Holding

Section 309 of the Indian Penal Code is unconstitutional as it violates Article 21 and is therefore void.

Summary

The Supreme Court considered two writ petitions challenging the constitutional validity of Section 309 of the Indian Penal Code, which criminalises attempted suicide. The petitioners argued that the provision violated Articles 14 and 21 of the Constitution. After reviewing earlier High Court decisions, comparative law, the Law Commission report and extensive sociological and philosophical material, the Court held that Section 309 is a cruel and irrational provision that infringes the right to life and personal liberty under Article 21 and therefore is void. The Court also found that treating all attempts to suicide alike does not breach Article 14, as sentencing can be tailored. Consequently, the writ petitions were allowed, Section 309 was struck down, and the pending criminal proceedings against the petitioner were quashed.

Issues considered

The constitutionality of Section 309 IPC in view of Articles 14 and 21 of the Constitution
Whether the classification of all attempted suicides under a single penalty violates the principle of equality
Whether suicide is against public policy, morality or religion
Whether the State has a legitimate interest in punishing attempted suicide

Legislation cited

Constitution of Indias. Article 14, s. Article 19, s. Article 21, s. Article 25
Indian Penal Code, 1860s. 301, s. 306, s. 309
Probation of Offenders Acts. 12

Subjects

suicideattempted suicideSection 309 IPCconstitutional validityArticle 21right to liferight to diepublic policymoralitymental healtheuthanasiacriminal law

Judgment

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

APRIL 26, 1994

IR.M. SAHA! AND B.L. HANSARIA, JJ.] B

Indian Penal Code, 1860'-Section 30<)-{)ffence of attempted
suicide-Constitutional validity of-Held, Section 309 violates ArtiC/e 21 of
the Constitution of India-ft is unconstitutional and hence void-Act of com-
mitting 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--Distinc-
tion.-Section 306 and 301)-,Aiding suicide-Self killing is different from abet-
ting 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-Treat-
ing different attempts to commit suicide by same measure-Not violative of
Article 14.
E
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
.,. the section as void and to quash the proceedings initiated against the F
I petitioner uls 309.

Dismissing the petitions, this court

HELD : 1.1. Section 309 of the Indian Penal Code deserves to be
effaced from the statute book to humanise our penal laws. It is a cruel and G
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 sen-
tence 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.

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
F 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 'secularisa-
tion 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 B
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
c
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]

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
(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
F 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 B
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 encourage-
ment 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
c
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] D

C Jagadeshwar v. State ofAndhra 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
E
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
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, Es-
says; 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
of Society towards Suicide; Simon Lee's, Laws and Morah (1986); HLP
B
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 Win-
field, "Essays on Public Policy in the English Common Law", 42 Harvard
Law Review 76, referred to.

CRIMINAL ORIGINAL JURISDICTION : Writ Petition (CRL.)
Nos. 409/86 & 419/87.
F
(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. Sush-
G 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 Con-
stitution 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 inves-
tigation 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
680 SUPREME COURT REPORTS [1994] 3 S.C.R.

A 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
B
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
c as society refuses to face this reality ·its coercive machinery will
invoke the provision like sectioni309 !PC which has no justification
11
right to continue remain on the{ statute book.

6. Soon came the Division Bench hecision of Bombay High Court in
Mamti Sharipati Dubai v. State of Mahhrashtra,. (1987) Cr!. Law Journal
D 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
B
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.

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

c:
11. Some time afterwards appeared an article Justice R.A. Jahagir-
dar 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 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
c 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, there-
fore, 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 permis-
E 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 ob-
served that the patient was in fact requesting the court to sanction affirm-
alive 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
taking one's own life voluntarily and. intentionally; the deliberate and
B
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
then taken of the various causes which lead people to commit suicide. E
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
forms of suicide are known. These being: Johars (mass suicides or self-im- G
molation) 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 (self-
sacrifice). 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
same.
B
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
policy (this has also been the main argument of the counsel of Union of
c
~
India before us); (5) it damages monopolistic Power of the State, as State
, alone can take life; and (6) it w0 uld 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
apprise ourselves as to why suicides are committed and how can they be G
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
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.
B
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. Globalisa-
tion 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 select-
ing 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 :

(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?
F )

(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? A
(10) Is suicide immoral?

(11) Does suicide produce adverse sociological effects?

(12) Is suicide against public policy? B
(13) Does commission of suicide damage the monopolistic power of
the State to take life?
•
(14) Is apprehension of 'constitutional cannibalism' justified?

(15) Recommendation of the Law Com\nission of India and follow
c
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?
D
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. E

(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 F
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.
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. Ramarath-
nam 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.

(3) The right against solitary confinement. Sunil Batra v. Delhi Ad-
ministration.

(4) The right against the fetters. Charles Shobraj v. Supdt. Central Jail.
B
(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
Maharashtra.
r
(10) The right against public hanging. A.G. of India v. Lachma Devi.

(11) Doctor's assistance. Paramanand Katra v. Union of India.
E
(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 Constitu-
tion) 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
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
, the International Conference on Health Policy, Ethics and Hwt1an Value D
' 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 intrinsi-
ca11y 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."
.....c 30. May it be said that in CESC Ltd. v. Subhash Chandra, [1992) 1
F

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
1
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. Similarly, the
freedom of association and movement includes freedom not to join any
B association or move any where. So too, freedom of business includes
freedom not to do business. It 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.

C 32. 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, ignoring the
inherent difference between one fundamental right and the other. It has
been argued that the negative '!Spect of the right to live would mean the
D 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 'C
movement'. It has also been stated that the right to life stands on different
footing from other rights as all other rights are derivable from the right to
live.

E 33. 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 clause 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
F rightly think that having achieved all world pleasure or happiness, the has :i
· something to achieve beyond this life. This desire for communion with God 1
may very rightly 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.
G
34. From what has been stated above, it may not be understood that
according to us the right encompassed or conferred by Article 21 can be
waived. Need for this observation has been felt because it has been held
by a Constitution Bench in Olga Tellis v. Bombay Municipal Corporation,
H AIR (1986) SC 180 that a fundamental right cannot be waived. A perusal
RATHINAM/PATNAIK v. U.0.1. [HANSARIA,J.] 691

of that judgment, however, shows that it dealt more with the question of A
estoppel by conduct which it can be said that the same is facet of waiver.
In the present cases we are, however, not on the question of estoppel but
of not taking advantage of the right conferred by Article 21.

35. Keeping in view all the above, we state that right to live of which·
Article 21 speaks to live a forced life. B
36. In this context, reference may be made to what Alan A Stone,
while sening 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 C
and Medicine and Psychiatry'. (This lecture has been printed at pages 627
to 643 of Emory Law Journal, Volume 37, 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.

(3) Why is a law enacted? What object (s) it seeks to serve? D
37. Section 309 being a part of our enacted law, let it be known as
to why a law is framed or is required to be framed. To put it differently,
what objects are sought to be achieved by framing laws. For our purpose
it would be enough if what has been stated by Shri M. Ruthnaswamy in
Chapter 5 and 6 of his book "Legislation: Principles and .Practice" (First E
Edn., 1974) (The Chapter headings being 'Principles of Legislation in
History' and 'Contemporary Principles of Legislation'), is noted. The
learne.d author has within a short compass brought home the different
principles which had.held sway in different parts of the world at different
points of time. Ruthnaswamy starts in Chapter 5 by saying that it is from F
the time of the Renaissance and the Reformation when men, as a result of
these great revolutionary movements broke away from rule of Custom and
Tradition, that legislation began its career as an instrument of social and
political, and even religious, change. The readers are then informed as to
what Richard Hooker (1554-1600) thought on the question of law which, G
according to him, has to be influenced by experience and supported by
reason.

38. The next important thinker of England after Hooker was the
famous Francis Bacon (1561-1626). In his 'Essays' (the most popular of his
works) we find his views on legislators and legislation. Bacon stood out for H
692 SUPREME COURT REPORTS (1994] 3 S.C.R.

A progress and utility and was of the view that it was not good to try
exp~riments in legislation. As against bacon there was Sir Edward Coke,
·who was defender of the rights of the Parliament. Mention is then made
about John Local (1632-1704) according to whom the laws made must
respect the right to liberty and property; and laws must be made for the
goods of the people.
B
39. Ruthaswamy then takes the reader to France and mentions about
Montesquieu {1689-1755), who in his famous "Spirit of Laws" published in
1748, which has been regarded as a great classic of political and legal
literature, rendered immemorial service to legislation and legislatures. In
C this monumental work, he insists that laws and legislation should be in
conformity with the spirit of the people, if its traditions, its philosophy of
life, even the physical surroundings of the poeple, including the climate.
The journey is then to Germany, where Leibnitz {1646- 1717), a
philosopher, mathematician and adviser of kings and princes in Germany
and Europe, took the view that greatness of law is proved by the fact that
D great rulers were also great law givers. Names of Augustus, Constantine
and Justinian are mentioned in this regard. The German philosopher
further said that the law must serve morality, because what is against
morals is bad law.

40. Readers then find themselves in Italy and they are acquainted
E with Beooaria (1739-1794), who through his pamphlet under the title
'Delict and Crimes' published in 1766 brought a revolution in the theory
and practice of punishment, because, according to him, punishment of
crime must be used only for the defence of the State and the people and
not for retribution and revenge which principles were holding the field
then.
F
42. As per sequence of time, the next writer to be mentioned in
Edmund Burke (1727-1797), who was a parliamentarian, statesmen and
·political thinker. According to him the main essential of goods laws and
legislation is that the same should be fit and equitable, so that the legisla-
G ture has a right to demand obedience. He would say there are two fun-
damental principles of legislation: equity and utility.

43. Blackstone is a name which is immortal in the world of legal
jurisprudence. It is his "Commentaries on the Laws of England" (1765)
which has made him so. He emphasised on the invoilability of common law
H · freedom of persons and property. After blackstone, came Bentham {1748-
>
RATHJNAM/PATNAIK v. U.O.l. (HANSARIA,J.] 693

1832) and the Utilitarians. A
44. Ruthnaswamy has also acquainted the readers about the views of
Plato, Aristotle, Cicero and Thomas Aquinas: so also what Voltaire (1694-
1778) had to say. We do not propose to burden this judgment about their
view; but what was said by Macauley (1800- 1859) has to be noted, because
it is he who had drafted our Penal Code. Macauley believed in the efficacy B
of law in improving people and their character. He wrote : "When a good
system of law and police is established, when justice is administered
cheaply and firmly, when idle technicalities and unreasonable rules of
evidence no longer obstruct the search for truth, a great change of the
better may be expected which shall produce a great effect on the national C
character 11 •

45. In Chapter 6 of the book, Runthaswamy has stated that after the
principles of Benthamism and Utilitarianism, Reason, Utility and In-
dividual Liberty had exhausted themselves, humanitarianism is occupied
T
the field and it is this principle which has seen the enactments of statutes D
like Workmen's Compensation Act, Factories Act and various other
statutes dealing with public health, sanitation and so Weaker Sc.ction.

46. We do not propose to dive further and would close this discussion
by referring to what was stated by Ihering (1818-1892) in his ·'Geist Des E
Romisches Rechts" The Spirit of Roman Law), which has been accepted
as a legal classic. According to Ihering, law is a means to an end. He laid
down the following general principles of legislation:

1. Laws should be known to be obeyed.
r,. F
2. Laws should answer expectations.

3. Laws should be consistent with one another.

4. Laws should served the principle of Utility.
G
5. Laws should be methodical.

6. Laws must be certain to be obeyed, must not become a dead letter.

7. Laws are necessary to ward off the danger of the operations of
egoism or self interest, the ordinary motives of human action. H
694 SUPREME COURT REPORTS [1994] 3 S.C.R.

A 8. Law and legislation must aim at justice which is that which suits
all.

9: Laws are inter-connected "laws like human beings lean on one
another".

B 47. That humanitarianism is the throbbing principle of legislation
presently has also been highlighted by Kartar Singh Mann in his article
"working of Legislature in the matter of Legislation" appearing at pages
491 to 495 of the Journal of Parliamentary Information, Volume 33, 1987.
What has been stated: by Mann at page 493 is relevant for purpose - the
C same being :

"In the historical perspective, one can easily appreciate the
complexities and intericacies of legisfation which the present legis-
latures are to face. Besides the ordinary laws which safeguard the
rights and liberties of the individual, there are certain fundamental
D laws which ordinary legislation may not change. In countries like
France, Germany and India which are having their written Con-
stitutions their fundamental laws are embodied there itself. The
fundamental principles on which the political life of the people is
based are individuality equality and justice. After securing the life
E and liberty of the State and of the individual, laws and legislations
take on the task of serving and promoting the goods life of the
State and the people. For good life, morality is necessary and to
maintain morality legislation is a must. Legislation is the framework
whlch is required to be made for good life".

F 48. What was opined by Ian Temy Q.C., Director of Public Prosecu-
tion in his article on "Euthenasia-Is It Murder?" as printed at pages 2 to 7
o{Australian Journal of Forensic Sciences, Volume 21 (1) September 1988
is also relevant for our purpose. That article was concluded at page 7 in
these words:
G "...... I have necessarily spoken about the law as it is. There is
nothing immutable about it. To the extent it does not meet social
needs, and a strong consensus emerges to the effect, the law can
and should be changed ....... ".

H 49. The aforesaid show that Jaw has many promises keep including
• RATHINAM/PATNAIK v. U.O.I. (HANSARIA,J.] 695

granting of so much of liberty as' would not jeopardise the interest of A
another or would affect him adversely, i.e., allowing of stretching of arm
upto that point where the other fellow's nose does not begin. For this
purpose, law may have "miles to go". Then, law cannot be cruel, which it
would be because of what is being stated later, if persons attempting
suicide are treated as criminals and are prosecuted to get them punished,
B"
whereas what they need is psychiatric treatment, because suicide basically
is a "call for help", as stated by Dr. (Mrs.) Dastoor, a Bombay Psychiatrist,
., who head an organisation called 'Suicide Prevent'. May it be reminded that
a law which is cruel violates Article 21 of the Constitution, a la, Deena v.
Union of India, AIR (1983) SC 1155.
c
(4) Why is a particular act treated as crime? What acts are so treated?

50. Earliest reference to the word "crime" dates back to 14th century
when it convey to the mind something reprehensible, wicked or base. Any
conduct which a sufficiently powerful section of any given community feels
to be destructive of its own interest, as endangering its safety, stability or D
comfort is usually regarded as heinous and it is sought to be repressed with
) severity and the sovereign power is utilised to prevent the mischief or to
punish anyone is guilty of it. Very often crimes are creations of Govermnent
policies and the Govermnent in power forbids a man to bring about results
which are against its policies. E

51. In a way 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.
F
52. A crime presents these characterstics : (1) it is a harm, brought
about by human conduct which the sovereign power in the State desires to
prevent; (2) among the measures of prevention selected is the threat of
punishment; and (3) legal proceedings of a special kind. are employed to
decide whether the person accused did in fact cause the harm, and is, G
according to law, to be held legally punishable for doing so. (see pages 1
to 5 of Kenny's Outlines of Criminal Law (19th Edn. for the above
propositions).

53. 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 no feeling H .
696 SUPREME COURT REPORTS [1994) 3 S.C.R.

A of security there is no true freedom. What is the effect of the same cannot
. b.e described better than what was stated by Hobbes in "Leviathan", which
IS :

"There is no place for industry, because the fruit thereof is
uncertain; and consequently no culture of the earth; no navigation
B nor use of the commodities that way be imported by sea; no
commodious building; no instrument of moving and removing such
things as require much forces; no knowledge of the face of the
earth; no account of time; no arts, no letters; no society; and which
is worst of all continual fear and danger of violent death; and the
c life of a solitary, poor nesty, brutish and short".

54. As constitutionality of section 309 has been assailed as being
violative of Article 21 which protects life and personal liberty, it would be
in fitness of things to note what JS Mill had to say about making an act
D relatable to personal liberty punishable. This is what Mill had said in this
connection in his famous tract "On liberty11 :

"The· object of this Essay is to assert one very simple principle,
as entitled to govern absolutely the dealings of society with the
individual in the way of compulsion and control. Whether the
E means used be physical force in the form of legal penalties or the
moral coercion of public opinion. That principle is, that the sole
end for which mankind are wa"anted individually or collectively, in
inteifering with the liberty of action of any of their number, is
self-protection. That the only purpose for which power can be right-
F fully exercise over any member of a civilised community, agaist his
will is to prevent harm others. His own good, either physical or
moral, is not a sufficiet warrant. He cannot rightfully be compelled
to do or forbear because it will be better for him to do so, because
it will make him happier because in the opinions of others to do
so would be wise, or even right. These· are good reasons for
G remonstrating with him or reasoning with him, or persuading him,
or entreating him, but not for compelling him, or visiting him with
any evil in case he do otherwise. To justify, that the conduct from
which is desired to deter him must be calculated to produce evil
to some one else. The only part of the conduct of any one, for
H which he is amonable to society is that which concerns others. In·
>
RATHINAM/PAlNAIK v. U.O.l. [HANSARIA,J.] 697

the part which merely concems himself, his independence is, of 1ight, A
absolute. Over himself, over his own body and mind, the 1iulividual
is sovereign."

(Emphasis supplied)

55. The very definition of 'crime' depends on the values of a given B
society. To establish this what has been stated by Justice Krishana Iyer
in his book on "Perspectives in Criminolgy, Law and Social Change" (1980)
at pages 7 and 8 may be noted :

What is a sex crime in India may be sweet-heart virtue in
Scandinavia. What is an offence against property in a capitalist
c
society may be a lawful way of life in a socialist society. What is
permissible in an effluent economy may be a pernicious vice in an
indigent community. Thus, criminologists must have their feet all
the time on terra firma".
D
56. Not only this, crimes can also be created or abolished with the
passage of time, as stated at page 7 or R.S. Cavan's "Criminology" (2nd
Edn.). This has been illucidates by the author by stating that in democracy
where individual opinion can express itself freely through speaking, writing
and elections, public opinion becomes the final arbiter in placing the
E
opprobrium of crime upon a specific type of behaviour and when law is
not accepted the police may attempt to enforce it against public opinion,
but gradually the police yield to the pressure of public opinion, which they
perhaps share. The law may remain on the statute books but be ignored
by all. Whereas when ihe public opinion supports the law, many pressures
,. of an informal nature are brought against the violators to aid and lessen F
) the police action.

(5) How can crimes be prevented?

57. The aforesaid subject is too wide and cannot be discussed mean-
ingfully within the parameters available to us in this judgment. The treaties G
on "Crime and its Prevention" edited by Stephen Lewin, Editor, World
Week Magazine, would show how complicated the subject is. At page 217
of the 3rd printing (1973) mention has been made about seven steps for
combating a crime. We may not go into the details. Sufficient to say that
the steps relate to different disciplines. H
698 SUPREME COURT REPORTS tI994] 3 S.C.R.

A 58. Professor Dr. N.V. Paranjape, Professor and Head of the Depart-
ment of Post Graduate and Research in Law and Dean Faculty of Law,
Jabalpur University, in his book "Criminiology and Penology" has some-
thing to say in Chapter VI about cases of crime, knowledge of which is
necessary to combat and prevent the same. Dr. Paranjape states that in the
absence of a single theory of crime causation, criminologists have offered
B different explanations to justify their own theory as an explanation of
delinquent behaviour. There are, however, some writers who seem to be
convinced that no single theory of crime can fully explain the causes of
crime. They therefore prefer a multiple approach to criminal behaviour
whcih suggests that crime is generated not as a result of one solitary factor
C but as a consequence of a combination of such factors.
59. Justice Krishna Iyer also in his aforesaid book has dealt with this
aspect in chapter 2 captioned "The Pathology of Indian Criminology''. In
his usual inimitable style, he has painted the crime scenario on a broad
canvass and has mentioned about various factors which lead to commission
D of crimes.

60. Reference may also be made to the White Paper presented to the
Parliament by Her Ma.iesty's Government in 1990 on the subject of "Crime,
Justice and Protecting the Public" published as Cm No. 965. The White
E Paper has summarised main proposal as below :

"a coherent legislative framework for sentencing with the severity of
the punishment matching the seriousness of the crime and a sharper
distinction in the way the courts deal with violent and non-violent Crimes:

new powers for the crown to impose longer sentences for violent
11

F
and sexual offences, if this is necessary to protect the public from serious
harm;

new powers for all courts to combine community service and proba-
11

tion and to impose curfews on offenders so that more offenders convicted
G of property crimes can be punished in the community;

"reducing the maximum penalties for theft and burglary, except
burglaries of people's homes, which can be a very serious matter;

"requiring the courts to consider a report by the probation service
H before giving a custodial sentence and to give reasons for imposing a
)
RATIUNAM/PATNAIKv. U.0.1. [HANSARIA,J.] 699

custodial sentence, except for the most serious offences : A
"encouraging more use of financial penalties, especially compensa-
tion to victims and fines which take account of offenders' means;

"making the time actually served in prison closer to the sentence
ordered by the court replacing the present system of permission and parole B
by new arrangements which ensure that all prisoners serve at least half their
'
' .. sentences in custody; prisoners serving sentences of 4 years of more would
not get parole if this would put the public at risk;

"new powers· for the courts to return released prisoners to custody
upto end of their sentence, if they are convicted of a further irnprisonable c
offence;
11
all prisoners serving sentences of a year or more to be supervised
by the probation service on release, with new national standards for super-
vision; D
T
"wider powers for the courts to make parents take more respon-
sibility for crimes committed by their children;

"more flexible powers for the courts to deal with 16 and 17 year old
offenders; E
"changing the juvenils courts to youth courts, to deal with defendants
under the age of 18."

61. It would be some interest in this connection to point out that as
t late as 1991 a need was felt by the British government to issue a Royal F
t Warrant for issuing a Commission to examine the effectiveness of the
criminal Justice in England and Wales in securing the conviction of those
guilty of criminal offences and the acquittal of those who were innocent.
For this purpose, the Royal Warrant wanted the Commission to make its
recommendation on various aspects of the criminal justice. The commis- G
sion submitted its report in July, 1993 and it contains recommendations
which number 352 and have been mentioned at pages 188 and 219 of the
Report issued by Her Majesty's Stationery Office.

62. The difficult task of crime prevention would not therefore permit
the solution to be but into a straight jacket: it has to be modulated and H
700 SUPREME COURT REPORTS [1994] 3 S.C.R.

A moulded as per time and crime.
Effect of Punishment

63. The aforesaid is not enough for our purpose. We have also to
know as to whether infliction of punishment can be said to have a direct
B relation with the reduction of criminal propensity. It would be enough in
this context to state that it has been seriously doubted whether imposition
of even death sentence has been able to reduce the number of murders.
Bhagwati, J. as he then was, in his dissenting judgment in the case of
Bachan Singh v. State of Punjab, AIR (1982) SC J.325 has brought home
C well this aspect of the matter.

64. While on the question of sentencing it would be rewarding to note
that sentencing has been regarded as a subtle art of healing, and the legal
and political people uninstructed in the humanist strategy of_ reformation,
fail even on first principles. Justice Iyer in his aforesaid book has further
D stated at page 47 that it pnzzles a judge or a Home Secretary to be told in
Shavian Paradox:

"If you are to punish a man retributively, you must injure him.
If you are to reform him, you must improve him. And men are not
improved by injuries.'1
E
65. What was said by Victor Hugo in his 'Les Miserables' is instinc-
tive:

"We shall look upon crime as a disease. Evil will be treated in
charity instead of anger. The change will be simple and sublime.
F The cross shall replace the scaffold reason is on our side, feeling
is on our side and experiment is on our side 11
•

66. This is not all. It would be wrong to think that a person attempting
to commit suicide does not get punished. He does. The agony undergone
G by him and the ignominy to be undergone is definitely a punishment,
though not a corporal punishment; but then, section 309 has provided for
a sentence of fine also. Agony and ignominy undergone would be far more
painful and deterrent than a fine which too may not come to be realised if
the person concerned were to be released on probation.

H (6) Why is suicide committed?
)
RATHINAM/PA1NAIK v. U.0.1. [HANSARIA,J.] 701

67. "Suicide, the intentional taking of one's life, has probably been a A
part of human behaviour since pre-history. Many ancient texts including
the Bible, the Koran and the Rig Veda, mention suicide. Because the act
of self-destruction represents an attack on some of our presumptions- that
life is to be lived and death feared-responses to suicide have involved a
variety of emotionally charged attitudes. These have raoged from approba-
tion accorded to it by the ancient Greek Stoics to, more typically, the fear
B
and superstitution that led eighteenth century Europeans to drive stakes
through the hearts of those who had committed suicide."

(Encyclopaedia of Crime and Justice (1983), Vol. 4. p. 520).
c
68. The change in social thinking in this regard can be best illustrated
by the view taken in the conservative English society where to start with
suicide itself was regarded as a felony requiring burial in a public highway,
followed by forfeiture of all the properties of the deceased to the Crown.
Presently, the Suicide Act, 1961 does not even regard attempt to suicide
as an offence. D
y

68A. Various social forces like the economy, religion and socio-
economic status are responsible for suicides. There are various theories of
suicide, to wit, sociological, psychological, bio- chemical, and evironmental
(Ibid, pages 1523-24). E
69. The causes of suicides are many and varying inasmuch as some
owe their origin to sentiments of exasperations, fury, frustration and revolu-
tion; some are the result of feeling of burden, torture and sadness. Some
are caused by loss of employment, reverse of fortune, misery due to illness,
t· family trouble and thwarted love. Sometimes killing is in opposition lo F
) society and sometimes in opposition to particular persons. This happens
when the person committing suicide nurses a feeling a unjust treatment.
mal-treatment and cruelty. (See The 'Causes of Suicide' by Maurice
Halbwacks (Translated by Harold Goldblatt). The Bombay judgment has
mentioned many causes in paragraph 12 of its judgment which have been G
noted in paragraph 15 above. The same may not be repeated.

(7) Who commits suicide? Secularisation of suicide;

70. Suicide knows no barrier of race, religion, caste, age of sex. In a
study under taken in United States, to which reference has been made at H
(
,.

702 SUPREME COURT REPORTS [1994] 3 S.C.R.

A page 14 of "Suicidology: Contemporary Developments" by E.S. .,..__
Shanaidaman, (1976), it was found that both Roman Catholies and Protes-
tants were equally susceptible to commission of suicide. It is because of
this that it has been felt in the United States that there is "secularisation
of suicide". In our country also Hindu, Muslims, Sikhs, Christians, Budhas,
Jains and Parsis are known, to have been committing or attempting
B
suicides. Though there has been no particular study as to the religious faith
of the persons committing suicide or attempting to commit suicide, it can
safely be stated that there is "secularisation of suicide" in our country also.

71. While on the question "Who commits suicide?", it would be
C relevant to state that there has been great increase in the number of
commission of suicides. In his aforementioned article, Sr. Faizan Mustafa
pointed out that the number of suicide by the youths below 18 in 1986 was
7545. But out of about 60,000 persons who committed suicide in 1990 nearly
half of them were aged between 18 to 25, which is generally considered to
be the best of a person's life.
D
72. As per the report published in Indian Express of 31.10.84, in
Ahmedabad city 5 suicide cases had occurred during 24 hours immediately
preceding 30th October. In a write-up as published in India Today of
October 15, 1984 under the captain "Bangalore; The Suicide City" it has
E been stated that Bangalore which has earned the title of "Boom City" nearly
a year ago, could more appropriately be described as "Doom City" by last
month. The figures collected for the first half of the year shocked the
members of the State Legislature because of incredible 664 suicidal deaths
over a six-month period, which was higher than the total combined figures
for Calcutta and Hyderabad in the last three years.
F t
(8) How suicide-prone persons should be dealt with? i

. 73. We now come to the question relating to the treatment to be
given to the persons who attempt to commit suicide. Do they deserve
prosecution because they had failed? Is the all important question. The
G answer has to be a bold No. The reasons are not for to seek. Let~us
illustrate this first by referring to the case of those 20 persons who com-
mitted suicide in Tamil Nadu distressed as they felt because of prolonged
illness of Chief Minister, MG Ramachandran. That this had happened was
published in the Indian Express of 28.10.84. Question is whether these
H persons would have deserved prosecution had they failed in their attempt?
RATHINAMJPATNAIK v. U.0.1. [HANSARIA,J.] 703
>.,.. The answer has to be that there can be no justification to prosecute such A
sacrificers of their lives. Simila.r approach has to be adopted towards
students who jump into after having failed in examinations, but survive. The
approach cannot be different qua those girls/boys who resent arranged
marriages and prefer to die, but ultimately fail.

74. Let us come to the case of a woman who commit suicide because B
she had been raped. Would it not be adding insult to injury, and insult
~ manifold, to require such a woman in case of her survival, to face the
ignominy of undergoing an open trial during the course of which the sexual
violence committed on her which earlier might have been known only to a
few, would become widely known, making the life of the victim still more c
intolerable. Is it not cruel to prosecute such a person?

75. We should do further and state that attempt to commit suicide
by such a woman is not, cannot be, a crime. What is crime in such a case
is to prosecute her with a view to get her punished. It is entirely a different
D
'f matter that at the end of the trial, the court may impose a token fine or
even release the convict on probation. That would not take care of the
• mental torture and torment which the woman would have undergone
during the course of the trial. Such a prosecution is, therefore, par excel-
lence persecution. And why persecute the already tormented woman?
Have we become soulless? We think not. What is required is to reach the E
soul to stir it to make it cease to be cruel. Let us humanise our laws. It is
never late to do so.

76. Suicide, as has already been noted, is a psychiatric problem and
~ not a manifestation of criminal instinct. We are in agreement with Dr. F
! (Mrs.) Dastoor that suicide is really a "Call for help" to which we shall add
that there is no "Call for punishment" in it. Mention may also be made
about what was observed in "The Attitudes of Society toward Suicide", a
xerox copy of which is a part of written submission filed on behalf of
respondent No. 2 (State of Orissa) in WP No. {Cr!.) 419187. It has been
stated in this article at page 9 that shortly after passing of the Suicide Act, G
1961 (in England), the Ministry of Health issued recommendation advising
all doctors and authorities that attempted suicide was to be regarded as a
"medical and social problem", as to which it was stated that the same was
"more in keeping with present day knowledge and sentiment than the
purely moralistic and punitive reaction expressed in the old law.n H
I

J-.

704 SUPREME COURT REPORTS (1994] 3 S.C.R.

A 77. So, what is needed to take care of suicide·prone pers~ns are short
words and wise counselling (of a psychiatrist), and not stony dealing by a
jailor following harsh treatment meted out by a heartless persecutor.

(9) ls suicide a non-religious act?

B 78. Every individual enjoys freedom of religion under our Constitu-
tion, vide Article 25. In a paper which Sh. G.P. Tripathi had presented at
the World Congress on Law and Medicine held at New Delhi under the
caption "Right to die" he stated that every man lives to accomplish four
objectives of life: (1) Dharma (religion and morel virtues); (2) Artha
C (wealth); (3) Kama (love or desire); and (4) Moksha (spiritual enjoyment).
All these objectives were said to be earthly, whereas others are to be
accomplished beyond life. When the earthly objectives are complete,
religion. would require a person not to clinch to the body. Shri Tripathi
stated that a man has moral right to terminate his life, because death is
simply changing the old body into a new one by the process known as
D Kayakalp, a therapy for rejuvination.

79. Insofar as Christians are concerned, reference may be made of
what Pop John Paul II stated when he gave his approval to the document
issued by the sacred congregation stating:
E "when inevitably death is imminent inspite of the means used, it is
permitted in conscience to take decision to refuse forms of treat-
ment that would only secure precarious and burdensome prolon-
gation of life, so long as the. normal care due to sick person in
similar cases is not interrupted ........ 11
F i
80. In the Enchyclopaedia of Religion, Volume 8 (1987), mention has
been made at pages 541 to 547 as to how "Life" has been understood by
•
different religions. After discussing the subject as understood by the primi-
tive societies, Judaism, Christianity, Hinduism and Budhism, the discussion
G has been included by stating that the very act of posing the question 'What
is life"? produces an initial sense of bafflement and perplexity. It has been
stated thereafter that a precise, distict and universally acceptable concept
does not accompany the use of the word "life"; and that posing of the above
query brings in its wake a sense that life is an "inexhaustible storehouse, of
mysteries, a realm of endlessly self-perpetuating novelties, in which the
H solution to any given problem gives rise to a plethora of other questions
)
RATHINAM/PATNAIK v. U.0.1. [HANSARIA,J.] 705

that beckon the always restless, never contended mind of Homo Sapiens A
to seek further for additional answers or, at least, to search out more
intellectually refined, morally elevating, and spiritually salutary ways of
pursuing the quest." So, life does not end in this world and the quest
continues, may be after the end of this life. Therefore, one who takes life
may not really be taken to have put an end to his whole life. There is thus
B
nothing against religion in what he does.
I
81. Insofar as our country is concerned, mythology says Lord Rama
j I
~ and his brothers took Jalasamadhi in river Saryu near Ayodhya; ancient
history says Budha and Mahavir achieved death by seeking it; modern
history of Independence says about various fasts unto death undertaken by C
no less a person than Father of the Nation, whose spiritual disciple Vinoba
Bhave met his end only recently by going on fast, from which act (of
suicide) even as strong a Prime Minister as Indira Gandhi could not
dissuade the Acharya.

82. The aforesaid persons were our religious and spiritual leaders; D
they are eulogised and worshipped. Even the allegation against them they
indulged in a non-religious .act, would be taken as an act sacrilege. So,
where is noll-religionsity in the act of suicide so far as our social ethos is
concerned? And it is this ethos, this social mores, which our law has to
reflect and respect. E
10. Is suicide immoral?

83. Law and morals often intersect and there can be no doubt that
historically at least law and morals were closely related and that in many
areas the law continues to look upon its function as the enforcement of F
t morals, the reinforcement of moral standards in society, and the punish-
ment of moral depravity, a.s noted at page 19 of Burton M. Leisers'
, "Liberty, Justice and Morals" (1973). The Constitution of United States
contain a number of provisions embodying moral judgments, one of which
'I 11
is prohibition against "cruel and unusual punishment • As to due process G
clause, it was stated by Justice Frankfurter in Solesbee v. Balkcom·, (1949)
339 US 9 that it "embodies a system of rights based on moral principles ..... .
which comports with the deepest notions of what is fair and right and just".

84. If, however, the law be unjust would a person not be entitled to
disobey it? The civil disobedience movement organised by leaders like H
706 SUPREME COURT REPORTS [1994] 3 S.C.R.

A Gandhi shows that there can be clash of law and morality, which can be -.,"'.......
on the battlefield of man's conscience. It is this which agitated the mind of
Socrates when he was in jail. He was advised to escape and was assured
that it would be safe escape. He refused saying that having devoted his life
to teach the importance of doing justice and respecting the laws, it would
be rank hypocracy for him to violate his principles when the laws had been
B turned against him. Being of this view, instead of breaking law, he took
poison. But then, at times an individual, would be between two horns of
'
dilemma when confronted with the question of obeying an unjust and
>
pernicious law. The theories of Divine Law and Natural Law were evolved
to take care of this dilemma: and French Declaration of Rights of Men and
c American Declaration of Independence are based on these laws.

85. In the aforesaid work of Burton, this aspect of the Matter has
been concluded at page 353 by stating as below :

"It is right to be law abiding. But there may be times when it is not
D wrong to break the law. There are no easy rules or recipes to guide
y
us in making our choices. Some people, who .allow themselves to
be governed by expediency and narrow self-interest, when they
choose to disobey traffic, when the neighbours violate laws because '
their religious and moral convictions do not permit them,to do
E otherwise. Anarchy is a terrible thing. It is all that Hobbes said it
was. It is more likely to come from motives like those of the
speeder, the drunken driver, and the one who cheats on his income
tax, rather than from those of man like Gandhi, King (meaning
Martin Luther King) ......... " ~

F (Emphasis supplied) .;
I
86. Though the question of morality normally arises with laws relating
to sex and act evincing moral depravity like cheating, but as the question "'
of birth and death has also moral significance, as opined by Mary Warnock,
whose views in this regard has been noted at page 86 of Simon Lee's "Laws
'
G and Morals 11 (1986), we may briefly advert to the moral aspect as well
relating to suicide. It is the sanctity of human life which is said to be
defaced when one commits suicide and the question of morality, therefore,
arises. We would have occasion later to refer to the enactment of Suicide
~
Act, 1961 by the British Parliament, when the related Bill was taken up for
r
H consideration in the House of Lords, the Lord Bishop of Carlis!e had
)
RATHINAM/PATNAIK v. U.0.1. [HANSARIA. J.] 707

raised objection on the ground of morality by saying that sanctity of human A
life was being destroyed. But the Bill was passed, nonetheless.

87. A reference to Simon Lee's above work shows there is no
unanimity regarding the moral object which law should dry to achieve.
Simon Lee has mentioned at page 90 about three theories prevalent in B
England in this regard, one of whose propounder was Mill, according to
whom, 'harm-to-others' is what ought to be prevented by law. Develin
would have liked that law shouW aim to establish minimum and not
1..-
maximum, standards of behaviour, showing respect for tolerance and
privacy. Hart's approach was that only 'the universal values' merited legal
support and not those which fluctuate according to fashion, unless harm is · C
caused to others. {See HLP Hart's "Law, Liberty and Morality" (1982) also
particularly pages 30 and 31).

88. It would be opposite, while on the question of morality, to refer
to the Constitution Bench decision of this Court in Ranjit D Udeshi v. State D
of Maharashtra, AIR {1965) SC 881, in which the question examined was
whether the novel of D.H. Lawrence "Lady Chatterley's Lover" could be
regarded as nobscene 11 within the meaning of section 292 of the Penal Code.
The Constitution Bench speaking through Hidaytullah, J., as he then was,
stated in paragraph 9 that the question of obscentity d<;pends upon the
mores of the people and it is always a question of degree and where the E
line is to be drawn. After going through the case law and what Lawrence
might have had in mind in writing the book, the Bench unanimously came
to the conclusion that Lawrence was probably unfolding his philosophy of
life and the urges.of the unconscious, which caused no loss to the society
if there was a message in the book. After examining the contents of the F

f
+ book for this standard it was held il contained no obscenity. The impor-
tance of this decision for our purpose is that the aforesaid book was
regarded as morally objectionable at one point of time even in England,
where moral standard relating to sex is on a lower key compared to ours.

89. The above shows that morality has no defined contours and it G
would be too hazardous to make a bold and bald statement that commis-
sion of suicide is per se an immoral act. If human being can be treated
inhumanly, as a very large segment of our population is, which in a
-< significant measure may be due to wrong {immoral) act of others, charge
·of immorality cannot be, and is any case should not be, levied, if such H
708 SUPREME COURT REPORTS [1994] 3 S.C.R.

A human beings or like of them, feel and think that it would be better to end
Y''
the wretched life instead of allowing further humiliation or torture. Those
who demand virtue must do virtue, and should see that other too do the
same.

11. Does suicide produce adverse sociological effects?
B
90. One of the points raised against suicide is that the person who
had so done might have been the sole bread-earner of the family, say a
husband, a father, because of whose death the entire family might have
been left in lurch or doldrums, bringing its wake untold miseries to the
C members of his family. It is therefore stated that suicide has adverse effects
on the social set up. No doubt, the effects of suicide in such cases are quite
hurting; but then, it is a matter of extreme doubt whether by booking a
person who had attempted to commit suicide to trial, suicides can be taken
care of. Even imposition of death sentences has not been able to take care
of commission of murders, as mentioned earlier.
D
91. Further, the aforesaid adverse sociological effects are caused by
the death of the concerned person, and not by one who had tried to commit
suicide. Indeed, those who fail in their attempts became available to be
more or less as useful to the family as they were. So the person to be
E punished is one who had committed suicide; but, he is beyond the reach
of law and cannot be punished. This can provide no reason to punish a
person who should not be punished.

12. Is.suicide against public policy?

F 92. The basic argument of Shri Sharma, learned counsel for the
Union of India, was that allowing persons to commit suicide would be
against public policy. Though which public policy would be so affected was
not spelt out by the learned counsel, we presume that the public policy to
be so jeopardised is one which requires preservation of human life. One
of the objects of punishment to be inflicited when an offence is committed
G is protection of society from the depradations of dangerous persons, as
11
mentioned at page 198 of Burton M. Lieser's Liberty, Justice and Morals' 1
•

But insofar as suicide is concerned, this object does not get attracted
because there is no question of protection of the society from depradation
of dangerous persons, who by the very nature of things have to be those
H who ca11sc harm to others, ~nd not to themselves. Of course, we would
)

RATHINAM/PATNAIK v. U.0.1. [HANSARIA, J.] 709

--Y concede that one of the interests of the State has to be preservation of A
human life.

93. The concept of public policy is, however, illusive, varying and
uncertain. It has also been described as 11 untrust-worthy guide 11 1 "unruly
horse" etc. The leading judgment describing the doctrine of public policy
has been accepted to be that of Parke, B. in Egerton v. Brownlow, (1853-4) B
HLC 121 in which it stated as below at page 123, as quoted in paragraph
22 of Ghern/a/ Parakash v. Mahadeodas, AIR (1959) SC 781 (793):
-'

"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; c
it may, and does, in its ordinary sense, mean 'Political expediency'
or that which is best for the common good of the community; and
in that sense there may be every variety of opinion, 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 D
this to be a ground of judicial decision, would lead to the greatest
,' uncertainty and confusion. It is the province of the system and not
the lawyer, to discuss, and of the Legislature to determine what is
best for the public good and to provide for it by proper enactments.
It is the province of the Judge to expound the law only; the written
from the statutes; the unwritten of common law for decisions of
E
our predecessors and of our existing courts, from text writers of
acknowledges authority, and upon the principles to be clearly
deduced from them by sound reason and just inference; not to
speculate upon what is the best, in his opinion, for the advantage
·t of the community. Some of these decisions may have no doubt F
been founded upon the prevailing and just opinions of the public
good; for instance, the illegality of covenants in restraint of mar-
riage or trade. They have become a part of the recognised law,
and we are therefore bound by them, but we are not thereby
authorised to establish as law everything which we may think for
G
the public good, and prohibit everything which we think otherwise."

94. In the aforesaid case a three-judge Bench of this Court sum-
...--<. marised the doctrine of public policy by stating at page 795 that public
policy or policy of law is an illusive concept; it has been ·described as
11 1 1 1 11
untrust-worth guide variable qua]ity' uncertain one" 'unruly horse etc. H
\ ' ,
1 11
710 SUPREME COURT REPORTS (1994] 3 S.C.R.

A 95. Different High Courts of the country have had also occasion to
express their views on this concept in their judgments in Bhagwant v.
Gangabishan, AIR (1940) Bombay 369; Mafizuddin v. Habibuddin, AIR
(1957) Calcutta 336; Colapatri v. Colapatri, AIR (1964) Andhra Pradesh
465; and Ratan Chand v. Ashkar, AIR (1976) Andhra Pradesh 112. In
Colapatii's case, it was stated that the term public policy is not capable of
B a precise definition and whatever tends to injustice of operation, restraint
of liberty, commerce and natural or legal rights; whatever tends lo the
obstruction of justice or to the violation of a statute and whatever is against
good morals can be said to be against public policy. These decisions have
also pointed out that the concept of public policy is capable of expansion
c and modification. In Ratanchand's case, a Bench of Andhra Pradesh High
Court speaking through Chinappa Reddy, J. as he then was, quoted at page
117 a significant passage from Professor Winfield, "Essay on Public Policy
in the England Common Law" (42 Harvard Law Review 76). The same is
as below:
D
"Public policy is necessarily variable. It may be variable not only
from one century to another, not only from one generation to
another but even in the same generation. Further it may vary not
'
merely with respect to the particular topics which may be included
E in it, but also with respect to the rules relating to any one particular
topic ..... This variability of public policy is a stone in the edifice of
the doctrine and not a missile to be flung at it. Public policy would
be almost useless with out it."

F 96. As to how the "unruly horse" of public policy influenced English
law has been narrated by W. Friedmen in his "Legal Theory" : (5th Edn.)
at pages 479 et. seq. in part Ill, Section 2 titled as "Legal Theory, Public
,Policy and legal Evaluation". As to the description of public policy as
"unruly horse", it may be stated that there have been Judges not to shy away
from unmanageable horses. Larde Denning is one of them. What this noble
G Judge stated in Enderby Town Footabll Club Ltd. v. Football Association
Limited, (1971) Ch. 591 at page 606 is "With a good man in the saddle, the
unruly horse can be kept in control. It can take jump over obstacles." (See
Paragraph 93 of Central Inland Water Transport Corporation Ltd. v. Barjo
>-
Nath, AIR (1986) SC 1571. But how many Judges can be anywhere near
H Lord Denning? He is sui generis. ~
)

RATIIINAM/PATNAIK v. U.0.1. (HANSARIA,J.] 711

97. The magnitude and complexity of what is or not public policy or A
can be a part of public policy, would be apparent from bird's eye view of
what has been stated regarding this at pages 454 to 5.19 of 'Words and
Phrases' (Permanent Edn. Vol. 35, 1963). To bring home this a few
excerpts would be enough. It has been first stated under the sub-heading
"In general" as below at pages 455 and 456:
B
"Public policy" imports something that is uncertain and fluctuating,
' •. varying with the changing economic needs, social customs, and
moral aspirations, of the people. Barwin v. Reidy, 307 P. 2d 175,
181, 62 N.M. 183".
11
"Public policy is in its nature so uncertain and fluctuating, varying
c
with the habits and fashions of the day, with the growth of com-
merce and the usages of trade, that it is difficult to determine its
limits with any degree of exactness. It has never been defined by
the courts, but has been let loose and free from definition in the
same manner as fraud. Pendeleton v. Greever, j193 P. 885, 887, j80 D
Okl, 35, 16 ALR 317".
• 11
Public policy" is a term that is nor always ea"y to define and it
may very as the habits opinions, and welfare of a people who may
vary, and what may be the public policy of one state of country
' and may not be so in another. Franklin fire Ins. Co. v. Moll, 58 NE E
2nd 9478, 950, 951, 115 Ind. App. 289."

98. In the aforesaid work under the sub-heading "Governed by Con-
stitution, laws or judicial decisions", the following finds place at page 481
under the further sub-heading "In general": F

"Public policy" is a variable quantity and is manifested by public
acts, legislative and judicial, and courts will not hold a contract
void. Draughon v. Fox Pelletir Corporation, 126 SW 2d ~29, 333,
174 Tenn. 457:.
G
"In a judicial sense, public policy does not mean simply sound
policy, or good policy, but it means the policy of a state established
for the public weal, either by law, by courts, or general consent.
Clough v. Gardiner, 182 NYS 804, 806, 111 Mis. 244."

99. From the above, it can safely be said that it would be a unin- H
712 SUPREME COURT REPORTS [1994] 3 S.C.R.

A formed man in law who would say with any degree of definiteness that
commission of suicide is against public; and, as such, a person attempting
to commit it acts against public policy.

13. Does commission of suicide damage the monopolistic power of the
State to take life?
B
100. The aforesaid point is not required to be gone into detail,
because nobody can claim to have monopoly over a human life. It is God
alone who· can claim such a power. If a person takes his life, he is taking
his own life, and not the life of anybody else; and so, the argument that
C state's monopolistic power of taking life is taken away by the person who
attempts to commit suicide has no legs to stand.

14. Is apprehension of 'constitutional cannibalism' justified?

101. This is one of the criticisms which has been advanced in one of
D the aforesaid article relating to the Bombay judgment. This contention has
been advanced because if the negative aspect of life to right, i.e., to destroy
it can be read in Article 21, the State can "easily embark upon a policy to
encourage genocide on the plea that proper management of resources are
••
vital and necessary for the upkeep of life with vigour and dignity in the
wake of geometrical progression of population growth". The critic has
E stretched this argument so much to come the conclusion of "constitutional
cannibalism" that we may almost leave it answered, as there is gulf of
difference between taking of one's own life and allowing the State to go in
for genocid"' !hey are not only poles apart but miles apart.

F 102. The editor of Calcutta Weekly Notes in his comments at pages t
37 to 40 (1986-87) 91 CWN (Journal section) has observed that the
distinction made by the Bombay High Court between "suicide" and
'
"euthanasia" appears logically inconsistent. According to the editor, the
rationale of the judgment would necessarily permit euthanasia as legal. This
comment may not be quite incorrect, because in passive euthanasia,
G wherever it has been accepted as legally permissible, consent of the patient,
if he be in a sound metal condition, has been regarded as one of the
pre-requisites. So, if one could legally commit suicide, he could also give r
consent for his being. allowed to die. But then, the legal and other questions
relatable to euthanasia are in . many ways different from those raised by
H suicide. One would, therefore, be right in making distincting logically and
RATIUNAM/PATNAIK v. U.0.1. [HANSARIA,J.] 713

in principle between suicide and euthanasia, though it may be that if suicide A
is held to be legal, the persons pleading for legal acceptance of passive
euthanasia would have a winning point. For the cases at hand, we would
remain content by saying that 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 legalisation of mercy killing.
B
103. May we hasten to observe that 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. Bombay judgment has rightly
made this distiction. It is for this reason that the apprehension raised by
the Andhra Pradesh High Court in its judgment in Jagadeswar does not C
seem to be justified. We do not agree with the view of the Andhra Pradesh
High Court iri that if section 309 were to be held bad, it is highly doubtful
whether section 306 could survive, as self-killing is conceptualy 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. D
(15) Recommendation of the Law Commission of India and follow up
steps taken, if any.

104. The Law Commission of India in its 42nd Report (1971) recom-
E
mended repeal of section 309 being of the view that this penal provision is
"harsh and unjustifiable", (see paragraph 16.33 of the Report). In taking
this view, the Law Commission quoted the following observations made by
H. Romilly Fedden in 'Sucide' (London, 1938) at page 42:

t lt seems a monstrous procedure to inflict further suffering on
11
F
! even a single individual who has already found life so unbearable,
his chances of happiness so slender, that he has been willing to
face pain and death in order to cease living. That those for whom
life is altogether bitter should be subjected to further bitterness
and degration seems perverse legislation'1•
• G
105. After the aforesaid Law Commission's Report become available,
the recommendation was accepted by the Government of India and the
Indian Penal Code (Amendment) Bill, 1972 was introduced in the Rajya
Sabha to repeal section 309. The Bill was referred to a Joint Committee of
both the Houses and after receipt of its report, the Bill was passed with H
714 SUPREME COURT REPORTS (1994] 3 S.C.R.

A some changes by the Rajya Sabha in November, 1978. The Bill so passed
was pending in the Sixth Lok Sabha when it was dissolved in 1979, because
of which the Bill lapsed.

106. In the counter-affidavit filed by the Union of India in writ
Petition (Cr!.) No. 409/86, it has been further stated that a proposal for
B
re-introducing legislation in Parliament on the lines of the lapsed Bill is
under consideration. It has been admitted in this affidavit that section 309
is harsh, and so, the intention of the Government is more or less to repeal
that section.

c 16. Global view-What is the legal position in other leading countries of
the world regarding the matter at hand?

107. We propose to refer to two leading countries only in this regard
- they being United Kingdom and United States of America. We have
D selected them because the first is a conservative country and the second a
radical: the first is first in point of time as regards democratic functioning
'
and the second is being regarded as a serious human right's protagonist.

At English Common Law suicide was taken as felony so much so that
E a person who had met his end after committing suicide was not allowed
Christian burial, but would have to be so done in a public highway. Not
only this, the property of the person concerned used to get forfeited to the
crown. (See pages 201 to 207 of Law and Morality Edited by Louis Bloom
Cooper and Gravin Drewry (1976), which pages also contain the speeches
made by the Lurd Bishop of Corlisle and Lord Denning in the House of
F Lords during second reading of the Suicide Bill, 1961.) t
\
108. Times changed, notions changed and presently, even attempt to
cbmmit suicide is not a criminal offence, as would appear from Suicide
Act, 1961. Though Section 1 of this Act has only stated that the "rule of
G law whereby it is a crime for a person to commit suicide is hereby
abrogated 11 1 it has been made clear in the second para of 'GENERAL
NOTE' below this section, as finding place in the zerox copy of this Act
enclosed with the written submissions filed on behalf of the State of Orissa,
respondent No.2 in Writ Petition (Cr!) No. 419 of 1987 that attempted
H suicide is not a crime This Note reads as below:
/~"

RA1HINAM/PATNAIK v. U.O.l. [HANSAR!AJ.) 715

"Attempted Suicide A
An attempt to commit suicide was a common law mis-
(, demeanour. S.1 does not specifically say that attempted suicide is
no longer a crime, but it must follow irresistibly from the fact that
the completed act is no longer a crime ....... "
B
In the United States by early 1970's comparatively small number of
States (9) listed suicide as a crime, although no penalties (such as mutila-
. tion of bodies or forfeiture of estates) were exacted. In such States suicide
attempts were either felonies or misdemeanours and could result in jail
··sentences, although such laws were selectively or indifferently enforced.
Two of such States repealed such laws, stating in effect that although
c
suicide is "a grave social wrong", there is no way to punish it. Eighteen
States had no against either suicide or suicide attempts, but they specified
that to aid, advise or encourage another person to commit suicide is a
felony. In more than twenty other States, there were not penal statutes
referring to suicide . D
••
[See pages 16 and 17 of "Suicidiology: Contemporary Developments"
by E.S. Scheneidman (1976)]

110. The latest American position has been mentioned as below at
page 348 of Columbia Law Review, 1986: ·E
11
Suicide is not a crime under the statutes of any state in the
United States. Nor does any state, by statute, make attempting
suicide a crime. In twenty-two states and three United States
territories, however, assisting suicide is a crime. If an assistant
t participates affirmatively in the suicide, for instance by pulling the F
!
trigger or administering a fatal does of drugs, courts agree that the
appropriate charge is murder. 11

Conclusion

111. On the basis of what has been held and noted above, we state G
that section 309 of the Penal Code deserves to be effaced from the statute
book to humanise our panel laws. It is cruel and irrational provision, and
it may result in punishing a person again (doubly) was has suffered agony
and would be undergoing ignominy because of his failure to commit
suicide. Then an act of suicide cannot be said to be against religion, H
716 SUPREME COURT REPORTS [1994) 3 S.C.R.

A morality or public policy, and an act of attempted suicide has not 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 concerned persons is not called for.

112. We, therefore, hold that section 309 violates Article 21, and so,
B it is void. May it be said that the view taken by us would advance not only
the cause of humanisation, with is a need of the day, but of globalisatian
also, as by effacing section 309, we would be attuning this part of our
criminal law to the global wave length.

c Penal 113. The writ petitions stand allowed by declaring section 309 of the
code as unconstitutional and hence void. The proceedings in GR
case No. 177 of 1984 State v. Nagbhushan Patnaik, pending in the Court
of Sub-Judge, Guntur in the district of Koraput, Orissa stands quashed.

114. Before parting, we should like to observe that what we have
D sought to do through this judgment may be said to be an attempt to "search
for the social dynamics of criminal Jaw, the functional theory of sentencing
and the therapeutic reach of punitive arts, to catch up with social sciences
relevant to criminal justice and to link up prison jurisprudence \vi.th con-
stitutional roots", or which Justice Kiishna Iyer has mentioned in his
preface (Styled Krishna Iyerishly as 'A Word in Confidence') to his
E aforementioned book Whether we have succeeded or not; and, if so, to
what extent is for other to judge.

115. I desire to place on record (though it would sound unusual to
some and may be to many) my appreciation for the assistance I had
received from Shri Satish Chandra, Joint Registrar (Library) of the Court, 1
F in supplying me promptly very useful and varied materials for preparing \
this judgment, as and how required by me.

R.A. Petition dismissed.