{"id":237421,"date":"1996-03-21T00:00:00","date_gmt":"1996-03-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-gian-kaur-vs-the-state-of-punjab-on-21-march-1996"},"modified":"2015-01-30T17:38:31","modified_gmt":"2015-01-30T12:08:31","slug":"smt-gian-kaur-vs-the-state-of-punjab-on-21-march-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-gian-kaur-vs-the-state-of-punjab-on-21-march-1996","title":{"rendered":"Smt. Gian Kaur vs The State Of Punjab on 21 March, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Smt. Gian Kaur vs The State Of Punjab on 21 March, 1996<\/div>\n
Equivalent citations: 1996 AIR 946, \t\t 1996 SCC (2) 648<\/div>\n
Author: J S Verma<\/div>\n
Bench: Verma, Jagdish Saran (J), Ray, G.N. (J), Singh N.P. (J), Faizan Uddin (J), Nanavati G.T. (J)<\/div>\n
           PETITIONER:\nSMT. GIAN KAUR\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF PUNJAB\n\nDATE OF JUDGMENT:\t21\/03\/1996\n\nBENCH:\nVERMA, JAGDISH SARAN (J)\nBENCH:\nVERMA, JAGDISH SARAN (J)\nRAY, G.N. (J)\nSINGH N.P. (J)\nFAIZAN UDDIN (J)\nNANAVATI G.T. (J)\n\nCITATION:\n 1996 AIR  946\t\t  1996 SCC  (2) 648\n JT 1996 (3)   339\t  1996 SCALE  (2)881\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t\t    With
\n\t      CRIMINAL APPEAL NO. 167 OF 1984
\nSurat Lal
\nV.\n<\/p>\n
Raj Kumar & Ors.\n<\/p>\n
\t\t\t    With
\n\t      CRIMINAL APPEAL NO. 279 OF 1984
\nSmt. Harbans Singh & Anr.\n<\/p>\n
V.\n<\/p>\n
The State Of Punjab
\n\t\t\t    With
\n\t       CRIMINAL APPEAL NO 363 OF 1996
\n\t (arising out of SLP(Crl.) No.2944 of 1994)
\nChandrabhushan
\nV.\n<\/p>\n
The State of Maharashtra
\n\t\t\t    With
\n\t      CRIMINAL APPEAL NO. 364 OF 1996
\n\t (arising out of SLP(Crl.) No.2943 Of 1995)
\nDilbagh Singh & Ors.\n<\/p>\n
V.\n<\/p>\n
The State of Himachal Pradesh
\n\t\t\t    And
\n\t      CRIMINAL APPEAL No. 365 OF 1996
\n\t (arising out of SLP(Crl.) No.4193 of 1995)
\nLokendra Singh
\nV.\n<\/p>\n
The State of Madhya Pradesh
\n\t\t      J U D G M E N T
\nJ.S. VERMA,J.\n<\/p>\n
     Leave granted in special leave petitions.
\n     The appellants Gian Kaur and her husband Harbans Singh
\nwere convicted by the Trial Court under Section 306, Indian
\nPenal Code, 1860 (for short “IPC”) and each sentenced to six
\nyears R.I. and fine of Rs. 2,000\/-, or, in default, further
\nR.I. for nine months, for abetting the commission of suicide
\nby Kulwant Kaur. On appeal to the High Court, the conviction
\nof both has been maintained but the sentence of Gian Kaur
\nalone has been reduced to R.I. for three years. These
\nappeals by special leave are against their conviction and
\nsentence under Section 306, IPC.\n<\/p>\n
     The conviction of the appellants has been assailed,
\ninter alia, on the ground that Section 306, IPC is
\nunconstitutional. The first argument advanced to challenge
\nthe constitutional validity of Section 306, IPC rests on the
\ndecision in P. Rathinam vs. Union of India and Anr.,<\/a> 1994)
\nSCC 394, by a Bench of two learned Judges of this Court
\nwherein Section 309, IPC has been held to be
\nunconstitutional as violative of Article 21 of’ the
\nConstitution. It is urged that right to die’ being included
\nin Article 21 of the Constitution as held in P. Rathinam
\ndeclaring Section 309, IPC to be unconstitutional, any
\nperson alletting the commission of suicide by another is
\nmerely assisting in the enforcement of the fundamental right
\nunder Article 21; and, therefore, Section 306. IPC
\npenalising assisted suicide is equally violative of Article\n<\/p>\n
21. This argument, it is urged, is alone sufficient to
\ndeclare that Section 306, IPC also is unconstitutional being
\nviolative of Article 21 of the Constitution.\n<\/p>\n
     One of the points directly raised is the inclusion of
\nthe `right to die’ within the ambit of Article 21 of the
\nConstitution, to contend that any person assisting the
\nenforcement of the `right to die’ is merely assisting in the
\nenforcement of the fundamental right under Article 21 which
\ncannot be penal; and Section 306, IPC making that act
\npunishable, therefore, violates Article 21. In view of this
\nargument based on the decision in P. Rathinam, a
\nreconsideration of that decision is inescapable.\n<\/p>\n
     In view of the significance of this contention
\ninvolving a substantial question of law as to the
\ninterpretation of Article 21 relating to the constitutional
\nvalidity of Section 306, I.P.C. which requires
\nreconsideration of their decision in P.Rathinam, the
\nDivision Bench before which these appeals came up for
\nhearing has referred the matter to a Constitution Bench for
\ndeciding the same. This is how the matter comes before the
\nConstitution Bench.\n<\/p>\n
     In addition to the learned counsel for the parties the
\nlearned Attorney General of India who appeared in response
\nto the notice, we also requested Shri Fali S. Nariman and
\nShri Soli J. Sorabjee, Senior Advocates to appear as amicus
\ncuriae in this matter. All the learned counsel appearing
\nbefore us have rendered great assistance to enable us to
\ndecide this ticklish and sensitive issue.\n<\/p>\n
     We may now refer to the submissions of the several
\nlearned counsel who ably projected the different points of
\nview.\n<\/p>\n
     Shri Ujagar Singh and Shri B.S. Malik appeared in these
\nmatters for the appellants to support the challenge to the
\nconstitutional validity of Sections 306 and 309, IPC. Both
\nthe learned counsel counsel contended that Section 306 as
\nwell as Section 309 are unconstitutional. Both of them
\nrelied on the decision in P. Rathinam. However, Shri Ujagar
\nSingh supported the conclusion in P. Rathinam of the
\nconstitutional invalidity of Section 309, IPC only on the
\nground of violation of Article 14 and not Article 21. Shri
\nB.S. Malik contended euthanasia is not relevant for deciding
\nthe question of constitutional validity of Section 309. He
\nsubmitted that Article 21 cannot be construed to include
\nwithin it the so called ‘right to die’ since Article 21
\nguarantees protection of life and liberty and not its
\nextinction. He submitted that Section 309 does not violate
\neven Article 14 since the provision of sentence therein
\ngives ample discretion to apply that provision with
\ncompassion to an unfortunate victim of circumstances
\nattempting to commit suicide. Shri Nariman referred to the
\nreported decisions to indicate that the enforcement of this
\nprovision by the courts has been with compassion to ensure
\nthat it is not harsh in operation. Shri Nariman submitted
\nthat the decision in P. Rathinam requires reconsideration as
\nit is incorrect. Shri Soli J. Sorabjee submitted that
\nSection 306 can survive independently of Section 309, IPC as
\nit does not violate either Article 14 or Article 21. Shri
\nSorabjee did not support the construction made of Article 21
\nin P. Rathinam to include therein the ‘right to die’ but he
\nsupported the conclusion that Section 309 is
\nunconstitutional on the ground that it violates Article 14
\nof the Constitution. Shri Sorabjee submitted that it has
\nbeen universally acknowledged that a provision to punish
\nattempted suicide is monstrous and barbaric and, therefore,
\nit must be held to be violative of Article 14 of the
\nConstitution. Shri Sorabjee’s argument, therefore, is that
\nSection 306, IPC must be upheld as constitutional but
\nSection 309 should be held as unconstitutional, not as
\nviolative of Article 21 as held in P. Rathinam but being
\nviolative of Article 14 of the Constitution. He also sought
\nassistance from Article 21 to support the argument base
\nArticle 14.\n<\/p>\n
     At this stage, it would be appropriate to refer to the
\ndecisions wherein the question of constitutional validity of
\nSection 309, IPC was considered.\n<\/p>\n
     Maruti Shri Pati Dubal, Vs. State of Maharashtra, 1987
\nCrl.L.J.743, is the decision by a Division Bench of the
\nBombay High Court. In that decision, P.B.Sawant, J., as he
\nthen was, speaking for the Division Bench held that Section
\n309 IPC is violative of Article 14 as well as Article 21 of
\nthe Constitution. The provision was held to be
\ndiscriminatory in nature and also arbitrary so as to violate
\nthe equality guaranteed by Article 14. Article 21 was
\nconstrued to include the right to die’, or to terminate
\none’s own life. For this reason it was held to violate
\nArticle 21 also.\n<\/p>\n
     State Vs. Sanjay Kumar Bhatia, 1985 Crl.L.J.931, is the
\ndecision of the Delhi High Court. Sachar, J., as he then
\nwas, speaking for the Division Bench said that the
\ncontinuance of Section 309 IPC is an anachronism unworthy of
\nhuman society like ours. However, the question of its
\nconstitutional validity with reference to any provision of
\nthe Constitution was not considered. Further consideration
\nof this decision is, therefore, not necessary.\n<\/p>\n
     Chenna Jagadeeswar and another Vs. State of Andhra
\nPradesh, 1988 Crl.L.J.549, is the decision by a Division
\nBench of the Andhra Pradesh High Court. The challenge to the
\nconstitutional validity of Section 309 IPC was rejected
\ntherein. The argument that Article 21 includes the right to
\ndie’ was rejected. It was also pointed out by Amarethwari,
\nJ. speaking for the Division Bench that the Courts have
\nsufficient power to see that unwarranted harsh treatment or-
\nprejudice is not meted out to those who need care and
\nattention, This negatived the suggested violation of Article\n<\/p>\n
14.
\n     The only decision of this Court is P.Rathinam by a
\nBench of two learned Judges. Hansaria, J. speaking for the
\nDivision Bench rejected the challenge to the constitutional
\nvalidity of Section 309 based on Article 14 but upheld the
\nchallenge on the basis of Article 21 of the Constitution.
\nThe earlier decisions of the Bombay High Court and the
\nAndhra Pradesh High Court were considered and agreement was
\nexpressed with the view taken by the Andhra Pradesh High
\nCourt as regards Section 309 qua Article 14. The decision
\nthen proceeds to consider the challenge with reference to
\nArticle 21 of the Constitution. It was held that Article 21
\nhas enough positive content in it so that it also includes
\nthe ‘right to die’ which inevitably leads to the right to
\ncommit suicide. Expressing agreement with the view of the
\nBombay High Court in respect of the content of Article 21,
\nit was held as under :\n<\/p>\n
\n     ‘Keeping in view all-the above, we state that right to
\nlive of which Article 21 speaks of can be said to bring in
\nits trail the right not to live a forced life.”
\n( Page 410 )<\/p>\n
The conclusion of the discussion was summarised as under:<\/p>\n
     “On the basis of what has been held and noted above, we
\nstate that Section 309 of the Penal Code deserves to be
\neffaced from the statute book to humanize our penal laws. It
\nis a cruel and irrational provision, and it may result in
\npunishing a person again (doubly) who has suffered agony and
\nwould be undergoing ignominy because of his failure to
\ncommit suicide. Then an act of suicide cannot be said to be
\nagainst religion, morality or public policy, and an act of
\nattempted suicide has no baneful effect on society. Further,
\nsuicide or attempt to commit it causes no harm to others,
\nbecause of which State’s interference with the personal
\nliberty of the persons concerned is not called for.\n<\/p>\n
     We, therefore, hold that Section 309 violates Article
\n21, and so, it is void. May it be said that the view taken
\nby us would advance not only the cause of humanization,
\nwhich is a need of the day, but of globalization also, as by
\neffacing Section 309, we would be attuning this part of our
\ncriminal law to the global wavelength.”
\n( Page 429 )<\/p>\n
     At this stage it may be mentioned that reference has
\nbeen made in P.Rathinam and the Bombay High Court decision
\nto the debate relating to euthanasia, the sociological and
\npsychological factors contributing to suicidal tendencies
\nand the global debate on the desirability of not punishing
\n‘attempt to commit suicide’. The absence of provisions to
\npunish attempted suicide in several jurisdictions has also
\nbeen noticed. The desirability of attempted suicide not
\nbeing made a penal offence and the recommendation of the Law
\nCommission to delete Section 309 from the Indian Penal Code
\nhas also been adverted to. We may refer only to the
\nrecommendation contained in the 42nd Report (1971) of the
\nLaw Commission of India which contains the gist of this
\nlogic and was made taking into account all these aspects.
\nThe relevant extract is, as under :\n<\/p>\n
\n“16.31 Section 309 penalizes an attempt to commit suicide.
\nIt may be mentioned that suicide was regarded as permissible
\nin some circumstances in ancient India. In the Chapter on
\n“The hermit in the forest”, Manu’s Code (See : Laws of Manu,
\ntranslated by George Buhler, Sacred Books of the East edited
\nby F.Max Muller, (1967 Reprint) Vol.25, page 204,J Shlokas
\n31 ad 32) says
\n     “31. Or let him walk, fully determined and going
\nstraight on, in a north-easterly direction, subsisting on
\nwater and air, until his body sinks to rest.\n<\/p>\n
     31. A Brahmana having got rid of his body by one of
\nthose modes (i.e. drowning, precipitating burning or
\nstarving) practised by the great sages, is exalted in the
\nworld of Brahamana, free from sorrow and fear”.\n<\/p>\n
     Two commentators of Manu, Govardhana and Kulluka (See
\nMedhatithi’s commentary on Manu), say that a man may
\nundertake the mahaprasthana (great departure) on a journey
\nwhich ends in death, when he is incurably diseased or meets
\nwith a great misfortune, and that, because it is taught in
\nthe Sastras, it is not opposed to the Vedic rules which
\nforbid suicide (See : Laws of Manu, translated by George
\nBuhler, Sacred Books of the East edited by F.Max Muller,
\n(1967 Reprint) Vol.25, page 204,footnote 31). To this Max
\nMuller adds a note as follows :- (See : Ibid)
\n     “From the parallel passage of Apas tambha II, 23, 2, it
\nis, however, evident that a voluntary death by starvation
\nwas considered the befitting conclusion of a hermit’s life.
\nThe antiquity and general prevalence of the practice may be
\ninferred from the fact that the Jaina ascetics, too,
\nconsider it particularly meritorious.”
\n16.32 Looking at the offence of attempting to commit
\nsuicide, it has been observed by an English writer: (See :
\nH.Romilly Fedden : Suicide (London, 1938), page 42).\n<\/p>\n
     “It seems a monstrous procedure to inflict further
\nsuffering on even a single individual who has already found
\nlife so unbearable, his chances of happiness so slender,
\nthat he has been willing to face pain and death in order to
\ncease living. That those for whom life is altogether bitter
\nshould be subjected to further bitterness and degradation
\nseems perverse legislation.”\n<\/p>\n
Acting on the view that such persons deserve the active
\nsympathy of society and not condemnation or punishment, the
\nBritish Parliament enacted the Suicide Act in 1961 whereby
\nattempt to commit suicide ceased to be an offence.
\n16.33 We included in our Questionnaire the question whether
\nattempt to commit suicide should be punishable at all.
\nOpinion was more or less equally divided. We are, however
\ndefinitely of the view that the penal Provision is harsh and
\nunjustifiable and it should be repealed.”
\n(emphasis supplied)<\/p>\n
A Bill was introduced in 1972 to amend the Indian Penal Code
\nby deleting Section 309. However, the Bill lapsed and no
\nattempt has been made as yet to implement that
\nrecommendation of the Law Commission.\n<\/p>\n
     The desirability of retaining Section 309 in the
\nStatute is a different matter and non-sequitur in the
\ncontext of constitutional validity of that provision which
\nhas to be tested with reference to some provision in the
\nConstitution of India. Assuming for this purpose that it may
\nbe desirable to delete Section 309 from the Indian Penal
\nCode for the reasons which led to the recommendation of the
\nLaw Commission and the formation of that opinion by persons
\nopposed to the continuance of such a provision, that cannot
\nbe a reason by itself to declare Section 309
\nunconstitutional unless it is held to be violative of any
\nspecific provision in the Constitution. For this reason,
\nchallenge to the constitutional validity of Section 309 has
\nbeen made and is also required to be considered only with
\nreference to Articles 14 and 21 of the Constitution. We,
\ntherefore, proceed now to consider the question of
\nconstitutional validity with reference to Articles 14 and 21
\nof the Constitution. Any further reference to the global
\ndebate on the desirability of retaining a penal provision to
\npunish attempted suicide is unnecessary for the purpose of
\nthis decision. Undue emphasis on that aspect and
\nparticularly the reference to euthanasia cases tends to
\nbefog the real issue of the constitutionality of the
\nprovision and the crux of the matter which is determinative
\nof the issue.\n<\/p>\n
     In P. Rathinam it was held that the scope of Article 21
\nincludes the ‘right to die’. P. Rathinam held that Article
\n21 has also a positive content and is not merely negative in
\nits reach. Reliance was placed on certain decisions to
\nindicate the wide ambit of Article 21 wherein the term life’
\ndoes not mean ‘mere animal existence’ but right to live with
\nhuman dignity’ embracing quality of life. Drawing analogy
\nfrom the interpretation of freedom of speech and expression’
\nto include freedom not to speak, freedom of association and
\nmovement’ to include the freedom not to join any association
\nor to move anywhere, freedom of business’ to include freedom
\nnot to do business, it was held in P. Rathinam that
\nlogically it must follow that right to live would include
\nright not to live, i.e., right to die or to terminate one’s
\nlife. Having concluded that Article 21 includes also the
\nright to die, it was held that Section 309. IPC was
\nviolative of Article 21. This is the only basis in P.
\nRathinam to hold that Section 309, IPC is unconstitutional.
\n‘Right to die’ – Is it included in Article 21?\n<\/p>\n
     The first question is : Whether, the scope of Article
\n21 also includes the ‘right to die’ ? Article 21 is as
\nunder:\n<\/p>\n
Article 21<\/p>\n
“21. Protection of life and personal liberty No person shall
\nbe deprived of his life or personal liberty except according
\nto procedure established by law.”\n<\/p>\n
\n     A significant part of the judgment in P. Rathinam on
\nthis aspect, is as under:\n<\/p>\n
\n     “If a person has a right to live, question is whether
\nhe has right not to live. The Bombay High Court stated in
\nparagraph 10 of its judgment that as all the fundamental
\nrights are to be read together, as held in R.C. Cooper v.
\nUnion of India<\/a> what is true of one fundamental right is also
\ntrue Of another fundamental right. It was then stated that
\nis not, and cannot be, seriously disputed that fundamental
\nrights have their positive as well as negative aspects. For
\nexample, freedom of speech and expression includes freedom
\nnot to speak. Similarly, the freedom of association and
\nmovement includes freedom not to join any association or
\nmove anywhere. So too, freedom Of business includes freedom
\nnot to do business. It was, therefore, stated that logically
\nit must follow that the right to live will include right not
\nto live, i.e.,* right to die or to terminate one’s life.\n<\/p>\n
     Two of the abovenamed and critics of the Bombay
\njudgment have stated that the aforesaid analogy is
\n“misplaced”, which could have arisen on account of
\nsuperficial comparison between the freedoms, ignoring the
\ninherent difference between one fundamental right and ,the
\nother. It has been argued that the negative aspect of the
\nright to live would mean the end or extinction of the
\npositive aspect, and so, it is not the suspension as such of
\nthe right as is in the case of ‘silence’ or ‘non-
\nassociation’ and ‘no movement’. It has also been stated that
\nthe right to life stands on different footing from other
\nrights as all other rights are derivable from the right to
\nlive.\n<\/p>\n
     The aforesaid criticism is only partially correct
\ninasmuch as though the negative aspect may not be inferable
\non the analogy of the rights conferred by different clauses
\nof Article 19, one may refuse to live, if his life be not
\naccording to the person concerned worth living or if the
\nrichness and fullness of life were not to demand living
\nfurther. One may rightly think that having achieved all
\nworldly pleasures or happiness, he has; some- thing to
\nachieve beyond this life. This desire for communion with God
\nmay very rightly lead even a very healthy mind to think that
\nhe would forego his right to live and would rather choose
\nnot to live. In any case, a person cannot be forced to enjoy
\nright to life to his detriment, disadvantage or disliking.\n<\/p>\n
xxx\t\t    xxx\t\t\t xxx
\n     Keeping in view all the above, we state that right to
\nlive of which Article 21 speaks of can be said to bring in
\nits trail the right not to live a forced life.\n<\/p>\n
     In this context, reference may be made to what Alan
\nA.Stone, while serving as Professor of Law and Psychiatry in
\nHarvard University stated in his 1987 Jonas Robitscher
\nMemorial Lecture in Law and Psychiatry, under the caption
\n“The Right to Die: New Problems for Lawa and Medicine and
\nPsychiatry. (This lecture has been printed at pp.627 to 643
\nof Emory Law Journal, Vol.37, 1988). One of the basic
\ntheories of the lecture of Professor Stone was that right to
\ndie inevitably leads to the right to commit suicide.”
\n(emphasis supplied)
\n(Pages 409-410)<\/p>\n
     From the above extract, it is clear that in substance
\nthe reason for that view is, that if a person has a right to
\nlive, he also has a right not to live. The decisions relied
\non for taking that view relate to other fundamental rights
\nwhich deal with different situations and different kind of
\nrights. In those cases the fundamental right is of a
\npositive kind, for example, freedom of speech, freedom of
\nassociation, freedom of movement, freedom of business etc.
\nwhich were held to include the negative aspect of there
\nbeing no compulsion to exercise that right by doing the
\nguaranteed positive act. Those decisions merely held that
\nthe right to do an act includes also the right not to do an
\nact in that manner. It does not flow from those decisions
\nthat if the right is for protection from any intrusion
\nthereof by others or in other words the right has the
\nnegative aspect of not being deprived by others of its
\ncontinued exercise e.g. the right to life or personal
\nliberty, then the converse positive act also flows therefrom
\nto permit expressly its discontinuance or extinction by the
\nholder of such right. In those decisions it is the negative
\naspect of the right that was invoked for which no positive
\nor overt act was required to be done by implication. This
\ndifference in the nature of rights has to be borne in mind
\nwhen making the comparison for the application of this
\nprinciple.\n<\/p>\n
     When a man commits suicide he has to undertake certain
\npositive overt acts and the genesis of those acts cannot be
\ntraced to, or be included within the protection of the
\n‘right to life’ under Article 21. The significant aspect of
\n‘sanctity of life’ is also not to be overlooked. Article 21
\nis a provision guaranteeing protection of life and personal
\nliberty and by no stretch of imagination can extinction of
\nlife’ be read to be included in protection of life’.
\nWhatever may be the philosophy of permitting a person to
\nextinguish his life by committing suicide, we find it
\ndifficult to construe Article 21 to include within it the
\nright to die’ as a part of the fundamental right guaranteed
\ntherein. ‘Right to life’ is a natural right embodied in
\nArticle 21 but suicide is an unnatural termination or
\nextinction of life and, therefore, incompatible and
\ninconsistent with the concept of right to life’. With
\nrespect and in all humility, we find no similarity in the
\nnature of the other rights, such as the right to freedom of
\nspeech’ etc. to provide a comparable basis to hold that the
\n‘right to life’ also includes the ‘right to die’. With
\nrespect, the comparison is inapposite, for the reason
\nindicated in the context of Article 21. The decisions
\nrelating to other fundamental rights wherein the absence of
\ncompulsion to exercise a right was held to be included
\nwithin the exercise of that right, are not available to
\nsupport the view taken in P. Rathinam qua Article 21.\n<\/p>\n
     To give meaning and content to the word ‘life’ in
\nArticle 21, it has been construed as life with human
\ndignity. Any aspect of life which makes it dignified may be
\nread into it but not that which extinguishes it and is,
\ntherefore, inconsistent with the continued existence of life
\nresulting in effacing the right itself. The right to die’,
\nif any, is inherently inconsistent with the right to life’
\nas is death’ with life’.\n<\/p>\n
     Protagonism of euthanasia on the view that existence in
\npersistent vegetative state (PVS) is not a benefit to the
\npatient of a terminal illness being unrelated to the
\nprinciple of ‘sanctity of life’ or the right to live with
\ndignity’ is of no assistance to determine the scope of
\nArticle 21 for deciding whether the guarantee of right to
\nlife’ therein includes the right to die’. The right to life’
\nincluding the right to live with human dignity would mean
\nthe existence of such a right upto the end of natural life.
\nThis also includes the right to a dignified life upto the
\npoint of death including a dignified procedure of death. In
\nother words, this may include the right of a dying man to
\nalso die with dignity when his life is ebbing out. But the
\n‘right to die’ with dignity at the end of life is not to be
\nconfused or equated with the right to die’ an unnatural
\ndeath curtailing the natural span of life.\n<\/p>\n
     A question may arise, in the context of a dying man,
\nwho is, terminally ill or in a persistent vegetative state
\nthat he may be permitted to terminate it by a premature
\nextinction of his life in those circumstances. This category
\nof cases may fall within the ambit of the ‘right to die’
\nwith dignity as a part of right to live with dignity, when
\ndeath due to termination of natural life is certain and
\nimminent and the process of natural death has commenced.
\nThese are not cases of extinguishing life but only of
\naccelerating conclusion of the process of natural death
\nwhich has already commenced. The debate even in such cases
\nto permit physician assisted termination of life is
\ninconclusive. It is sufficient to reiterate that the
\nargument to support the view of permitting termination of
\nlife in such cases to reduce the period of suffering during
\nthe process of certain natural death is not available to
\ninterpret Article 21 to include therein the right to curtail
\nthe natural span of life.\n<\/p>\n
     We are, therefore, unable to concur with the
\ninterpretation of Article 21 made in P. Rathinam. The only
\nreason for which Section 309 is held to be violative of
\nArticle 21 in P. Rathinam does not withstand legal scrutiny.
\nWe are unable to hold that Section 309 I.P.C. is violative
\nof Article 21.\n<\/p>\n
     The only surviving question for consideration now is
\nwhether Section 309 IPC is violative of Article 14, to
\nsupport the conclusion reached in P.Rathinam.\n<\/p>\n
     The basis of the decision in P. Rathinam, discussed
\nabove, was not supported by any of the learned counsel
\nexcept Shri B.S. Malik. On the basis of the decision in
\nP.Rathinam it was urged that Section 306 also is violative
\nof Article 21, as mentioned earlier. On the view we  have
\ntaken that Article 21 does not include the right to die’ as
\nheld in P. Rathinam, the first argument to challenge the
\nconstitutional validity of Section 306, IPC also on that
\nbasis fails, and is rejected.\n<\/p>\n
Article 14 – Is it violated by Section 309, I.P.C. ?\n<\/p>\n
     We would now consider the constitutional validity of
\nSection 309 with reference to Article 14 of the
\nConstitution. In substance, the argument of Shri Ujagar
\nSingh, Shri B.S. Malik and Shri Soli J. Sobrajee on this
\npoint is that it is a monstrous and barbaric provision
\nwhich violates the equality clause being discriminatory\t and
\narbitrary. It was contended that attempted suicide is not
\npunishable in any other civilized society and there is a
\nstrong opinion against the retention of such a penal
\nprovision which led the Law Commission of India also to
\nrecommend its deletion. Shri Sorabjee contended that the
\nwide amplitude of Article 14 together with the right to live
\nwith dignity included in Article 21, renders Section 309
\nunconstitutional. It is in this manner, invoking Article 21
\nlimited to life with dignity (not including therein the
\nright to die’) that Shri Sorabjee refers to Article 21 along
\nwith Article 14 to assail the validity of Section 309, IPC.
\nThe conclusion reached in P. Rathinam is supported on this
\nground.\n<\/p>\n
     We have formed the opinion that there is no merit in
\nthe challenge based even on Article 14 of the Constitution.
\nThe contention based on Article 14 was rejected in P.
\nRathinam also. It was held therein as under:<\/p>\n
     “The Bombay High Court held Section 309 as violation of
\nArticle 14 also mainly because of two reasons. First, which
\nact or acts in series of acts will constitute attempt to
\nsuicide, where to draw the line, is not known – some
\nattempts may be serious while others non-serious. It was
\nstated that in fact philosophers, moralists and sociologists
\nwere not agreed upon what constituted suicide. The want of
\nplausible definition or even guidelines, made Section 309
\narbitrary as per the learned Judges. Another reason given
\nwas that Section 309 treats all attempts to commit suicide
\nby the same measure without referring to the circumstances
\nin which attempts are made.\n<\/p>\n
     The first of the aforesaid reasons is not sound,
\naccording to us, because whatever differences there may be
\nas to what constitutes suicide, there is no doubt that
\nsuicide is intentional taking of one’s life, as stated at
\np.1521 of Encyclopaedia of Crime and Justice, Vol. IV, 1983
\nEdn. Of course, there still exists difference among suicide
\nresearchers as to what constitutes suicidal behavior, for
\nexample, whether narcotic addiction, chronic alcoholism,
\nheavy cigarette smoking, reckless driving, other risk-taking
\nbehaviors are suicidal or not. It may also be that different
\nmethods are adopted for committing suicide, for example, use
\nof fire-arm, poisoning especially by drugs, overdoses,
\nhanging, inhalation of gas. Even so, suicide is capable of a
\nbroad definition, as has been given in the aforesaid
\nWebster’s Dictionary. Further, on a prosecution being
\nlaunched it is always open to an accused to take the plea
\nthat his act did not constitute suicide where-upon the court
\nwould decide this aspect also.\n<\/p>\n
     Insofar as treating of different attempts to commit
\nsuicide by the same measure is concerned, the same also
\ncannot be regarded as violative of Article 14, inasmuch as
\nthe nature, gravity and extent of attempt may be taken care
\nof by tailoring the sentence appropriately. It is worth
\npointing out that Section 309 has only provided the maximum
\nsentence which is up to one year. It provides for imposition
\nof fine only as a punishment. It is this aspect which
\nweighed with the Division Bench of Andhra Pradesh High Court
\nin its aforesaid decision to disagree with the Bombay view
\nby stating that in certain cases even Probation of Offenders
\nAct can be pressed into service, whose Section 12 enables
\nthe court to ensure that no stigma or disqualification is
\nattached to such a person.\n<\/p>\n
     We agree with the view taken by the Andhra Pradesh High
\nCourt as regards Section 309 qua Article 14.”
\n( Page 405 )
\n(emphasis supplied)<\/p>\n
With respect, we are in agreement with the view so taken qua
\nArticle 14, in P. Rathinam.\n<\/p>\n
     We have already stated that the debate on the
\ndesirability of retaining such a penal provision of
\npunishing attempted suicide, including the recommendation
\nfor its deletion by the Law Commission are not sufficient to
\nindicate that the provision is unconstitutional being
\nviolative of Article 14. Even if those facts are to weigh,
\nthe severity of the provision is mitigated by the wide
\ndiscretion in the matter of sentencing since there is no
\nrequirement of awarding any minimum sentence and the
\nsentence of imprisonment is not even compulsory. There is
\nalso no minimum fine prescribed as sentence, which alone may
\nbe the punishment awarded on conviction under Section 309,
\nIPC. This aspect is noticed in P. Rathinam for holding that
\nArticle 14 is not violated.\n<\/p>\n
     The reported decisions show that even on conviction
\nunder Section 309, IPC, in practice the accused has been
\ndealt with compassion by giving benefit under the Probation
\nof Offenders Act, 1958 or Section 562 of the Code of
\nCriminal Procedure, 1908 corresponding to Section 360 of the
\nCriminal Procedure Code, 1973 : Mt. Barkat Vs. Emperor, AIR
\n1934 Lah. 514; Emperor Vs. Dwarka Pooja, 14 Bom.L.R. 146;
\nEmperor Vs. Mt. Dhirajia, AIR 1940 All. 486; Ram Sunder Vs.
\nState of Uttar Pradesh, AIR 1962 All. 262; Valentino Vs.
\nState, AIR 1967 Goa 138; Phulbhai Vs. State of Maharashtra,
\n1976 Crl. L.J. 1519; Radharani Vs.State of M.P., AIR 1981 SC
\n1776; Rukhmina Devi Vs. State of U.P., 1988 Crl.L.J. 548.
\nThe above quoted discussion in P. Rathinam qua Article 14 is
\nsufficient to reject the challenge based on Article 14.\n<\/p>\n
     We may briefly refer to the aid of Article 21 sought by
\nShri Sorabjee to buttress the challenge based on Article 14.
\nWe have earlier held that right to die’ is not included in
\nthe `right to life’ under Article 21. For the same reason,
\nright to live with human dignity’ cannot be construed to
\ninclude within its ambit the right to terminate natural
\nlife, at least before commencement of the natural process of
\ncertain death. We do not see how Article 21 can be pressed
\ninto service to support the challenge based on Article 14.
\nIt cannot, therefore, be accepted that Section 309 is
\nviolative either of Article 14 or Article 21 of the
\nConstitution.\n<\/p>\n
     It follows that there is no ground to hold that Section
\n309, IPC is constitutionally invalid. The contrary view
\ntaken in P. Rathinam on the basis of the construction made
\nof Article 21 to include therein the right to die’ cannot be
\naccepted by us to be correct. That decision cannot be
\nsupported even on the basis of Article 14. It follows that
\nSection 309, IPC is not to be treated as unconstitutional
\nfor any reason.\n<\/p>\n
Validity of Section 306 I.P.C.\n<\/p>\n
     The question now is whether Section 306, IPC is
\nunconstitutional for any other reason. In our opinion, the
\nchallenge to the constitutional validity of Section 309, IPC
\nhaving been rejected, no serious challenge to the
\nconstitutional validity of Section 306 survives. We have
\nalready rejected the main challenge based on P. Rathinam on
\nthe ground that `right to die’ is included in Article 21.\n<\/p>\n
     It is significant that Section 306 enacts a distinct
\noffence which is capable of existence independent of Section
\n309, IPC. Sections 306 and 309 read as under:<\/p>\n
Section 306:\n<\/p>\n
“306. Abetment of suicide – If any person commits suicide,
\nwhoever abets the commission of such suicide, shall be
\npunished with imprisonment of either description for a term
\nwhich may extend to ten years. and shall also be liable to
\nfine.”\n<\/p>\n
Section 309:\n<\/p>\n
“309. Attempt to commit suicide- Whoever attempts to commit
\nsuicide and does any act towards the commission of such
\noffence. shall be punished with simple imprisonment for a
\nterm which may extend to one year or with fine, or with
\nboth.”\n<\/p>\n
\n     Section 306 prescribes punishment for abetment of
\nsuicide’ while Section 309 punishes attempt to commit
\nsuicide’. Abetment of attempt to commit suicide is outside
\nthe purview of Section 306 and it is punishable only under
\nSection 309 read with Section 107, IPC. In certain other
\njurisdictions, even though attempt to commit suicide is not
\na penal offence yet the abettor is made punishable. The
\nprovision there, provides for the punishment Of abetment of
\nsuicide as well as abetment of attempt to commit suicide.
\nThus, even where the punishment for attempt to commit
\nsuicide is not considered desirable, its abetment is made a
\npenal offence. In other words assisted suicide and assisted
\nattempt to commit suicide are made punishable for cogent
\nreasons in the interest of society. Such a provision is
\nconsidered desirable to also prevent the danger inherent in
\nthe absence of such a penal provision. The arguments which
\nare advanced to support the plea for not punishing the
\nperson who attempts to commit suicide do not avail for the
\nbenefit of another person assisting in the commission of
\nsuicide or in its attempt. This plea was strongly advanced
\nby the learned Attorney General as well as the amicus curiae
\nShri Nariman and Shri Sorabjee. We find great force in the
\nsubmission.\n<\/p>\n
     The abettor is viewed differently, inasmuch as he abets
\nthe extinguishment of life of another persons and punishment
\nof abetment is considered necessary to prevent abuse of the
\nabsence of such a penal provision. The Suicide Act, 1961 in
\nthe English Law contains the relevant provisions as under :<\/p>\n
“1. Suicide to cease to be a crime
\nThe rule of law whereby it is a crime for a person to commit
\nsuicide is hereby abrogated.\n<\/p>\n
—————————-\n<\/p>\n
NOTE
\nSuicide. “Felo de se or suicide is, where a man of the age
\nof discretion, and compos mentis, voluntarily kills himself
\nby stabbing, poison or any other way” and was a felony at
\ncommon law: see 1 Hale PC 411-419, This section abrogates
\nthat rule of law. but, by virtue of s 2(1) Post, a person
\nwho aids abets, counsels or Procures the suicide or
\nattempted suicide of another is guilty of a statutory
\noffence.\n<\/p>\n
     The requirement that satisfactory evidence of suicidal
\nintent is always necessary to establish suicide as a cause
\nof death is not altered by the passing of this Act : see R v
\nCardiff Coroner, ex p Thomas [1970] 3 All ER  469, [1970] 1
\nWLR 1475.\n<\/p>\n
—————————\n<\/p>\n
2. Criminal liability for complicity in another’s suicide
\n(1) A person who aids, abets, counsels or procures the
\nsuicide of another, or an attempt by another to commit
\nsuicide, shall be liable on conviction on indictment to
\nimprisonment for a term not exceeding fourteen years.”
\n(emphasis supplied)<\/p>\n
     This distinction is well recognized and is brought out
\nin certain decisions of other countries. The Supreme Court
\nof Canada in Rodriguez v. B.C. (A.G.), 107 D.L.R. (4th
\nSeries) 342, states as under :-\n<\/p>\n
\n     “Sanctity of life, as we will see, has been understood
\nhistorically as excluding freedom of choice in the self-
\ninfliction of death and certainly in the involvement of
\nothers in carrying out that choice. At the very least, no
\nnew consensus has emerged in society opposing the right of
\nthe state to regulate the involvement Of others in
\nexercising power over individuals ending their lives.”
\n(at page 389)<\/p>\n
     Airedale N.H.A. Trust v. Bland, 1993 (2) W.L.R. 316
\n(H.L.), was a case relating to withdrawal of artificial
\nmeasures for continuance of life by a physician. Even though
\nit is not necessary to deal with physician assisted suicide
\nor euthanasia cases, a brief reference to this decision
\ncited at the Bar may be made. In the context of existence in
\nthe persistent vegetative state of no benefit to the
\npatient, the principle of sanctity of life, which it is the
\nconcern of the State, was stated to be not an absolute one.
\nIn such cases also, the existing crucial distinction between
\ncases in which a physician decides not to provide, or to
\ncontinue to provide, for his patient, treatment or care
\nwhich could or might prolong his life, and those in which he
\ndecides, for example, by administering a lethal drug,
\nactively to bring his patient’s life to an end, was
\nindicated and it was then stated as under :-<\/p>\n
“……….But it is not lawful for a doctor to administer a
\ndrug to his patient to bring about his death, even though
\nthat course is prompted by a humanitarian desire to end his
\nsuffering, however great that suffering may be : see Reg. v.
\nCox (unreported), 18 September, 1992. So to act is to cross
\nthe Rubicon which runs between on the one hand the care of
\nthe living patient and on the other hand euthanasia –
\nactively causing his death to avoid or to end his suffering.
\nEuthanasia is not lawful at common law. It is of course
\nwell known that there are many responsible members of our
\nsociety who believe that euthanasia should be made lawful
\nbut that result could, I believe, only be achieved by
\nlegislation which expresses the democratic will that
\nso fundamental a change should be made in our law. and can,
\nif enacted, ensure that such legalized killing can only be
\ncarried out subject to appropriate supervision and control.
\n……..”\n<\/p>\n
(emphasis supplied)
\n(at page 368)<\/p>\n
     The desirability of bringing about such a change was
\nconsidered to be the function of the legislature by enacting
\na suitable law providing therein adequate  safeguards to
\nprevent any possible abuse.\n<\/p>\n
     The decision of the United States Court of Appeals
\nfor the Ninth Circuit in Compassion in Dying vs. State of
\nWashington, 49 F.3d 586, which reversed the decision of
\nUnited States District Court. W.D. Washington reported in
\n850 Federal Supplement 1454, has also relevance. The
\nconstitutional validity of the State statute that  banned
\nphysician assisted suicide by mentally competent. terminally
\nill adults was in question. The District
\nCourt held unconstitutional the provision punishing for
\npromoting a suicide attempt. On appeal. that judgment was
\nreversed and the constitutional validity of the provision
\nwas upheld.\n<\/p>\n
     This caution even in cases of physician assisted
\nsuicide is sufficient to indicate that assisted suicides
\noutside that category have no rational basis to claim
\nexclusion of the fundamental of sanctity of life. The
\nreasons assigned for attacking a provision which penalizes
\nattempted suicide are not available to the abettor of
\nsuicide or attempted suicide. Abetment of suicide or
\nattempted suicide is a distinct offence which is found
\nenacted even in the law of the countries where attempted
\nsuicide is not made punishable. Section 306 I.P.C.enacts a
\ndistinct offence which can survive independent of Section
\n309 in the I.P.C. The learned Attorney General as well as
\nboth the learned amicus curiae rightly supported the
\nconstitutional validity of Section 306 I.P.C.\n<\/p>\n
     The Bombay High Court in Naresh Marotrao Sakbre and
\nAnother vs. Union of India and others, 1895 Crl.L.J. 96,
\nconsidered the question of validity of Section 306 I.P.C.
\nand upheld the same. No decision holding Section 306 I.P.C.
\nto be unconstitutional has been cited before us. We find no
\nreason to hold either Section 309 or Section 306 I.P.C. to
\nbe unconstitutional.\n<\/p>\n
     For the reasons we have given, the decisions of the
\nBombay High Court in Maruti Shri Pati Dubal vs. State of
\nMaharashtra, 1987 Crl. L.J. 743, and of a Division Bench of
\nthis Court in P. Rathinam vs. Union of India and Anr.,<\/a> 1994
\n(3) SCC 394, wherein Section 309 I.P.C. has been held to be
\nunconstitutional, are not correct. The conclusion of the
\nAndhra Pradesh High Court in Chenna agadeeswar and another
\nvs. State of Andhra Pradesh, 1988 Crl.L.J. 549, that Section
\n309 I.P.C. is not violative of either Article 14 or Article
\n21 of the Constitution is approved for the reasons given
\nherein. The questions of constitutional validity of Sections
\n306 and 309 I.P.C. are decided accordingly, by holding that
\nneither of the two provisions is constitutionally invalid.\n<\/p>\n
     These appeals would now be listed before the
\nappropriate Division Bench for their decision on merits in
\naccordance with law treating Sections 306 and 309 I.P.C. to
\nbe constitutionally valid.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Smt. Gian Kaur vs The State Of Punjab on 21 March, 1996 Equivalent citations: 1996 AIR 946, 1996 SCC (2) 648 Author: J S Verma Bench: Verma, Jagdish Saran (J), Ray, G.N. (J), Singh N.P. (J), Faizan Uddin (J), Nanavati G.T. (J) PETITIONER: SMT. GIAN KAUR Vs. RESPONDENT: THE STATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-237421","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSmt. Gian Kaur vs The State Of Punjab on 21 March, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/smt-gian-kaur-vs-the-state-of-punjab-on-21-march-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Smt. 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