Journey Of Decriminalisation Of Suicide In India And Comparison Of Framework With Netherlands

Author: LawSphereX

Category: Criminal Law

Published: 2026-08-23T20:24:32.255+00:00

Updated: 2026-08-30T07:11:15.515Z

JOURNEY OF DECRIMINALISATION OF SUICIDE IN

INDIA AND COMPARISON OF FRAMEWORK WITH NETHERLANDS

Aasiya Haider, VIPS, GGSIPU

ABSTRACT

This paper aims to review the chronological development of the decriminalisation of suicide through judicial decisions and simultaneous legislation in India. The British administration in colonial India penalised attempted suicide under section 309 of the Indian Penal Code, 1860. The British parliament decriminalised attempt to suicide by enacting the Suicide Act, 1961 in England but India continued to retain it. Section 309 was criticised and attempts were made to amend it through judicial decisions and introduction of Mental Healthcare Act (MHCA), 2017. The innovative right of ‘Right to die with dignity’ was interpreted to be included in the right to life by the judiciary during the discussion upon suicide too. The recent passing of Bhartiya Nyaya Sanhita (BNS) has provided better clarity as it doesn’t replicate such a section.

INTRODUCTION

“Suicide is a response to pain, not a wish to die. ” -Andrew Solomon The word ‘suicide’ originates from the Latin word ‘suicidium’ where sui means ‘oneself’ and ‘cidium’ means ‘a killing’, thus meaning deliberate killing of oneself. In this era of globalisation mental health has gained the spot light and now widely accepted to contribute in a healthy lifestyle. The 21st century is seeing the growth of issues like anxiety, depression, panic attacks etc. among the youth and simultaneous redressal through therapy, clinical counselling etc. Mental health is one of the trickiest to analyse as it can’t be read on a thermometer like a fever and usually suppressed. But if gone unchecked, it leads to the literal last resort of suicide.

The colonial section 309, IPC reads as follows– “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 section dates back to 1860 as introduced by the colonial legislators in British India. Thus, the IPC saw attempted suicide as an unsuccessful attempt to commit a crime i. e. a suicide. For instance, A, a student takes up a part time job after school to pay his education bills. His parents passed away when he was 8 years old. The job became stressful and he’s unable to maintain work life balance. He can’t quit the job and is unable to get a student loan. He’s pushed by his circumstances to take the step of suicide.

If he is unsuccessful in his attempt then will be prosecuted under this section and punished for 1 year imprisonment, fine or bothi. So, the question is whether it’s fair to criminalise the act of ending a life that continuously deteriorates the standard of healthy living? This section has been one of the most debated sections of the Indian Penal Code. Some argue that suicide is a complex social issue which affects the society and should be treated with strictness to discourage its occurrence. Others argue that suicide is a personal choice and penalising attempt to suicide is like trapping someone in their own nightmare without any out. But wider support has been expressed towards the later argument.

With the coming of mental health awareness, it is being realised that suicide is not a crime committed from a clear mind but a last resort for individuals with a disturbed mental state. These individuals require medical attention and care rather than penal punishment. Like it is popularly said that blame the circumstances, not the ‘criminal’. Punishing one for suffering from mental illness isn’t just inhumane but infringes one’s basic human rights too. They need help rather than being subjected to imprisonment or fine as punishment. The Right to life and personal liberty guaranteed under article 21 of the Indian constitution has been interpreted in the present times to include the right to die as well. ‘Life’ under this article means a dignified life rather than ‘mere animal existence’.

Punishing one to end an undignified life as a last resort violates the basis of the constitutional values itself. Also, the Indian Penal Code,1860, was formulated under the British administration of colonial India which fails to represent the modern India which is more aware and responsive to mental health issues. Punishing an attempt to suicide creates a taboo in the society regarding mental health as it instils fear of seeking help. Thus, the weight of silence further aggravates the situation. ATTEMPTS TO REFORM LAW COMMISSION REPORTS: The Law Commission of India conducted research and review as the topic of criminalisation of attempt of suicide became a topic of intense debate. Through these reports it has recommended amendments in the position of section 309. I.

42nd Report (1971) The law commission referred the ancient texts like Manu smriti and Dharma shastras to understand the morality and permissibility of suicide in Indian culture. Manu’s code and its commentaries include an undertaking called ‘Mahaprasthana’ (great departure) which is a journey that ends in death when a man is incurably diseased or suffers a great misfortune. Thus, suicide was allowed in certain circumstances. Keeping this in mind, the report held section 09 as unjustifiable and suggested its repeal.

Clause 126 of the Indian Penal Code (Amendment) Bill, 1972 and clause 131 of the Indian Penal Code (Amendment) Bill, 1978 carried the changes suggested by the report. But the House of People dissolved in 1979, thus the bill lapsedii. II.

156th Report (1997) This report came after the landmark judgement of Gian Kaur vs. State of Punjab. It Suggested the retention of section 309 in consonance with the judgement. III.

210th Report (2008) The law commission recommended that section 309 should be omitted from the IPC. It stated that section 309 provides double punishment to a person who is in fact in need of sympathy, counselling and treatment. The Commission was of the view that while assisting or encouraging another person to (attempt to) commit suicide must not go unpunished, suicide shouldn’t be punished. iii JUDICIAL DILEMMA OVER DECRIMINALISATION OF SUICIDE In the case of Maruti Shripati Dubal vs State of Maharashtra1, a police constable, suffering with mental depression and schizophrenia after encountering a road accident, tried to commit suicide by pouring kerosene over himself and light a match but failed due to police’s intervention. He was charged under section 309 IPC for attempt to commit suicide. The constitutionality of section 309 was raised as an issue in the Bombay High Court.

The court held section 309 IPC as violative of the fundamental rights under article 21,19 and

14 and thus, unconstitutional. The court reasoned that fundamental rights contain the negative

as well as the positive dimensions of a respective right. For example, the fundamental right to speech and expression would also mean the right to remain silent (Bijoe Immanuel vs. State of Kerala, 1986). Applying this logic, the right to life shall also include the right to die by one’s own choice. It violated article 14 as it is arbitrary and refuses to recognise difference of circumstances pressuring a person to commit suicide in different cases. As held in the Maneka

1 1987(1) BOMCR499, (1986)88BOMLR589

Gandhi case, article 19,14 and 21 form the golden triangle and hence stand violated by this section. The court held the constable (petitioner) not liable.iv In Chenna Jagadeeswar vs. State of Andhra Pradesh2, the appellant was accused of killing his 4 children by Barbituric poisoning and then attempting to commit suicide. The court held the accused liable under section 309 of the IPC. The Andhra Pradesh High court held section

309 to not be violative of article 19 and 21 as including right to die within the ambit of right to

life could have terrible consequences due to wide interpretations. The court also gave the reasoning that invalidating section 309 will lead to ineffectiveness of section 306 i. e. abetment to suicide that will permit the people assisting in suicide to avoid culpability. The granting of right to self-destruction would be one step down in the scene of human distress and motivation and lead to several incongruities. The landmark case of P. Rathinam vs. Union of India3 arose because of petitions filed by Mr. Rathinam and Nagbhushan Patnaik challenging the validity of section 309 because of it being violative of fundamental rights and the ambiguity caused due to different judgments passed in the previous cases. The court ruled in favour of the petitioners by holding section 309 IPC as unreasonable, outdated and unconstitutional.

It was observed that it is inhumane for punishing a person who is already suffering from his own mental illness. It held section 306 (abetment to suicide) to be valid irrespective of the invalidation section 309, as it’s different from attempting suicide in terms of the motive and intention behind the act where an attempt is motivated by personal choice. v In Gian Kaur vs State of Punjab4, the trial court convicted Gian Kaur and her husband for abetting the suicide of their daughter-in-law, Kulwant Kaur, under section 306 IPC,1860 and sentenced 6 years rigorous imprisonment plus a Rs. 2000 fine. On appeal, High court upheld the conviction but reduced the sentence of Gian Kaur by 3 years.

The appellants (Gian Kaur and her husband) appealed to Supreme Court through special leave petition and challenges their conviction stating that section 306 is violative of article 21 of the constitution, thus, invalid. vi

2 1987 SCC OnLine AP 263: 1988 Cri LJ 549

3 1994 AIR 1844, 1994 SCC (3) 394

4 1996 AIR 1996 SC 946, 1996 SCC (2) 648

The appellants based their argument on the decision taken in R. Rathinam vs UOI. They contended that since ‘right to die’ has been interpreted to be an extension of the right to life under article 21, abetting in commission of suicide is not a crime but merely assisting in enforcement of a recognised fundamental right and thus section 306 is also violative of the constitution along with section 309. The State counsel argued that the existence of section 306 isn’t dependent on section 309 and even section 309 isn’t constitutionally invalid. The court deviated from the previous stand taken and held both the sections to be constitutionally valid. It differentiated between ‘right to die’ and ‘right to die with dignity’ holding that Article 21 can’t cover accelerating someone’s process of death in an unnatural manner.

As for section 306, it was held as a distinct offence and not affected by the criminalisation or decriminalisation of suicide. vii Thus, this landmark judgement overturned the decision given in R. Rathinam vs Union of India and criminalised attempt to suicide yet again. In Aruna Ramchandra Shanbaug vs. Union of India5, a petition was filed under article 32 of the constitution in the Supreme Court to allow Aruna Ramchandra Shanbaug, who was bedridden for the last 36 years, to exercise her ‘right to die with dignity’ as interpreted in the case of Gian Kaur vs. State of Punjab. Ms. Aruna was a nurse at the King Edward memorial hospital. On 27th November’s evening, 1973, she was sexually assaulted, sodomized and a chain was wrapped around her neck which cut oxygen off from her brain by a sweeper named Sohanlal Bhartha.

This led to brain damage and left her in a passive vegetative state (PVS). The court appointed a medical team consisting of doctors to evaluate Ms. Aruna’s condition which eventually concluded that she isn’t completely brain-dead. The court differentiated euthanasia i. e. the act of hastening one’s death process, into Active euthanasia (physical deliberate act) and Passive euthanasia (withholding medical support)viii. Thus, it drew a line between an ‘act’ and an ‘omission’ by holding passive euthanasia as partially legal in exceptional circumstances and active euthanasia as completely illegal. ix Although the court didn’t permit the use of passive euthanasia in the case of Aruna as she was still ‘alive’ with very little brain activity, it permitted non-voluntary passive euthanasia subject to conditions, safeguards and procedures given by the court in the respective judgement.

Doctor-assisted suicide and active euthanasia were held illegal. However, the court did

5 AIR 2011 4 SCC 454

recommend the deletion section 309 of IPC finding it outdated. x In the landmark judgement of Common Cause v. Union of India6, an NGO filed a writ petition in 2005 in the Supreme Court under article 32 of the constitution for legalising passive euthanasia and living wills contending that right to live with dignity includes right to a dignified death. Prolonging someone’s life without their consent not only causes mental strain to them and their relatives but also financial, physical and emotional agony. They also appealed to legalise living wills which means a legal document that states one’s wishes for their medical treatment in circumstances where they are unable to give their consent. Thus, patients suffering with incurable disease can exercise their right to dignified death by authorising their family to stop endless and painful treatment through a living will.

The petitioner also contended that this could enhance right to life of others by organ- donations to the needy. The court gave this landmark judgement in 2018. It ended the long-drawn out dilemma by recognising ‘right to die with dignity’ under article 21 of the constitution. Thus, it permitted living will and passive euthanasia for those suffering with incurable diseases by providing certain guidelines and specifications. xi MENTAL HEALTH CARE ACT, 2017 The Mental Healthcare Act, 2017 (MHA) replaced the previous Mental Healthcare Act, 1987 which was criticised for its narrow definition of mental illness, ignorance of WHO guidelines etc. xii It was also a way to harmonise India’s existing laws with the Convention on Rights of Persons with Disabilities and its Optional Protocol, adopted in United Nations in New York in

2006 and ratified by India in 2007.

This Act brought the landmark change of decriminalisation of suicide under its section 115 which reads as follows in relation to attempt to suicide and its consequences: - “115. Presumption of severe stress in case of attempt to commit suicide. — (1) Notwithstanding anything contained in section 309 of the Indian 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.”xiii

6 2018 SCC OnLine SC 945

Thus, it formally invalidated section 309 of IPC and recognised that a person can’t be punished for his/her mental illness, as defined in section 2 (s) of the Act. Also, clause (2) of section 115 of this act places duty on the government to provide a person who attempts to commit suicide with care, treatment and rehabilitation to ensure that it doesn’t happen again. This step ensures the enhancement of right to access mental healthcare, right to equality and non-discrimination under section 18 and 21 of the Act respectively. PROVISION UNDER BNS The Bhartiya Nyaya Sanhita (BNS) was passed by parliament in December, 2023 and cam into effect on 1st July, 2024. It replaces the colonial enacted Indian Penal Code, 1860 (IPC) as the new official criminal code of India. The new BNS doesn’t replicate the offence of attempt to suicide mentioned under section 309 of the previous IPC.

This is viewed as decriminalisation of suicide even though there is no explicit mention of it. The MHA of 2017 had earlier invalidated section 309, IPC and its application. So, it seems prudent that parliament harmonised the new criminal code with the existing laws relating to suicide and recognised mental health as a factor in determination of one’s culpability. But BNS criminalises an attempt to suicide if the intention is to compel or restrain exercise of lawful power by a public servant under section 226 of chapter XIII. It is a non-compoundable and non-cognisable offence. The section reads as follows: - “226. Attempt to commit suicide to compel or restrain exercise of lawful power.

— Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both, or with community service. ”xiv The new section i. e. section 226 is different from the previous section of 309, IPC as it takes into consideration the intention behind the attempt to suicide. So, if the intention is mala fide, then it’s punishable. Also, under section 115 of the MHA, there shall be ‘presumption of severe stress’ to relieve someone from the charges under section 309. In section 226, BNS, there is no severe stress but only an ulterior motive.

COMPARATIVE

ANALYSIS

WITH NETHERLANDS Netherlands, a country in the northwestern Europe, has often been the trailblazerxv in many social dilemmas, such as being the first country to legalise same-sex marriage in 2001, legalising prostitution and euthanasia, formulating a liberal drug policy etc. Thus, it has set the precedent of a relatively higher social tolerance towards social changes. LEGAL POSITION ON EUTHANASIA Suicide itself, without medical intervention, has never been explicitly criminalised by law in Netherlands like in India. Article 293 and 294 of the criminal code of Netherlands prohibits euthanasia and assisted suicide except in the cases covered under the Termination of Life on Request and Assisted Suicide Act (2002).

Article 293, subsection (1) of the Criminal Code provides for imprisonment not exceeding 12 years or a fine of the fifth category if a person terminates life of another person at their request. Subsection (2) removes this punishment if it is committed by a medical doctor after meeting the requirement of due care giver in section 2 of the Termination of Life on Request and Assisted Suicide Act. xvi Netherlands legalised euthanasia in 2001 as the Dutch Upper House of parliament voted in its favour, being the first country in the world to do so. The new legislation, Termination of Life on Request and Assisted Suicide Act (2002), made it legal to end a patient’s life if the six criterions mentioned under Article 2, Chapter II i. e. Requirement of Due Care, were fulfilled. According to these 6 criterions, the physician must:

1. Be convinced that the request by the patient was voluntary and well considered.

2. Be convinced that the patient’s suffering was lasting and unbearable.

3. Have informed the patient about the situation he is in and his prospects.

4. And along with the patient believed that there was no other reasonable solution for his

situation.

5. Have consulted another independent physician who must see the patient and give a

written opinion on whether due care criterions set out have been fulfilled.

6. Have exercised due medical care and attention in termination the patient’s life or

assisted in a suicide with due care. A physician is required to notify a municipal pathologist about such a case of euthanasia, who further notifies a regional euthanasia review committee which reviews the reports and procedure to examine whether the euthanasia was administered lawfully under the act. A physician can refuse performance of euthanasia on account of personal beliefs or conscience, even if the required criterions are fulfilled. The law in Netherland clearly lays down the criterions for permissible use of euthanasia and assisted suicide whereas India has only permitted passive euthanasia through guidelines provided by the judiciary in the case of Common Causes v. Union of India and held active euthanasia not permissible.

CHALLENGES

FACED BY NETHERLANDS Although Netherlands has adopted a liberal approach in terms of euthanasia and assisted suicide, new debates and challenges appear with the broadening of the circumstances where suicide can be permitted by interpretation. One of the most challenging interpretations is “psychiatric conditions” being covered under the criteria of “unbearable and lasting suffering”. With the increased levels of stress, anxiety and mental illnesses in the youth, who are still in the process of psychological development, the increasing use of euthanasia is becoming a precautionary tale and warning. The Netherlands has been observing a sharp rise in euthanasia cases. According to the figures published by regional euthanasia review committee, euthanasia counts for 5. 3% of the deaths in the country. In 2024, a total of 9,958 people died by euthanasia, up from 9,068 in 2023.

xvii COMPARISON & CONTRAST WITH INDIA Netherlands and India both allow passive euthanasia i. e. withholding medical support for those suffering with incurable and lasting diseases. While Netherlands have provided a broader interpretation to these diseases by including medical conditions like dementia, India has restricted it to exceptional circumstances of incurable states like when a patient is in a Persistent Vegetative State (PVS) While Netherlands permit the use of active euthanasia subject to the conditions provided by legislature, Indian judiciary has held it to be completely illegal in the case of Aruna Ramchandra Shanbaug v. Union of India. But both the countries don’t allow the administration of euthanasia to elderly people who believe their life to be ‘completed’, having lived a satisfactory life and fulfilled all their obligations and duties, want to end their life.

The Kerala High court of India rejected such a petition in the case of C. A. Thomas Master v. Union of India7, where a retired octogenarian teacher wished to ‘quit life’ but not commit suicide and tried to differentiate between ‘voluntary death’ and suicide based on motive. The High court held that suicide was suicide, regardless of the motive. xviii Netherlands have adopted a liberal view on suicide in the light of human rights and individual autonomy and focused on strengthening its healthcare system by enacting a clear legislation to lay down rules and guidelines and provision of oversight by review committees to avoid ambiguity in the matter. India, on the other hand, is taking gradual steps to reform the law and overcome the social stigma.

The judiciary has laid down the guidelines and acts as the oversight authority in cases of allowing euthanasia in the absence of a specific legislation on the subject. To conclude, the medical and legal framework of Netherlands acts as both a precedent and a cautionary tale for India.

CONCLUSION

The BNS brings an end to one of the most controversial sections of the IPC by decriminalising an attempt to suicide caused by mental illness or severe stress. The debate regarding the retention or deletion of section 309 of IPC wasn’t just related to its ethical or moral standing but also because it was viewed as inextricably linked with abetment of suicide under section

306 of IPC. The court has clarified in earlier case laws that abetment is a separate offence and

not directly connected with attempt and thus, abetment of suicide is retained in section 108 of BNS as a punishable offence.

7 2000 Cr. L.J 3729

To conclude, the decriminalisation of suicide by BNS is an acceptance by the legislature of the interpretation by the Indian judiciary, widening the ambit of Right to life under article 21 to include the Right to a dignified death.

Endnotes ii IPC Section 09 – Attempt To Commit Suicide, Attempt To Commit Suicide (Sept. 30, 2024), https://restthecase.com/knowledge-bank/ipc/section-309. ii Law Commission of India, Indian Penal Code 245, Report No. 42 (1971). iii Law Commission of India, Humanization and decriminalization of Attempt to Suicide, Report No. 210 (2008). ivMaruti Shripati Dubal v. State of Maharashtra, Indian legal Solution (July 14, 2020), https://indianlegalsolution.com/maruti-shripati-dubai-v-state-ofmaharashtra/. v P Rathinam Vs Union of India – Case Analysis (May 23, 2022), https://legal60.com/prathinam-vs-union-ofindia-case-analysis/. vi Gian Kaur V.

State of Punjab, 1996, Legal Vidhiya (Aug. 31, 2023), https://legalvidhiya. com/gian-kaur-v-stateof-punjab-1996/. vii Gian Kaur v. The State of Punjab, Law Times Journal (Nov. 12, 2019), https://lawtimesjournal. in/gian-kaur-vsthe-state-of-punjab/. viiiARUNA RAMACHANDRA SHANBAUG V/S UNION OD INDIA, LawFoyer (Aug. 5, 2021), https://lawfoyer. in/aruna-ramachandra-shanbaug-v-s-union-of-india/. ix Modi, Ziya. 10 Judgements That Changed India, Penguin UK, 2013. x SCC Online. xi Sree Ramya, Common Causes vs. Union of India, Law Times Journal (June 21, 2019), https://lawtimesjournal. in/common-cause-vs-union-of-india/. xii Ayush Verma, All you need to know about Mental Healthcare Act, 2107 – iPleaders, IPleaders (July 17, 2020), https://blog. ipleaders. in/all-need-know-about-mental-healthcare-act/. xiii Mental Health Act, No. 10 of 2017, Acts of Parliament, 2017 (India).

xiv Bhartiya Nyaya Sanhita, No. 45 of 2023, Acts of Parliament, 2023 (India). xvMike Corder, Dutch activists sue government over assisted suicide, AP News (Oct. 10, 2022), https://apnews. com/article/health-netherlands-the-hague-assisted-suicide-. xvi Art. 293, Wetboek Van Strafrecht (Neth. ) (Nov. 8, 2013), https://legislationline. org/sites/default/files/documents/f3/Netherlands_CC_am2012_en. pdf. xvii Euthanasia deaths rise sharply in Netherlands, CARE, https://care. org. uk/news/2025/04/euthanasia-deathsrise-sharply-in-the-netherlands. xviii Modi, Ziya. 10 Judgements That Changed India Modi 214, Penguin UK, 2013.