B. L. Hansaria, J. ( 1 ) GANDHIJI once observed : "death is our friend, the trust of friends. He delivers us from agony. I do not want to die of a creeping paralysis of my faculties-a defeated man. " ( 2 ) ENGLISH poet William Henly wrote: "i am the master of my fate. I am the Captain of my soul. " ( 3 ) DESPITE above Hamlet s dilema of "to be or not to be" faces many a soul in times of distress, agony and suffering when question asked is to "to die or not to die". If the decision is to die and the same is implemented to its fructification resulting in death, that is the end of the matter. The dead is relieved of the agony paid and offering and no evil consequences known to our law follow. But if the person concerned is unfortunate to survive, the attempt to commit suicide may see him behind the bars same is punishable u/s. 309, IPC. ( 4 ) IN para 4 to 9, State vs. Sanjay Kumar 1985. Cr. L. J. 931 ; Maruti vs. State 1987. Cr. L. J. 748 ; Court or its own Motion vs. Yogesh Sharma Cr. R 230/85 (Delhi) are briefly noticed in which Delhi and Bombay High Court had held that S. 309 was unconstitutional. In Yogesh Sharma (Supra) it was noticed that more than 100 persons were languishing in jail and mingling with criminals when proceedings against them were pending in Criminal Courts. It was held that it was abuse of process of Court and 119 persons were directed to be acquitted. ( 5 ) VIEWS of some authors and thinkers on the subject are noticed. ( 6 ) THE broad points of their objection/ criticism were these, (a) suicide is an act against religion ; (b) it is immoral ; (c) it produced adverse sociological effects ; (d) it is against public policy (this has also been main argument of the Counsel of U. O. I.), (e) it damages monopolistic power of the State, as State alone can take life ; and (f) it would encourage aiding and abetting of suicide and may lead to constitutional cannibalism. ( 7 ) IN para 25, the Court framed 16 questions and proposed to deal with the subject on their basis. These were listed in order of their importance. ( 7 ) IN para 25, the Court framed 16 questions and proposed to deal with the subject on their basis. These were listed in order of their importance. (a) Has Art. 21 any positive content or is it merely negative. ( 8 ) THIS question is no longer re Integra in as much as a Constitution Bench of this Court in Unnikrishnan vs. State of A P. 1993 (I) SCC. 645 , (in which right to receive education upto the primary stage has been held to be a call of Art. 21. has virtually answered this question. In para 30, Mohan, J has mentioned about the rights which have been held to be covered U/art. 21. These being (1 ). Right to go abroad (Satwant Singh, v. D. R. APO), (2) Right to privacy (Govind vs. State, (3) Rt. against Solitary confinement (Sunil Batra vs. Delhi Adm.); Rt. against fetters (Charles Sobhraj) ; (5) Rt. to legal aid M. H. Hoeskot vs. State; (6) Rt. to Speedy trial (Husainara Khatun) : (7) Rt. against handcuffing (T. Vatasvarban vs. State; (8) Rt. against delayed execution ; (9) Rt against Custodial violence (Sheela Barse) ; (10) Rt. against public hanging (A. G. vs. Lachmi) (11) Doctor s assistance (P. Kaira vs. U. O I.); Shelter (Shantilal Builders ). ( 9 ) THE aforsaid is enough to State that Art. 21 has enough of positive content Originating idea came from view of Field, J. in Munn. vs. Illinois 94. u/s. 113, in which it was held that life (in 5th and 14th U. S. Amendments) means something more than mere animal existence. This view has been accepted in Kharak Singh AIR. 1978. S. C. 1675 ; Bd. of Trustees vs. Dilip MR. 1983. S. C. 109; Vikram Dev vs. State AIR. 1988. SC. 1782 and Ram Saran vs. UO. I. AIR. 1989. S. C. 549. In these it was held that life in Art. 21 means right to live with dignity. ( 10 ) RAMASWAMY, J. has stated in 1992 (1) SCC 441 that physical and mental health is integral part of right to life . (2) Has an Indian right to die. ( 11 ) IF a person has a right to live, question is whether he has right not to live. Bombay High Court held that a person has a right to die. (2) Has an Indian right to die. ( 11 ) IF a person has a right to live, question is whether he has right not to live. Bombay High Court held that a person has a right to die. Critics of this judgment differed from this view. ( 12 ) ONE may refuse to live, if his living be not according to the person concerned worth- living or if the richness and fullness of life were not to demand living further. One may rightly think that having achieved all worldly pleasure or happiness, he has something to achieve beyond this life. This desire for communion with God may very rightly lead even a very healthy mind to think that he would forego his right to live and would rather choose not to live. In any case, a person cannot be forced to enjoy right to life to bis detriment, disadvantage or disliking. ( 13 ) FROM what has been stated above, it may not be understood that according to us the right encompassed or conferred by Article 21 can be waived. Need for this observation has been felt because it has been held by a Constitution Bench in Olga Tellis vs. Bombay Municipal Corporation AIR 1986 SC 180 that a fundamental right cannot be waived. A perusal of that judgment, however, shows that it dealt more with the question of estoppel by conduct about which it can be said that the same is a facet of waiver. In the present cases, we are, however, not on. the question of estoppel but of not taking advantage of the right conferred by Article 21. ( 14 ) KEEPING in view all the above, we state that right to live of which Article 21 speaks of can be said to bring in its trail the right not to live a forced life. (3) Object of enacting Law In paras 38 to 45 Ratnaswamy s book legislation : Practice and principles is briefly noticed that before Renaissance men were governed by customs and traditions and after Reformation change occurred to Legislation as an instrument of social, political and religious change. In chapter 5 of the Book, works of various authors are mentioned. In chapter 6, Ratnaswamy says that soon reason was exhausted and humanitarianism occupied the field and Acts relating to public health, sanitation and weaker sections occupied the field. In chapter 5 of the Book, works of various authors are mentioned. In chapter 6, Ratnaswamy says that soon reason was exhausted and humanitarianism occupied the field and Acts relating to public health, sanitation and weaker sections occupied the field. ( 15 ) GENERAL principles of Legislation according to Ihring are that Laws should (1) be known to be obeyed ; (2) answer expectation ; (3) be consistant with one another, (4) be of utility, (5) be methodical ; (6) must be certain to be obeyed, mustnot become a dead letter ; (7) are necessary to life of ego or self interest (ordinary motives of men) : (8) Legislation must aim at Justice ; (9) Laws are inter-related. ( 16 ) THAT humanitarianism is the throbbing principle of legislation. After making laws for securing life and liberty, morality legislation is undertaker, to insure good life. Euthanasia is receiving favourable attention. ( 17 ) AFORESAID show, that law has many promises to keep including granting of so much of liberty as would not jeopardise the interest of another or would affect him adversely, i. e. , allowing of stretching, of arm upto that point where the other fellows nose does not begin. For this purpose, law may have "miles to go". Then, law cannot be cruel, which it would be because of what is being stated later, if persons attempting suicide are treated as criminals and are prosecuted to get them punished, whereas what they need is psychiatric treatment, because suicide basically is a "call for help", as stated by Dr. (Mrs.) Dastoor, a Bombay Psychiatrist, who heads an organisation called, suicide Prevent . May it be reminded that a law which is cruel violates Article 21 of the Constitution. (4) Why a particular act treated as a crime Word crime dates back to 14th century. It conveyed to mind something reprehensible and wicked. An act which affects safety, stability or comfort is regarded as heinous deserving repression with severity using soverign power for punishment. A crime may be creation of Govt. Policies which forbid certain acts. Legal proceedings of a special kind are employed to determine whether a person has done a harm amounting to Crime. Protection of Society is the basic reason for treating an act as a crime. ( 18 ) J S Mill in his book on Liberty opined. A crime may be creation of Govt. Policies which forbid certain acts. Legal proceedings of a special kind are employed to determine whether a person has done a harm amounting to Crime. Protection of Society is the basic reason for treating an act as a crime. ( 18 ) J S Mill in his book on Liberty opined. The only part of the conduct of any one, for which he is amenable to Society is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. " ( 19 ) VARIOUS social forces like the economy, religion and socio-economic status are responsible for suicides. There are various theorie of suicide, to wit, sociological, psychological, biochemical, and environmental. ( 20 ) THE causes of suicides are many and varying inasmuch as some owe their origin to sentiments of exasperation, fury, frustration and revolution; some are the result of feeling of burden, torture, and sadness. Some are caused by loss of employment, reverse of fortune, misery due to illness, family trouble and thwarted love. Sometimes killing is in opposition to society and sometimes in opposition to particular persons. This happens when the person committing suicide nurses a feeling of unjust treatment, maltreatment and cruelty. Suicide knows no barrier of race, religion, caste, age or sex. It is felt in USA that there is secularisation of suicides. In India also Hindus, Muslims and others have. been committing or attempting and it can be said that in India also there is secularization of suicide. ( 21 ) LET us come to the case of a woman who commits suicide because she had been raped. Would it not be adding insult to injury, and insult manifold, to require such a woman in case of her survival, to face the ignominy of undergoing an open trial during the course of which the sexual violence committed on her which earlier might have been known only to a few, would become widely known, making the life of the victim still more intolerable. Is it not cruel to prosecute such a person ? ( 22 ) WE would go further and state that attempt to commit suicide by such a woman is not. Cannot be, a crime. Is it not cruel to prosecute such a person ? ( 22 ) WE would go further and state that attempt to commit suicide by such a woman is not. Cannot be, a crime. What is crime in such a case is to prosecute her with a view to get her punished. It is entirely a different matter that at the end of the trial, the court may impose a token fine or even release the convict on probation. That would not take care of the mental torture and torment which the woman would have undergone during the course of the trial. Such a prosecution is therefore, par excellence persecution. And why persecute the already tormented woman ? Have we become soulless ? We think not. What is required is to reach the soul to Stir it to make it cease to be cruel. Let us humanise our laws. It is never late to do so. ( 23 ) SUICIDE, as has already been noted, is a psychiatric problem and not a manifestation of criminal instinct. We are in agreement with Dr. (Mrs.) Dastoor that suicide is really a "call for help", to which we shall add that there is no "call for punishment" in it. Mention may also be made about what was observed in "the Attitudes of Society towards Suicide", a xerox copy of which is a part of written submissions filed on behalf of respondent No. 2 (State of Orissa) in WP No. (Crl) 419/87. It has been stated in this article at page 9 that shortly after passing of the Suicide Act, 1961 (in England), the Ministry of Health issued recommendation advising all doctors and authorities that attempted suicide was to be regarded as a "medical and social problem", as to which it was stated that the same was "more in keeping with present day knowledge and sentiment than the purely moralistic and punitive reaction expressed in the old law. " ( 24 ) SO, what is needed to take care of suicide-prone persons are soft words and wise counselling (of a psychiatrist), and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor. ( 25 ) IN the Encyclopaedia of Religion, Vol. " ( 24 ) SO, what is needed to take care of suicide-prone persons are soft words and wise counselling (of a psychiatrist), and not stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor. ( 25 ) IN the Encyclopaedia of Religion, Vol. 8 (1987), mention has been made at pages 541 to 547 as to how "life" has been understood by different religions After discussing the subject as understood by the primitive socities, Judaism, Christianity, Hinduism and Budbism, the discussion has been included by stating that the very act of posing the question "what is life"? produces an initial sense of bafflement and perplexity. It has been stated thereafter that a precise, distinct and universally acceptable concept does not accompany the use of the word "life"; and that posing of the above query brings in its wake a sense that life is an "inexhaustible storehouse of mysteries, a realm of endlessly self-perpetuating novelties, in which the solution to any given problem gives rise to a plethora of other questions that beckon the always restless, never contended mind of Homo Sapiens to seek further for additional answers or, at least, to search out more intellectually refined, morally elevating, and spiritually salutary ways of pursuing the quest. " So, life does not end in this world and the quest continues, may be after the end of this life. Therefore, one who takes life may not really be taken to have put an end to his whole life. There is thus nothing against religion in what he does. ( 26 ) INSOFAR as our country is concerned, mythology says Lord Rama and his brothers took Jalasamadhi in river Saryu near Ayodhya; ancient history says Budha and Mahavir achieved death by seeking it; modern history of Independence says about various fasts unto death undertaken by no less a person than Father of the Nation, whose spiritual disciple Vinoba Bhave met his end only recently by going on fast, from which act (of suicide) even as strong a Prime Minister as Indira Gandhi could not dissuade the Acbarya. ( 27 ) THE aforesaid persons were our religious and spiritual leaders; they are eulogised and worshipped. Even the allegation against them that they indulged in a non-religious act, would be taken as an act of sacrilege. ( 27 ) THE aforesaid persons were our religious and spiritual leaders; they are eulogised and worshipped. Even the allegation against them that they indulged in a non-religious act, would be taken as an act of sacrilege. So, where is non-religiosity in the act of suicide so far as our social ethos is concerned ? And it is this ethos, this social mores, which our law has to reflect and respect. ( 28 ) MORALITY has no defined contours and it would be too hazardous to make a bold and bald statement that commission of suicide is per se an immoral act. If human beings can be treated inhumanly, as a very large segment of our population is, which in a significant measure may be due to wrong (immoral) act of others, charge of immorality cannot be, and in any case should not be, levied, if such human beings or like of them, feel and think that it would be better to end the wretched life instead of allowing further humiliation or torture. Those who demand virtue must do virtue, and should see that others too do the same. ( 29 ) ONE of the points raised against suicide is that the person who has so done might have been the sole bread-earner of the family, say a husband, a father, because of whose death the entire family might have been left in lurch or doldrums, bringing in its wake untold miseries to the members of his family. It is therefore stated that suicide has adverse effects on the social set up. No doubt, the effects of suicide in such cases are quite hurting; but then, it is a matter of extreme doubt whether by booking a person who had attempted to commit suicide to trial, suicide can be taken care of Even imposition of death sentences has not been able to take care of commission of murders, as mentioned earlier. ( 30 ) FURTHER, the aforesaid adverse sociological effects are caused by the death of the concerned person, and not by one who had tried to commit suicide. Indeed, those who fail in their attempts become available to be more or less as useful to the family as they were. ( 30 ) FURTHER, the aforesaid adverse sociological effects are caused by the death of the concerned person, and not by one who had tried to commit suicide. Indeed, those who fail in their attempts become available to be more or less as useful to the family as they were. So the person to be punished is one who had committed suicide; but, he is beyond the reach of law and cannot be punished This can provide no reason to punish a person who should not be punished. ( 31 ) IT would be a uniformed man in law who would say with any degree of definiteness that commission of suicide is against public policy; and, as such a person attempting to commit it acts against public policy. ( 32 ) IF a person takes his life, he is taking his own life and not the life of anybody else; and so, the argument that State s monopolistic power of taking life is taken away by the person who attempts to commit suicide has no legs to stand. ( 33 ) THE editor of Calcutta Weekly Notes in his comments at pages 37 to 40 of (1986-87) 91 CWN (Journal section) has observed that the distinction made by the Bombay High Court between "suicide" and "euthanasia" appears logically inconsistent. According to the editor, the rationale of the judgment would necessarily permit euthanasia as legal. This comment may not be quite incorrect because in passive euthanasia, wherever it has been accepted as legally permissible, consent of the patient, if he be in a sound mental condition, has been regarded as one of the pre-requisites. So, if one could legally commit suicide, he could also give consent for his being allowed to die. But then, the legal and other questions relatable to euthanasia are in many ways different from those raised by suicide. One would, therefore, be right in making distinction logically and in principle between suicide and euthanasia, though it may be that if suicide is held to be legal, the persons pleading for legal acceptance of passive euthanasia would have a winning point. For the cases at hand, we would remain content by saying that the justification for allowing persons to commit suicide is not required to be played down or cut down because of any encouragement to persons pleading for legalisation of mercy killing. For the cases at hand, we would remain content by saying that the justification for allowing persons to commit suicide is not required to be played down or cut down because of any encouragement to persons pleading for legalisation of mercy killing. ( 34 ) MAY we hasten to observe that as regard the persons aiding and/or abetting suicide, the law can be entirely different, as indeed it is even under the Suicide Act. 1961 of England. Bombay judgment has rightly made this distinction. It is for this reason that the apprehension raised by the Andhra Pradesh High Court in its judgment in Jagadeswar docs not seem to bejustified. We do not agree with the view of the Andhra Pradesh High Court in that if section 309 were to be held bad, it is highly doubtful whether section 306 could survive, as self-killing is conceptually different from abetting others to kill themselves. They stand on different footing, because in one case a person takes his own life, and in the other a third person is abetted to take his life. ( 35 ) SECTION 309 of the Penal Code deserves to be effaced from the Statute book to humanise our penal laws. 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 State s interference with the personal liberty of the concerned persons is not called for. ( 36 ) WE, therefore, hold that section 309 violates Article 21, and so, it is void. May it be said that the view taken by us would advance not only the cause of humanisation, which is a need of the day, but of globalisation also, as by effacing section 309, we would be attuning this part of our criminal law to the global wave length.