Attempt to suicide still punishable under Section 309

People who attempt to die by suicide continue to face criminal charges under Section 309

There has been a demand for removing Section 309 for with the 42nd Law Commission report in 1971 opining that the provision was "harsh and unjustifiable"

People who attempt to die by suicide continue to face criminal charges despite the Mental Healthcare Act 2017 putting restrictions on Section 309 as it continues to remain in the Indian Penal Code (IPC).

The Mental Healthcare Act, which came into effect in July 2018, had made attempt to die by suicide punishable only in limited circumstances but it has not led to the repeal of the IPC provision.

The Narendra Modi government had in 2014 told Parliament that at least 18 states had supported the idea of repealing Section 309 from the IPC but nothing much has happened after that except for the mention in the Mental Healthcare Act.

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The issue had seen a changing of positions on the validity of Section 309. The Law Commission and the Supreme Court had gone back and forth on the issue and finally, nine years ago, the apex court favoured repealing Section 309 and left it to the Parliament to decide on the issue.

According to Section 115(1) of the Mental Healthcare Act, "notwithstanding anything contained in Section 309 of the IPC,  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."

Section 115(2) says that 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.

However, activists and legal experts feel that there is very little clarity in the Act, especially on the definition of "severe stress". The Act also does not provide blanket protection from Section 309.

According to Section 309 of the IPC, "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."

There has been a demand for removing Section 309 for a long time with the 42nd Law Commission report in 1971 opining that the provision was "harsh and unjustifiable" and recommended repealing it. However, the 156th report of the Law Commission argued against repealing the Section. 

In 2008, the 210th report of the Law Commission went back to the 1971 position, when it said, "Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional. The repeal of the anachronistic law contained in section 309 of the Indian Penal Code would save many lives and relieve the distress of his suffering."

A Bill was even passed by Rajya Sabha in 1978 to repeal Section 309 but it could not pass the Lok Sabha hurdle as Parliament was dissolved soon.

The issue has been a matter of debate in the higher judiciary. In 1985, the Delhi High Court said that the continuance of Section 309 was an "anachronism unworthy of a humane society like ours" and "medical clinics for such social misfits certainly but police and prison never" while upholding acquittal of a man by a trial court. However, it did not examine the constitutional validity of the provision.