Attempted suicide - police lack awareness of MHCA-115

[Vaishnavi Jayakumar]

Hi everyone,

Was tagged recently on Twitter about the case of an actor's attempted suicide and subsequent booking by police under Section 309 of IPC. I was surprised to

thereafter find a number of cases listed below, of non-fatal suicide attempts being booked under section 309 despite the Mental HealthCare Act coming into force on 29 May 2018.

DATE	STATE	CASE
28/09/2018	Madhya Pradesh	Bhopal: Man climbs on tower to get his voice heard
22/09/2018	Tamil Nadu	Case registered against actor Nilani : Booked for attempt to commit suicide
13/09/2018	Maharashtra	Nagpur man shoots wife dead; tries to commit suicide later
04/09/2018	Telengana	Married woman attempts suicide in front of police station
01/09/2018	Uttarakhand	Denied admission, girl attempts suicide
23/08/2018	Odisha	Sholay replay at Berhampur station
11/08/2018	Tamil Nadu	Four of family attempt suicide, woman dies
13/07/2018	Tamil Nadu	Woman murders two kids, attempts suicide in TN
10/07/2018	Telengana	Pontiff under house arrest
19/06/2018	Punjab	Protesting for jobs, 4 teachers climb water tank
09/06/2018	Gujarat	Gujarat Man Fighting Divorce Case Consumes Poison After Judge Tells Him To Patch Up With Wife

Section 309 of the Indian Penal code (IPC) reads

309. Attempt to commit suicide.—Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year [or with fine, or with both].

This is a Bailable, Cognizable offence and triable by Any Magistrate. This offence in NOT compoundable. 

What this means essentially is that the police therefore has the authority to arrest the accused without a warrant and to start an investigation with or without the permission of a court. Also, the trial cannot be avoided by means of a compromise.

Possibly the reason for the overkill in tackling this issue lies in the classification - attempt to suicide is classified under IPC's Chapter 16 - Offences affecting the human body -> offences affecting life - cheek by jowl with offences like murder, culpable homicide, death by negligence, dowry deaths etc. There is no data available on number of cases booked under section 309 - instead it is lumped with a few others as 'Other IPC crimes' in NCRB - no disaggregation is available publicly either for cases registered or convictions.

Worse still, there seems to be no procedure differentiating section 309 IPC from other cognizable crimes.

Additional developments after the passing of the MentalHealthCare Act include

Declaration of Intent alone not enough for registration under IPC 309 - by Karnataka High Court

Justice Chandrachud's summation of the intent of Section 115 of the MentalHealthCare Act in the Common Cause judgement.

This Court’s holding in Gian Kaur that the right to life does not include the right to die in the context of suicide may require to be revisited in future in view of domestic and international developments pointing towards decriminalisation of suicide.

 

In India, the Mental Healthcare Act 2017 has created a “presumption of severe stress in cases of attempt to commit suicide”. Section 115(1) provides thus:

 

“Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.”

 

Under Section 115(2), the Act also mandates the Government to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence. Section 115 begins with a non-obstante provision, specifically with reference to Section 309 of the Penal Code. It mandates (unless the contrary is proved by the prosecution) that a person who attempts to commit suicide is suffering from severe stress. Such a person shall not be tried and punished under the Penal Code. Section 115 removes the element of culpability which attaches to an attempt to commit suicide under Section 309. It regards a person who attempts suicide as a victim of circumstances and not an offender, at least in the absence of proof to the contrary, the burden of which must lie on the prosecution. Section 115 marks a pronounced change in our law about how society must treat and attempt to commit suicide. It seeks to align Indian law with emerging knowledge on suicide, by treating a person who attempts suicide being need of care, treatment and rehabilitation rather than penal sanctions.

(Attempts to decriminalise section 309 in the past go back to the 1970s with flip flops on its validity / constitutionality as seen in Table 2 below of (De-) criminalization of attempted suicide in India: A review.)

In the meantime, as recent as 2016, people booked under section 309 continue to be charged and subjected to further distress with long drawn out police / legal processes.

Given the nature of IPC-309 as a cognizable offence and the absence of a procedure to address non fatal suicide attempts in the past, and the current lack of awareness amongst police who claim not to have heard of the MentalHealthCare Act yet - that's 3 so far in the recent Chennai case - what should the sector propose to deal with this problem vis a vis police procedures?

'Decriminalization of suicide as per Section 115 of Mental Health Care Act 2017'  outlines a process in Table 1 - what are your thoughts on this? 

Do also check out Table 2 for survivor viewpoints - I found it illuminating. So much yet to be done.

Thanks,

Vaishnavi

P.S. Conversations re this can be followed via the topic link in We The PwD egroup - it's open to all.

[Vaishnavi Jayakumar]

Um, that was still happening in 2008 Dr. Murthy!

On Tue 2 Oct, 2018, 7:26 AM Srinivasa Murthy, <smurt...@gmail.com> wrote:

The delay in the legal revisions reaching the periphery of the country and  for the change of practices to occur, it takes time.

There is need for ACTIVISM at the local level to educate the police and even the judiciary.

Permit to share my experience in this area of mental health legislation.

The Indian Lunacy Act 1912 was replaced by the Mental Health act 1987. It took nearly 3 years for the rules to be formulated and gazetted in December 1990.

However, in 1993,( that is 6 years after the MHA 1987 was legislated and 3 years after the rules came into force) when I along with Dr. Amita Dhanda visited the jails of the West Bengal state, as part of the Sheila Barse case, on behalf of the Supreme Court, we saw admissions occurring under Indian Lunacy Act 1912!!!

In India everything takes time, unless there is agitation by the public.

The single most important step is increasing public awareness at local levels.  

Prof.R.Srinivasa Murthy,

Bangalore.

On Mon, Oct 1, 2018 at 6:19 PM Vaishnavi Jayakumar <jayakumar...@gmail.com> wrote:

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Best Wishes,
Murthy
 
R.Srinivasa Murthy,
Professor of Psychiatry(retd)
Bangalore-560078. INDIA

Professional experiences:
C.M.C,Vellore(1964-1971)

P.G.I.M.E.R, Chandigarh(1972-1981)

NIMHANS, Bangalore (1982-1999 and 2002-2003)

W.H.O.(2000-2001 and 2004-2007)

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