Suicide Under The Mental Healthcare Act, 2017
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Category: General Law
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SUICIDE UNDER THE MENTAL HEALTHCARE ACT, 2017
Rida Zaidi, LLM, Intellectual Property and Trade Law from School of Law, Christ University Bengaluru
ABSTRACT
Suicide cases have been on the rise with every passing day. The Mental Healthcare Act, of 2017 was enacted as a transformative step by decriminalizing suicide and suicidal attempts. The Act made a change in the approach taken by the government against people suffering from mental health issues by sympathizing with them instead of holding them liable for the offense of attempting suicide. The Act considers a person to be undergoing severe stress which resulted in attempting suicide thereby exempting him from trial and prosecution. Section 115 overrides Section 309 of the earlier Indian Penal Code now Section 226 of Bharatiya Nyaya Sanhita (BNS). The Act directs the government to provide rehabilitation, treatment, and mental support to those individuals.
The Act was passed as a result of wide recognition of the seriousness of growing mental health problems and not to aggravate the stress and anguish of such persons by placing them into a vulnerable position twice that is once when they undergo stress that results in the suicidal attempt and secondly if they are held accountable for their actions. The Mental Healthcare Act, of 2017 is a praiseworthy legislation protecting the interests of persons suffering from mental health problems but on the other hand, the Act still holds certain gaps and ambiguities that need to be addressed to make the Act more effective in letter and spirit. This paper will deal with Section 115 of the Mental Healthcare Act, 2017, and the current position pertaining to suicide in terms of the Act in India.
Introduction
Mental Health is equivalent to the physical health of an individual. Mental health controls the activities of a human being and if that is affected, a person cannot function properly. Mental health has been stigmatized in the Indian society as being mentally ill. Mental health is not given the attention it deserves in terms of the well-being of an individual. Poor mental health can lead to physical deterioration of a healthy person as a person is not able to cope with his day-to-day activities. And when such a situation arises person gets into a lot of stress and anguish. Mental health problems such as extreme stress can sometimes lead to more extravagant situations of life and death where a person becomes unable to deal with his emotions and decides to take away his life through Suicide.
The word ‘Suicide’1 is derived from the Latin word ‘Suicidum’ where Sui means oneself and Cidum means killing. Thus, killing oneself or harming oneself with the intent to die does not result in death is termed as suicide2. Suicide can be said to be caused by extreme psychological conditions like stress, anxiety, depression, or any other psychological disorders that are not medically addressed by a psychiatrist or counselor. Suicide is a consequence of psychological problems indicating that mental health support is not available and accessible in comparison to the scale of mental health problems that people suffer today. Mental Health has been gradually recognized by awareness through social media and an increasing number of patients dealing with mental health problems.
It is now a somewhat accepted notion that mental health problems if not treated can be life-threatening and people might take the step of committing suicide. Suicide is decriminalized today in most developed countries including India. India earlier under IPC now replaced by BNS penalized attempt to suicide as a crime to deter people from committing the same in the future though it did not serve its purpose and led to more people being discouraged from seeking mental health support. This paper will analyze the provisions related to suicide under the Mental Healthcare Act, of 2017, and the related provisions to understand the Indian position concerning this issue.
Attempt to Suicide under IPC Suicide was not punishable but suicidal attempts were considered a punishable offence under 1 Vibhor Shrivastava, Mental Health and the Laws Related to Suicide: The Impact of BNS 2023 on India’s Approach to Attempted Suicide, The Amikus Qriae, available at https://theamikusqriae. com/mental-health-andthe-laws-related-to-suicide-the-impact-of-bns-2023-on-indias-approach-to-attempted-suicide/
2 Id at 1
IPC. In earlier times, Suicide had religious connotations attached to it. Suicide was considered as a stigma and anyone who committed it was believed to have not attained salvation in the afterlife. Suicide can be termed as any act that results in short of death or any act that is selfdestructing and aimed to end one’s life. Any person who committed suicide was prosecuted under Section. 309 of IPC. Suicide was deemed as an offense against humanity and was treated seriously in terms of punishment so that in the future people would be reluctant to take this step. As per Section.309 IPC-
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]. 3 In the case of P. Rathinam v. Union Of India4, the Supreme Court held that suicide is a psychiatric problem and not a manifestation of criminal instinct. Moreover, the Court was of the opinion that Section. 309 is cruel and irrational and ought to be struck off in order to humanize the penal laws of India5. Further, in the case of Smt Gian Kaur v. State of Punjab6, the Court was of the opinion that Section 309 is neither violative of Article 14 nor Article 21 and should not be held unconstitutional7. Under IPC, the person who commits suicide is considered an offender like any other offense of the Indian Penal Code instead of a victim who requires support.
The victim used to undergo punishment twice once when he was undergoing psychological trauma as a result of which he took the step of taking his life and secondly, when he actually committed suicide. The stringent punishment for suicide attempts aggravated the mental well-being of the victims. The victims were not victims but offenders in the eyes of the law. There was a lot of criticism against this provision from time to time as it was against the notion of providing aid to people suffering from mental health issues. The number of cases registered for the attempt to suicide was very low compared to the actual number of suicide cases in the country as people feared punishment and prosecution of the victim. The inaccurate data resulted in erroneous statistics regarding the annual number of suicide attempts in the
3 https://indiankanoon.org/doc/1501595/
4 https://indiankanoon.org/doc/542988/
5 Harshita Gupta, Resolving the Dichotomy between Section 115 of the Mental Healthcare Act and Section 309 of the Penal Code, SCC Online Times, 2nd March, 2023, available at https://www.scconline.com/blog/post/2023/03/02/resolving-the-dichotomy-between-section-115-of-the-mentalhealthcare-act-and-section-309-of-the-penal-code/
6 https://indiankanoon.org/doc/217501/
7 Supra note at 2
country, which subsequently hindered the effectiveness of various programs and initiatives aimed at improving the conditions of those affected. There was a need felt that mental problems and the people suffering from them should be heard and understood so as to help them overcome and tackle their problems through legislation by the government. As a result, the government enacted the Mental Healthcare Act, in 2017. The Mental Healthcare Act, 2017 The Mental Healthcare Act, 2017 was passed on 7th April 2017 and came into force on 29th May 2018. The Act was enacted to protect and protect the rights and interests of persons suffering from mental illnesses. Under the Mental Healthcare Act, 2017 the word ‘mental disorder’ is replaced by ‘ severe stress’ resulting in the attempt to suicide.
As per Section 115 of the Act, any person who commits suicide shall be presumed to be under severe stress unless proved otherwise and the onus to prove that the person was not under stress is always upon the prosecution. Though it is rebuttable the general presumption is that the person was undergoing severe stress. The Act also lays down that the government would be responsible for providing care, treatment, and rehabilitation to such persons. Section 115 of the Act decriminalized attempt to suicide. The Act aimed to ease the burden of persons who commit suicide as it overrides Section 309 of IPC as no such person shall be punishable under Section 309 IPC if a person committed suicide under severe stress.
However, the Act protects the people who committed suicide by exempting them from the process of trial as it was realized that the person must be already undergoing stress and anguish and this would add to their state of mind in those circumstances. Section 115 of the Mental Healthcare Act, 2017 relies on ‘severe stress’ as a test to determine the guilt of the offender though the term severe stress is vague and ambiguous as the Act does not determine what severe stress is. Moreover, it is unclear as to what degree of stress would hold a person guilty for the commission of attempted suicide8. The Act also does not lay down instances in which a person under stress would not be exempted from culpability. The Act was enacted with the aim of sympathizing with such persons and not viewing them as offenders of any crime.
This would eventually lead to more cases of attempted suicide being registered and more people seeking help for various mental health problems which they would otherwise shy away from. The Act places responsibility on the government 8 Anish Kamal, Manupatra Articles, Decriminalization of Suicide Attempt and India’s Groundless Affection towards Section 309 of the Indian Penal Code, 10th August, 2021, available at https://articles. manupatra. com/article-details/Decriminalization-of-Suicide-Attempt-and-Indias-Groundless- Affection-towards-Section-309-of-the-Indian-Penal-Code to provide adequate rehabilitation and treatment to people who commit suicide under severe stress. The Government is expected to plan, design, and implement programs and schemes for the protection of the interests of persons who are dealing with mental health issues.
Though, the Act aims to provide accessible mental healthcare services to all the awareness regarding the same is quite poor among the people. Moreover, the cause of suicide varies from psychological to financial to emotional, etc but if these lead to severe stress to an individual as a result of which he commits suicide, the case would be covered under Section 115 of the Mental Healthcare Act, 2017.
After the introduction of section 115 in the MHCA, the steps followed when a person presented to a hospital after a suicide attempt involved9: • Assessment and triaging in the emergency room • Stabilisation of the person • Registration of a medicolegal case with the police, and admission if required • Mandatory psychiatric referral of the person for assessment and treatment • Informing the person about section 115 of the MHCA • Inquiry by the police to understand whether someone abetted the suicide attempt • Discharge planning and follow-up care There have been efforts time and now by judicial decisions and medical professionals to increase awareness about mental health issues but the number of attempts of suicide attempts is on the rise which shows that the implementation of the Act is not effective in its letter or spirit or there are certain loopholes or ambiguities in the law which needs to be taken care of.
The approach of the government towards the critical and sensitive issue of suicides has significantly changed by decriminalizing the attempts but the ground reality for the prevention of such acts still requires improvements. 9 Keshav Desiraju, Decriminalising attempted suicide in India: the new penal code, India Mental Health Observatory, 30th October, 2023 available at https://cmhlp. org/imho/blog/decriminalising-attempted-suicide-inindia-the-new-penal-code/ Decriminalization of Attempt to Commit Suicide under BNS As Per Section. 226 of the Bhartiya Nyaya Sanhita, 2023 any person who attempts to commit suicide with the intention of restraining any public official from discharging his official duty shall be charged with imprisonment which may extend to one year or with a fine or both, or with community service10.
It punishes only those who attempted suicide which prevents public servants from discharging their official duties and not all attempts to suicide. There was a lot of criticism against the criminalization of attempted suicide as it aggravates the condition of the persons undergoing psychological problems like anxiety, depression, etc. In the case of Manojkumar S/o Yadavrao v. State of Karnataka (2022)11, the Court was of the opinion that the earlier provision of Section. 309 of the Indian Penal Code was inhumane whether constitutional or unconstitutional and must be struck down from the Penal Statute. Section 226 is a result of increased awareness regarding suicide which made only such attempts to suicide punishable which restrains a public servant from discharging his official duties.
Though, suicide is decriminalized under BNS but abatement to suicide under Section 194 of IPC now BNS remains a punishable offense12. Moreover, suicide cases need not be registered now under BNS but it is not provided regarding what has to be done for cases of abatement of suicide and what role will the police and other officials play in dealing with such cases. Bharatiya Nyaya Sanhita (BNS) is a significant legislation passed by the parliament that decriminalizes suicide but still holds a number of ambiguities that need to be addressed concerning suicides and suicidal attempts. Decriminalization vs. Criminalization of Suicide Criminalization of Suicide Suicide is cruel and inhumane and impacts the society in a negative way. Suicide has had a stigma attached to it since early times which made it a crime in society.
People were punished for attempts to commit suicide as it was considered that it would deter people from attempting suicide in the future. Though, it was not proved by any reports in other words it was a presumption. Section 309 of earlier IPC made an attempt to suicide punishable. People also 10https://devgan. in/bns/section/226/#:~:text=Whoever%20attempts%20to%20commit%20suicide,both%20or%2 0with%20community%20service.
11 https://indiankanoon.org/doc/77418780/
12 Supra note at 9
believed that attempts at suicide should be criminalized as almost all religions condemned suicide. The State has a duty to protect the lives of its citizens by providing penal provisions for attempting suicide. The criminalization of suicide would enable the authorities to investigate the offender regarding his psychological traumas or any other psychological disorders. Decriminalization of Suicide Suicide results from a psychological problem and should not be viewed as a crime. Decriminalization of suicide is against Human rights as it interferes with the personal autonomy of a person to decide what he wishes to do with his life. Criminalization has not proved deterrence in the commission of suicide which was its primary objective moreover, it does not address the underlying cause of suicide but only provides punishment for the same13.
Decriminalization has reduced the societal burden on families which occurs when suicide is criminalized. Moreover, decriminalization would encourage people to seek help related to mental health problems and there would be increased awareness regarding the accessibility and availability of mental healthcare services. Loopholes under Section 115 of the Mental Healthcare Act, 2017
1. Ambiguity regarding ‘severe stress’
The Act does not clearly define the degree of stress that is considered severe stress to exempt the culpability of a person attempting to commit suicide14.
2. Implementation gaps
The Act provides for detailed provisions of availability and accessibility of mental healthcare services to all but the ground reality is quite different as the services are not easily available to all and everywhere.
3. Non-Accountability of Govt
13 Rajeev Ranjan, Saurabh Kumar, Raman Deep Pattanayak, Anju Dhawan1 , Rajesh Sagar, (De-)
criminalization of attempted suicide in India: A review, Industrial Psychiatry Journal, Vol 23 Issue 1, (2014)
14 Supra note at 5
The Act does not lay down any mechanism for the accountability of government officials for the functions that they are supposed to discharge as per the Mental Healthcare Act, 2017.
4. Lack of suicide prevention awareness
The Act provides for the availability of healthcare services but does not reconcile the issue of suicide prevention schemes which is of utmost importance.
5. Lack of Healthcare Infrastructure
The Act lays down that the Government shall provide mental healthcare services to the people but in reality, there is a lack of mental healthcare services and mental health professionals in comparison to the people suffering from mental health issues.
6. No proper data records
The Act does not provide any mechanism for keeping accurate records of suicides committed by individuals monthly or annually. Recommendations and Suggestions The Mental Healthcare Act, of 2017 was a remarkable step toward the decriminalization of suicide and recognizing the rights and interests of persons undergoing mental health problems. However, owing to the loopholes or ambiguities that exist under the Act concerning suicide can be rectified by making certain amendments to the Act. Certain suggestions that can be taken into consideration are-
1. Defining ‘Severe Stress’
The Act should clearly define the degree of severe stress required as per Section. 115 of the Act and what are the circumstances which are not attracted by Section 115 of the Act.
2. Providing better Infrastructure facilities for healthcare services
The Act should provide for better infrastructure facilities for mental healthcare services and equitable access to these services beyond the regional divide15.
3. Mechanism for accountability of government officials
The Act should include provisions for the accountability of government officials regarding the discharge of their functions as per the act and what preventive measures have been taken by them to create awareness regarding mental health issues leading to suicidal attempts.
4. Mechanism of preventive measures in schools and offices
The Act should lay down provisions for the formulation of preventive measures that should be taken up by the schools and office authorities in case there are any indications that a person is undergoing psychological problems.
5. Training programs for medical professionals
Mental health professionals should be provided training to tackle cases of suicide attempts and counseling of such persons to curb any further attempts of suicide by them in the future.
6. Maintaining records
The Act should include provisions for maintaining records of suicidal deaths so that better schemes and programs may be initiated to prevent such deaths. It must also include accurate records of suicides and suicidal attempts committed within a year in an area and the age groups that are involved.
7. Implementation problem
The Act should provide for stringent measures for the implementation of the provisions of the Act. 15 Keshav Desiraju, Decriminalising attempted suicide in India: the new penal code, India Mental Health Observatory, 30th October 2023, ( available at https://cmhlp.org/imho/blog/decriminalising-attempted-suicidein-india-the-new-penal-code/ )
Conclusion
The Mental Healthcare Act, of 2017 was a drastic step taken by the government by shifting the approach from a punishment-based approach to a sympathy-based approach. The enactment of the Act is an indication that people have understood the gravity of mental health problems. The legislators have taken into consideration the underlying psychological traumas or psychological disorders that cause suicidal deaths or suicidal attempts. The Act aims to align with the international standards of the World Health Organization concerning the growing need to address mental health issues. Though the legislation is a transformative step toward mental health urgency there are still areas under it that need modification such as certain definitions, lack of infrastructure facilities, unequal access to mental healthcare services, implementation gaps, etc.
The Section relating to suicide under the Act outlines severe stress as the test for determining the culpability of the person who attempted suicide. The Act also directs the government to provide rehabilitation, treatment, and support to such persons. The Bharatiya Nyaya Sanhita (BNS) decriminalizes suicidal attempts and and includes only those cases of suicidal attempts where suicide is committed to restrain a public servant from discharging his official duties. The Act can be made more effective by including strict implementation of the act, seeking accountability of the government officials regarding the dispositions of their functions, creating more awareness regarding mental health and training medical professionals dealing with such people and detecting indications of persons undergoing stress which might prompt them to attempt suicide.
The Mental Healthcare Act, of 2017 lays down detailed provisions for the protection of the interests of persons suffering from mental health issues but the Act is not implemented in letter and spirit as there is a gap between policy and practice.
References 1. https://www.scconline.com/blog/post/2023/03/02/resolving-the-dichotomy-betweensection-115-of-the-mental-healthcare-act-and-section-309-of-the-penal-code/ 2. https://theamikusqriae.com/mental-health-and-the-laws-related-to-suicide-the-impactof-bns-2023-on-indias-approach-to-attempted-suicide/
3. https://pmc.ncbi.nlm.nih.gov/articles/PMC6482674/
4. https://articles.manupatra.com/article-details/Decriminalization-of-Suicide-Attemptand-Indias-Groundless-Affection-towards-Section-309-of-the-Indian-Penal-Code 5. https://www.scconline.com/blog/post/2024/08/26/person-attempting-commit-suicidein-stress-cannot-be-penalised-u-s-309-ipc-in-view-of-s-115-mental-healthcare-actbomhc/
6. https://www.indiacode.nic.in/bitstream/123456789/2249/1/A2017-10.pdf