Healing or Handcuffs? Re-evaluating Section 309 of the Penal Code 1860 in Bangladesh

 Healing or Handcuffs? Re-evaluating Section 309 of the Penal Code 1860 in Bangladesh

Salus populi suprema lex is a Latin maxim meaning “the welfare of the people is the supreme

law”. This maxim emphasizes that the welfare of the people is the supreme priority. However,

Section 309 of the penal code contradicts this principle and states that, “any person who attempts

to commit suicide and takes any measures toward the commission of that offence shall be

punished with simple imprisonment which may extend to one year, or with a fine, or with both

penalties”. This section functions as a punitive measure against those who are already severely

vulnerable mentally, rather than using a rehabilitative and welfare-oriented approach. This

provision uses the word ‘shall’ rather than ‘may’, thereby imposing a mandatory duty on the

court that must be performed and leaving no room for discretion.

An act or omission that violates the law and is committed with both a guilty act (Actus Reus) and

a guilty mind (Mens rea), making it punishable by the state, is considered a crime. When

determining criminal liability, these two components are crucial. Nonetheless, the law often

examines whether the act was taken willingly and on purpose. The actus reus may not be

conclusively established if the act was caused by coercion, a mental disease, or an accident.

However, the physical component of the offense is typically present when a person intentionally

performs an act that could cause them great injury or even death. The main argument against

Section 309 is that, rather than a criminal intent to harm society, suicide attempts are usually

driven by acute mental suffering, sadness, or desperation. The offender lacks the malice typically

required for criminal responsibility, in addition to being the victim. Thus, criminalizing a person

for attempting suicide may not be appropriate, since such an act often occurs when the individual

is not in a sound mental state and may lack full capacity to make a rational decision.

Suicide is the intentional taking of one’s own life. Suicide attempts typically indicate a state of

extreme emotional distress and psychological fragility rather than criminal intent. It is a

persistent behavior that usually happens when someone is experiencing severe unavoidable

emotional or physical pain. Therefore, the legislation ought to place more emphasis on mental

health treatment and psychiatric care than on criminal penalties for attempted suicide. The World

Health Organization's 2024 estimate states that Bangladesh's 2021 suicide rate was 2.8 per 100,000 people. In the nation, 40 individuals die by suicide on average every day. Consequently,

any person who survives a suicide attempt shall be punished with simple imprisonment for a

maximum of one year, or with fine or both under this archaic provision.

There is a widespread misconception that suicide is a decision made by someone who wants to

die. However, most of the time, it’s often an act committed by individuals who just wants to put

an end to their suffering. Such individuals are often unable to envision a way out of a difficult

situation, emotional state, or mental condition. It refers to focusing only on one aspect of a

problem while ignoring other important possibilities or perspectives. Chemical imbalances in the

brain may make it difficult for individuals to see solutions, maintain hope for the future, or

comprehend how their loss might affect others; they see nothing but pain. A person who is

suicidal or attempts suicide is often suffering from mental illness. Therefore, it should be

considered their constitutional right to receive proper treatment and care rather than being

punished for attempting suicide. The Penal Code,1860, under section 309, is a cruel law since it criminalizes those who need immediate medical and psychiatric assistance but are punished instead.

Critics argue that attempting suicide is a manifestation of severe mental distress, rather than a

‘criminal instinct’. An individual who makes an attempt at suicide could be reluctant to ask for

aid from the government or authorities for fear of punishment rather than receiving support. This

creates a compounding burden on an already vulnerable individual. A person who already has a

vulnerable mental state might not be worried about the possibility of punishment if this clause is

meant to act as a deterrent. Section 309 of penal code is widely considered to be violating human

rights and also an outdated law, thus being regarded as an “anachronism unworthy of a humane

society”

From a South Asia perspective, India officially decriminalized attempted suicide through the

Mental Healthcare Act, 2017 and this was further solidified by the Bharatiya Nyaya Sanhita

(BNS), 2023 which omitted section 309 entirely, thereby recognizing that a person who attempts

to suicide is under severe stress should not be punished. In contrast, Bangladesh still follows that

archaic provision which was enacted by the British in 1860. It is essentially cruel to hold

someone who has survived a suicide attempt criminally liable since they need mental health

treatment and care, not punishment. Moreover, mental health is becoming more and more important in contemporary countries, it is often overlooked in South Asia. While India has removed Section 309 of the Indian Penal Code, 1860 to acknowledge people’s mental health, Bangladesh, however has not yet done the same.

A former detainee (name withheld for privacy) described his experience about severe anxiety

and sleepless nights during incarceration, thereby illustrating how his mental state was impacted

by his feelings of loneliness. This illustrates how incarceration can worsen depression and

increase stress levels. A healthy environment, pleasant companionship, professional mental

health care, and social support are necessary for anyone who is suicidal, has attempted suicide, or

is suffering from mental discomfort or depression. Therefore, imprisonment will exacerbate a

person’s circumstances rather than enhance their mental health. Accordingly, it is not a supportive provision instead, it worsen the situation of an individual. As the welfare of society is

the ultimate goal of the law, this provision cannot be viewed as beneficial because it worsens the

situation of the individual.

Therefore, this provision of the Penal Code infringes upon the fundamental human rights

guaranteed under the Constitution of Bangladesh. Article 32 of the Constitution guarantees ‘right

to life’ which includes dignity, mental well-being, and autonomy. Criminalizing attempted

suicide does not save lives, rather, it punishes a person experiencing a mental crisis. A person

who attempts suicide is often suffering from serious mental distress and requires medical and

psychological care. According to Article 15 of the Constitution of Bangladesh, the government

must provide for everyone's basic needs, including healthcare. Mental health is a crucial

component of general public health and is just as important as physical health. In this sense, the

State is further required by Article 18(1) of the Constitution to enhance public health and

nutrition. Therefore, it should be the State's duty to protect and treat people who are experiencing

mental health problems. Additionally, the Mental Health Act, 2018 specifically addresses mental

well-being and provides a legal framework to ensure proper care, protection, and treatment for

persons suffering from mental distress. For example, the Mental Health Act of 2018's under section 6 acknowledges that people with mental illness have a right to the protection and guarantee of their health, property, dignity, education, and other fundamental rights. The rights of those suffering from mental illness in Bangladesh are safeguarded by this Act. However, these legal and constitutional safeguards are ultimately compromised by section 309 of the Penal Code. This section of the Penal Code prioritizes punishing suicide attempts over giving individuals with mental illnesses proper care and treatment. As a result, it violates both their constitutional rights and the rights guaranteed by particular laws meant to protect their welfare.

Based on preceding discussion section 309 of the Penal Code 1860 seems quite contradictory

with modern thinking of mental well-being and human rights. Making suicide attempts illegal

deters vulnerable people from getting the support and assistance they require, rather than

effectively preventing suicide. The legal system should prioritize treatment over punishment by

attending to their mental health issues and guaranteeing that they have access to rehabilitation

and psychological support. Bangladesh should thus reevaluate this colonial-era clause and take a

more compassionate and welfare-focused stance, following other countries that have already

decriminalized attempted suicide and given treatment and support first priority.