AMITY INTRA MOOT COURT COMPETITTION IN THE HON BLE SUPREME COURT OF INDIA SPECIAL LEAVE PETITION [UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA]

Transcription

1 1 Team Code - 28 AMITY INTRA MOOT COURT COMPETITTION IN THE HON BLE SUPREME COURT OF INDIA SPECIAL LEAVE PETITION [UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA] Petition No. OF 2016 IN THE MATTER OF Ram Kali..PETITIONER v. State Of Uttar Pradesh.RESPONDENT

2 2 TABLE OF CONTENTS INDEX OF AUTHORITIES 3-4 LIST OF ABBREVIATIONS 5 STATEMENT OF JURISDICTION 6 STATEMENT OF FACTS 7 ISSUES RAISED 8 SUMMARY OF ARGUMENTS 9-10 ARGUMENTS ADVANCED WHETHER THE PETITION IS MAINTAINABLE? WHETHER RIGHT TO LIFE INCLUDES RIGHT TO DIE? WHETHER SECTION 309 IPC IS UNCONSTITUTIONAL AND SHOULD BE REPEALED? WHETHER FIR LOGGED UNDER SECTION 309 IPC SHOULD BE QUASHED? PRAYER 24

3 3 INDEX OF AUTHORITIES Serial No. Name Page No. 1 Kunhayammed v. State of Orissa, AIR 2000 SC 2587, 2593: (2000) 6 SCC Durga Shankar v. Raghu Raj, AIR 1954 SC 520: (1955) 1 SCR P. Rathinam V. Union of India, AIR 1994 SCC (3) Smt. Gian Kaur v. State of Punjab AIR 1996 SCC (2) Rajendra Kumar v. Union of India, AIR 1980 SC 1510: (1980) 3 SCC State of Gujarat v. Salimbhai Abdulghaffar Shaikh, (2003) 8 SCC 50, 54: 12 AIR 2003 SC M P Jain s Constitutional Law 13 8 M P Jain s Constitutional Law 13 9 State of Punjab v. Ashok Singh Garcha, (2009) 2 SCC 399: (2009) 1 13 SCALE Prestige Lights Ltd v. SBI, (2007) 8 SCC 449: (2007) 10 JT Vineet Narain v. Union of India AIR 1998 SC 889: (1958) 1 SCC Vishakha v. State of Rajasthan SCC Smt. Gain Kaur v. State of Punjab AIR 1996 SC A.R. Antulay v. R.S. Nayak, AIR 1988 SC Lecture on the principle of Political Obligation, T. H. Green, 1883, p Principles on Modern Political Science, J. C. johari, pp. 136, theories of 16 right, 3 rd para. 17 Clarke 1999:460, Seidler 1983: D. Callahan 1999:25-26, J. Callahan 1999: Munn v. Illinois 94 U.S. 113 (1877) R.C. Cooper v. Union of India C.E.S.C. Ltd. V. Subhash Chandra Bose A.K. Gopalan Justice R.A. Jahagirdar weekly of India (sept 29, 1985) J.S. Mill in an Article from Constitution and what it means today Vineet Narain v. Union of India AIR 1998 SC

4 4 26 Smt. Gain Kaur v. State of Punjab, AIR Report of National Crime Record Bureau on Accidental Death and Suicide 22 in India, Harding V. Price, (1948) 1 K.B Fowler V. Tadgil (1798) 7 T.R A K Gopalan 22 BOOKS REFFERED: 1. BAKSHI P.M., THE CONSTITUTION OF INDIA, Universal Law Publishing Co., (2nd Edition 2001) New Delhi. 2. BASU DURGA DAS, INTRODUCTION TO THE CONSTITUTION OF INDIA, (20th Edition 2010) Lexis Nexis, Buttorworths Wadhwa Nagpur. 3. BASU DURGA DAS, SHORTER CONSTITUTION OF INDIA, Wadhwa and Company, Nagpur. 4. BASU DURGA DAS, COMMENTARY ON THE CONSTITUTION OF INDIA, (8th Edition) Vol JAIN M.P., INDIAN CONSTITUTIONAL LAW, (6th Edition 2010) Lexis Nexis, Buttorworths Wadhwa Nagpur. 6. RAMCHANDRAN RAJU, SUPREME COURT PRACTICE AND PROCEDURE, (6th Edition 2002) Eastern Book Company. 7. PANDEY J.N., CONSTITUTIONAL LAW INDIA, (4th Edition) Central Law Agency 8. DIVAN GORADIA MADHAVI, FACETS OF MEDIA LAW,(1 ST Edition 2006) EASTERN BOOK COMPANY. 9. K.D. GAUR CRIMINAL LAW (CASES AND MATERIAL) 7 TH EDITION 10. S.N. MISHRA THE INDIAN PENAL CODE 11. RATANLAL & DHIRAJLAL THE CODE OF CRIMINAL PROCEDURE 12. J.C. JOHRI PRINCIPLES OF MODERN POLITICAL SCIENCE DICTIONARIES : 1. Merriam Webster Dictionary. 2. Black s Law Dictionary, 2nd Edition. 3. Oxford Law Dictionary.

5 5 LIST OF ABBREVIATIONS Ann Art. Annual Article IPC Indian Penal Code 1860 JURS FR SC HC SLP AIR Sept WHO NCRB FIR PS PR FR SEC Jurisdiction Fundamental Rights Supreme Court High Court Special Leave Petition All India Report September World Health Organization National Crime Report Bureau First Information Report Police Station Police Report Final Report Section

6 6 STATEMENT OF JURISDICTION The Petitioner has approached the Hon'ble Supreme Court under Article 136 of the Constitution of India, 1950.

7 7 STATEMENT OF FACTS ~I~ A girl, Ram Kali in Uttar Pradesh, fell in love with her boyfriend, Bansi Lal and wanted to marry him but her uncle Kaaliya vehemently opposed her marriage with Bansi Lal. However an attempt was made to settle the issue with the help of police. During the settlement talk which was slated to be held in police Station, Ram Kali took out a blade and inflicted deep injury on her left hand with a view to commit suicide. She was rushed to the hospital where, even during first aid treatment, she repeatedly threatened to commit suicide. ~II~ The Police lodged F.I.R and booked her under Section 309 of Indian Penal Code,1860. Later Ram Kali filed a petition before the Allahabad High court (Lucknow Bench) and prayed for declaring Sec. 309 I.P.C. unconstitutional and quashing of the F.I.R as a consequence. Relying on the Constitutional Bench decision of the Hon ble Supreme Court in Smt. Gian Kaur v/s State of Punjab A.I.R S.C. 946 the High Court dismissed her petition. ~III~ Later she went in appeal to the Supreme Court against the decision of the High Court praying for declaration of Section 309 I.P.C as unconstitutional for being inconsistent with Right to life with dignity which Art 21 speaks of and eventually quashing of criminal proceeding in the interest of doing complete justice under Art 142. According to the appellant a lady attempting to commit suicide is in such a frame of mind that she cannot think normally.she suffers from mental stress to an extent that she inflicts extreme hurt on self in a suicide bid. Instead of inflicting additional punishment under Sec.309 of I.P.C. she must be provided medical and emotional support by counselling as her act is in reality a cry for help and not for punishment. Refuting the above argument Govt. Advocate argued that Sec.309of I. P.C is not attached with the vice of unconstitutionality on the ground of its being violative of Art. 21, Right to life protected under this Art. is a natural right which by no stretch of imagination can include the right to end life i.e., to commit suicide which is unnatural.

8 8 ISSUES RAISED I. WHETHER THE PETITION FILED UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA IS MAINTAINABLE OR NOT? II WHETHER THE RIGHT TO LIFE SHALL INCLUDE RIGHT TO DIE OR NOT? III WHETHER SECTION 309 SHALL BE REPEALED FROM I.P.C OR NOT? IV. WHETHER F.I.R. FILED SHALL BE QUASHED OR NOT?

9 9 SUMMARY OF ARGUMENTS 1. WHETHER THE PETITION FILED UNDER ARTICLE 136 OF THE CONSTITUTIONOF INDIA IS MAINTAINABLE OR NOT? The petition so filed under Article 136 of the Constitution of India is maintainable because there is application of substantial question of law, and grave injustice has been done, and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against, and that the High Court has dismissed the petition without granting certificate to appeal in Apex Court under Article 134A, therefore the petition is maintainable under this Article. 2. WHETHER RIGHT TO LIFE INCLUDES RIGHT TO DIE OR NOT? Right to Life includes Right to Die because Right to Die is a negative interpretation of an inherent natural right of Right to Life, which in no stretch of circumstances can be abridged by state, that it is in the inherent power of Hon ble Court to interpret Article 21 to include Right to Die under Article 141 and 142 of the Constitution of India. 3. WHETHER SECTION 309 IPC IS UNCONSTITUTINAL AND SHALL BE REPEALED OR NOT? Section 309 IPC is an unconstitutional and the same should be repealed because section 309 IPC violates and contradicts Article 21 of the Constitution of India, which shall in its interpretation include Right to Die, and therefore section 309 IPC shall be repealed. 4. WHETHER FIR LOGGED UNDER SECTION 309 IPC SHALL BE QUASHED OR NOT?

10 10 The FIR logged under section 309 IPC 1860 read with section 154 CrPC 1973 shall be quashed because section 309 IPC is unconstitutional, and that any criminal proceeding or investigation upon Ramkali, the petitioner, violates her fundamental right, and therefore, in the light of the above circumstances, the FIR logged against Ramkali shall be quashed.

11 11 ARGUMENTS ADVANCED 1. THE PETITION FILED UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA IS MAINTAINABLE The appeal filed under Article 136 in the Hon ble Supreme Court of India is maintainable due to the arguments listed below. 1.1 The appeal is being filed under Article 136 for special leave to an appeal and Article 142 used in further part of proceeding to impart complete justice through the way of special leave petition because Art 136 (1) empowers the supreme court to grant, in its discretion, special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. The petitioner request to entertain the petition which is being dismissed in the High Court in Hon ble Supreme Court under Art 136. The Article 136 run as follows: Notwithstanding anything in this chapter, the Supreme Court may, in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any case or matter passed or made by any court or tribunal in the territory of India. Article 136 gives special jurisdiction to the Hon ble Court with non-obstante clause which means the power of Supreme Court is unaffected by Art 132, 133, 134, and 134A which means even if the High Court refuses to grant the necessary certificate, under Art 134A, the appeal shall be heard under Art The discretion of the Hon ble Court is of widest amplitude which is to be exercised with the demand of justice. It is an overriding power where under the court may generously step in to impart justice and remedy injustice. It vest in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals and the power can be exercised in spite of the specific provisions for appeal contained in the Constitution or other law. 2 The petitioner has sought help under Article 136 because substantial and grave injustice in being done by snatching away Right to Die which was being established in P. Rathinam 3 case from 1 Kunhayammed v. State of Orissa, AIR 2000 SC 2587, 2593: (2000) 6 SCC Durga Shankar v. Raghu Raj, AIR 1954 SC 520: (1955) 1 SCR P. Rathinam V. Union of India, AIR 1994 SCC (3) 394

12 12 Fundamental Right in Gian kaur 4 and further making it punishable and that the case in the question presents features of sufficient gravity to warrant a review of the decision appealed against. 1.2 That the petitioner Ramkali is a girl of major age who has all right to fall in love and marry a boy of her choice. That her uncle Kaliya is against her choice. In the settlement talk held in the police station she inflicted an injury in her left hand and threatened to commit suicide in hospital so as to marry the boy, Bansi Lal, of her choice which is totally Constitutional. The petitioner s right has been entrenched to such an extent that upon entrenchment of her right to marry a groom of her choice, Banshi Lal, she is ready to end her natural life. The role of police in such a situation is questionable that the police was incapable in enforcement of law and order which led to extreme situation. Thus, it is clear that severe injustice has drawn up in the case which is against the order of her Fundamental Rights and thus, petitioner request to entertain the appeal as substantial and grave injustice has been done in the case. Art 136 has used the phrase any court and thus empower the Supreme Court to hear appeals from judgment given not only by the High Court but even by the subordinate court. 5 The petitioner s petition was dismissed in the Allahabad High Court (Lucknow Bench) which is in complete jurisdiction of this Article to entertain the appeal. Article 136 confer on Supreme Court an overriding and extensive power to grant special leave to appeal which is in the discretion of the court. By the virtue of Article 136 Supreme Court can grant appeal in any case either be it criminal, civil, tribunal, or any other variety of cases. The Supreme Court can hear the appeal even when the high court refuses to grant the certificate of fitness either under Art 132, 133, or 134A Article 136 involves two steps, (i) Granting special leave to appeal (ii) Hearing the appeal. The first stage continues if and when the leave to appeal is granted and special leave petition is converted into an appeal. At this stage the Hon ble court considers the 4 Smt. Gian Kaur v. State of Punjab AIR 1996 SCC (2) Rajendra Kumar v. Union of India, AIR 1980 SC 1510: (1980) 3 SCC State of Gujarat v. Salimbhai Abdulghaffar Shaikh, (2003) 8 SCC 50, 54: AIR 2003 SC 3224.

13 13 question whether the petitioner should be granted such leave or not. At this stage, the court does not exercise its appellate jurisdiction; it merely exercises its discretionary jurisdiction to grant or not to grant leave to appeal. 7 If the petitioner seeking leave to appeal is dismissed, it only means that the court feels that a case for invoking its appellate jurisdiction has not been made out. If Hon ble Court grants the leave to an appeal, it is then the appellate jurisdiction of the Hon ble court is invoked. 8 Then the appeal is being heard on its merits. Thus, the petitioner humbly requests to the court to grant leave to an appeal so that the appeal can be heard on merit and complete justice could be done to stop the grave and severe injustice to the petitioner That the special leave petition can only be rejected in several reasons; (i) If the petition is time barred. (ii) If the petitioner has defective presentation 9, (iii)petitioner lacks locus standi to file the petition. (iv) The conduct of the petitioner disentitles him to any indulgence by the court 10, (v) The question raised in the petition is not considered fit for consideration by the Court, or does not deserve to be dealt with by apex court. That the appeal so filed after being dismissed by High Court is completely within its reasonable time limit fixed by the Hon ble Court. Petitioner Ramkali was booked under section 309 of Indian Penal Code 1860 files an appeal in the Hon ble Bench of Supreme Court so as to quash the FIR and include Right to Die under extensive interpretation of Article 21 Right to Live with Human dignity has suitable Locus Standi to file the case and stand on the issue so raised. Further, petitioner conduct has been sound and reasonable and nothing yet done against the conduct of the court. That the question so raised in the petition has substantial question of law so as to interpretation of the Constitution, and the case presents features of sufficient gravity to warrant a review of the decision appealed against, or there has been a departure from legal procedure such as vitiates the whole trial, and the finding of the facts are shocking to the judicial conscience of the court. 7 M P Jain s Constitutional Law 8 M P Jain s Constitutional Law 9 State of Punjab v. Ashok Singh Garcha, (2009) 2 SCC 399: (2009) 1 SCALE Prestige Lights Ltd v. SBI, (2007) 8 SCC 449: (2007) 10 JT 218

14 That the appeal requires interference of the Hon ble Bench with the concurrent finding of the High Court because the finding are vitiated by the error, or erroneous interpretation of law, and the conclusion reached by the court are so patently opposed to the wellestablished principles as to amount to miscarriage of justice, and also in the interest of justice it is required the interference of the Hon ble Bench and interpret Article 21 so as to do complete justice Further, so as to proper interpretation of Constitutional provision enshrined in Article 21 of the Constitution, and so as to include Right to Die under the extended meaning of Right to live with dignity, and to declare section 309 of IPC unconstitutional Article 142 has been introduced so as to pass such any decree, or make such any order, as is necessary for doing complete justice in the appeal. Also, the Hon ble Court has ample power under Article 32, 141, 142, and 144 to issue necessary direction to fill the vacuum till either the legislature steps in to cover the gap or discharges its role. 11 Also, the Supreme Court has emphasized it is the duty of the executive to fill the vacuum by executive order because its field is coterminous with that of the legislature and where there is inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its Constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field Further, Article 142 has been invoked after getting special leave under Article 136 because petitioner wants judiciary to step in to fulfill the vacuum declaring section 309 of IPC as unconstitutional and provide the solution till such a time the legislature acts to perform its role by enacting proper legislation to cover the field. The Hon ble Court only under this Article has power to do complete justice by providing a solution unless legislature acts to perform its role Further, the petitioner requires not only interpretation of Constitutional provision but also to set aside the ruling of Gian Kaur 13 which is itself outside the jurisdiction of High Court and cannot be covered by any other Article expect Article 142 of the Constitution. 11 Vineet Narain v. Union of India AIR 1998 SC 889: (1958) 1 SCC Vishakha v. State of Rajasthan SCC Smt. Gain Kaur v. State of Punjab AIR 1996 SC 946

15 15 Therefore, the petitioner has invoked Article 136 so that the Hon ble Court under Article 142 of the Constitution can make complete justice, once and for all Further, the Supreme Court can grant appropriate relief under Art. 142 a. Where there is some manifest illegality, or b. Where there is manifest want of jurisdiction, or c. Where some palpable injustice is shown to have resulted. 14 All the three mentioned therein are being fulfilled under this petition. Manifest Illegality It was responsibility of police to maintain law and order while there was settlement talk in police custody. Ramkali said to have inflicted injury so as to kill herself. As it was extremely impossible to get a blade in the police custody and to inflict an injury so as to kill herself. It seems there is some manipulation of evidences to achieve their end. Petitioner, further, requests to the Hon ble Court to bring the issue to the light and save her from injustice. Manifest want of Jurisdiction No other court or no other Article is competent enough to handle such a case so as to provide complete justice. The five judge bench of Hon ble court has already decided the matter pending before it in Smt. Gain Kaur v. State of Punjab AIR 1996 SC 946. Only Art. 142 have power to overrule the judicial conduct and establish the solution to the problem until legislature steps in to bring justice to the issue so raised. Palpable Injustice have resulted Section 309 is Constitutional since the judgment of Smt. Gain Kaur v. State of Punjab AIR 1996 SC 946 which has resulted in injustice in several of the cases being decided at the different tier of the judiciary. Petitioner is requesting the Hon ble Bench of Supreme Court to suspend the legality of section 309 and bring justice to hundreds of such similar cases pending before this court. And, therefore petitioner s petition under this Article and under Hon ble jurisdiction of this court is fully maintainable. 14 A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531

16 16 2. RIGHT TO LIFE INCLUDES RIGHT TO DIE 2.1. Importance of Right to life as a natural right. H. L. A. Hart argued that if there are any rights at all, then, there must be a right to life and liberty, or, to put it more properly to free life 15, by which he argued that right to life is a natural right. Further, Thomas Hobbes defined right to life as a natural right which even the sovereign of the state could not jeopardize. 16 Effective protection of the natural rights are the responsibilities of state. Right to die, such as right to life is a natural phenomenon. Stoics and utilitarians argue that, duties towards other aside, suicide is sometimes rational (in the sense of being the best choice among available options), and that rational suicide is sometimes morally permissible, or even recommended 17, and the rational suicide (using the term rational in the wider sense of the word, to encompass instrumental rationality, reasonableness, autonomy, lack of mental illness, clam deliberation, etc) is morally permissible Right to life under Constitution of India- Article 21 of the Constitution run as follows; Article 21: No person shall be deprived of his life or personal liberty except according to procedure establish by law. The expression life in Article 21 of the Constitution has been interpretation by the Supreme Court rather liberally and broadly. Over the time, the court has been giving an expensive interpretation to life. By the term life as here used something more is meant than mere animal existence. 19 Right to live with Human Dignity 15 Lecture on the principle of Political Obligation, T. H. Green, 1883, p Principles on Modern Political Science, J. C. johari, pp. 136, theories of right, 3 rd para. 17 Clarke 1999:460, Seidler 1983: D. Callahan 1999:25-26, J. Callahan 1999: Munn v. Illinois 94 U.S. 113 (1877)

17 17 In Maneka Gandhi s case, the court gave a new dimension to Article 21. It held that the right to live is not merely confined to physical existence but it includes within its ambit the right to live with human dignity. The right to live is not restricted to mere animal existence. It means something more than just physical survival, And herein the petitioner has been living within just a bare necessities of life, and that her right to live with dignity has been severely hampered, that she wasn t allowed by her uncle to marry a boy of her choice, which is interference with her personal right guaranteed under Article 21 of the Constitution. It has been mentioned by Hon ble Court that the right to live is not confined to the protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also includes the right to live with human dignity, and all that goes along with it. That the petitioner life has been confined merely to her existence, and in wake of these circumstances she wanted to end her life Right to Die is part of Article 21 Fundamental Rights are part of those natural rights protected by state. Right to Life is the most vital natural right of all which is being protected by state at any cost. Physical, social, spiritual and psychological well-being is intrinsically interwoven into fabric of life. All the other fundamental right interwoven with right to life so as to recognize the inherent dignity and of the equal and inalienable rights of all members of the human family. Thus, right to life plays central role in the fundamental right. Further interpretation of Article 21 states fundamental rights, specifically right to life, has positive as well as negative aspects, Article 21 of the Constitution has very vast scope of its interpretation. Just as freedom of speech and expression includes freedom to remain silent, freedom to form association includes freedom not to form association, Right to life too has its negative aspect, and under Article 14 right to life stands on no different footing than other. 20 According to Indian philosophy that which is born must die. Death is the only certain thing in life. 21 In any case a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking. Also, the negative aspect of the right to live would mean the end or extinction of the positive aspect, and so, it is not the suspension as such of the right as is in the case of silence or nonassociation and no movement. Therefore, the Hon ble Court under Article 142 has all the 20 R.C. Cooper v. Union of India 21 C.E.S.C. Ltd. V. Subhash Chandra Bose

18 18 power to include Right to Die under the interpretation of Right of Life so as to guarantee Fundamental right by protecting inherent inalienable natural right. Art 21 confer on a person the right to live a dignified life, and therefore in further extension of the ambit of Article 21 it also to confer a right not to live, if the person choose to end his life. Also, Article 21 clearly state that a person life can be taken by the procedure establish by law. 22 If the Hon ble Court includes Right to Die under its interpretation based on reason forwarded of which the Hon ble Court has power to do complete justice under Article 142 of the Constitution then right to die will be a right as any other Fundamental Right and to commit suicide will no more be punishable. In an Article of Justice R.A. Jahagirdar of Bombay High Court in the illustrated weekly of India (Sept 29, 1985) in which the learned judge took the view that section 309 IPC was unconstitutional for the following reason; i. Neither academicians nor jurists are agreed on what constitute suicide, much less attempted suicide, ii. Means Rea, without which no offence can be sustained, is not clearly discernible in such acts, iii. Temporary insanity is the ultimate reason of such acts which is a valid defense even in homicides, and here in suicide, as observed by World Health Organization, suicide is committed under mental disorder, iv. Individual driven to suicide requires psychiatric care, and not an additional punishment by criminalizing him. That the person attempted suicide is not in such a mental state that he can sustain with habitual criminals. Psychiatric help is the need of situation. 23 Criminalizing attempted suicide violates Article 21 in following three grounds; i. Article 21 has conferred a positive right to live which carries with it negative right not to live. In this situation it has been first stated that the fundamental rights are to be read together with Article 19 and 21 taking into prime consideration. That the freedom of speech and expression includes freedom not 22 A.K. Gopalan V. State of Madras AIR 1950 SC Justice R.A. Jahagirdar weekly of India (Sept 29, 1985)

19 19 ii. iii. to speak and remain silent. Similarly, right to live should include right not to live, i.e. right to die. Analyzing National Crime Report Bureau it has been noticed that various cause that leads people to commit suicide are mental diseases and imbalances, unbearable physical ailments, affliction by socially-dreaded diseases, decrepit physical condition disabling the person from taking normal care of his body and performing the normal chores, the loss of all senses or of desire for the pleasure of any of the senses, extremely cruel or unbearable conditions of life making it painful to live, a sense of shame or disgrace or a need to defend one s honour or a sheer loss of interest in life or disenchantment with it, or a sense of fulfillment of the purpose for which one was born with nothing more left to do or to be achieved and a genuine urge to quit the world at the proper moment. That such a person who has already been penalized in his life has nothing to be penalized further, and criminalization of attempted suicide is nothing but a vague and unreasonable additional punishment for such a person. That different form of suicide has been followed in our country and the same is included in various religions for long time. Sati, Samadhi, johar, atmarpana are to name a few. Also, it has been observed that saints and savants, social, political and religious leaders have immolated themselves in the past and do so even today by one method or the other. Further, the Constitutionality of section 309 has been assailed as being violative of Article 21 which protects life and personal liberty, citing J.S. Mill, about making an act relatable to personal liberty punishable. The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. The principle is that the sole end for which mankind is warranted individually or collectively, in interfering with the liberty of action of any of their number, is self- protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of 415 others to do so would be wise, or even right. These are good

20 20 reasons for remonstrating with him or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he does otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else. The only part of the conduct of anyone, for which he is amenable to society is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign." 24 That the Constitutional interpretation can be done under exercise of its jurisdiction under Article 142 (1) of the Constitution as it entitles Hon ble Court to pass any decree, or make any order, as is necessary for doing complete justice in any cause or matter pending before it. It has ample of power under Article 142, to issue necessary direction to fill the vacuum till either the legislature steps in to cover the gap or discharges its role 25. Also, the Hon ble Court has emphasized that it is the duty of the executive to fill the vacuum by executive order because its field is coterminous with that of the legislature and where there is inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its Constitutional obligations to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field. And, therefore the Hon ble bench has ample of power under Article 142 to set aside the Constitutional Bench decision of Gian Kaur 26, and declare section 309 unconstitutional by including Right to Die under the scope of Article 21, Right to live with human dignity. 24 J.S. Mill in an Article from Constitution and what it means today 25 Vineet Narain v. Union of India AIR 1998 SC Smt. Gain Kaur 26 v. State of Punjab, AIR 1996

21 21 3. SECTION 309 OF I.P.C. IS UNCONSTITUTIONAL AND SHOULD BE REPEALED 3.1. Motive of making attempted suicide punishable; Section 309; Attempt to commit suicide: Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punishable with simple imprisonment for a term which may extend to one year (or with fine or with both.) Attempt to suicide is a punishable but bailable offence triable by magistrate of any class. Suicide as such is no crime under the code. It is only an attempt to commit suicide that is punishable under this section. In other words, it is only when a person is unsuccessful in committing suicide that the code is attracted and s/he is punishable. If the person succeeds, there would be no offender who would be brought within the purview of the law. The section is based on the principle that the lives of men are not only important to them but also to the state which protects them. The state is under obligation to prevent the person from taking their lives as it prevents them from taking the lives of other. An attempt under section 309 of IPC implies at least an act towards the commission of suicide, such as trying to drown or poison or shoot oneself. If A, with an object to commit suicide, throws himself into well, he is guilty of an attempt and is punishable under this section, if rescued or fails in his attempt. The intention behind section 309 in to deter the commission of suicide while in contrary to the motive behind regulation of section 309 it promotes flawless attempt for commission of suicide because otherwise on failure it would be punishable. And, that is why section 309 is vague and unreasonable. The petitioner requests the court to get into review of section 309 under Article 141 and Article 142 and declare section 309 unconstitutional Committing Suicide is result of mental illness Of 1,35,445 suicide committed in 2012 it was observed by National Crime Report Bureau that social and economical cause have led most of the males to commit suicide whereas emotional and personal causes have mainly driven females to end their lives, and further observed that suicide is not a crime as such but a mental retardness, emotional weakness, or driven by the forsaken fear of the future. Further, it was observed by World Health Organization that

22 22 suicide is being committed because of mental illness 27, that no person of sound mind, or in a state of sound mind can commit suicide. The act of commission of suicide is an act done under mental disorder observed by World Health Organisation. Thus, the vital ingredient to criminalize an act mens rea is absent in attempted suicide. Actus non facit reum nisi mens sit rea is a well known maxim of criminal law. It means the act itself does not make a man guilty unless its intention was so. From this maxim follows another proposition Actus Me Invito Factus Non Est Mens Actus which means An act done by me against my will is not my act at all 28. This means an act in order to be punishable by law must be willed act or a voluntary act and at the same time must have been done with a criminal intent. The intent and the act both must be concur to constitute the crime. 29 In this present case also, the girl Ram Kali during her act of inflicting deep injury was in the state of mental illness and also she was going through mental stress due to which she went to an extent of the mental stress that she inflicted extreme hurt on self. This act of her where her frame of mind was not working normally which in criminal sense results into absence of mens rea. A person in the state of mental illness cannot think the consequence of the act which is an exception to the crime definition in the Indian Penal Code. Hence, due to absence of Mens Rea in the acts of attempted suicide makes the section 309 of I.P.C. as vague. How come the law penalizes an act committed without an important ingredient means rea? and, therefore section 309 of IPC is vague and unconstitutional. Further, the attempted suicide is a cry for help and not for drawing into the punishment with habitual criminals. A harsh law is no law but a brutal order from political superior to the political inferior. 30 The petitioner urges the Hon ble bench to abolish such a law which is unreasonable and nonmaintainable. Instead of sending the young girl to psychiatric clinic, section 309 of IPC gleefully sends her to mingle with criminal. The continuance of section 309 IPC is an anachronism unworthy of a human society like ours. Further, the Hon ble Court shall entertain a psychologist instead of involving the petitioner into prosecution to look over her emotional problems and mental health of petitioner under Article 142 so as to do complete justice. 27 Report of National Crime Record Bureau on Accidental Death and Suicide in India, Harding V. Price, (1948) 1 K.B Fowler V. Tadgil (1798) 7 T.R A K Gopalan v. State of Madras AIR 1950 SC 27

23 23 4 F.I.R. LODGED UNDER SECTION 309 OF I.P.C. SHOULD BE QUASHED 4.1. F.I.R. lodged under Section 154 of CrPC 1973 read with section 309 of I.P.C. should be quashed as it has been humbly submitted in the Hon ble Court that section 309 is unconstitutional which will automatically result in the quashing of the F.I.R The petitioner has submitted in the Hon ble Court that the Right to life under Article 21 includes Right to die which makes the Section 309 of IPC unconstitutional, and hence FIR lodged based on the repelled section is not maintainable The Hon ble bench shall command the police to look into the illegality if any and shall help Ram Kali to marry a boy of her choice, and shall remove any obstruction if follows, and punish them who creates any obstruction in her marriage. A major girl in this country is free to live at her will under Article 21 of the Constitution. Further, the threats for suicide are the cry for help and the same shall be provided and protected under law of the land. Petitioner in this regard urges the court to command police to enforce law and order. That to marry a boy of her choice is under law of the land and police shall protect it.

24 24 PRAYER Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited, it is most humbly and respectfully prayed by the Respondent, before this Hon ble Supreme Court that it may be pleased to: I. That the Writ Petition filed under Article 136 in maintainable. II. That the Right to life shall include Right to Die. III. That Section 309 shall be repealed from the I.P.C IV. That the F.I.R. be quashed on grounds of being unreasonable and not under provision of law. V. For that such other order/ orders be passed as may be necessary and deemed fit and proper in the facts and circumstances of the case to sub serve the interest of justice. All of which is most humbly and respectfully submitted. Date: Place: Counsel for Petition

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