Print edition : September 18, 2015

Members of the Jain community taking out a "silent" protest in Jaipur on August 22 against the High Court judgment criminalising Santhara. Photo: Rohit Jain Paras

The Rajasthan High Court’s judgment criminalising the practice of Santhara by followers of Jainism has led to an uncertainty on the contours of judicial interference in religious matters.

ARTICLE 25 of the Constitution of India guarantees that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion, but it subjects this guarantee to public order, morality and health and to other fundamental rights guaranteed by the Constitution. Article 25(2)(a) makes it clear that this guarantee shall not affect the operation of any existing law or prevent the state from making any law regulating or restricting any economic, financial, political or other secular activity that may be associated with a religious practice.

In Nikhil Soni vs Union of India, a Rajasthan High Court bench comprising Chief Justice Sunil Ambwani and Justice Veerendra Singh Siradhana was faced with the dilemma of having to resolve an apparent tension between this guarantee and two provisions of the Indian Penal Code (IPC), namely, Sections 306 and 309, which criminalise abetment to suicide and attempt to suicide respectively. The Bench resolved this by directing the State government to stop the practice of Santhara and to treat it as suicide punishable under Section 309 of the IPC and its abetment punishable under Section 306 of the IPC.

Both these provisions are seen to be in conflict with the practice of Santhara among the followers of Jainism. “Santhara”, or “Sallekhana”, means a fast until death. It is a practice prevalent in both the Shwetambara and the Digambara sects of Jainism. According to it, a person, after taking a vow of Santhara, gives up food and water and waits for death to arrive. In his petition, Nikhil Soni alleged that it was a religious fast until death on the pretext that when all purpose of life had been served or when the body was unable to serve any purpose of life, the Santhara would obtain “moksha” (salvation). Soni submitted that Santhara was a religious thought and had no place under the law of the land.

In his petition, Soni conceded that Santhara involved the right to freedom of religion under Article 25. However, his grievance was that this right should be subjected to public order, morality and health and to the other provisions of Part III of the Constitution, which includes Article 21 guaranteeing the right to life. A practice, however ancient it might be to a particular religion, could not be allowed to violate the right to life of an individual, he submitted in his petition.

He argued that a voluntary fast until death was an act of self-destruction, which amounted to “suicide”, which is a criminal offence and is punishable under Section 309 of the IPC with simple imprisonment for a term up to one year or with fine or with both. The abetment of suicide is also punishable under Section 306 of the IPC with imprisonment up to 10 years and also a fine.

Soni narrated that a person adopting Santhara was helped by the entire community in designing it ceremoniously. People visit the person for his or her darshan and to witness the occasion with reverence. The house of such a person becomes a place of pilgrimage. The entire act was considered an act of courage and rational thinking on the pretext that the soul never died, he said. “They glorify the act and its eventuality,” he said. He gave a few instances of Santhara since 1993 and alleged that the police had not taken any action in these although the entire family and the community had abetted the persons in the act of Santhara. This, he said, was because the administration in Rajasthan accepted the act as part of a religious practice.

The government’s plea

The Rajasthan government told the court that the right of an individual practising Santhara was protected as a religious practice under the Constitution. The State government relied on a study carried out by Justice T.K. Tukol, former Vice-Chancellor of Bangalore University and the author of “Sallekhana is not suicide”. This research study, the government claimed, provided the procedure, stage and situation for a person who wanted to adopt or follow “Sallekhana”. The government submitted to the court that Soni had failed to show that Santhara was practised under coercion and did not amount to religious activity, and described his petition as one not backed by any research. The Jain community, which impleaded itself as a respondent in the case, contended that Santhara was an exercise of self-purification and a popular religious practice through the history of Jainism. It was a voluntary vow with meditation accompanied by the person abstaining from food, water and every kind of nourishment to the body until the end of his or her life; it was not giving up life, but very much taking death in its own stride, the community argued before the court. The community’s argument also was that a person resolved to do Santhara when the body did not cooperate in living meaningfully anymore and when one did not wish to live on or desire sensual pleasures and also did not seek death to come swiftly.

The community also contended before the court that Santhara involved the right to die with dignity as a part of life with dignity when death was imminent and the process of natural death had commenced.

The High Court dealt with only the question as to whether the practice of Santhara was an essential practice of the Jain religion so as to be eligible for protection under Articles 25 and 26 of the Constitution. A practice might be religious but not an essential and integral part of practice of that religion and, therefore, was not protected by Article 25, the High Court held. The court then concluded that it had not been established that Santhara was an essential religious practice of the Jain religion. “We do not find that in any of the scriptures, preachings, articles or the practices followed by the Jain ascetics, the Santhara or Sallekhana has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha. There is no such preaching in the religious scriptures of the Jain religion or in the texts written by the revered Jain Munis that the Santhara or Sallekhana is the only method, without which the moksha is not attainable. There is no material whatsoever to show that this practice was accepted by most of the ascetics or persons following the Jain religion in attaining the nirvana or moksha,” the bench concluded.

The conclusion, without any evidence of research by the judges into the Jain scriptures, is based on the bench’s claim that the respondents did not discharge the burden of showing that Santhara was an essential practice of Jainism. Such reasoning by a constitutional court is considered inappropriate to resolve a constitutional dilemma. Apparently, the bench was prepared to protect Santhara from the rigours of Sections 306 and 309 of the IPC if it was shown that it was an essential practice of Jainism. Therefore, the question whether the court examined this issue sufficiently and convincingly remains unanswered.

In 1984, the Supreme Court held in Jagadishwaranand vs Police Commissioner, Calcutta, that the tandava dance was not an essential practice of Ananda Margis, recognised by the court as a religious denomination. The reason given by the court was that both the denomination and the practice were recent phenomena. In Nikhil Soni, the bench does not refer to this case at all, raising doubts as to whether it avoided any reference because the Supreme Court’s conclusion in that case supports the argument that Santhara may be an essential practice of Jainism because it dates back to antiquity.

As the law professor and film-maker Shekhar Hattangadi observes in his interview (page 102), the legal controversy surrounding Nikhil Soni, as and when the appeal is heard by the Supreme Court, may become infructuous if the Central government takes to its logical culmination its intention to decriminalise the attempt to commit suicide by amending Sections 306 and 309 of the IPC so as to legally permit passive euthanasia, with some safeguards to prevent its misuse. But the larger question of whether the judiciary has the power to determine what is an essential practice of religion will remain debatable and has to be resolved by the Supreme Court.

According to Hattangadi, as per Jains’ own estimates, about 200 incidents involving the practice of Santhara happen every year in India. Of these, only about 12 are done under the supervision and certification of Jain munis who plead helplessness in monitoring the remaining. With complaints of coercive Santhara cases coming to the fore, the community may perhaps have to introspect how best to regulate the practice and separate the deviants, who might misuse it in the name of religion.

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