The government last week announced its decision to repeal Section 309 of the Indian Penal Code, which criminalises attempt to suicide. This was followed by headlines declaring, “Government decriminalizes attempt to commit suicide, removes section 309” (The Times of India), “Attempt to suicide decriminalised in 18 Indian states, 4 UTs” (India Today) and “Attempt to commit suicide no longer a crime in India” (DNA). In reality, attempting suicide remains a crime in India.
All the media reports referred to a statement by Minister of State for Home Affairs Haribhai Parathibhai Chaudhary in the Rajya Sabha as the source for their information. The reports also made a reference to the 210th Report of the Law Commission of India, in which the decriminalisation was recommended.
However, the transcript of the Home Ministry’s reply tabled in the Rajya Sabha reveals what was actually stated:
This makes it clear that while the government has decided delete Section 309, the section has not gone yet. Though the headlines conveyed the impression that the decriminalisation is a done deal, the process has barely even started.
Our constitutional system of checks and balances does not allow for the Council of Ministers to directly delete any section or repeal any law when it catches its fancy. In accordance with the constitutional scheme of separation of powers, it is Parliament that has to legislate this.
To do so, the government will first have to introduce an Amendment Bill that proposes to remove Section 309. This will be scrutinised and debated by both Houses of the Parliament. Only after the Bill has been passed by a majority in both Houses and the President has given his assent will the Bill become an Act.
States get a say
The reply tabled in the Rajya Sabha made a reference to the states’ views because the question specifically asked for it. Criminal law, including all matters included in the Indian Penal Code, is within the Concurrent list. This means that both state Legislative Assemblies as well as Parliament can amend the Indian Penal Code.
Parliament can amend the Indian Penal Code for the entire country – as it did after the 2012 Delhi gangrape – without seeking the states’ consent or even their views. But it can also disregard Law Commission reports since they are not binding. In fact, rarely, if ever, are the commission's suggestions actually incorporated into law.
It's happened before
This isn't the first time the government has announced its decision to decriminalise attempt to suicide.
The government had announced the same intention in connection with the Mental Health Bill last year and then in a reply to a Lok Sabha question in August. On both occasions though, the law was not actually amended.
It is entirely possible that some states opposing the decriminalisation could still dissuade the Central government or even recriminalise attempted suicide in their domains. The media has clearly jumped the gun.
Sagar Godbole is a student at the Gujarat National Law University.
All the media reports referred to a statement by Minister of State for Home Affairs Haribhai Parathibhai Chaudhary in the Rajya Sabha as the source for their information. The reports also made a reference to the 210th Report of the Law Commission of India, in which the decriminalisation was recommended.
However, the transcript of the Home Ministry’s reply tabled in the Rajya Sabha reveals what was actually stated:
The Law Commission of India, in its 210th Report, had recommended that Section 309 (attempt to Commit suicide) of IPC needs to be effacted from the statute book. As law and order in the State subject, views of States/UTs were requested on the recommendations of the Law Commission. The details of the responses received from the States/UTs in this regard are at Annexure I. Keeping in view the responses from the States/UTs, it has been decided to delete Section 309 of IPC from the Statute book.
This makes it clear that while the government has decided delete Section 309, the section has not gone yet. Though the headlines conveyed the impression that the decriminalisation is a done deal, the process has barely even started.
Our constitutional system of checks and balances does not allow for the Council of Ministers to directly delete any section or repeal any law when it catches its fancy. In accordance with the constitutional scheme of separation of powers, it is Parliament that has to legislate this.
To do so, the government will first have to introduce an Amendment Bill that proposes to remove Section 309. This will be scrutinised and debated by both Houses of the Parliament. Only after the Bill has been passed by a majority in both Houses and the President has given his assent will the Bill become an Act.
States get a say
The reply tabled in the Rajya Sabha made a reference to the states’ views because the question specifically asked for it. Criminal law, including all matters included in the Indian Penal Code, is within the Concurrent list. This means that both state Legislative Assemblies as well as Parliament can amend the Indian Penal Code.
Parliament can amend the Indian Penal Code for the entire country – as it did after the 2012 Delhi gangrape – without seeking the states’ consent or even their views. But it can also disregard Law Commission reports since they are not binding. In fact, rarely, if ever, are the commission's suggestions actually incorporated into law.
It's happened before
This isn't the first time the government has announced its decision to decriminalise attempt to suicide.
The government had announced the same intention in connection with the Mental Health Bill last year and then in a reply to a Lok Sabha question in August. On both occasions though, the law was not actually amended.
It is entirely possible that some states opposing the decriminalisation could still dissuade the Central government or even recriminalise attempted suicide in their domains. The media has clearly jumped the gun.
Sagar Godbole is a student at the Gujarat National Law University.
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