Introduction
The issue whether active euthanasia, suicide and assisted suicide should be legalised or not has been largely debated. Those who speak in favour of legalising them are those who believe in principle of autonomy. They believe that it should be person’s autonomous decision to decide on his death as it is the most intimate and fundamental part of life.[1] But those who are against it believe in principle of sanctity of life which is basically that every human life is valuable to only person himself but also to society and State. Therefore, they say that the State cannot make laws to legalise to allow anyone to take his own death or with the help of others.[2]
The Penal Code, 1860 (IPC) also prohibits these acts and provides punishment for them. The act of death by consent, which covers both voluntary euthanasia and assisted suicide, is carved out as an exception to murder in Exception 5 to Section 3003 IPC. This means that the offence of murder is reduced to culpable homicide not amounting to murder through this exception. There is not much development in the understanding and application of this exception. The reason can be that this is not used much by the defendants as this exception only helps to extenuate the culpability but does not exonerate them from the crime. Although this exception has not been analysed much by the courts, I believe it is important to visit this exception since there are problems which persist with regard to its application.
In this article, by looking at the ingredients and intention of the drafters of Exception 5, I will see how the courts have applied the exception in cases. I argue that the courts erred on the application of basic tenets this exception which is in assessment of “valid consent” and “pious motives” of the killer. I also suggest ways by which the application of Exception 5 can be bettered.
Ingredients of Exception 5
As per Section 300 IPC, Exception 5 has the following ingredients—
- The person whose death is caused should be above 18.
- That death should be caused by his own consent.
This simply means that the defendant who wants to take benefit of this section would require to prove that the deceased person was above 18 when he consented to his own death. Although this will not exempt the defendant party from punishment but there will certainly be reduction in the culpability of crime. The agreement between persons on killing is called “suicide pact”. Although there can be more than two persons in the suicide pact, usually there are two persons who have mutually agreed upon to end their lives. The defendant is the surviving party, who although killed the other party, was unable to kill himself for some reasons or circumstances that occur before or after such killing.
Drafter’s intention
It is important for us to understand the intention of drafters behind making such exception of murder to get nuanced understanding. The drafters paid much attention to the “motives” of the killer in these cases which according to them are “far more respectable” than in the usual murder case.4 Another justification that drafters give is that these cases “do not produce much evil and insecurity” in the society as the normal commission of murder does. These are the reasons why they found it inappropriate to term cases which fall under Exception 5 as murder.5 But since death of a human being causes “anxiety and alarm” in the society, they did not completely exonerate the offender.6 The drafters kept in mind that people in India commit suicide believing it as their religious duty or sometimes as a strong sense of honour. In such cases, the person assisting them to commit suicide cannot be imposed with same level of culpability as to a murderer. So, they found it appropriate to consider such cases as culpable homicide not amounting to murder.7
Application of Exception 5 in case laws and their analysis
As said before, there is not much development in interpretation and understanding of Exception 5 simply because it is not invoked much by the defendants. But there are few cases in which Exception 5 helped defendants to get their culpability reduced. While reading those cases, we need to give special attention on how courts ascertain the ingredient of consent as the other ingredient of age is a matter of fact.
There was an early case of Dasrath Paswan v. State of Bihar8 where accused was a student of Class 10 who had repeatedly failed at examination. He was upset with his results to the extent that he decided to end his life. When he conveyed his decision to his wife, she asked him to first kill her then kill himself. One fine morning when nobody was at home, accused killed his wife in pursuance of the suicide pact and after that he ran out of his house to kill himself. Before he could end his life, he was found by other villagers and later he confessed that he killed his wife. The matter was brought before Patna High Court and defence argued that they should be given benefit under Exception 5. There was no doubt regarding the age of the deceased as she was above 18 at the time of her death. For the assessment of consent, the Court found it significant that the body of the deceased was lying down and she did not make attempts to prevent assault. Looking at these circumstances, the Court found it appropriate to bring this case under Exception 5.
Another case, a more recent one is Narendra v. State of Rajasthan9 where the deceased was a married woman Nathi who left her home and residing in her parent’s home. There she developed intimacy with the accused Narendra and both wanted to marry. The villagers were against their wish of marriage because they belonged to same gotra. Both of them were very upset due to their love being not accepted by the villagers, therefore they agreed to commit suicide. One day the accused was seen inflicting injuries on deceased by other villagers but the victim had already died before they could rescue her. There were also stab wounds in the abdomen of accused but he was prevented from killing himself. The High Court found no material-on-record to show that there was free and voluntary consent of the deceased. Later this case reached in the Supreme Court where judges placed significance to facts like deceased did not raise alarm, there were also injuries on accused and he did not carry any weapon when he entered the house. Keeping these factual circumstances in mind, the Court ruled in favour of the deceased by giving him benefit under Exception 5.
I contend that the Court’s reasoning in both these cases falters on two very important limbs of this exception. First is ascertaining the “consent” of the victim. Second is looking at the “motives” of the killer.
The first contention is regarding assessment of “valid consent” of the deceased. Courts in both the above given cases reasoned ‘no resistance’ from the deceased side as one of the parameters to conclude that she had consented for her death. But how does the Court reach to the conclusion that there was “no resistance” in both the above given cases? Courts used the same standard to check presence of consent as they mostly use in rape cases — that the deceased did not shout, that there was no attempt to prevent herself from assault. Application of same kind of assessment standard in Exception 5 cases is problematic on two grounds. The first ground is that homicide cases are different from rape cases. Courts in rape cases look at medical reports to see if physical injuries are sustained by the victim. If there is no presence of injury marks that they believe that there was no resistance and conclude that there was consent of the victim.10 But this same enquiry cannot be done here because there is greater chance of presence of injuries in homicide cases as it because of these injuries that the victim has died. The courts in these cases did not expand much on of their reasoning as to how they reached this conclusion on “no resistance” hence consent even when there is definite presence of injuries on deceased. The second ground is that this standard of ascertaining consent by taking “shout” and “resistance” into consideration is criticised by many feminist scholars.11 The social and economic capital is often used by man to silent woman while committing crimes and it might not be always possible for her to shout and resist in such situations.12 Therefore, there is need to change the standard used by the courts and make sure that there was valid consent of the deceased in these cases.
My second contention is regarding the “motives” of the surviving party that the Court needs to ensure that they were “respectable” as were intended by the drafters. This can be done by looking at the intention of the killer in such cases — whether it was genuine or bogus when he agreed the suicide pact with deceased. If he did not want to kill himself but is entering into such pact just for killing the other person would completely obliterate the purpose of this exception. Another possibility arises if there is subsequent change of mind of killer after killing the deceased. These possibilities were contemplated by the drafters of Section 4 of the Homicide Act, 1957 in English Law and they can be summed up as follows—
- That the mere presence of suicide pact does not make it a genuine one, it may so happen that one party (deceased) honestly believed in the pact while agreeing while the other party just want to use it as a device as to bring about the death.13
- That both the parties have genuine intention to agree upon a suicide pact, there is a subsequent change of mind of the surviving party that they do not even attempt to commit suicide.14
Basically, the enquiry is to find out that that there were best motives of the killer when he entered into the suicide pact. In both of these possibilities, the offender does not fulfil the conditions as was agreed upon in the suicide pact. The drafters of this exception placed so much significance to the “pious motives” of the killer in these cases but there is clear absence of such motives if any of these two possibilities are present. Also, it is not just about the motives of the killer, the consent of the deceased is also vitiated if there is presence of these possibilities. Section 9015 IPC provides that the consent should be given without fear and misconception of fact. In these cases, the deceased party gives its consent to be killed believing that the other party also has genuine intention of committing suicide and would definitely kill himself. But if it so happens that the surviving party had no genuine intention to kill itself since the inception of suicide pact, as is contemplated in possibility 1 above, or if they change their mind, as contemplated in possibility 2, then such consent should be regarded to be given under misconception of fact. The fact based on which deceased gave consent was not untrue and hence that consent should be considered as vitiated under Section 90.
Section 4(3) of the Homicide Act makes it clear that the survivor needs to show that he had settled intention of dying.16 The same standard should be applied by Indian courts as well where it is for the defendant to show that he clearly had settled intention of dying in pursuance of suicide pact. It should be made onus on the party seeking benefit of this exception to prove there was absence of both above given possibilities. Therefore, I believe that if the Court finds presence of any of these possibilities, then that act should not be considered under Exception 5. The reason behind such rejection being, one, the drafters never wanted to give benefit if there are ill-motives of the surviving party and, two, because the consent of the deceased is vitiated.
Conclusion
It is understood that the understanding, application and assessment of Exception 5 in murder involves various aspects which the Court has failed to take into account while reasoning out. The challenging part to ascertain in Exception 5 cases is to ascertain the free and voluntary consent of the deceased. The courts have not been able to provide set standards on how to assess consent, especially when the victim is a woman. The courts should keep into mind the socio-economic capital that man holds which they can use to silent or influence woman. Therefore, the standard that there was no resistance hence woman consented should be done away. Also, the very reason why intention of the drafters reduced the culpability in such cases is because there are “pious motives” of killer so the courts should also do reasonable enquiry as suggested in this article. This would ensure that the benefit of Exception 5 is given with no injustice done to the victim and drafter’s intention.
†3rd year law student at National Law School of India University, Bangalore, e-mail: <tusharagarwalswm@gmail.com>. I express my gratitude to Prof. Mrinal Satish (Professor of Law at NLSIU Bangalore) for his valuable inputs and feedback.
[1] Lawrence O. Gostin, The Constitutional Right to Die: Ethical Considerations, St. John’s Journal of Legal Commentary, Vol. 12, (1977): 602-603, accessed on 10-6-2021.
[2] Richard A. McCormick, The Quality of Life, the Sanctity of Life, The Hastings Center Report 8, No. 1 (1978): 30-36, accessed on 14-6-2021.
3 <http://www.scconline.com/DocumentLink/f7pL9l49>.
4 Reports from the Commissioners: Volume 28 Great Britain. Parliament. House of Commons (Jan 1848), pp. 53-54; para 282.
5 Ibid.
6 Ibid.
7 K.D. Gaur, Textbook on Indian Penal Code, Universal Law Publishing, LexisNexis, sixth edition, p. 585.
8 1957 SCC OnLine Pat 129 : AIR 1958 Pat 190.
10 See Tukaram v. State of Maharashtra, (1979) 2 SCC 143 : AIR 1979 SC 185 to look at assessment of court of consent.
11 Upendra Baxi, Lotika Sarkar, Vasudha Dhagamwar and Raghunath Kelkar, An Open Letter to the Chief Justice of India, (1979) 4 SCC J-17.
12 G.S. Bajpai and Raghav Mendiratta, Gender Notions in Judgments of Rape Cases: Facing the Disturbing Reality, Supreme Court Cases (Journal) 60 JILI (2018) 298.
13 Maximilian Koessler, Comparative Aspects of the English Homicide Act of 1957, 25 Missouri Law Review 107 (1960), p. 142.
14 Ibid.
15 <http://www.scconline.com/DocumentLink/tfBf1vh5>.
16 S. 4(3), the Homicide Act, 1957.
