Section 309: Right to live vs Right to die

Jan 25, 2012, 07:18 IST | Samarth Moray

After MiD DAY brought to GRP's notice the viral video of 2 men performing a death-defying stunt, the debate whether it is constitutional to book such daredevils for attempted suicide hots up again

After MiD DAY brought to GRP's notice the viral video of 2 men performing a death-defying stunt, the debate whether it is constitutional to book such daredevils for attempted suicide hots up again

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, got his friend to catch the bravado on camera, and put it up on the web. 

The classic sequence worthy of being memorialised on celluloid, some would think, evoked more than just adoring gasps, it being real life. Railway 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. 

The provision says: Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished with imprisonment for a term which may extend to one year or with a fine, or with both. 

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. Criminal 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. 

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.  

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. "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. 

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."
'Isn't intent evident?'
The police officials who booked the duo are sticking firm to the book, and its black and white clarity. "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,  "There are sections of the Railways Act and the IPC under which the youths can be charged." Rokade 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." 

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. 

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. He may have a point, given that copycat stunts have claimed lives. 
At the same time, he doesn't seem to have considered adventure sports like parkouring, where people willingly risk life and limb. 

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. But in 1996 a five-judge 
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. But a law commission report recommended the 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." 

Youngsters performing acrobatic stunts on local trains

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