team code - 28 team code amity intra moot court ... · 2 zahira habibullah sheikh v. state of...

1

SUBMISSION ON BEHALF OF THE RESPONDENT

TEAM CODE

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 THE BEHALF OF THE

RESPONDENT

TEAM CODE - 28

AMITY INTRA MOOT COURT COMPETITION

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TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………03

LIST OF ABBREVIATIONS ……………………………………………………….…06

STATEMENT OF JURISDICTION…………………………………………………..07

STATEMENT OF FACTS……………………………………………………………..08

ISSUES RAISED ……………………………………………….…………………..…. 09

SUMMARY OF ARGUMENTS………………………………………………………..10

ARGUMENTS ADVANCED………………………………………………………..….11

1. The Petition filed under Article 136 of the Constitution of India is not maintainable

……………………………………………………………………………………………….12

2. Right to life shall not include Right to die ……………………………………………...…15

3. Section 309 shall be not repealed from the I.P.C. 1860……………………………..…19

4. FIR shall not be quashed…………………………………………………..………..…..23

PRAYER…………………………………………………………….......…………………..24

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INDEX OF AUTHORITIES

Serial No. Name Page Number

1 State bank of India v. S.B.I. Employees’ Union Of

India, AIR 1987 SC 2203: (1987) 4 SCC 370

12

2 Zahira Habibullah Sheikh v. State of Gujarat, (2004) 5

SCC 353: AIR 2004 SC 3467

12

3 Delhi Electricity Supply Undertaking v. Basanti Devi,

AIR 2000 SC 43 at 49: (1999) 8 SCC 229

12

4 Supreme Court Rules, 1956, Order XVI 13

5 Pritam Singh v. The State AIR 1950 SC 169: 1950

SCR 453

13

6 Sawhney v. LIC AIR 1991 2 SCC318 13

7 Gupta v. UPSEB AIR 1991 SC 1309 13

8 T.M. Krishnaswami Pillai v. Governor-General in

Council AIR 1947 FC 37

14

9 Smt. Gain Kaur 1v. State of Punjab AIR 1996 14

10 Kant 1996:423 15

11 Bhagavad Gita 15

12 Vedantic philosophy. 15

13 John 10; 10 15

14 Lloyd, INTRODUCTION TO JURISPUDENCE, 117-

123, 159 (1985)

16

15 LOCKE, TWO TREATISES OF GOVERNMENT 16

16 James Bopp, Nutrition and Hydration for Patients: The

Constitutional Aspects, 4 Issue in Law & Med. 3, 22

(1988)

17

17 Nikhil Soni v. Union of India & ors. AIR 2015 17

18 William Ernest Henley 18

19 Sayre, ‘Mens rea’, Harvard Law Review, no 45, 1932,

p 974; SKKV kara v. State of kerala (1970) Cr LJ 688,

p 692.

20

20 Gian Kaur v. State of Punjab (1996) SCC 648 21

4


21 1 State of Maharashtra v. Maruti Sripati Dubal AIR

1987

CrLJ 549

21

22 P Rathinam v. Union of India (1994) SCC 394 21

23 K. Karunakaran V. State of Kerala, 2000 Cr LJ 2278:

(2000) 3 SCC 761 (SC)

23

24 Satya Pal v. State of Uttar Pradesh 2000 Cr LJ 569 (All

__FB)

23

25 Mir Hashamali, (1917) 20 Bom LR 121; Kanubhai

Chhaganlal, 1973 Cr LJ 533

23

26 Babu Singh v. State of Uttar Pradesh, 1978 Cr LJ 651:

AIR 1978 SC 527; Afsar Khan v. State of Karnataka,

1992 Cr LJ 1676 (kant)

23

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. SEERVAI H.M., CONSTITUTIONAL LAW OF INDIA- A CRITICAL

COMMENTARY, (4th Edition), Universal Law Publishing Co. Pvt. Ltd., Delhi.

7. SHUKLA V.N., CONSTITUTION OF INDIA, (11th Edition 2008) Eastern Book

Company, Lucknow.

9. RAMCHANDRAN RAJU, SUPREME COURT PRACTICE AND PROCEDURE, (6th

Edition 2002) Eastern Book Company.

10. PANDEY J.N., CONSTITUTIONAL LAW INDIA, (4th Edition) Central Law Agency

11. DIVAN GORADIA MADHAVI, FACETS OF MEDIA LAW,(1ST

Edition 2006)

EASTERN BOOK COMPANY.

5


DICTIONARIES :

1. Merriam Webster Dictionary.

2. Black‟s Law Dictionary, 2nd Edition.

3. Oxford Advanced learned Dictionary.

4. Oxford Law Dictionary.

-

6


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

7


STATEMENT OF JURISDICTION

THE PETITIONER HAS INVOKED THE JURISDICTION OF THE HON’BLE SUPREME

COURT OF INDIA UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA, AND

THE RESPONDENTS HUMBLY SUBMIT TO THE JURISDICITON AS INVOKED BY

THE PETITIONER.

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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.

9


ISSUES RAISED

I. WHETHER THE PETITION FILED UNDER ARTICLE 136 OF THE

CONSTITUTION OF INDIA IS MAINTAINABLE OR NOT?

II WHETHER 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 AGAINST PETITIONER SHALL BE

QUASHED OR NOT?

10


SUMMARY OF ARGUMENTS

I. WHETHER THE PETITION FILED UNDER ARTICLE 136 OF THE

CONSTITUTION OF INDIA IS MAINTAINABLE OR NOT?

The petition filed under Article 136 of Constitution of India is not maintainable

because no substantial and grave injustice has been done, and that cases in

question doesn’t involves the features of sufficient gravity to warrant a review of

the decision appealed against, and that the petitioner lacks substantial question of

law so as to interpretation of Constitution, and therefore the petition is not

maintainable.

II. WHETHER RIGHT TO LIFE SHALL INCLUDE RIGHT TO DIE OR

NOT?

Right to life is an inherent natural right which was later codified into

fundamental right, while attempted suicide is an voluntarily termination

of life which is against the order of nature, and therefore it would be error

in interpretation of law to include Right to Die under Right to Life which

is codified under Article 21 of the Constitution of India.

III. WHETHER SECTION 309 IPC SHALL BE REPEALED FROM

IPC OR NOT?

Section 309 IPC shall not be repealed because termination of section 309

IPC would violate right to life under Article 21 which is the center of all

the fundamental right wherefrom other fundamental rights draw their

essence for further interpretation, that repealing this would drastically

violate all the fundamental rights enshrined in our Constitution, and thus

section 309 IPC shall not be repealed.

IV. WHETHER THE FIR FILED UNDER SECTION 309 IPC SHALL

BE QUASHED OR NOT?

The FIR filled under section 309 IPC read with section 154 CrPC 1973 shall

not be quashed because filling of the FIR is just a bringing of the criminal

proceeding followed with proper legal investigation, and neither do FIR nor

the investigation state the petitioner an offender. It is just for the good of

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society to initiate proper legal action to the cause, and therefore the filling of

FIR, that too in bailable offence, violates no legal rights of the petitioner, and

therefore the FIR shall not be quashed.

12


ARGUMENTS ADVANCED

1. THE PETITION FILED UNDER ARTICLE 136 OF THE CONSTITUTION

OF INDIA IS NOT MAINTAINABLE

The appeal is not in such a way so as to be maintainable under Article 132

1. Under Article 132 (1), an appeal lies to the Supreme Court from any judgment, decree

or final order, whether in a civil, criminal or other proceeding, (if the High Court

certifies under Article 134A) that the case involves a substantial question of law as to

the interpretation of Constitution. Article 134A is ancillary to Art 132(1), 133(1), and

134 (1) (c). The High Court can issue a certificate only when it is satisfied that the

condition is Art 132, 133, or 134, as the case may be, are satisfied1. No certificate has,

as to the bona fide knowledge of respondent, yet been granted by High Court for an

appeal to Supreme Court, and therefore the appeal can not be taken under Article 132

read with Article 134A of the Constitution.


1. Under Article 142 (1), the Hon’ble Supreme Court exercises its jurisdiction in any

cause or ‘matter pending before it’. 2 The plenary power of the Supreme Court under

Art 142 of the Constitution are inherent in the Court and are complementary to those

powers which are specifically conferred on the Court by various statues. The plenary

jurisdiction under Article 142 is the residual source of power which this Court may

draw upon as necessary whenever it is just and equitable to do so and in particular to

ensure the observance of the due process of law, to do complete justice between the

parties, while administering justice. 3For the appeal to be benefited under Art. 142 its

maintainability is pre-condition under Art 132, Art 136, Art 226, or any of them which

has jurisdiction to entertain appeal or petition. Thus, no appeal or petition can get

benefit if the same is not maintainable under any of the Articles or section of the

competent jurisdiction to file an appeal or petition. The Supreme Court exercises its

inherent jurisdiction in the matter pending before it, and thus can not apply to any

1 State bank of India v. S.B.I. Employees’ Union Of India, AIR 1987 SC 2203: (1987) 4 SCC 370

2 Zahira Habibullah Sheikh v. State of Gujarat, (2004) 5 SCC 353: AIR 2004 SC 3467

3 Delhi Electricity Supply Undertaking v. Basanti Devi, AIR 2000 SC 43 at 49: (1999) 8 SCC 229

13


other. Art 142 is an inherent power of Court to pass any decree, or make any order, as

is necessary for doing complete justice which is exercised through various other

jurisdictions in which the cases are entertained. Also, Art 142 is open to cases of all

jurisdictions, but the cases, whatsoever, must be entertained and exercised under

competent jurisdiction.


1. Under Article 136 (1), the Supreme Court is empowered 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.

4Though the Hon’ble Court the special power under this Article it is to be exercised

with a very conscious mind where being a special power it is to be exercised only in

those cases where special circumstances are shown to exist, and that whenever there is

an injustice done to a party in a proceeding before a Court or tribunal, or there is a

miscarriage of justice, or when a question of law of general public importance arises,

or a decision shocks the conscience of the Court. Article 136 is the residuary power of

the Supreme Court to do justice but it can be exercised sparingly and in exceptional

cases only, and as far as possible, a more or less uniform standard should be adopted

in granting special leave in the wide range of matters which comes before it under this

Article 5, and shall be entertained where there is substantial question of law so as to

the interpretation of Constitution, or a grave injustice has been done.

2. Where granting the leave would mean multiple claims on the same cause of action,

Court may disallow the petition. 6 The petitioner have sought several different claim in

the same petition, where quashing of FIR and unconstitutionality are not the same.

Thus, the appeal cannot be entertained in the grave instances of ambiguity.

3. An order of High Court cannot be set aside if it has not caused any prejudice to the

petitioner.7 The order of High Court was based on the decision of Hon’ble

Constitutional Bench of Supreme Court. Dismissal of petition of petitioner was based

on judgment of Constitutional bench of Supreme Court, thus in no way the decision

caused any prejudice to the petitioner, and therefore, the appeal is not maintainable.

4 Supreme Court Rules, 1956, Order XVI

5 Pritam Singh v. The State AIR 1950 SC 169: 1950 SCR 453

6 Sawhney v. LIC AIR 1991 2 SCC318

7 Gupta v. UPSEB AIR 1991 SC 1309

14


4. Also, the question is issue so sought lacks ‘substantial question of law so as to the

interpretation of Constitution’. A question is not substantial when the law on the

subject has been finally and authoritatively settled by the Supreme Court, and what

remains to be done by the High Court is only to apply the interpretation to the fact

before it. 8 The decision of the Constitutional Bench of Supreme Court in Gain Kaur

9

has solved the question.

8 T.M. Krishnaswami Pillai v. Governor-General in Council AIR 1947 FC 37

9 Smt. Gain Kaur

9v. State of Punjab AIR 1996

15


2. RIGHT TO LIFE DOES NOT INCLUDES RIGHT TO DIE

(1) Importance of life and its rights

Almost everyone would agree that life is the most precious gift that human beings have been

given.

Kant forbids Right to Die, herein taken as suicide, regardless of how rational it may be, as it is

use of a person as mere means to an end10

.

(2) Importance of life under Historical and religious context

According to Vedantic philosophy, the Parma Brahma created the human being.

God is present in the soul of the human being. God is the material cause and instrumentality

of all joys, happiness, woes, sorrows, deeds and karmas of humanity. Just as he gave life to

us, he takes it away from us as well. He is the creator as well as the doer and the destroyer of

this body, and therefore attempted suicide is against the order of creator11

. Committing

suicide is an offence as per Bhagavad Gita. Our soul atman after death of mortal body in

present life (resulted from committing suicide) again manifests a lower life form than present.

What of sin incurred by committing suicide? By committing suicide we again suffered in life

as our soul atman would manifest a lower form of life in next manifestation.12

In words of Bible, ‘Suicide is a grievous sin that seriously hurts both the heart of God, and

those who loved the deceased. The pain of losing a loved one who took their own life is not

easily healed, and often isn’t fully healed until Heaven.’13

It is directly counter to the power of

life that God has put so strongly into His creation. Everywhere we look we see life growing,

even in the most hostile environments. This “survival instinct” is a gift from God. In fact, if

He didn’t bestow this gift upon His creation there probably wouldn’t be any life on this planet

at all! Suicide, then, is directly contrary to the will of God, and originated in the realm of the

demonic host, who come only to “steal, and to kill, and to destroy”

(3) Right to life under Constitution of India

10

Kant 1996:423

11 Bhagavad Gita

12 Vedantic philosophy.

13 John 10; 10

16


Since the beginning of the democratic concept, if not earlier, since 17th

century, human

thinking has been veering round to the theory that man has certain essential, basic, natural and

inalienable right or freedom and it is the function of state, in order that human liberty may be

preserved, human personality may develop, and an effective social and democratic life

promoted, and nobody be it state itself can take away those inherent natural right by them.

14Right to life is a natural right which was later codified into fundamental rights.

15All the

other rights embedded into a golden fabric to strengthen right to life codified under Article 21

of the Constitution, and no one including state can take it, whereas right to die is an unnatural

act unless comes involuntarily. A voluntary surrender of life is an act against nature, and

therefore it is not strong enough to take away right to life. Constitutional interpretation of

including right to die in right to life is baseless.

Further, it is to check whether the scope of Article 21 includes ‘Right to Die’?

The petitioner relied on the argument that freedom of speech and expression includes freedom

not to speak, freedom to form association and movement’ to include the freedom not to join

any association or to move anywhere, and logically it must follow that right to live include

right to die, which is vague and unreasonable. Here, we recheck whether, the scope of Article

21 also includes right to die?

Article 21; “Protection of life and personal liberty No person shall be deprived of his life or

personal liberty except according to procedure established by law."

The argument so advanced by petitioner has misplaced analogy which would have arisen on

account of superficial comparison between the freedoms, ignoring the inherent difference

between one Fundamental Right and, the other. 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'. The right to life

stands on different footing from other rights as all other rights are derivable from the right to

live. The aforesaid criticism is only partially correct in as much as though the negative aspect

may not be inferable on the analogy of the rights conferred by different clauses of Article 19,

one may refuse to live, if his life be not according to the person concerned worth living or if

the richness and fullness of life were not to demand living further. One may rightly think that

having achieved all worldly pleasures or happiness, he has; some- thing to achieve beyond

14

Lloyd, INTRODUCTION TO JURISPUDENCE, 117-123, 159 (1985)

15 LOCKE, TWO TREATISES OF GOVERNMENT

17


this life. This desire for communion with God may very rightly lead even a very healthy mind

to think that he would forego his right to live and would rather choose not to live. In any case,

a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking.

Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch

of imagination can extinction of life' be read to be included in protection of life'.

Right to Life doesn’t include the Right to Die.

The 'right to life' including the right to live with human dignity would mean the existence of

such a right up to the end of natural life. This also includes the right to a dignified life up to

the point of death including a dignified procedure of death. In other words, this may include

the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to

die' with dignity at the end of life is not to be confused or equaled with the 'right to die' an un-

natural death curtailing the natural span of life.

The freedom must be balanced against the state’s interest in preserving the sanctity of human

life, as well as by other interest that the state considers important.16

The basic moral question that arises is whether by legalizing a person's right to die, we will

degrade a human beings life and stop respecting human life. No one can deny that there is

nothing more precious than the gift of life which every human being enjoys. Why then should

man decide when his life should end? Most religious people believe that life is sacred and one

should not waste time in planning about their death but planning about how to enjoy life.

Terminating life is not an answer to pain. All along life's journey man will suffer pain whether

it is physical or mental or emotional or psychological. Will legalization of right to die be done

to relieve oneself from the physical pain only? A person weakened by illness may not be in a

position to review his decision to kill himself. Decision to die by coming under some financial

or social obligation is also very dangerous. Somewhere down the line we may end up

violating the right to life while legalizing the right to death.

Also, introduction of Right to Die may safeguard illogical, unscientific religious dogmas such

as Santhara or ‘Sallekhana’, which peoples in Jain religion practices to end their life

voluntarily by going fast onto death, which is inhuman, and is punishable under section 309

IPC and the abetment of such an act is punishable in section 306 IPC.17

16

James Bopp, Nutrition and Hydration for Patients: The Constitutional Aspects, 4 Issue in Law & Med. 3, 22

(1988)

17 Nikhil Soni v. Union of India & ors. AIR 2015

18


When life is woe and hope is dumb, the world says go! The grave says, come! Whose voice

will you hear? Will you be a faint heart and say that I want the right to die or will you in

your sorrow and misery and pain be a brave heart and say, dear god give me two more

precious moments because I want to cherish the precious gift of life.18

18

William Ernest Henley

19


3. SECTION 309 OF I.P.C. IS CONSTITUTIONAL AND SHALL NOT BE

REPEALED

1. Deletion of section 309 will leave ambiguity in law

Further, it is to be submitted in the Hon’ble Court that deletion of section 309 IPC will

leave several aspects unanswered, in the case of dowry death it may leave ambiguity in

law. To describe, section 498A of IPC run as follows;

Section 498A; Husband or relative of husband of a women subjecting her to cruelty,-

Whoever, being the husband or the relative of the husband of an women, subjects such a women to

cruelty shall be punished with imprisonment for a term which may extend to three years and shall

also be liable to fine.

Explanation; FOR the purpose of this section, ‘cruelty’ means—

a. Any wilful conduct which is of such a nature as is likely to drive the women to

commit suicide or to cause grave injury or danger to life, limb or health

(whether mental or physical) of the women; or

b. Harassment of the women where such harassment is with a view to coercing

her or any person related to her to meet any unlawful demand for any property

or valuable security or is on account of failure by her or any person related to

her to meet such demand.

- Where if a women commits suicide, and in the circumstances that suicide will

be declared legal, such act and anything done for commission of such an act,

will not be illegal, and thus, the guilt minded will left untouched by law, and

thus, it will attract grave injustice to millions and more to come. The

allegations of dowry deaths being portrayed as suicide and then there are

unanswered questions about euthanasia and assisted suicide. What will

happen to these cases? What about the façade where it is yet to be established

that attempt to suicide was because of torture, in the light of Article 142 to

establish complete justice the Hon’ble Court cannot leave these provisions

just unanswered left in vague and ambiguity. The ambiguity may lead to

injustice of millions and more to come. The government counsel submits its

argument in the Hon’ble Court not to delete section 309 IPC and stay as it is.

2. Motive of making suicide punishable

20


Suicide has been made punishable for a greater social cause and for the development of oneself. It

was made punishable in order to discourage suicide that one who even thinks of its attempt shall

deter in doing so. Further, it has been accepted by the learned Hon’ble judges of Supreme Court

that of all suicide is committed, the one part of the whole, the larger part of people are mentally ill.

Their fear compared to those of us is much greater. They are demoralized and discouraged with

the life that they are feeling relax in ending the ebbing out life. Though, with this extent of

negativity, the learned Hon’ble Judges of Supreme Court has also agreed that all those hatred,

disappointments, hopelessness can be fought and have been fought by many we have known and

learned from their life style. That there is an obstruction with extreme pain in every successful life

but with it comes the courage to live with dignity.

The great legend of this era Stephen Hawking and Nick Vojicic have set an example with their

life. That the negativity is not an end to the life, it can be fought, and be won, with this positive

view in mind, that to end a life is not an end to the problem, the government counsel requests the

Hon’ble Bench to dismiss the petition of petitioner and left section 309 of IPC untouched,

establishing its Constitutionality as it is.

Mens rea in suicide

That the argument of petitioner that suicide lacks Mens Rea which is an essential ingredient to

establish an offence is false. However, there is no single state of mind that must be present as a

pre-requisite for all crime. Mens Rea takes on different colors in different surroundings. What is

an evil intent for one kind of offence may not be so for another kind19

, and therefore in some

suicide instances of Mens Rea can be palpably seen which is as follows;

Suicide bomber; the suicide bomber is a walking hazard to public at large. Leaving them

untouched from the preview of law will encourage such ill minded terrorist.

Intake of Cyanide; it has been seen that consumption of Cyanide pills with an intention to wipe

out evidence is active attempt by colleague terrorist. Establishing suicide legal, and not an offence,

as is today, will encourage such criminals with active Mens Rea, to commit offence at large, and

be left untouched by law.

19

Sayre, ‘Mens rea’, Harvard Law Review, no 45, 1932, p 974; SKKV kara v. State of kerala (1970) Cr LJ 688,

p 692.

21


Threat of suicide in order to administer illegal demand. Certain activities have come to

preview where the accused have threatened law enforcement agencies to administer their demand.

Such unlawful demand have been controlled or stopped to date because of section 309, upon its

deletion, they would become active.

3. Attempted suicide may handicap law enforcement agencies

It has been submitted in the Hon’ble Court that because of restriction under Article 14 of

procedural discrimination and reasonable classification decriminalizing a law can not discriminate

based on similar circumstances. Attempted suicide for whatever reason is no different than fast

onto death. Thus, if attempted suicide be made unconstitutional and hence not punishable, that it

would handicap law enforcement agencies in dealing with persons who resort to fast unto death or

self-immolation to press the government/ authorities to accept their unreasonable or illegitimate

demands. Government based on the trust of majority of sovereign will have to do whatever

unreasonable and illegitimate demands made by such person who have fast onto death. Thus, fast

onto death will become an illegitimate method of enforcing their unlawful demands. Such people

can no longer be booked for attempt to suicide or be force-fed, and therefore declaring section 309

IPC unconstitutional will be against the basic executive order. Government counsel herein request

the Hon’ble Court to cut out arguments forwarded by petitioner as it is not reasonable in day to

day business of executive order.

3.3. It leaves several things unanswered

If Section 309 will be deleted, it leaves out several aspects unanswered as there are

cases of allegations of dowry deaths being portrayed as suicide and then there are

unanswered questions about euthanasia and assisted suicide. What will happen to

these cases? What about the façade where it is yet to be established that attempt to

suicide was because of torture. The Hon’ble Court shall not leave these just like

that and ensure that these are covered.

3.4 Constitutionality of Gian Kaur

In Gian Kaur20

, however, a Constitution Bench of the Supreme Court overruled the

decisions in Maruti Shripati Dubal 21

and P. Rathinam22

, holding that Article 21 cannot be

construed to include within it the 'right to die' as a part of the fundamental right guaranteed

20

Gian Kaur v. State of Punjab (1996) SCC 648

21 State of Maharashtra v. Maruti Sripati Dubal AIR 1987 CrLJ 549

22 P Rathinam v. Union of India (1994) SCC 394

22


therein, and therefore, it cannot be said that section 309, IPC is violative of Article 21. It

was observed that when a man commits suicide he has to undertake certain positive overt

acts and the genesis of those acts cannot be traced to, or be included within the protection

of the 'Right to Life' under Article 21. 'Right to life' is a natural right embodied in Article

21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible

and inconsistent with the concept of 'right to life'. The comparison with other rights, such

as the right to 'freedom of speech', etc., is inapposite. To give meaning and content to the

word 'life' in Article 21, it has been construed as life with human dignity. Any aspect of life

which makes it dignified may be read into it but not that which extinguishes it and is,

therefore, inconsistent with the continued existence of life resulting in effacing the right

itself. The 'right to die', if any, is inherently inconsistent with the 'right to life', as is death

with life.

The significant aspect of 'sanctity of life' is also not to be overlooked. Article 21 is a

provision guaranteeing protection of life and personal liberty and by no stretch of imagination

can 'extinction of life' be read to be included in 'protection of life'. Whatever may be the

philosophy of permitting a person to extinguish his life by committing suicide, we find it

difficult to construe Article 21 to include within it the 'right to die' as a part of the

fundamental right guaranteed therein. Right to life is a natural right embodied in Article 21

but suicide is an unnatural termination or extinction of life and, therefore, incompatible and

inconsistent with the concept of 'right to life'.

Therefore it can be said now that 309 of IPC is Constitutional and should not be repealed by

the Hon’ble Court of India.

23


4. F.I.R. LODGED UNDER SECTION 309 OF I.P.C. SHOULD NOT BE QUASHED

FIR logged under section 309 IPC read with section 154 of CrPC 1973. FIR is the first legal

instrument to enhance legal proceeding followed up with investigation. FIR doesn’t establish any

accuse a criminal, and nor do the investigation. It is on Court to convict or acquit. The Court does

not interfere with investigation unless there are compelling reasons for doing so.23

An order staying

arrest is to be sparingly granted, indeed, in rarest of the rare cases.24

Without an investigation

which is being followed up by FIR, how can the police protect the legal rights of Ramkali, the

petitioner, Banshilal, or her uncle Kaliya, or of any other connected with the case?

Quashing of FIR will interrupt legal proceeding which may go against petitioner, and/or society at

large, and therefore establishing the process of FIR is at public interest. Also, attempted suicide is

a bailable offence under section 309 of IPC.

The petitioner Ramkali under section 436 of CrPC 1973 will in no circumstances will be arrested,

if provided the bail on executing a bond with or without surety for her appearance in further

proceeding, and therefore in no way her legal or any of the Constitutional rights are being

hampered. Where a person who is arrested is not accused of a non-bailable offence, no needless

impediments should be placed in the way of his being admitted to bail. In such a case the person is

ordinary to be at liberty, and it is only if he is unable to furnish such moderate security, if any, as

is required of him, as is suitable for the purpose of securing his appearance before the Court

pending inquiry that should be remain in detention, 25

moreover refusal of bail in cases of bailable

offence is rarest of the rare case26

. The petitioner cases do not fall within rarest of the rare, and

therefore the petitioner is to live at her personal liberty, and therefore, to quash the FIR is

unreasonable. Thus, the government counsel requests the Hon’ble Court that not to quash the FIR

and allow to start the investigation.

23

K. Karunakaran V. State of Kerala, 2000 Cr LJ 2278: (2000) 3 SCC 761 (SC)

24 Satya Pal v. State of Uttar Pradesh 2000 Cr LJ 569 (All __FB)

25 Mir Hashamali, (1917) 20 Bom LR 121; Kanubhai Chhaganlal, 1973 Cr LJ 533

26 Babu Singh v. State of Uttar Pradesh, 1978 Cr LJ 651: AIR 1978 SC 527; Afsar Khan v. State of Karnataka,

1992 Cr LJ 1676 (kant)

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 Special Leave Petition filed under Article 136 in not

maintainable.

II. That the Right to life does not include Right to Die.

III. That Section 309 shall be not repealed from the I.P.C. 1860.

IV. That the F.I.R. shall not be quashed.

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 Respondent

25


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