(De-) criminalization of attempted suicide in India: A review.

Attempted suicide is a serious problem requiring mental health interventions, but it continues to be treated as a criminal offence under the section 309 of Indian Penal Code. The article reviews the international legal perspective across various regions of the world, discusses the unintended consequences of section 309 IPC and highlights the need for decriminalization of attempted suicide in India. The Mental Health Care Bill, 2013, still under consideration in the Rajya Sabha (upper house), has proposed that attempted suicide should not be criminally prosecuted. Decriminalization of suicidal attempt will serve to cut down the undue stigma and avoid punishment in the aftermath of incident, and lead to a more accurate collection of suicide-related statistics. From a policy perspective, it will further emphasize the urgent need to develop a framework to deliver mental health services to all those who attempt suicide.

Suicide attempt can be defined as a non-fatal self-directed potentially injurious behavior with an intent to die.[1] More than one lakh persons (1,35,445) in India lost their lives by committing suicide in the year 2012 alone. The number of suicides in the country during the decade (2002-2012) has recorded an increase of 22.7% (1,35,445 in 2012 from 1,10,417 in 2002).[2] Attempted suicide are at least 20 times more common than the completed suicide.[3] Of all those who engage in non-fatal suicidal behaviors, one-third repeat the behavior within a year and nearly 10% eventually commit suicide.[45] Most countries across the world no longer criminalize the suicidal attempts, however India has continued to hold it as a punishable offence. The recently drafted Mental Health Care Bill, 2013, introduced to the Rajya Sabha (upper house), makes an attempt to rectify it but is still under consideration. Till date, suicide continues to be a criminal offense.

Research suggests that psychiatric illness constitutes a major cause for nonfatal suicidal behavior. Risk factors for non-fatal suicide attempts by adults or youth include depression and other mental disorders.[678] Other risk factors are childhood adversities such as sexual/physical abuse, abuse of alcohol or drugs, stressful life events such as death of a loved one, loss of a job or relationship, financial bankruptcy, imminent criminal prosecution and suffering from, or having recently been diagnosed with, a terminal illness.[9] Essentially, people who attempt suicide are in need of help rather than punishment in view of association with a high psychiatric or psychological morbidity. The philosophical dilemmas surrounding the individual's right to life and death has been debated, albeit inconclusively, across several disciplines with differing outlook and perspectives.[10111213]

The article reviews the Indian and international legal perspective of attempted suicide, discusses the unintended consequences of section 309 IPC and highlights the need for decriminalization of attempted suicide in India. For the same, a review of published scientific literature was undertaken and the information from some Indian sources/reports was incorporated. It was felt that the physician-assisted suicide/euthanasia is a subject for separate discussion and is out of scope for present paper.

LEGAL STATUS OF ATTEMPTED SUICIDE: INDIAN SCENARIO

According to Article 21 of the Indian constitution, “No person shall be deprived of his life or personal liberty except according to procedure established by the law”. While the constitution covers the right to life or liberty, it does not include the ‘right to die’. The attempts at taking one's own life are not considered to fall under purview of constitutional right to life.

Section 309 of the Indian Penal Code (IPC) clearly states as follows: “Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine or both.”

Several questions are raised in the context of section 309. First, it comes under the category of crimes defined under Chapter XVI of Indian penal code. All other crimes in this category include those committed to the ‘human body of the other person’ and suicidal attempt is clubbed with them in same category of crimes. The act of attempted suicide is inferred on basis of intention, which is inferred from circumstances. But the intention may be unclear or ambiguous in many cases. Further, the question of legal treatment of attempted suicide as a crime against state does not find many takers.

Delhi High court in a landmark judgment of 1985 had commented that “the continuance of Section 309 I.P.C. (criminalizing suicide) is an anachronism unworthy of a human society like ours.” The Indian Penal Code had been formulated during British Raj Regime of 1860, and was mainly governed by British law of that time. Ironically, India continues to follow the archaic law even though Britain itself had decriminalized suicide way back in 1961.

It is to be noted that the abetting of the commission of suicide (but not the abetting of attempt to commit suicide) is covered under Section 306 IPC and the abetment of suicide of a child is covered under Section 305 IPC. The punishment for these varies from 1-10 years of imprisonment and heavy fines. Repealing of Section 309, per se, would not affect or impact the above sections on abetment of completed suicide.

LEGAL STATUS OF ATTEMPTED SUICIDE: A REVIEW OF INTERNATIONAL SCENARIO

Much of the legal stance against suicide originated from the declaration by St. Augustine of suicide being a sin (354-430 CE). Historically, the influence of religious institutions was instrumental in shaping the legal stance favoring the criminalization of suicidal attempts. After the French Revolution, along with other socio-cultural changes in Europe, the attitude towards suicide and attempted suicide gradually started to change.[1415] During 19th and 20th century, most of the developed countries have repealed criminalization of attempted suicide, but some countries including India, continue to treat suicidal attempt as a criminal offense.

Countries with criminalization of attempted suicide

Countries that have retained attempted suicide as a criminal offense are mainly from two regions viz. North African region and South Asian region.

In the African region, Kenya, Malawi, Nigeria, Rwanda, Tanzania, Ghana and Uganda are among the countries that currently criminalize nonfatal suicidal behavior. For example, In Rwanda, a person who engages in nonfatal suicidal behavior is liable, on conviction, to a 2-5 year prison sentence. In Uganda, non-fatal suicidal behavior is a felony punishable by up to 2 years imprisonment. In Ghana Criminal Code (Act 29, 1960), non-fatal suicidal behavior is considered a crime.[161718]

In the South Asian region, India, Pakistan, Malaysia, Singapore, Bangladesh are among the countries that continue to criminalize the suicidal attempt. In Singapore, a person who attempts suicide can be imprisoned for up to one year. Additionally, North Korea also criminalizes suicide with a peculiar deterrent, where the family and relatives of the suicide victim might be penalized as a form of collective punishment for the act of suicide.[19]

Countries with decriminalization of attempted suicide

Countries that have decriminalized attempted suicide have continued to criminalize the abetment to suicide, suicide pacts and at times, deliberate self-harm.

In the Australian state of Victoria, the survivor of a suicide pact can be charged with manslaughter and abetting other person's suicide. In New Zealand, the abetment of the suicides of others is a crime and similarly in Russia, inciting someone to suicide is punishable by up to 5 years in prison. Attempted suicide has been decriminalized in Ireland as early as 1993, but self-harm is not seen as a form of attempted suicide. Suicide and attempted suicide are not crimes under the Roman-Dutch law. Some of the states (Alabama, Oregon and South Carolina) of U.S. continue to have laws against suicide pacts, aiders and abettors, and for insurance purposes. Only a few countries from South Asia, which include Srilanka, Indonesia, Maldives and Thailand do not treat attempted suicide as a crime.

Currently, World Health Organization identified 59 countries across the world that have decriminalized suicide.[3] As seen from above, the attempted suicide has been decriminalized in whole of Europe, North America, much of South America and few parts of Asia.

Decriminalization of suicidal attempt occurred relatively late in countries which were influenced by the English common law. Similarly, the legal and coroners’ involvement in suicide certification tends to be much higher in these countries compared to the continental Europe and Scandinavian region where doctors are allowed to certify suicidal deaths without recourse to legal authorities. [Table 1].[2021]

Table 1

Countries which decriminalized attempted suicide

ARGUMENTS AGAINST DECRIMINALIZATION: ARE THEY VALID?

Two major kind of arguments are generally put forth for criminalization of suicidal attempts, though in the contemporary political and sociocultural times, these have been challenged.

The first major argument is rooted in the religious belief that only God should have the right to dictate the end of life of a person and when a person attempts to end the life himself or herself, it should be considered as a sinful act. Traditionally, suicide has been condemned by religions across the world. In some ethnic groups, the suicidal deaths are kept devoid of the customary funeral rituals. In Hinduism, it is believed that death by suicide do not lead to achievement of salvation (moksha). In general, suicidal death is associated with bringing dishonor to the entire lineage, social stigma and other consequences.[11] But at the same time, many religions have also hailed suicide as necessary in certain situations or circumstances. The ancient Hindu living principles sanctioned some suicides such as, to expiate sins such as incest, those suffering from incurable disease and unable to perform their religious duties, ‘sati’ (a once-culturally sanctioned practice where widow commits suicide by jumping in the burning pyre of dead husband). Similarly many Rajput women from India chose death over humiliation in the aftermath of war. Jainism have approved of the practice of ending one's life by one's own act in certain circumstances (Sallekhana), while condemning it in other circumstances. The attitude of Buddhism has been ambiguous, though it has encouraged altruistic suicide under certain circumstances.

Another major argument for criminalization is the belief that law can act as a deterrent against other such attempts in the society.[12] However, it is still not clear whether having a law to prosecute suicide attempters indeed acts as a deterrent or not. Internationally, the research on the impact of repeal of anti-suicide legislation has yielded mixed results. In 1992, Lester compared suicide rates in Canada in the 10-year periods before and after decriminalization of suicide, and found no increase in the rate of suicide following decriminalization. Similarly, no change was observed in the New Zealand during the decade before or after decriminalization [Lester (1993)]. Lester (2002)[22] compared the suicide rates in seven countries (Canada, England and Wales, Finland, Hong Kong, Ireland, New Zealand, and Sweden) 5 years prior and 5 years following decriminalization, with an increase in the suicide rates after decriminalization of suicide. This increase in suicide rates can be possibly explained due to better reporting of such attempts as earlier they could have been reported as accidents to prevent legal hassles.

In Indian context, while the level of awareness about existence of section 309 cannot be deemed to be too high, but a significant proportion are aware of its existence, but not deterred to make a suicidal attempt. A study of 200 attempted suicides in a General Hospital Emergency facility revealed that 46.2% males and 26.6% females were aware of the existing law before making the attempt.[12]

WHAT CAN BE ACHIEVED WITH DECRIMINALIZATION?

The criminal prosecution and the imposition of custodial and financial penalties on those convicted of suicidal behaviors constitute an affront to human dignity.[11] In a large majority, the suicidal behavior is typically a symptom of psychiatric illness or is an act of psychological distress, indicating that the person requires assistance in his personal and psychological life, not punishment by fine and/or imprisonment. As many as 93% of suicide attempters were found to be psychiatrically ill at the time of commission of the act, though a psychiatric contact was established by only 33-50% of them. Penal sanctions will only serve to exacerbate suicidal persons’ risk for depression, anxiety, and repetitive suicidal behavior.[18]

Further, many a times, the suicidal behavior is a result of a host of factors, some of which are outside a person's control, such as endogenous biological causes, socioeconomic causes such as poverty, frustration in love, setbacks in finances, family or other such reasons. Technically, it may not be considered as an offence against the state. On the contrary, the state itself may be indirectly responsible for the plight of the victim who is left with no other alternative, except but to end his life.[23]

In Indian context, the cases admitted after attempted suicide should have a ‘medico-legal’ stamp on the case record which is confidential and kept in safe custody. The Medical Superintendent of the hospital is required to inform the police for the necessary proceedings and action. The police usually visit the hospital and collects information about the circumstances of the suicide attempt from the person/family. There are often unnecessary delays or even refusals from hospitals, fear of punitive action and added trauma and stigma of having to deal with police and courts. The following case demonstrates the harsh reality and untoward consequences of criminalizing suicide for the individual and family.

A 40-year-old male, clerk, from middle socioeconomic status suffered from a depressive illness and tried to commit suicide by consuming the insecticide, but family members found out and took him to a nearby hospital immediately. The hospital refused to admit him due to fear of legal hassles associated with attempted suicide; finally the family members took him to another hospital and had to report the case as accidental overdose in order to avoid further delay. From a legal perspective, what happens to this person in case his life is saved? He is, then, prosecuted for a criminal offence under section 309 IPC!

Most importantly, as a majority of attempted suicides are reported to the authorities to be accidental, so the necessary emotional and mental health support is not available to those who have attempted suicide. With decriminalization, the patients and their families will be in a better position to openly seek mental health care after the attempt.

From a societal perspective, decriminalization is a more sensitive and humane way of dealing with the problem compared to prosecution. Additionally, it will also help in improving the reporting and generation of better epidemiological data on suicidality. The criminalization of suicidal acts causes the problem of suicide to go underground, making it difficult for suicidal persons to receive necessary assistance.[16] Improved and accurate statistics can help in better planning and resource allocation for efforts towards suicide prevention.

PROSECUTION OF ATTEMPTED SUICIDE IN INDIA: CASE EXAMPLES

Three different categories of attempted suicide are presented as case examples in order to delineate the diversity of circumstances and the differential role played by police or state.

First, the recent high profile cases of fasting unto death for a social or political cause. Anna Hazare announced the fast-until death in August, 2011 in Delhi to demand for a stronger Lokpal legislation empowering people. He continued it for 12 days with public support, after which the police intervened when physicians reported a danger to health. Similarly, Iron Lady of Manipur- Irom Chanu Sharmila's hunger strike started a decade back in order to demand the repeal of Armed Forces Special Powers Act in the state of Manipur. She is being force-fed through a nasal tube and has been arrested/released multiple times by the police. These are the instances in which public persons or leaders stake their lives for a public cause or to protest the state's policy. State has intervened in most such cases especially when the health deteriorates or there is an immenent danger to life.

Second one is ‘santhara or Salekhana’ an age-old religious practice followed in Jainism. It is essentially a spiritual decision to abandon the body, purify one soul and achieve salvation. On one hand, the articles 25, 26 and 29 in Indian constitution protects all religious practices, but at the same time, it is also punishable under section 309 IPC. In practice, the state does not steer in the way of the religious practices aimed to end one's life. A public interest litigation (PIL) has been filed before High court of Rajasthan for declaration of ‘salekhana’ as illegal practice, but a final verdict is still awaited.

Third one is the more common scenario where suicidal attempts occur in the background of adverse life events or stressors. For example, Mumbai police filed criminal charges on a woman from Versova who attempted suicide after seeing her boyfriend die a violent death (as reported in popular media in the month of January, 2012). Another example is of Mr. Jain, unemployed, bankrupted by health-care costs for a heart ailment and raising five daughters between the ages of 6 and 16, tried to kill himself with an overdose of sedatives. He was convicted for the attempt, though was sentenced to prison for only the token time that the court remained in session. In his verdict, the Additional Sessions Judge remarked that the ‘attempts to commit suicide are made due to extreme poverty and helplessness. There is no justification for imposing severe punishment on such convicts.’ (as reported in The Globe and Mail, 2012).

As seen from above, the law enforcement officials do not usually interfere wherever religious sentiments can be hurt. In case of political or mass leaders announcing the fast until death for their demands to be met, discretion is used and force-feeding is done after health deterioration. While majority of attempted suicide are reported or dismissed as accidental, but there have been occasions when charges have been filed against individual persons who attempt suicide after stressful life events.

In the recent times, the court verdicts, however, have supported the humane treatment of suicide attempters. Not a single judgment was given by Supreme Court which support suicide as a crime over the past one decade. Supreme Court in landmark judgment in March 2011, while giving guideline to passive euthanasia, had recommended to Parliament to consider decriminalizing attempt to suicide saying the provision had become anachronistic. Government had agreed to the proposal to bring out an amendment to delete section 309 IPC. As it comes in concurrent list (central and state government), therefore, the central government took the approval of 25 out of 29 states. Finally, the Mental Health Care Bill, 2013 which was being revised and drafted during that time incorporated the sub-sections for decriminalization.

RECENT ATTEMPTS TOWARDS DECRIMINALIZING SUICIDE IN INDIA

The Indian judiciary and polity both have recognized the need to repeal the section and several attempts have been made starting from 1970, as summarized in Table 2. Supreme Court had recommended to Parliament to consider decriminalizing attempt to suicide, saying the provision had become anachronistic. Eventually, it was included in a few sections of the recently drafted Mental Health Care Bill 2013 which has recently been introduced to Rajya Sabha, and is still pending an approval before it can take effect as a law. Some experts are of the opinion that the Indian Penal Code should be amended through a separate bill, and not under Mental Health Care Bill.

Table 2

Landmarks in repealing the section 309 IPC

Some sections of the proposed mental health care bill which are relevant for decriminalization include:

Section 124 of the bill describes about the decriminalization of the ‘attempt to commit suicide’

Section 124 (1) recognizes person who has attempted to commit suicide is exempted from punishment under the I.P.C as presumed to be ‘suffering from a mental illness unless proven otherwise’

Section 124 (2) recognizes the suffering being undergone by a person who attempt suicide and seeks to provide them with care and consideration, instead of subjecting them to criminal prosecution.

ISSUES AND CHALLENGES: THE ROAD AHEAD

Even if the proposed Mental Health Care Bill is implemented as a law in near future in India, some issues need to be deliberated in more detail. Section 124 states that the person may be exempt from ‘punishment’ and not ‘prosecution’. A possibility will remain that the police can remand a person who attempted suicide in custody and produce before a magistrate since the presumption of the law is that the ‘person with attempted suicide has a mental illness.’ Magistrate has powers (under Section 111 of the Bill) to see that any person with mental illness is conveyed to a public mental health establishment for assessment/treatment for up to ten days. Therefore, the persons with attempted suicide may continue hesitate in seeking medical treatment after a suicidal attempt, because of perceived fear of possible institutionalization against their own will. Other issues related to possible misuse of above provision may arise e.g. in case of victims of attempted suicide in the background of domestic violence. Whether the decriminalization of suicidal attempts should be done through a separate amendment (rather than as part of mental health care bill) with more careful consideration of various relevant issues which may arise in the context of suicide attempts, remains open to debate.

With a shift in official position from ‘legal’ to a ‘medical’ model of attempted suicide, an important challenge from a policy perspective will be to provide an access to mental health care for all those with attempted suicide. Patients presenting with an attempted suicide should be advised for a psychiatric consultation in all cases. In this context, there is a tremendous need to allocate the necessary resources for strengthening the primary mental health care services in all districts of the country.

There is a need to further increase the emphasis on the public health approach to suicide prevention e.g. increased awareness generation, restrictions on access to commonly used lethal methods of suicides (insecticides, prescription medications) and control over facilitating factors such as alcohol. There is a need to develop an effective framework integrating the mental health with social welfare, education and other related sectors.

To conclude, the recent steps to achieve decriminalization of suicide in India are commendable, but were long overdue. Decriminalization will reduce the trauma and potential prosecution in the aftermath of a suicidal attempt. However, there is a need to improve the mental health coverage and provide a framework to deliver essential mental health services to all those who attempted suicide.