‘There is only one explanation of what has hitherto been accepted as the basis for the criminal law and that there are certain… moral principles which society requires to be observed and the breach of them if an offence not merely against the person who is injured but against society as a whole.’
The above quote is probably a spark which intrigues many to debate upon the punitive provisions enshrined in the Indian Penal Code for offences such as Attempt to Suicide and so on. This work deals with a couple of such controversial provisions.
Criminal Law is narrower than morality; hence, it must be confined within those limits and can be applied only to definite overt acts or omissions, capable of being distinctly proved which acts or omissions inflict definite evils. It is within these limits only, there can be any relation between criminal law & morality.Joel Feinberg, in his work, The Moral Limits of Criminal Law, opined that criminal law can only legitimately be applied to conduct that causes harm, or that causes serious offence. Harm refers to those states of setback interest that are the consequence of wrongful acts or omissions by others. Feinberg rejects the position that immorality is sufficient for criminalization. Now, the question of morality in criminal law arises in respect of those conducts, whose prohibition is hard to define. Judge Posner observed that a traditional purpose of criminal punishment is to express moral condemnation of criminal acts. He questioned as to how else one can explain prohibitions against gambling, prostitution, public nudity and masturbation, fornication, sodomy, the sale of pornography, sexual intercourse with animals, desecration of corpses and variety of other moral offences.
The Indian Penal Code is a colonial legislation. Like any other code, it contains some of the above mentioned offences. These offences were made punishable because of the belief held by a majority of citizens at the time when such acts were considered immoral. The question of morality, not only arises with laws relating to sex, but also to the question of birth & death, as the sanctity of human life is defaced when one commits suicide & hence, the question of morality.
3. Suicide & Morality in the Indian Penal Code
Section 309 of the Indian Penal Code reads
“Attempt to commit suicide – Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.”
Though there is no precise definition for the word ‘suicide’, it is regarded as the intentional taking of one’s own life.
The Constitutionality of Section 309 came up for consideration before the Supreme Court in P.Rathinam v. Union of India.( hereinafter ‘Rathinam case’). The apex court, struck down the section as violative of Article 21. It was opined that this was done in view of advancing the cause of humanization as well as attuning our law to the global wavelength. Later, the Supreme Court, in Gian Kaur v. State of Punjab overruled the Rathinam case. While the Rathinam case operated on the premise that a Right to Life , inevitably includes a Right to Die as well, in the Gian Kaur case, the reasoning to overrule the above logic, on the ground that a right to die, if any, is inherently inconsistent with the Right to life as is Death with life.
The moral issues relating to suicide must be examined in the light of the social circumstances. In a country like India , more than 25% of the population is poor and due to which, are bereft of the basic necessities of life, such as food, shelter & clothing, thereby making their lives sans one with dignity and in due course are deprived of a meaningful right to life under Article 21. In such conditions, one is indeed cornered to the brink of survival, and eventually forced to end their life owing to the above mentioned reasons.
The question of morality is one which is centered upon such dire conditions of the people. One cannot be granted a Right to Die in such circumstances, as their very right to life is abused due to their state of penury.
4. Homosexuality & Morality in the Indian Penal Code
One of the most controversial issues of morality in criminal law arises in cases of homosexuality. It has always been a subject of debate, that whether criminal law can legitimately be employed to protect people from harming their own moral character. The issue of sodomy confronted judges with the question of whether loss upholding sexual morality must yield to the demand of sexual freedom within the home. Section 377 of the Indian Penal Code deals with Homosexuality. It reads as :-
‘Unnatural offences – whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.’
5. The Position of Homosexuality in India
In India, one operates on the pretext that homosexuality is a disease, or a mental illness, henceforth, calling for measures to ‘cure’ or ‘alter’ it. It is just another expression of human sexuality. The Delhi High Court, in the famous Naz Foundation case, declared Section 377 as unconstitutional on the ground of being violative of Articles 21, 14 and 15 of the Constitution.
Further, analyzing the provision from the viewpoint of privacy rights, Blackmun, J. in his dissent in the Bowers case, made it clear that, the right to be let alone should be seen not simply as a negative right to occupy a private space free from government intrusion, but as a right to get on with your life, your personality and make fundamental decisions about your intimate relations without penalization.
The position in India, after the Naz Foundation case, has developed compared to the discriminatory situation it held prior to the case. It purports that the nation is moving towards a more progressive society which is open to new trends which are in consonance with the changing morals.
6. Recommendations & Suggestions
On a concluding note, we are left facing a question of morality. With the changing times, it is the need of the hour, to be flexible, as the definition of morality is changing as well. It should be noted that the above mentioned provisions (S.309 & 377) has not undergone any definitional change. The 42nd report of 5th Law Commission with regard to Section 309, taking examples from the Dharmashastras and the British Suicide Act of 1861, which decriminalized attempt to suicide in the UK, pleaded that the persons who attempted to take their lives needed active sympathy of the society rather than social condemnation, or punishment. Concurring with the view on constitutionality in GianKaur’s case, we suggest the retention of Section 309. However, the Court must look into the factual circumstances leading to such a desperate act, and decide accordingly, as in most of the cases, suicide is a drastic move triggered by a temporary insanity, and hence, calls for psychiatric care.
With regard to Section 377, one might refer to the Yogyakarta Principles which vouch for the full enjoyment of human rights of those with all kinds of sexual orientation and gender identities. It also prohibits the discrimination based on sexuality, and advocates a right to privacy in such cases. We are drawn to quote Brandeis J. here, as he, in his dissent in the Olmstead v. United States, held that the significance of man’s spiritual nature, of his feelings and of his intellect and that only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore they must be deemed to have conferred upon the individual as against the Government a sphere where he should be let alone. Hence, amendment to Section 377 should take these principles into consideration.
 As per Lord Devlin, Leslie Green, ‘Positivism & The Inseparability of Law & Morality’, New York University Law Review, Vol.83, No.4, Oct 2008
H.L.A.Hart, Law, Liberty & Morality, Oxford 1968
 Larry Alexander, ‘The Philosophy of Criminal Law’ in Jules Coleman & Scott Shapiro ed. , The Oxford Handbook of Jurisprudence and Philosophy of Law, Oxford University Press, pg. 851
 Milner v. Apfel 148 F. 3d 812, 814
P.Rathinam v. Union of India (1994) 3 SCC 394
P.Rathinam v. Union of India (1994) 3 SCC 394, para 110
GianKaur v. State of Punjab AIR 1996 SC 946
 Supra n.9, para 23
Naz Foundation vs. Government of NCT and Ors. MANU/DE/0869/2009
 Supra n.16 para 132
 Supra n.16 para 40
 277 US 438, 471
Anantha Krishnan Iyer and R. Hari Krishnan
Students, 3rd year, B.A.LLB(Hons) ,
Dr. Ram Manohar Lohiya National Law University, Lucknow
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]