Resolving the Dichotomy between Section 115 of the Mental Healthcare Act and Section 309 of the Penal Code

Introduction

The act of taking one’s life was much abhorred by society in general and religious edicts¹ in particular. However, with time, there has been a shift in the social perception of suicide. The act has been perceived as a result of the culmination of severe psychological trauma and distress thereby gaining increasing empathy in society. Within the Indian context, the demands to decriminalise attempt to commit suicide have grown over a period of time. The Law Commission too in its 42nd² and 210th³ Reports advocated the humanisation of the attempt to commit suicide. Even the constitutional courts of the country have resonated with the same sentiment in a catena of cases.⁴

In P. Rathinam⁵, the Supreme Court while discussing the constitutional validity of Section 309⁶ remarked,

109. … It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which the State’s interference with the personal liberty of the persons concerned is not called for.⁷

However, it was only in the year 2017 the Government took cognizance of this situation and tried to introduce a reform vis-à-vis Section 115 of the Mental Healthcare Act⁸ (the Act). Though the step taken by the Government is laudable on the count that it has formally acknowledged the fact that to prosecute and punish a person who is already distressed is inhumane. Albeit this, the existence of a conflicting penal provision on attempted suicide in the Penal Code⁹ (IPC) instead of resolving the problem aggravates it. While Section 115 of the Act presumes innocence on the part of persons who attempt to commit suicide and prohibits prosecution and punishment for such act, Section 309¹⁰ IPC states,

309. Attempt to commit suicide. — Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year [or with fine, or with both].

This brings the two sections into directly conflicting positions. The present article aims to scrutinise the current legal position and suggest ways in which substantial reform can be brought about with regard to the penal provision on an attempt to suicide. In the first part of the article, the author discusses the issues arising out of the conflicts in the aforementioned sections. Subsequently, in the second part of the article, the author shall try to make a case for the deletion of Section 309 IPC in its entirety and suggest that clause (1) of Section 115 of the Act be discarded to reduce ambiguity brought forth by the said clause.

Part I: The nebulous territory of Section 115 of the Mental Healthcare Act and its conflict with Section 309 IPC

Section 115(1)¹¹ of the Act states,

Notwithstanding anything contained in Section 309 of the Penal Code (45 of 1860) any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.

Two significant problems flow from this provision. Firstly, the use of the term “severe stress” is highly vague and secondly, the section provides that the burden is on the prosecution to prove that the accused did not suffer from “severe stress”, which leads to the accused being prosecuted in a court of law for committing the offence under Section 309 IPC though he may be absolved of all charges at a later stage of the trial. The author contends that this leads to a twofold problem:

Issues arising out of the ambiguous terminology

Since the term “severe stress” is highly ambiguous, the judicial interpretation in varied circumstances will be different and this will not ensure equitable treatment to the accused. The use of the term “severe stress” indicates that there may be degrees of stress and only those cases which come within the ambit of “severe stress” according to the judicial opinion would be given the benefit of Section 115 of the Act. Given the subjective nature of the term “severe stress” there might be varied opinions in similar fact situations at different courts.

The Act aims to alleviate the suffering of those who suffer from “mental illness” and the same term has been used in various instances in the Act. However, the use of the term does not lead to any ambiguity as it has been adequately defined in the Act itself.¹²

Furthermore, there is also a lack of clarity on the issue that should a person be given benefit of Section 115 only when suffers from severe stress arising out of some “mental illness” or would he/she/they be entitled to the favourable presumption if they attempt to commit suicide in a spur of moment. The report prepared by the National Crime Records Bureau¹³ also highlights that suicides are a result of various stress-causing events which might be due to prolonged stress or momentary stress.

This issue can also be understood through the following example: A, a 15-year-old boy attempts to commit suicide because his parents have refused to give him a smartphone. Herein, can the denial of a smartphone be construed to be the cause of severe stress? These facts also bring out the problem of “degrees of stress” as highlighted earlier in the article. Will the court deem this scenario to be falling under the ambit of severe stress or will it only be regarded as an act of recklessness by the child? Most likely the courts are likely to have the latter opinion. In such situations the benefit of the act cannot be availed. As of now, there are no cases decided that manifest this problem. However, it is highly probable that such situations will erupt in future and given the ambiguous terrain of Section 115, varied judicial interpretations are imminent.

Looking beyond situations where suicide is attempted/committed not because of any stress but because of religious beliefs such as the practice of Santhara¹⁴ or as a mark of protest the questions arise that should persons be condemned and be punished under Section 309 IPC? The author in this particular factual matrix holds the view that such persons too should not be prosecuted and punished. The reason for such a belief is that the State ought to respect individual autonomy and secondly, attempting suicide as a mark of protest points out to the failure of the State to address the concerns of the citizens. Various famous cases pertaining to the latter situation linger in public memory. One such case is the case of Irom Sharmila.¹⁵ Prosecuting and punishing such individuals would be tantamount to harassment. However, the existing legal framework is such that such persons would in most cases be punished. Section 115 of the Act cannot be invoked here.

Stigma associated with prosecution

It is a flawed interpretation that Section 115 of the Mental Healthcare Act has decriminalised attempt to commit suicide in India. The abovementioned section is merely a rebuttable presumption which can be contested in a court of law by the prosecution.

The recent cases of Pratibha Sharma¹⁶ and Simi C.N.¹⁷ decided by the Himachal Pradesh High Court and the Kerala High Court respectively bring out the aforementioned observation. In these cases, the victim was only acquitted when the courts were satisfied that the circumstances of the victim squarely fell within the ambit of “severe stress”.

Thus, it is evident that a victim can be prosecuted although he might be acquitted at a later stage if it is proved that he suffered from “severe stress” while attempting suicide. In the author’s opinion, it is laudable that the victims are saved from being punished; it is not a sufficient safeguard from harassment. The victim will have to necessarily face trial if the police authorities register a case against him under Section 309 IPC. This can be a cause of anxiety in the mind of the victim and can be a major hurdle in accessing timely medical aid. There has been little or no scrutiny of the first problem by various stakeholders such as NGOs and mental healthcare service providers. However, the latter aspect has been brought to light by various news reports showing that hospitals are often reluctant to admit such patients without clearance from the police authorities.¹⁸

Moreover, this also runs contrary to clause (2) of Section 115¹⁹ which states,

The appropriate Government shall have a duty to provide care, treatment, and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.

Prosecution and trial act as a hindrance to getting proper care and treatment. The victim has to face the trauma of a trial and is in constant fear of being punished. Under such circumstances, the victim does not get the opportunity to heal and instead the chances are high that his mental condition might worsen.

Part II: Where does the solution lie?

The analysis in Part I of the article clearly shows that the current legal framework on attempted suicide is riddled with multiple problems. Neither does it address the concerns of those individuals who commit suicide out of mental stress nor respect individual autonomy and the right to protest. The Supreme Court has asked the Union Government to file a report on the conflicting position of the two sections. Furthermore, many academicians, lawyers and mental healthcare givers have called for striking down Section 309 IPC.²⁰ They have relied upon the examples of many nations around the globe that have decriminalised attempt to commit suicide including England²¹, Malaysia²² and Singapore²³ doing it in 1961, 2022 and 2020, respectively. Their argument is based on the premise that such action will resolve all problems. However, we have seen that such action cannot completely solve the fallacies in the law as many difficulties arise due to the ambiguous wording of Section 115 of the Act. Though, it will certainly help remove the conflict between the two sections and reduce the hurdles the victims face in getting timely medical aid. The issues which erupt from the vague wording of Section 115 and the protection given by it to only those persons who attempt to commit suicide can be overcome by discarding clause (1) of the section and bringing a nationwide Suicide Prevention Policy. It has been noted that suicidal behaviour is not only caused by stress but is also a culmination of various factors which include the people’s socio-economic, cultural, and educational environment. Therefore, it would not be feasible to adopt a purely legal policy to alleviate this problem. In addition, to complete decriminalisation, a national suicide prevention policy will help in erasing the stigma around mental illness and encourage people to seek help rather than resort to suicide. The World Health Organisation’s (WHO) paper²⁴ has also advocated the same approach. Additionally, another paper²⁵ by WHO has discussed how various nations worldwide have successfully developed suicide prevention strategies without criminalising the attempt to commit suicide. The WHO through the “Live Life” guide has also provided nations with a broad framework based upon which they can successfully reduce the instances of attempted suicide in a calibrated manner.²⁶ The guide lists various programmes which have been initiated across the globe to enhance the mental well-being of citizens and decimate suicidal behaviour. Therefore, India must bring a nationwide suicide prevention programme with a special focus on the following:

(i) Making mental healthcare facilities more accessible to those who are prone to suicidal tendencies such as youth, farmers, prisoners, army men and women, etc.

(ii) Creating a favourable environment wherein students at an early stage are made aware of the importance of mental well-being. Collaboration with civil society groups can give fruitful results. As of now, it is pertinent to note that the National Education Policy²⁷ does not deal with this aspect.

(iii) Restricting access to materials that aid suicide such as pesticides, drugs, weapons, etc. The use of pesticides as a means to attempt suicide has been widely discussed and demands to limit access to them have grown.²⁸ But in India, many farmers have committed suicide by drinking pesticides.²⁹ The Government needs to resolve this pertinent issue.

(iv) Launching a full-fledged public campaign on access to mental health and reducing suicidal behaviour. In the past, the Government has successfully initiated such campaigns as in the case of “Pulse Polio”³⁰ and “School Chalein Hum”³¹.

Additionally, collaborating with various stakeholders and adopting a multi-sectoral approach will catalyse the suicide prevention movement. The same has been advocated by the WHO as well.

Conclusion

Though the intentions behind introducing Section 115 of the Mental Healthcare Act were good, its ambiguous wording and only partial decriminalisation of suicide are not sufficient to meet the goal of destigmatising mental illness and preventing harassment. The instances where patients have been denied immediate medical intervention as highlighted in the preceding part of the article and filing of FIRs against individuals under Section 309 IPC testifies the same. Thus, along with the deletion of Section 309 IPC and Section 115(1) of the Mental Healthcare Act from the statute books, social intervention with a humanistic approach is required to reduce the growing suicidal tendencies among people especially the youth in India and lend a helping hand to those who are suffering from mental trauma.