The Constitutional Validity of Section 309 (Attempt to

Solution

Constitutionality of Section 309 of Indian Penal Code, 1860 first came up for consideration before the Bombay High Court in the case of Maruti Shripati Dubal v. State of Maharashtra (1986). In Chenna Jagdeshwar v. State of Andhra Pradesh (1988), the Andhra Pradesh High Court decided that the right to die is not a fundamental right under Article 21 of the Indian Constitution, and hence Section 309 of the IPC is not unconstitutional. In the case of P. Rathinam v. Union of India (1994), the Supreme Court upheld the Bombay High Court’s decision in State of Maharashtra v. Maruti Sripati Dubal (1986), observing that a person has the right to die and declared that Section 309 is unconstitutional. The Supreme Court’s constitution bench in Gian Kaur v. State of Punjab (1996) held that the right to life under Article 21 of the Constitution does not include the right to die or the right to be killed, thereby providing some clarity on the constitutionality of Section 309 of the Code of 1860.The court held that The importance of ‘sanctity of life’ should not be disregarded. Article 21 guarantees the protection of life and personal liberty, and extinction of life cannot be construed to encompass the protection of life by any stretch of the imagination. Article 21’s word ‘life’ has been interpreted as life with human dignity to give it meaning and content. If there is a right to die, it is essentially incompatible with the right to life, just as death is incompatible with life. The Supreme Court had also held that there is no requirement of awarding any minimum sentence with respect to the offence of attempt to suicide. The sentence of imprisonment or fine is not compulsory but discretionary. Taking these reasons into consideration, the Apex Court concluded that Section 309 is not violative of constitutional provisions and therefore is valid.