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Sunday, June 26, 2022

After deleting Section 309

Government must address the difficult issues surrounding mental health.

Written by Jayna Kothari |
Updated: December 22, 2014 12:03:44 am


The recent government proposal to strike down Section 309 as a criminal offence under the Indian Penal Code is certainly welcome news. Studies have consistently found that an overwhelming majority of people who die by suicide have a mental disorder at the time of their death. However, often these disorders are hardly recognised, diagnosed or adequately treated.

The announcement on the deletion of Section 309 does not indicate whether this step is prompted by mental health concerns. The government does state, however, that the proposal is based on the recommendations of the reports of the Law Commission of India. The deletion was first recommended in the 42nd report of the Law Commission of 1971. Significantly, this report did not make the recommendation out of mental health concerns surrounding persons committing suicide. It relied, among other sources, on the commentators on Manu in the Dharmashastra to state that a person who is driven to death is either “incurably diseased” or “meets with a grave misfortune”. The deletion of Section 309 was suggested out of pity or sympathy for those attempting to commit suicide. The suggestion came up again in the 210th report of the Law Commission in 2008, a document concentrating solely on the decriminalisation of suicide. This report did make references to the fact that persons committing suicide need sympathy, care and treatment, not punishment. But neither report made a strong case for the rights of persons with mental illnesses, continuing to describe them as having an incurable disease and deserving sympathy.

This is a rather outdated understanding of disability. The disability rights movement has been arguing for an understanding that is not rooted in a medical or a “disease”-based model but in a social model that conceptualises disability as the disadvantages and exclusions faced by people because of social barriers and attitudes. Mental health, if seen through a medical model, is completely surrounded by misunderstandings and negative stereotypes that result in stigma and discrimination against as well as isolation of people with mental illnesses and their families and carers. The social model of disability urges us to look beyond the issues of medical treatment and disease, to the identification of the social barriers that deny people with psycho-social disabilities the rights to employment, education, recreation and even citizenship. This social model is the core of the UN Convention on the Rights of Persons with Disabilities, which has been signed and ratified by India.

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That persons driven to commit suicide are, more often than not, facing mental health disorders and are in need of care and treatment was suggested in the new Mental Health Care Bill, 2013. This bill provides that any person attempting to commit suicide should be assumed to be suffering from a mental illness, and that it would be the duty of the government to provide him or her with adequate care, treatment and rehabilitation. The Supreme Court also considered suicide as a mental health concern in its judgment on euthanasia in Aruna Shanbaug vs Union of India, in which it recognised that a person attempting suicide is in need of help rather than punishment, and it recommended that Parliament consider the feasibility of deleting Section 309.

So, if the government really wants to ensure that the striking down of Section 309 has a significant impact then it must state unequivocally that this step is in recognition of the rights of persons with mental health disabilities who are driven to committing suicide and that they should not be further punished.

This could be a starting point for the government to take on and address the difficult issues surrounding mental health — the recognition of an individual’s right to receive adequate treatment and care, providing better access to mental health services, including mental health as an integral part of the right to health in government policy, providing adequate funding to ensure access to healthcare, and taking steps against mental health stigma and discrimination. Finally, the deletion of Section 309 could be the beginning of a series of other deletions, of provisions scattered across various legislation that are harmful and discriminatory to persons with disabilities. Without any of these steps to take it forward, striking down Section 309 would be meaningless.

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