It is not for us to say whether or not section 309 of the Indian Penal Code (which makes attempted suicide a crime) is ultra vires of the Constitution. The Bombay and Delhi high court judgments on the issue need to be tested in the Supreme Court. But the issue is not only technical-legal. It raises wider questions and the answers do not point in the same direction. Obviously an attempt at suicide is the result of total despair; as such the person engaging in it is not a criminal at least in the sense a layman understands the term. While the person concerned is a victim of society or at least sees himself as a victim of society, he is not wanting to hurt society. He turns his aggression on himself. In case of failure, he deserves help by way of psychiatric treatment among other things and not further harassment. In that sense, section 309 IPC is not worthy of a civilized society. Its removal from the statute book is also not likely to increase the number of genuine suicide attempts. No one who engaged in such an attempt contemplates failure or worries about the consequences of failure. In fact, it is precisely because he has lost the capacity to think clearly that he attempts suicide.
But that is not the end of the matter. If section 309 IPC is held to be violative of the Constitution, as the Bombay high court has done, law enforcement agencies can have no interest in investigating suicide cases, whether successful or not. Who will then determine whether someone has committed or attempted suicide voluntarily or has been induced or even coerced? This question would have been relevant in any circumstances in our country where life is regarded as cheap. It is especially relevant in the context of the recent phenomenon of bride burning. The distinction between suicide and murder is difficult to establish in such cases. As it is, it can safely be assumed that many murder cases are passed off as suicides. One can imagine the result if the police stop investigating such cases.
It may also be pertinent to ask whether a sati case will be treated as a case of suicide or murder under the new dispensation. If such a case is detected before it is consummated, it can be stopped today. It may not be possible to do so once suicide is held to be legally permissible. In that event it may also not be possible to find out whether a woman has wanted to commit sati because she cannot bear the thought of continuing to live without her husband, or whether she has been brain-washed into taking her life. We are by no means approving of the practice of committing sati even if the woman concerned does it wholly voluntarily; we regard it abhorrent and its continuance 150 years after it was prohibited shameful. We are only underscoring the point that legalization of attempts at suicide can help cover up cases of induced or coerced satihood.
While taking note of the need to amend the law in regard to suicide attempts 15 years ago the law commission drew attention to the possibility that some individuals might take advantage of such a modification and threaten to immolate themselves or starve themselves to death in order to coerce the government, or some other public authority, or even private employer. It wanted such cases to be made punishable under the law. Perhaps it is possible to devise such a law. But it is not going to be easy to distinguish between a person for whom it is legal to try to commit suicide and another for whom it is not. A person who threatens to immolate himself or starve himself to death is as desperate as a person who has no job or whose spouse has deserted him. This again is a serious issue which just cannot be brushed aside in any serious discussion of the consequences of removing section 309 from the Indian Penal Code. The right to die may, on a superficial view, appear to concern an individual as an individual. In reality it has large social consequences which judges too should not ignore. In any event, a judicial pronouncement on an issue of this magnitude should follow a consensus resulting from a national debate; it should not take the place of a national debate. Judges are entitled to act as legislators but only when public opinion has crystallized and the legislators ignore that opinion. No one can claim that this has happened on the issue under discussion.