amity intra moot court competittion in the hon’ble … · submission on behalf of the petitioner...
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SUBMISSION ON BEHALF OF THE PETITIONER
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
SUBMISSION ON BEHALF OF THE PETITIONER
AMITY INTRA MOOT COURT COMPETITTION
Team Code - 28
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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________________________________________________11
1. WHETHER THE PETITION IS MAINTAINABLE?...................................................11-15
2. WHETHER RIGHT TO LIFE INCLUDES RIGHT TO DIE? …………………..….16-20
3. WHETHER SECTION 309 IPC IS UNCONSTITUTIONAL AND SHOULD BE
REPEALED?.......................................................................................................................21-22
4. WHETHER FIR LOGGED UNDER SECTION 309 IPC SHOULD BE QUASHED?........ ..23
PRAYER_________________________________________________________________24
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INDEX OF AUTHORITIES
Serial No. Name Page No.
1 Kunhayammed v. State of Orissa, AIR 2000 SC 2587, 2593: (2000) 6 SCC
359
11
2 Durga Shankar v. Raghu Raj, AIR 1954 SC 520: (1955) 1 SCR 267 11
3 P. Rathinam V. Union of India, AIR 1994 SCC (3) 394 11
4 Smt. Gian Kaur v. State of Punjab AIR 1996 SCC (2) 648 12
5 Rajendra Kumar v. Union of India, AIR 1980 SC 1510: (1980) 3 SCC 435 12
6 State of Gujarat v. Salimbhai Abdulghaffar Shaikh, (2003) 8 SCC 50, 54:
AIR 2003 SC 3224.
12
7 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
SCALE 367
13
10 Prestige Lights Ltd v. SBI, (2007) 8 SCC 449: (2007) 10 JT 218 13
11 Vineet Narain v. Union of India AIR 1998 SC 889: (1958) 1 SCC 226 14
12 Vishakha v. State of Rajasthan 1997 6 SCC 241 14
13 Smt. Gain Kaur v. State of Punjab AIR 1996 SC 946 14
14 A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531 15
15 Lecture on the principle of Political Obligation, T. H. Green, 1883, p. 114 16
16 Principles on Modern Political Science, J. C. johari, pp. 136, theories of
right, 3rd
para.
16
17 Clarke 1999:460, Seidler 1983: 430 16
18 D. Callahan 1999:25-26, J. Callahan 1999:146-147 16
19 Munn v. Illinois 94 U.S. 113 (1877) 16
20 R.C. Cooper v. Union of India 17
21 C.E.S.C. Ltd. V. Subhash Chandra Bose 17
22 A.K. Gopalan 18
23 Justice R.A. Jahagirdar weekly of India (sept 29, 1985) 18
24 J.S. Mill in an Article from Constitution and what it means today 20
25 Vineet Narain v. Union of India AIR 1998 SC 889 20
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26 Smt. Gain Kaur v. State of Punjab, AIR 1996 20
27 Report of National Crime Record Bureau on Accidental Death and Suicide
in India, 2012
22
28 Harding V. Price, (1948) 1 K.B. 695 22
29 Fowler V. Tadgil (1798) 7 T.R. 509 22
30 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. 2.
5. 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,(1ST
Edition 2006)
EASTERN BOOK COMPANY.
9. K.D. GAUR CRIMINAL LAW (CASES AND MATERIAL) 7TH
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.
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LIST OF ABBREVIATIONS
Ann Annual
Art. Article
IPC Indian Penal Code 1860
JURS Jurisdiction
FR Fundamental Rights
SC Supreme Court
HC High Court
SLP Special Leave Petition
AIR All India Report
Sept September
WHO World Health Organization
NCRB National Crime Report Bureau
FIR First Information Report
PS Police Station
PR Police Report
FR Final Report
SEC Section
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STATEMENT OF JURISDICTION
The Petitioner has approached the Hon'ble Supreme Court under Article 136 of the
Constitution of India, 1950.
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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. 1996 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.
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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. 1860
OR NOT ?
IV. WHETHER F.I.R. FILED SHALL BE QUASHED OR NOT ?
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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?
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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.
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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 136. 1The 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. 2The
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 3case from
1 Kunhayammed v. State of Orissa, AIR 2000 SC 2587, 2593: (2000) 6 SCC 359
2 Durga Shankar v. Raghu Raj, AIR 1954 SC 520: (1955) 1 SCR 267
3 P. Rathinam V. Union of India, AIR 1994 SCC (3) 394
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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.
5The 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. 6
1.3. 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) 648
5 Rajendra Kumar v. Union of India, AIR 1980 SC 1510: (1980) 3 SCC 435
6 State of Gujarat v. Salimbhai Abdulghaffar Shaikh, (2003) 8 SCC 50, 54: AIR 2003 SC 3224.
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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. 7If 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. 8Then 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.
1.4. 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 presentation9,
(iii)Petitioner lacks locus standi to file the petition.
(iv) The conduct of the petitioner disentitles him to any indulgence by the court10
,
(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 367
10 Prestige Lights Ltd v. SBI, (2007) 8 SCC 449: (2007) 10 JT 218
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1.5 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 well-
established 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.
1.6. 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. 12
1.7. 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.
1.8. 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 226
12 Vishakha v. State of Rajasthan 1997 6 SCC 241
13 Smt. Gain Kaur v. State of Punjab AIR 1996 SC 946
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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.
1.9. 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
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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 life15
, 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 recommended17
, 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
permissible18
.
2.2. 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. 114
16 Principles on Modern Political Science, J. C. johari, pp. 136, theories of right, 3
rd para.
17 Clarke 1999:460, Seidler 1983: 430
18 D. Callahan 1999:25-26, J. Callahan 1999:146-147
19 Munn v. Illinois 94 U.S. 113 (1877)
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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.
2.3. 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 ‘non-
association’ 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
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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 27
23 Justice R.A. Jahagirdar weekly of India (Sept 29, 1985)
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to speak and remain silent. Similarly, right to live should include right not to
live, i.e. right to die.
ii. 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.
iii. 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
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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 role25
. 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 889
26 Smt. Gain Kaur
26v. State of Punjab, AIR 1996
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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.
3.2. 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
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suicide is being committed because of mental illness27
, 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 non-
maintainable. 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, 2012
28 Harding V. Price, (1948) 1 K.B. 695
29 Fowler V. Tadgil (1798) 7 T.R. 509
30 A K Gopalan v. State of Madras AIR 1950 SC 27
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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.
4.2. 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.
4.3. 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.
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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. 1860.
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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