ATTEMPT TO SUICIDE UNDER MENTAL

HEALTHCARE ACT, 2017

IN

PARTIAL FULFILMENT OF
5 YEARS B.A. LLB COURSE

ARMY INSTITUTE OF LAW

SUBMITTED TO: SUBMITTED BY:
Mr. Bajirao Rajwade Mehak Aggarwal
ROLL NO -1669
ACKNOWLEDEMENT
This is to acknowledge that i am thankful to our Criminal Law professor Dr. Bajirao Rajwade sir
for giving me this topic for the project. It gave me an opportunity to read within the provisions
regarding Attempt to suicide under mental health act,2017. It also enabled me to understand in
depth the concept of anticipatory bail. I express my heartfelt gratitude to Army Institute of Law
for providing me with the wifi and library facilities in order to complete my research. I would
also like to extend my regards to my friends who helped me understand the topic better through
discussions in case of any doubts.
INTRODUCTION
Suicide is defined as an act in which a person intentionally causes his/her own death. Attempt to
die by suicide is defined as a nonfatal and self-injurious behavior with an intent to die. For every
death by suicide, on an average, 25 people attempt to die by suicide. As per the ratio, in 2016
alone, approximately 5.75 million people attempted to die by suicide in India. Attempts to die by
suicide can be classified into: (i) severe, leading to incapacity and (ii) nonsevere, with full
recovery in the short term. The prevalence of suicides has been increasing in recent years. The
number of persons who attempt to die by suicide is 25 times that of the number of those who die
by suicide every year.

Indian Government passed the Mental Healthcare Act (MHCA), 20171 in the middle of 2018.
Mental Healthcare Act (MHCA) 2017 was passed on April 7, 2017 and enforced on May 29,
2018. This is “an Act to provide for mental healthcare and services for persons with mental
illness (who have substantial disorder and whose functioning is grossly impaired) and to protect,
promote and fulfill the rights of such mentally ill persons (who have substantial disorder and
grossly impaired functioning), during delivery of mental healthcare services and for matters
connected therewith or incidental thereto.”
Section 115 of the act decriminalized the attempt to die by suicide, thereby reducing further
stress on the victim. This has legal implications with regard to abetment laws of Sections 109,
116, 306, and 309 of Indian Penal Code. Regarding mental healthcare delivery, this act enables
the person who attempted to die by suicide, to access free healthcare, treatment, and
rehabilitation. The cost implications for the government are enormous. Medical professionals,
mental health professionals, and general and mental health establishments involved in the care of
persons who attempted to die by suicide need to update their knowledge to enhance their
assessment and management skills to align with the provisions of the act. Massive public
awareness programs need to be conducted to enable persons who attempted to die by suicide, to
access mental healthcare as per the provisions of the MHCA 2017.

Until now, an attempt to die by suicide was a criminal offense as per Section 309 of Indian Penal
Code (IPC), 1860. It is worth remembering here that the words “mental illness,” which were
used in a previous draft of the MHCA in 2013, were replaced by “severe stress,” in 2016, by the
Indian Parliament in MHCA 2017 after a lot of deliberations.2

1
Ministry of Law and Justice. The Mental Healthcare Act; Gazette of India; 2017.
2
All you Need to know about the New Mental Healthcare Bill; 2016.
LEGAL SCENARIO OF ATTEMPT TO SUICIDE BEFORE
MENTAL HEALTH ACT, 2017
Attempted suicide is a serious problem requiring mental health interventions, but it continues to
be treated as a criminal offence under the section 309 of Indian Penal Code.

According to Article 21 of the Indian constitution, "No person shall be deprived of his life or
personal liberty except according to procedure established by the law". While the constitution
covers the right to life or liberty, it does not include the ′right to die′. The attempts at taking one′s
own life are not considered to fall under purview of constitutional right to life.

Section 309 of the Indian Penal Code (IPC) clearly states as follows: "Whoever attempts to
commit suicide and does any act towards the commission of such offence, shall be punished with
simple imprisonment for a term which may extend to one year or with fine or both."

Several questions are raised in the context of section 309. First, it comes under the category of
crimes defined under Chapter XVI of Indian penal code. All other crimes in this category include
those committed to the ′human body of the other person′ and suicidal attempt is clubbed with
them in same category of crimes. The act of attempted suicide is inferred on basis of intention,
which is inferred from circumstances. But the intention may be unclear or ambiguous in many
cases. Further, the question of legal treatment of attempted suicide as a crime against state does
not find many takers.

Delhi High court in a landmark judgment of 1985 state v. sanjay kumar Bhatia3 had
commented that "the continuance of Section 309 I.P.C. (criminalizing suicide) is an
anachronism unworthy of a human society like ours." The Indian Penal Code had been
formulated during British Raj Regime of 1860, and was mainly governed by British law of that
time. Ironically, India continues to follow the archaic law even though Britain itself had
decriminalized suicide way back in 1961.

It is to be noted that the abetting of the commission of suicide (but not the abetting of attempt to
commit suicide) is covered under Section 306 IPC and the abetment of suicide of a child is
covered under Section 305 IPC. The punishment for these varies from 1-10 years of
imprisonment and heavy fines. Repealing of Section 309, per se, would not affect or impact the
above sections on abetment of completed suicide.

VARIOUS EXAMPLES
Type 1: Accidental or unintentional

Mr. A throws himself into a well with an intention to die by suicide. He is guilty of an attempt to
die by suicide, and this is punishable under the above section if he fails in the attempt to die by
suicide.

3
1986 (10) DRJ 31
In Emperor vs. Dwaaraka Poonja,4 Mr. Poonja had jumped into a well to evade arrest by the
police and not with an intention to die. Hence, he was not charged under Section 309. Thus, if a
person takes an overdose of poison by mistake or in a state of intoxication, or jumps into a well
to evade capture by the pursuers, he/she would not be guilty under this section.

Likewise, if a person unintentionally and impulsively decides to take his life, because of family
discord, distraction, loss of a near and dear relative, or other cause, he should not be held guilty
for an attempt to commit suicide. In Queen Emperor v. Ramakka,5 again the Honorable Court
ruled Ramakka not guilty. The Court observed that, in such cases, the person deserves sympathy
and necessary support instead of punishment.

Type 2: Protest or hunger strike

In Ram Sunder v. State,6 the accused was employed at a psychiatric hospital in Bareilly, India.
He was suspended for dereliction of duty. Hence, he went on a hunger strike. He was charged
under Section 309, IPC for an attempt to commit suicide by resorting to a hunger strike. Setting
aside the conviction, the Honorable High Court of Allahabad said that the evidence in the case
fell short of an attempt to commit suicide. On the other hand, if a person openly declares that he
will fast unto death and then proceeds to refuse all nourishment until a stage is reached when he
may collapse at any moment, then there is an imminent danger of death ensuing, and he would
be guilty of an attempted suicide under Section 309, IPC.

Type 3: Mental illness

In 1981, a police constable suffered a head injury. Later, he developed schizophrenia. He then
attempted to die by suicide on account of his mental illness and was charged under Section 309.
In 1987, the Honorable High Court of Bombay, in Maruti Shripati Dubal v. State of
Maharashtra declared him not guilty, and Justice Sawant observed that those who attempt
suicide on account of mental disorders require psychiatric treatment and not confinement in the
prison cells where their condition is bound to worsen. Thus, in such cases, a punishment would
serve no purpose, and in some cases, it may even prove self-defeating and counterproductive.

Type 4: Euthanasia

In March 2011, in a path-breaking judgment (Aruna Ramchandra Shanbaugh v. Union of India),

the Honorable Supreme Court of India allowed “passive euthanasia” of withdrawing life support
to patients in a permanently vegetative state but rejected out rightly active euthanasia of ending
life through the administration of lethal substances.

MENTAL HEALTH ACT,2017

4
14 BOMLR 146; 1912
5
AIR 1962 All 262; 1961
6
AIR 1962, 262

    
5

6
Considering the scenarios described above, the modifications introduced in MHCA 2017
regarding suicide and attempt to die by suicide have legal, clinical, and cost implications.

Attempt to die by suicide is discussed in Section 115 of MHCA 2017.

Part 1 of the section states that “Notwithstanding anything contained in Section 309 of the IPC,
any person who attempts to die by suicide shall be presumed, unless proved otherwise, to have
severe stress and shall not be tried and punished under the said Code.”

Section 309 of IPC, which deals with those who attempt to die by suicide, was not only
unsatisfactory but also discriminatory. In fact, it was a monstrous act that inflicted further
suffering on the person who had already found the life so painful and unbearable and the chances
of happiness so slender that the person decided to embrace death to end the life. If such a person
failed in the attempt to die, inflicting torture and degradation by punishment would be
unreasonable and unjust. In fact, such persons deserve compassionate and sympathetic treatment.

In State v. Sanjay Kumar Bhatia,7 the Division Bench of the Honorable High Court of Delhi
observed “The continuance of Section 309 IPC is an anachronism unworthy of a human society
like ours. The provision like Section 309 IPC which has no justification has no right to continue
to remain on the statute book.”

The suicide attempt is decriminalized by Section 115 of MHCA 2017, superseding Section 309
of IPC. However, that does not absolve anyone from abetting an attempt to die by suicide. From
the legal perspective, does overruling of Section 115 of MHCA over Section 309 leave no legal
trail and address only the mental health care issues? The following questions need to be
answered before coming to any conclusion:-

1. Is it a crime to abet to death by suicide?

2. Is it a crime to abet an attempt to die by suicide? and
3. Is it a crime to abet an abetment of an attempt to die by suicide?

Abetting is an offense punishable by the law. Hence, there must be an offense defined in terms of
the law, i.e., Section-40 IPC. Unless there is a defined offense, there cannot be abetment.

Is it a crime to abet to death by suicide?

In the IPC, there is no mention of death by suicide as an offense. Observing this lapse in the law
code, the Indian Legislature created one specific offense by a direct provision and enacted
Section 306, IPC which reads as:

“If any person dies by suicide, whoever abets the commission of such suicide, shall be punished
with imprisonment of either description for a term which may extend to 10 years, and shall also
be liable to fine.”8
7
1986 (10) DRJ 31
8
Singh RK. Abetting Attempt to Suicide or Attempting to Abet Suicide; 2017
Is it a crime to abet an attempt to die by suicide?

Abetment of an abetment is a well-recognized legal proposition. Section-108 IPC says “The

abetment of an offense being an offense, the abetment of such an abetment is also an offence.”
This can be illustrated as follows:

 A instigates B to instigate C to die by suicide.

Now, if C actually dies by suicide, there will be clarity in all legal sense. In such a case, B will
be liable to be punished under Section 306 IPC. Clearly, B has committed an offense, but since B
himself was instigated by A to commit that offense, A too will be liable as an abettor and will be
tried under Sections 108, 109, and 116 of the IPC. Hence, there would be two culprits: A as the
abettor for abetting an offense and B as prime accused of committing an offense of abetment to
commit suicide.

Section 109 IPC states that “Whoever abets any offense shall, if the act abetted is committed in
consequence of the abetment, and no express provision is made by this Code for the punishment
of such abetment, be punished with the punishment provided for the offence.” Moreover,
according to Section 116 IPC, “Whoever abets an offence punishable with imprisonment shall, if
that offense be not committed in consequence of the abetment, be punished with imprisonment
of any description provided for that offence for a term which may extend to one-fourth part of
the longest term provided for that offence; or with such fine as is provided for the offence, or
with both.”

But if C does not die by suicide, the instigation by B will not materialize, and as such, B would
not be liable under Section 306 IPC in terms of the aforesaid judgment. However, B would still
be liable for punishment under Sections 109 and 116 of IPC.

Hon'ble Supreme Court, in Satvir Singh v. State of Punjab,9 where Mrs. Tej Kaur failed in her
attempt to die by suicide, convicted her husband and in-laws for abetment under Sections 306
and 116.

Hon'ble High Court of Karnataka, in Mrs. K. Kamala versus State of Karnataka, convicted Mr.
V. G. Maiya for abetment of an attempt to die by suicide under Sections 309 and 109.

Is it a crime to abet an abetment of an attempt to die by suicide?

A had primarily instigated B to abet the commission of suicide. Now, abetment to commit
suicide is punishable and therefore is an offense. As such, A abetted an offense and became an
abettor. Section-108 will come into the picture as an offense has been abetted. Therefore, even if
the abetted offence, i.e., punishable under Section-306 does not stand committed, A will be liable
9
(2001) 8 SCC 633

9
under Section-309/109/116 too.

ADVANCE DIRECTIVES
Advance directives (AD) pertain to treatment options for mental illness (substantial disorder and
grossly impaired functioning) only and not for medical illnesses. For instance, if a person legally
drafts an AD not to treat him if he has survived an attempt to die by suicide, it is not enable, as
such treatment involves medical management and not just treatment for his mental illness.
However, treatment of his mental illness can be initiated only if the Mental Health Review Board
decides to revoke the AD.

In the rarest of the rare scenario, with legally valid ADs on both medical illnesses as well as
under MHCA 2017, if someone attempts to die by suicide and requires assisted mechanical
supports for survival or is in a permanently vegetative state, then withdrawal of the life support
may be allowed as per the Supreme Court Judgment as in the Aruna Shanbaugh vs. Union of
India.

CLINICAL IMPLICATIONS
Part 2 of Section 115(2) of MHCA 2017 states that “The appropriate Government shall have a
duty to provide care, treatment, and rehabilitation to a person, having severe stress and who
attempted to die by suicide, to reduce the risk of recurrence of an attempt to die by suicide.”

Healthcare professionals in any hospital can use the following steps to manage a person who has
attempted to die by suicide:

 Step 1: Assessment and triaging in the emergency room

 Step 2: Stabilize the patient medically and/or surgically by providing necessary treatment
 Step 3:Medicolegal case registration, and depending on the severity, admission if
required
 Step 4: Mandatory psychiatric referral for required assessment (making a diagnosis and
assessing the severity of stress and suicidal intent) and treatment
 Step 5: Inform the patient regarding Section 115 of MHCA 2017
 Step 6: Inquiry by the health team and police regarding Sections 108, 109, and 116 IPC
 Step 7: Discharge planning and follow-up care with medical, surgical, and psychiatric
teams as per guidelines

CARE AND TREATMENT

Once a patient is admitted in a general hospital following an attempt to die by suicide,
emergency triaging and necessary medical or surgical management are mandatory to stabilize the
person wherever required. Regardless of whether the self-injury incident is minor or major,
medico-legal procedures and necessary paperwork have to be completed as early as possible
after stabilizing the person. Detailed collateral information from caregivers, relatives, and
concerned people has to be documented. A referral to the psychiatric team should be sent as
early as possible. A comprehensive and clear history of the incident should be taken by the
attending health professionals.

ROLE OF PSYCHIATRIC TEAM

Preliminary assessment
The psychiatric team as a part of its assessment has to ascertain whether the event is a deliberate
self-harm or injury or an attempt to die by suicide. The key difference  between deliberate self-
harm or injury and attempt to die by suicide is in the intent to end one's life. For example, a
person takes a small overdose of some tablets intending to kill oneself but does not die (nonfatal
suicide attempt). Another person takes plenty of tablets because of being upset and impulsive;
the person did not want to kill himself but wanted to de-escalate a stressful situation (nonsuicidal
self-injury). Further, some nonsuicidal self-injurious behavior may actually result in death –
either by ignorance, accident, delay in treatment, or just miscalculation (e.g., the latter person is
not aware of the toxic effects of the tablets and actually dies as a result). Again, one has to keep
in mind that both forms of self-harm can occur in the same individual, i.e., those with nonfatal
suicide attempts can also exhibit nonsuicidal self-injurious acts and vice versa.

Assessment of stress and suicide intent

To ascertain the severity of stress and the intent objectively, the psychiatric team may administer
the perceived stress scale and the suicide intent scale on person who has attempted to die by
suicide or done nonsuicidal self-harm, irrespective of the lethality of the incident.

Risk assessment for high-risk suicidal behavior has to be done at hourly basis, two hourly basis,
and in increased durations as per the decreasing risk, with necessary staff support at the general
hospital till the person is stabilized medically or surgically.10

MHCA 2017 and attempt to die by suicide

The psychiatric team has to inform the person and the caregivers about Section 115 of MHCA
2017. Police need to be involved in ascertaining the application of abetment laws and for further
legal procedures wherever required.

Once the person who has attempted to die by suicide is undergoing treatment medically or
surgically at the general hospital (not a licensed mental health establishment) but continues to
suffer from severe stress or mental illness (substantial disorder and grossly impaired
functioning), emergency psychiatric treatment can be started at the general hospital under
Section 94 of the MHCA 2017 limited to 72 h or till the person is assessed at a mental health
establishment. Once the same person has been medically or surgically stabilized, the same
Section 94 of MHCA 2017 enables transfer and transport of the person to a licensed mental
health establishment. All such persons with nonfatal suicidal attempts or nonsuicidal self-
10
Cohen S, Kamarck T, Mermelstein R. A global measure of perceived stress
injuries, who have a mental illness, and hence, admitted in a mental health establishment have to
be informed to the respective mental health review board under Section 89 of MHCA 2017. A
registry of all persons who attempted to die by suicide admitted to the mental health
establishment is desirable for future management and policy decision purposes.

In the scenario of a person attempting to die by suicide, doing nonsuicidal self-injury, or

committing suicide in the premises of any general hospital or mental health establishment during
the treatment of the current incident or during the admission or treatment of any medical illness
or mental Illness, apart from the natural legal processes, we recommend the establishment to
inform the mental health review board which may then conduct a detailed psychological and
procedural autopsy. In such cases, after detailed inquiry, the mental health review board's role
could be to recommend necessary measures to prevent recurrence of similar incidents.

DISCHARGE PLANNING
Discharge planning should be initiated once the risk of nonfatal suicide attempts or nonsuicidal
self-injurious behavior is low. Discharge protocol should include detailed psychiatric assessment,
including risk assessment of nonfatal suicidal behavior and nonsuicidal self-injury, management
of comorbid medical and psychiatric issues in consultation with the liaison team, contingency
supports for the precipitating stress factors, psychoeducation to the person as well as caregivers
regarding the use of drugs or alcohol and about securing lethal substances, need for a supportive
person at the destination place of discharge, community psychiatric team wherever available, and
scheduled follow-up visit with the medical and psychiatric team wherever indicated. A 24-hour
contact number for support has to be included along with commitments by the person to adhere
to the treatment and contingency plans. The recurrence rate is around 10%, and subsequent
management plans should be aimed at preventing this.

REHABILITATION
As per the recommendations of MHCA 2017, apart from the regular follow-up care in the
community, the person can be provided rehabilitation that could include medical, surgical, and
brief psychological interventions or even cosmetic treatments. There should be a focus on the
subsequent integration of the patients into applicable occupational, family, and social
rehabilitation.

ECONOMIC IMPLICATION
Extrapolating the same to Indian scenario, the total medical costs of severe attempt to die by
suicide would be on an average Rs. 9775 crores (Rs. 1 lakh per person) and the total medical
costs of nonsevere attempt to die by suicide would be Rs. 4770 crores (Rs. 10,000 per person).
Hence, going by the 2016 statistics, the overall medical costs of treating an attempt to die by
suicide would be around Rs. 14,545 crores. This is just the medical costs. Other costs such as
production disruption costs, human capital costs, administrative costs, transfer and transport
costs, and other costs have not been calculated.

As per the MHCA 2017, even rehabilitation has to be provided by the government. This would
further increase the cost of care of persons who attempted to die by suicide. It is worth
remembering here that the total funds allocated to health for the year 2018–2019 by the
Government of India was Rs. 52,000 crores.11

CONCLUSION
There are numerous practical implications of implementing the MHCA 2017 in persons who
attempt to die by suicide. The law enforcement authorities, the judiciary, and the police need to
be sensitized about the legal nuances of Sections 108, 109, 116, 306, and 309 in the background
of Section 115 of the MHCA. The lawmakers, policymakers, bureaucrats, and administrators of
various organizations have to go on a war footing to ensure implementation of the provisions of
11
Summary of India Budget 2018-19 – PIB
the MHCA 2017.

In addition, the medical and mental healthcare professionals, healthcare establishments, and
other health professionals in contact with persons who have attempted to die by suicide need to
update their knowledge regarding the procedures, protocols, guidelines, and management of
persons who attempt to die by suicide within the framework of the MHCA 2017.

The cost implications of the MHCA 2017, hence, are enormous. The intentions of the
government to create a welfare state by taking care of its mentally ill persons are magnanimous.
Cost implications and limited resources would be the practical constraints in implementing the
provisions of MHCA 2017 in total.

Above all, the governments, nongovernmental organizations, health care establishments,

professionals, and other related and concerned people need to educate and create awareness
among the public at large to fulfill the aims, objectives, and the purpose of enactment of the
MHCA 2017 with reference to suicide and attempt to die by suicide.