that opinion

by persons opposed to the continuance of such a provision,

that cannot be a reason

by itself to declare Section

309 unconstitutional

E unless it

is held to be violative of any specific provision in the Constitution.

For this reason, challenge

to the constitutional validity of Section

309 has

b~en made and is also required to be considered only with reference to

Articles

14 and 21 of the Constitution. We, therefore, proceed now to

consider the question of constitutional validity with reference to Articles

14 and 21 of the Constitution. Any further reference to the Global debate

F on the desirability of retaining a penal provision

to punish attempted

suicide

is unnecessary for the purpose of this decision.

Undue emphasis on

that aspect and particularly the reference to euthanasia cases tends to

befog the real issue

of the constitutionality of the provision and the crux

of the matter which

is determinative of the issue.

G

In

P. Rathinam it was held that the scope of Article 21 includes the

'right to die'. P. Rathinam held that Article 21 has also a positive content

and

is not merely negative in its reach. Reliance was placed on certain

decisions to indicate the wide ambit of Article

21 wherein the

term· 'life'

does not mean 'mere animal existence' but 'right to

live with human dignity'

H embracing quality of life. Drawing analogy from the interpretation of

•

G.KAURv. STATE[VERMA,J.] 709

'freedom of speech and expression' to include freedom not to speak, A

'freedom of association and movement' to include the freedom not to join

any association or to move anywhere, 'freedom of business' to include

freedom not

to do business, it was held in

P. Rathanam that logically it

must follow that right to

live would include right not to live, i.e., right to

die or to terminate one's life. Having concluded that Article

21 includes B

also the right to die, it was held that Section

309, !PC was violative of

Article

21. This is the only basis in

P. Rathinam to hold that Section 309,

IPC is unconstitutional.

'Right to die' -Is it included in Article 21?

c

The first question is : Whether, the scope of Article 21 also includes

the 'right to die'? Article

21 is as under :

Article

21

"21. Protection of life and personal liberty -No person shall be D

deprived of his life or personal liberty except according to proce­

dure established

by

law."

A significant part of the judgment in P. Rathinam on this aspect, is

as under:

"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,

E

as held in

R.C. Cooper v. Union of India what is true on one

fundamental right

is also true of another fundamental right. It was

then stated that

is not, and cannot be, seriously disputed that F

fundamental rights have their positive as well as negative aspects. For

example, freedom of speech and expression includes freedom not to

speak. Similarly, the freedom of association and movement in­

cludes freedom

not to join any association or move anywhere.

So

too, freedom of business includes freedom not to do business. It G

was therefore, stated that logically it must follow that the right to live

will include right not to live i.e., right to die or to terminate one's life.

Two of the abovenamed critics of the Bombay judgment have

stated that the aforesaid analogy is "misplaced", which could have

arisen on account of superficial comparison between the freedoms,

H

}

710 SUPREME COURT REPORTS [1996] 3 S.C.R.

A ignoring the inherent difference between one fundamental right

and the other.

It has been argued that the negative aspect of the

K

right to live would mean the end or extinction of the positive aspect,

and so, it

is not the suspension as such of the right as is in the case

of 'silence' or 'non-association' and 'no movement'.

It has also been

B

stated that the right to life stands on different footing from other

rights

as all other rights are derivable from the right to live.

The aforesaid criticism is only partially correct inasmuch as

though the negative aspect may not be inferable on the analogy of

"-

the rights conferred by different clauses of Article 19, one may

c

refuse to live, if his life be not according to the person concerned

worth

living or if the richness and fullness of life were not to

demand

living further.

One may rightly think that having achieved

all worldly pleasures or happiness he has something to achieve

beyond this life. This desire for communion with God may very rightly

D

lead even a very healthy mind to think that he would forego his right

to 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.

xxx xxx xxx

E

Keeping in view all the above, we staie that right to live of which

Anicle 21 speaks of can be said to bring in its trail the right not to

live a forced life.

In this context, reference may be made to what Alan A. Stone, ...

F while serving as Professor of Law and Psychiatry in Harvard

University stated in his 1987 Jonas Robitscher Memorial Lecture

in Law and Psychiatry, under the caption "The Right to Die : New

Problems for Law and Medicine and Psychiatry. (This lecture has

been printed at pp.

627 to 643 of Emory Law Journal, Vol. 37,

G

1988).

One of the basic theories of the lecture of Professor Stone

was that right to die inevitably leads to the right to commit suicide." ... "~

(emphasis supplied)

(Pages 409-410)

H From the above extract, it is clear that in substance the reason for

G. KAURv. STATE[VERMA,J.] 711

that view is, that if a person has right to live, he also has a right not to live. A

The decisions relied on for taking that view relate to other fundamental

rights which deal with different situations and different kind of rights. In

those cases the fundamental right is of a positive kind, for example,

freedom of speech, freedom of association, freedom of movement, freedom

of business etc. which were held to include the negative aspect of their

B

being no compulsion to exercise that right by doing the guaranteed positive

act. Those decisions merely held that the right to do an act includes also

the right not

to do an act in that manner. It does not flow from those

decisions that if the ·right

is for protection from any intrusion thereof by

others or in other words the right has the negative aspect of not being

deprived

by others of its continued exercise e.g. the right to life or personal C

liberty, then the converse positive act also flows therefrom to permit

expressly its discontinuance or extinction

by the holder of such right. In

those decisions it

is the negative aspect of the right that was invoked for

which ho positive or overt act

was required to be done by implication. This

difference in the nature of rights has to be borne in mind when making the D

comparison for the application

ofthis principle.

When a man commits suicide he has

to undertake certain positive

overt acts and the genesis of those acts cannot be traced

to, or be included

within the protection of the 'right

to life' under Article 21. The significant

aspect of 'sanctity of life'

is also not to be overlooked. Article 21 is a E

provision guaranteeing protection of life and personal liberty and

by no

stretch of imagination can 'extinction of life' be read to be included in

'protection of life'. Whatever

may be the philosophy of permitting a person

to extinguish

his life by committing suicide, we find it difficult to construe

Article

21 to include within it the 'right to die' as a part of the fundamental F

right guaranteed therein. 'Right

to life' is a natural right embodied in

Article

21 but suicide is an unnatural termination or extinction of life, and

therefore, incompatible and inconsistent with the concept of 'right to life'.

With respect and in all humility,

we find no similarity in the nature of the

other rights, such

as the right to 'freedom of speech' etc. to provide a

comparable basis to hold that the 'right to life' also includes the 'right to G

die'. With respect, the comparison

is inapposite, for

the reason indicated

in the context of Article

21. The decisions relating to other fundamental

rights wherein the absence of compulsion to exercise a right

was held to

be included within· the exercise of that right, are not available to support

the

view taken in

P. Rathinam qua Article 21. H

712 SUPREME COURT REPORTS (1996) 3 S.C.R.

A To give meaning and content to the word 'life' in Article 21, it has

been construed

as life with human dignity. Any aspect of life which makes

it dignified may be read into it but not that which extinguishes it and is,

.--

therefore, inconsistent with the continued existence of life resulting in

effacing the right itself. The 'right to die', if

any, is inherently inconsistent

B with the 'right to life' as is 'death' with 'life'.

Protagonism of euthanasia on the view that existence in persistent

vegetative state (PVS) is not a benefit to the patient of a terminal ill11ess

being unrelated to the principle of 'sanctity of life' or the 'right to live with

dignity'

is of no assistance to determine the scope of Article 21 for deciding

C whether the guarantee of 'right to life' therein includes the 'right to die'.

The 'right to life' including the right to

live with human dignity would mean

the existence of such a right upto the end of natural life. This also includes

the right to a dignified life upto the point of death including a dignified

procedure of death. In other words, this

may include the right of a dying

D man to also die with dignity when his life

is ebbing out. But the 'right to

die' with dignity at the end of

life is not to be confused or equated with

the 'right to die' an unnatural death curtailing the natural span of

life_

A question may arise, in the context of a dying man, who is, terminal-

'

ly ill or in a persistent vegetative state that he may be permitted to

E terminate it

by a premature extinction of his life in those circumstances.

This category of cases

may fall within the ambit of the 'right to die' with

dignity

as a part of right to live with dignity, when death due to termination

of natural

life is certain and imminent and the process of natural

death has

commenced. These are not cases of extinguishing life but only of accelerat-

F ing conclusion of the process of natural death which has already com-

menced. The debate even in such cases to permit physician assisted >

termination of life is inconclusive. It is sufficient to reiterate that the ·

argument to support the view of permitting termination of life in such cases

to reduce the period of suffering during the process of certain natural

death

is not available to interpret Article 21 to include therein the right lo

G curtail the natural span of life.

We are, therefore, unable to concur

with the interpretation of Article

21 made in P. Rathinam. The only reason for which

Section 309 is held to

be violative of Artide

21 in

P. Rathinam does not withstand legal scrutiny.

H We are unable to hold that Section 309 l.P.C. is violative of Article 21.

)/

'

.... -.;.'

G. KAUR v. STATE [VERMA, J.] 713

The only surviving question for consideration now is whether Section A

309 IPC is violative of Article 14, to support the conclusion reached in P.

Rathinam.

The basis of the decision in P. Rathinam, discussed above, was not

supported

by any of the learned counsel except

Shri B.S. Malik. On the

basis of the decision in

P. Rathinam it was urged that

Section 306 also is B

violative of Article 21, as mentioned earlier. On the view we have taken

that Article

21 does not include the 'right to die' as held in P. Rathinam,

the first argument to challenge the constitutional validity of

Section 306,

IPC also on that basis fails, and is rejected.

Article 14 -Is it violated by Section 309, l.P.C.?

We would now consider the constitutional validity of Section 309 with

reference to Article

14 of the Constitution. In substance, the argument of Shri Ujagar Singh, Shri B.S. Malik and Shri Soli J. Sobrajee on this point

c

is that it is a monstrous and barbaric provision which violates the equality D

clause being discriminatory and arbitrary.

It was contended that attempted

suicide

i.s not punishable in any other civilized society

·and there is a strong

opinion against the retention of such a penal provision which led the Law

Commission of India also to recommend its deletion. Shri Sorabjee con­

tended that the wide amplitude of Article

14 together with the right to live E

with dignity included in Article

21, renders

Section 309 unconstitutional. It

is in this manner, invoking Article 21 limited to life with dignity (not

including therein the 'right to die') that Shri Sorabjee refers to Article 21

along with Article 14 to assail the validity of Section 309, !PC. The

conclusion reached in

P. Rathinam is supported on this ground.

We have formed the opinion that there

is no merit in the challenge

based even on Article

14 of the Constitution. The contention based on

Article

14 was rejected in

P. Rathinam also. It was held therein as under :

F

"The Bombay High Court held Section 309 as violation of Article

14 also mainly because of two reasons. First, which act or acts in G

series of acts will constitute attempt to suicide, where to draw the

line, is not known -some attempts may be serious while others

non-serious.

It was stated that in fact philosophers, moralists and

sociologists were not agreed upon what constituted suicide. The

want of plausible definition or even guidelines, made

Section 309 H

714

A

B

c

D

E

F

G

H

SUPREME COURT REPORTS [1996] 3 S.C.R.

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 made.

The fi1st 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 p. 1521 of Encyclopaedia of Crime and Justice, Vol.

IV,

1983 Edn.

Of course, there still exists difference among suicide

researchers

as to what constitutes suicidal behaviour, for example,

whether narcotic addiction, chronic alcoholism, heavy cigarette

smoking, reckless driving, other risk-taking behaviours, are suicidal

or not. It

may also be that different methods are adopted for

committing suicide, for example, use of firearm, poisoning espe­

cially

by drugs, overdoses, 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 open to an accused to take the plea that his

act did not constitute suicide whereupon the court would decide

this aspect also.

Insofar as treating of different attempts to commit suicide by the

same measure is concemed, 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

sentmce appropriately.

It is worth pointing out that Section 309 has only provided the

maximum sentence which is up to one year. It provides for imposition

of fine only as a punishment. It is this aspect which weighed with the

Division Bench of 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.

We agree with the view taken by the Andhra Pradesh High Court

I

t

as regards Section 309 qua Article 14." .,.·-"

(Page 405)

(emphasis supplied)

.

G. KAUR v. STATE [VERMA, J .] 715

With respect , we are in agreement with the view so taken qua Article 14, A

in P. Rath in am.

We have already stated that the debate on the desirability of retaining

such a penal provision of punishing attempted suicide, including the recom­

mendation for its deletion by the Law Commission are not sufficient to

indicate that the provision

is unconstitutional being violative of Article 14. B

Even if those facts are to weigh, the severity of the provision is mitigated

by the wide discretion in the matter of sentencing since there is no requirement of awarding any minimum sentence and the sentence of

imprisonment

is not even compulsory. There is also no minimum fine

prescribed

as sentence, which alone may be the punishment awarded on C

conviction under Section

309, !PC. This aspect is noticed in P. Rathinam

for holding that Article 14 is not violated.

The reported decisions show that even on conviction under Section

309, IPC, in practice the accused has been dealt with compassion by giving

benefit under the Probation of Offenders Act,

1958 or Section 562 of the D Code of Criminal Procedure, 1908 corresponding to Section 360 of the

Criminal Procedure Code, 1973 : Mt. Barakat v. Emperor, AIR (1934) Lah.

514; Emperor v. Dwarka Pooja, 14 Born. L.R. 146; Emperor v. Mt. Dhirajia,

AIR (1940) All. 486; Ram Sunder v. State of Uttar Pradesh, AIR 1962 All.

262; Valentino v. State, AIR 1967 Goa 138; Phulbai v. State of Maharashtra, E

(1976) Cr!. L.J. 1519; Radharani v. State of M.P., AIR (1981) SC 1776 and

Rukhmina Devi v. State of U.P., (1988) Cr!. L.J. 548. The above quoted

discussion in P. Rathinam qua Article 14 is sufficient to reject the challenge

based on Article

14.

We may briefly refer to the aid of Article 21 sought by

Shri Sorabjee F

to buttress the challenge based on Article

14. We have earlier held that

'right to die'

is not included in the 'right to life' under Article 21. For the

same

reason, 'right to live with human dignity' cannot be construed to

inclnde within its ambit the right to terminate natural

life, at least before

commencement of the natural process of certain death. We do not see how

G

Article 21 can be pressed into service to support the challenge based on

Article

14. It cannot, therefore, be accepted that Section

309 is violative

either of Article 14 or Article 21 of the Constitution.

It follows that there is no ground to hold that Section 309, !PC is

constitutionally invalid. The contrary view taken in P. Rathinam . on the H

716 SUPREME COURT REPORTS [1996) 3 S.C.R.

A basis of the construction made of Article 21 to include therein the 'right

to die' cannot be accepted

by us to be correct. That decision cannot

l:>e

'

)

supported even on the basis of Article 14. It follows that Section 309, !PC I--

is not to be treated as unconstitutional for any reason.

B

Validity of Section 306, /.P.C.

The question now is whether Section 306, !PC is unconstitutional

for any other reason. In our opinion, the challenge to the constitutional

validity of Section 309, !PC having been rejected, no serious challenge to

the constitutional validity of Section 306 survives. We have already rejected

C the main challenge based on P. Rathinam on the ground that 'right to die'

is included in Article 21.

D

E

F

It is significant that

Section 306 enacts a distinct offence which is

capable of existence independent of Section 309, !PC. Sections 306 and 309

read as under :

Section 306 :

"306. Abetment of suicide -If any person commits suicide, whoever

abets the commission of such suicide, shall be punished with

imprisonment of either description

for a term which may extend

to ten years, and shall also be liable to

fine."

Section 309 :

"309. Attempt to commit suicide -whoever attempts to commit

suicide and does any act towards the commission of such offence,

shall

be punished with simple imprisonment for a term which may

extend to one year or with fine, or with

both."

Section

306

prescribes punishment for 'abetment of. suicide' while

Section 309 punishes 'attempt to commit suicide'. Abetment of attempt to

commit suicide

is outside the purview of

Section 306 and it is punishable

G only under Section 309 read with Section 107, !PC. In certain other

jurisdictions, even though attempt to commit suicide

is not a penal offence

yet the abettor

is made punishable. The.provision there, provides for the

"'_.

punishment of abetment of suicide as well as abetment of attempt to

commit suicide. Thus, even where the punishment for attempt to commit

H stticide is not considered desirable, its abetment is made a penal offence.

G. KAUR v. STATE [VERMA, J .] 717

In other words assisted suicide and assisted attempt to commit suicide are A

made puni~hable for cogent reasons in the interest of society. Such a

provision

is considered desirable to also prevent the danger inherent in the

absence of such a penal provision. The arguments which are advanced to

support the plea for not punishing the person who attempts to commit

suicide

do not avail for the benefit of another person assisting in the B

commis.ion of suicide or in its attempt. This plea was strongly advanced

by the learned Attorney General as well as the amicus curiae Shri Nariman

and Shri Sorabjee. We find great force in the submission.

The abettor

is viewed differently, inasmuch as he abets the extin­

guishment of life of another person, and punishment

of abetment is con-C

sidered necessary to prevent abuse of the absence of such a penal

provision. The

Suicide Act, 1961 in the English Law contains the relevant

provision

as under :

"l. Suicide to cease to be a crime

The rule of law whereby it

is a crime for a person to commit suicide

is hereby abrogated. NOTE

D

Suicide : "Pelo de se or suicide is, where a man of the age of E

discretion, and compos men tis voluntarily kills himself by stabbing,

poison or any other

way" and was a

felony" at common law : see 1

Hale PC 411-419. This section abrogates that rule of law, but, by

virtue of s.2( 1) pos4 a person who aids, abets, counsels or procures

the suicide or attempted suicide of another is guilty of a statutory

offence.

The requirement that satisfactory evidence of suicidal intent is

always necessary to establish suicide as a cause of death is not

altered

by the passing of this Act :

See R. v. Cardiff Coroner, exp

F

Thomas, [1970) 3 All ER 469, [1970) 1 WLR 1475. G

2. Criminal iiability for complicity in another's suicide.

( 1) A person who aids, abets, counsels or procures the suicide of

another, or an attempt

by another to commit suicide, sliall be liable

on conviction on indictment to imprisonment

for a term not ex-H '

718 SUPREMECOURTREPORTS [1996] 3 S.C.R.

A ceeding fourteen years."

(emphasis supplied)

This distinction

is well recognised and is brought out in certain

decisions of other countries. The Supreme Court of Canada in

Rodriguez

B v.

B.C. (A.-G.) 107 D.L.R. (4th Series) 342, states as under:

c

"Sanctity of life, as we will see, has been understood hlstorically

as excluding freedom of choice in the self-infliction of death and

certainly in the involvement of others in carrying out that choice.

At the very least, no new consensus has emerged in society

oppos­

ing the right of the state to regulate the involvement of others in

exercising power over individuals ending their lives."

(at page 389)

D Airedale N.HA. Trust v. Bland, (1993) 2 W.L.R. 316 (H.L.), was a

case relating to withdrawal of artificial measures for continuance of life

by

a physician. Even though it is not necessary to deal with physician assisted

suicide or euthanasia cases, a brief reference to this decision cited at the

Bar may be made. In the context of existence in the persistent vegetative

E state of no benefit to the patient, the principle of sanctity of life, which it

is the concern of the State, was stated to be not an absolute one. In such

cases also, the existing crucial distinction between cases in which a

physician decides not to provide, or to continue to provide, for his patient,

treatment or care which could or might prolong his life, and those in whlch

he decides, for example, by administering a lethal drug, actively to bring

F his patient's life to an end, was indicated and it was then stated as under:

G

H

" ......... But it is not lawful for a doctor to administer a drug to

hls patient to bring about his death, even though that course is

prompted by a humanitarian desire to end hls suffering, however

great that suffering

may be :

See Reg v. Cox, (unreported), 18

September, (1992). So to act is to cross the Rubicon which runs

between on the one hand the care of the living patient and on the

other hand euthanasia -actively causing his death to avoid or to

end hls suffering. Euthanasia is not lawful at common law. It is of

course well known that there are many responsible members of our

society who believe that euthanasia should be made lawful; but that

j

+

G.KAURv. STATE[VERMA,J.] 719

result could, I believe, only be achieved by legislation which e;.presses A

the democratic will that so fundamental a change should be made

in our law, and can, if enacted, ensure that such legalised killing can

only be carried out subject to appropriate supervision and control.

(emphasis supplied) B

(at page 368)

The desirability of bringing about a change was considered to

be the

function of the legislature

by enacting a suitable law providing therein

adequate safeguards to prevent any possible abuse.

C

The decision of the

United States Court of Appeals for the Ninth

Circuit in

Compassion in Dying v. State of Washington, 49 F.3d 586, which

. reversed the decision of

United States District Court, W.D. Washington

reported in 850 Federal Supplement 1454, has also relevance. The constitu­

tional validity of the State statute that banned physician assisted suicide by

D

mentally competent, terminally ill adults was in question. The District

Court held unconstitutional the provision punishing for promoting a suicide

attempt.

On appeal, that jndgment was reversed and the constitutional

validity of the provision

was upheld ..

This caution even in cases of physician assisted suicide is sufficient E

to indicate that assisted suicides outside that category have

no rational

basis to claim exclusion of the fundamental principle of sanctity of life. The

reasons assigned for attacking a provision which penalises . attempted

suicide are not available

t0, the abettor of suicide or attempted suicide.

Abetment of suicide or attempted suicide

is a distinct offence which is

found enacted even in the law of the countries where attempted suicide is

F

not made punishable. Section

3061.P.C. enacts a distinct offence which can

survive independent of Section 309 in the l.P.C. The learned Attorney

General

as well as both the learned amicus curiae rightly supported the

constitutional validity of Section

306 l.P.C.

The Bombay High Court in Naresh Marotrao Sakhre and Another v.

Union of India and Others, (1995) Cr!. LJ. 96, considered the question of

validity of Section 306 I.P.C. and upheld the same. No decision holding

Section 306 I.P.C. to be unconstitutional has been cited before us. We find

G

no reason to hold either Section 309 or Section 306 l.P.C. to be unconstitu-H

720 SUPREME COURT REPORTS (1996] 3 S.C.R.

A tional.

For the reasons

we have given, the decisions of the Bombay High

Court

in

Ma111ti Sl11ipati Dubai v. State of Maharashtra, (1987) Cr!. L.J 743,

and of a Division Bench of this Court in P. Rathinam v. Union of India and

Anr., ( 1994) 3 SCC 394, wherein Section 309 l.P.C. has been held to be

B unconstitutional, are not correct. The conclusion of the Andhra Pradesh

High Court in

Chenna Jagadeeswar

and Another v. State of Andhra Pradesh,

{1988) Crl. L.J. 549, that Section 309 I.P.C. is not violative of either Article

14 or Article 21 of the Constitution is approved for the reasons given

herein. The questions of constitutional validity of Sections 306 and 309

C I.P.C. are decided accordingly, by holding that neither of the two provisions

is constitutionally invalid.

D

These appeals would now be listed before the appropriate Division

Bench for their decision on merits

in accordance with law treating Sections 306 and 309 I.P.C. to be constitutionally valid.

T.N.A. Appeals disposed of.

J