Last Friday, a young man lay prone on the railway tracks at Khadki in Pune, let the bulk and ferocity of a speeding train whiz over him, inches from his body, emerged unscathed,u00a0got his friend to catch the bravado on camera, and put it up on the web.u00a0
The classic sequence worthy of being memorialised on celluloid, some would think, evoked more than just adoring gasps, it being real life.u00a0Railway officials invoked Section 309 (attempt to suicide) of the Indian Penal code (IPC) to book the duo, yet to be traced. And in so doing, started yet again the long brewing debate over the humanity and the constitutionality of the Section.u00a0
The provision says: Whoever attempts to commit suicide and does any act towards the commissionu00a0of such offence shall be punished with imprisonment for a term which may extend to one year or with a fine, or with both.u00a0
The question is, can one read a desire to die in what could well be a desire for 15 seconds of fame, a hit on a YouTube link, or the sheer rush of adrenaline. For, the devil's in the intent.u00a0Criminal lawyer Ashish Chavan believes one can. "On the face of the facts, I think a case under Section 309 can be made out," he says.u00a0
Advocate Srikant Bhatt concurs. "Nobody has been punished under this section in a long time. But even though [what they did] is not an overt act where they've tried to kill themselves, it does amount to the same thing," he says. u00a0
After all, extreme acts call for extreme measures. Or do they? Given that the intent of any stunt, by definition, is to survive the challenge, maybe get some accolades.u00a0"It is an interesting question of law. Though what the boy did may be considered a foolhardy act of bravado, there is no intent on his part to die. Without intent, it would be wrong to apply section 309 against such persons," says advocate Tejas Bhatt.u00a0
Srikant adds, "The case falls in a grey area, and could be argued both ways. The accused's intent was not to commit suicide, but to live."
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'Isn't intent evident?'
The police officials who booked the duo are sticking firm to the book, and its black and white clarity.u00a0"There is no other section that we can apply on them," says Senior Inspector of GRP Mahendra Rokade, in whose jurisdiction the incident took place.
Srikant refutes Rokade's claim of lack of alternatives, saying, u00a0"There are sections of the Railways Act and the IPC under which the youths can be charged."u00a0Rokade ventures forth, "Though one may argue that there is no intent, when you lie down on a railway track as a train is speeding towards you, I can't think of any other 'intent'. The action speaks for itself."u00a0
For him, the line is crossed when there are no safety measures in place. "Even in some circus performances, there is an element of danger. But there are precautions and it is seen as a form of entertainment," Rokade said.u00a0
But wasn't posting the video online aimed at entertainment? "The day we begin thinking of this sort of a thing as entertainment, who's to stop everyone from trying it? The chances of survival are slim, should something go wrong during such a 'stunt'," Rokade says.u00a0He may have a point, given that copycat stunts have claimed lives.u00a0
At the same time, he doesn't seem to have considered adventure sports like parkouring, where people willingly risk life and limb.u00a0
The contentious clause
The Indian government had broached the subject of deleting the provision in the 1970s. In 1987, the Bombay High Court held that the right to life guaranteed by the Constitution includes the right to live and the right to end one's life, and struck down Sec 309. The SC upheld the view in 1994.u00a0But in 1996 a five-judgeu00a0
SC bench held that the fundamental right to life did not include the right to die, and that Sec 309 was constitutionally valid. That remains the law today.u00a0But a law commission report recommendedu00a0the decriminalisation of Sec 309 in 2008. "It is unreasonable to inflict punishment upon a person who, on account of discord, destitution, loss of a dear relation, or other cause of a like nature... decides to take his own life. In such a case, the unfortunate person deserves sympathy, counselling, and treatment, and certainly not prison."u00a0
