‘Dramatic example of law vs religion’

BY an uncanny twist of circumstances, the Rajasthan High Court’s Santhara judgment was preceded, by a few weeks, by the buzz surrounding a documentary on the controversial Jain practice of voluntarily starving to death by Shekhar Hattangadi, a Mumbai-based journalist, law professor and film-maker. Completed earlier this year, the film, Santhara: A Challenge to Indian Secularism?, has won awards at two film festivals and elicited sharp and heated responses for and against the practice from among audiences. The film itself takes no sides, but subliminally asks a question while exploring the spiritual, scriptural, ethical, medico-legal and sociological aspects of the practice: What happens when a traditional religious practice violates the law? Based largely on interviews with, among others, those who filed the public interest litigation (PIL) petition in the High Court and their representatives, the film looks at how religion, law and constitutional secularism intersect in the ongoing debate over Santhara. It also depicts the last moments in the life of a Jain sadhvi who adopted this practice.

A science graduate with a dual master’s degree in international politics and journalism, Hattangadi is also a gold-medallist in law and a Kennedy Fellow in Public Policy at Harvard University’s John F. Kennedy School of Government, besides being an alumnus of the Film and Television Institute, Pune. He spoke to Frontline about the making of the film and about the court judgment. Excerpts:

What, according to you, are the social implications of the Santhara judgment?

In a faith-based society like ours which accepts, and even encourages, public displays of religiosity (meaning, over-the-top religious festivals and practices), the “social” and the “religious” are inextricably interlinked. So the first social impact of the Rajasthan High Court judgment would be that Jains will balk at it and bristle against what they view as an unjustified encroachment by the state into the realm of religion, and particularly their religion. Many among them see it as a violation of the constitutional guarantee of the right to religious freedom and practice as it pertains to individuals (Article 25) and to religious institutions (Article 26). Even as I say this, I hear news reports of Jains downing shutters and taking their peaceful protest against the judgment to the streets.

Apart from being a faith-based society in a larger sense, we’re also a society with multiple faiths. So I anticipate the Santhara judgment to have an indirect but nonetheless chilling effect of sorts on practitioners of rituals and practices of other religions—particularly those rituals and practices which seem to tread a fine line with respect to legal and constitutional provisions. I have in mind practices like the restricted entry of women into certain temples and dargahs, the practice of bal-diksha , the use of wine in church rituals in States where consumption of alcohol is prohibited, and so on. Naturally, they’re waiting and watching with considerable trepidation as the matter moves to the Supreme Court. This is a nervous time for religions in India.

How do you think it will pan out legally?

This arguably is a case in which we as members of the legal fraternity and also as Indian citizens expect a lot from the higher judiciary. I know you can’t really fault the Rajasthan High Court judgment on the basis of what’s already there in our statute books (for example, the Indian Penal Code, which criminalises suicide) and in our court precedents (for example, the Gian Kaur case, which held that the right to life enshrined in Article 21 did not include the right to terminate one’s life). I must admit, however, that I was hoping the High Court would be a little more proactive and creative in its interpretations of “suicide” and the “right to life” concepts as they pertain to religious practice. Remember, the most exciting period in the life of our higher judiciary—particularly the Supreme Court—so far has been the period of so-called “judicial activism” in the 1970s and the 1980s when progressive-minded judges expanded the scope and meaning of “right to life” and gave some path-breaking judgments. Now that the Santhara case has reached the Supreme Court, can we expect a rebirth of that activism? At the very least, can we expect an informed discussion on the origin, nature, utility and applicability of some of our debatable laws as well as some of our equally debatable legal doctrines—such as the Essential Practice doctrine—to which the Rajasthan High Court judgment took recourse?

What about the political fallout of the judgment?

It’s a tricky job to assess the political implications of the Santhara judgment. The Jains are a wealthy and influential community, and I’m sure no political party wants to rub them the wrong way. The UPA [United Progressive Alliance], on the eve of the 2014 general elections, granted them “minority” status. The BJP [Bharatiya Janata Party], with its Hindutva manifesto, is facing a unique dilemma. The country’s traders—small shopkeepers, in the main—are a major constituency of the ruling party, and they include a large proportion of Jains. At the same time, Jains technically don’t count among the Hindu majority.

It’s a political blessing for the BJP that some of the tenets of the two religions, such as non-violence and vegetarianism, overlap nicely. Beyond that, there could be points of discordance. Already there are murmurs within the Jain community that the court has deferred to the majority sentiment by discriminating against a minority religion. While this perception might well be an instance of reading too much into the judgment, some public policy decisions of the executive branch of the government (notably the beef ban in Maharashtra) would indicate that the ruling political establishment is keen to align its norms of governance with the more fundamentalist diktats of the majority religion. It’s debatable, though, how many of them will ultimately survive legal scrutiny if challenged in a court of law.

You have researched Santhara and the Jain religious philosophy for your documentary for the better part of five years. Over that period, have you changed your own perception of Santhara as a religious practice?

For me, it was never a question of personal preference or even perception. I approached the practice of Santhara from the perspective of a research scholar, which is why my film too takes no sides in the controversy. Let me admit here that the choice of making a documentary on Santhara was frankly an afterthought. It all began when a law college in Mumbai assigned me to teach my favourite subject: constitutional law. Most law students have this erroneous notion of the Indian Constitution as being an essentially theoretical, esoteric and abstract document which has very little connect with our everyday lives, and therefore a difficult statute to comprehend. That’s not true at all. And so, to dispel this notion and correct their misperception, I would bring to class news clippings of some event, incident or development that had no obvious nexus with the Constitution, and by the Socratic method of asking leading questions, the class—with a little help from me—would discover that there indeed was at least one constitutional provision at the root of the controversy!

One of such news clippings concerned the legal controversy over Santhara. During this session, the class stumbled upon that legal rarity: both the litigants in the Rajasthan High Court PIL were invoking the same law, the same statute, in fact the same constitutional provision —namely, Article 21—and the differences hinged entirely on its interpretation by either side. This feature of the case stayed on with me long after the class was over. Intrigued, I then undertook to research the whole issue on my own, and made several trips to Rajasthan to meet the dramatis personae. The research and the interviews yielded several articles, published in scholarly journals as well as popular magazines. Somewhere along the way, after I’d earned the trust and confidence of my sources, I contemplated seriously the possibility of filming the interviews for a documentary project. What still fascinates me about Santhara is that it’s the most illustrative and dramatic example of the law-versus-religion conundrum in the context of the social reality in contemporary India. Primarily because it centres on a life-and-death issue, but also because the issues it raises—of the right of religious practice among minorities, and also of the larger concern over the incompatibility between a practice that stems from an Eastern religious philosophy and an act of perceived criminality according to a statute that stems from a Western religious bioethic—have a deeper resonance for us as a society, a resonance that goes beyond the immediate case.

But surely, some aspects of the Santhara practice must have struck you as being out of the ordinary. Never experienced a single moment of epiphany?

Sure. And I can recall not just one, but three moments of near-epiphany during the entire process of making the film.

First, the realisation of the absolute and extreme nature of the Santhara practice as compared to similar rituals in other religions. If you look at practices and rituals relating to dietary abstinence in religions other than Jainism, there is Ramzan among Muslims, Lent among Christians, fasting during Yom Kippur and Tisha B’av among Jews, and a host of astronomy- and astrology-related fasts among Hindus. None of these takes fasting to the point of starvation and ultimately death as in Santhara. In demanding of its practitioners an absolute and total abstinence from food and drink, Santhara arguably represents the radical extreme of ahimsa (non-violence), the most fundamental of the three essential philosophical tenets of Jainism, the other two being aparigriha (non-possessiveness or detachment from worldly comforts and pleasures) and anekantavada (non-absolutism or openness to differing—and even contrasting—opinions and beliefs). Since any kind of eating or drinking would result in a disruption (however minimal) of and add a burden (however small) to the natural ecology around them, orthodox Jains consider zero-consumption—that is, starvation unto death or Santhara —to be the high point among the Jain traditions of austerity and self-denial, and therefore the truest real-world act of ahimsa. I think it was Osho Rajneesh who once described Mahatma Gandhi as a “violent” man, and qualified that statement by pointing out that the only difference between him and the other villains of his time was that he directed all his violence at himself! Interesting to note that Gandhi’s philosopher-friend and spiritual guru Raychandji Mehta is said to have died at the young age of 33, having undertaken Santhara after contracting an illness. And let’s not forget that fasting unto death was a potent instrumentality of the Mahatma’s political strategy that ultimately brought us freedom.

Second, even for adherents who may not take the extreme step of Santhara, the basic belief extrapolates into a hierarchy of sorts on the amount of “bad” karma associated with the consumption of certain foods, and also underlies the rather convoluted theological rationale for why a devout Jain should prefer eating mangoes over strawberries! Going strictly by the philosophy of ahimsa , eating a single-seed fruit like a mango would be deemed less “sinful” than eating a multi-seed strawberry because of the latter’s natural potential to procreate several more “lives” in the flora. By that logic, one is effectively “aborting” a multitude of life-creating possibilities by consuming a strawberry as compared to just one in the case of a mango. The same philosophical tenet prompts Jains to shun vocations like farming —which are believed to cause “violence” to plant and micro-organic life in the soil—and to opt for relatively “non-violent” commercial pursuits such as banking and diamond-trading.

The third point of personal exclamation, if you will, was the parallel that opponents of Santhara draw with the practice of Sati. Ideally, all Santharas should be voluntary and with the express approval of the higher echelons of Jain priesthood. But the PIL petitioner Nikhil Soni and his counsel Madhav Mitra are emphatic that at least some of the Santharas are coerced: the “victims” are mostly elderly women or widows with no support systems, and after their Santhara-induced death, their relatives bask in the glorification of the act. This, if true, brings Santhara perilously close to Sati. But it should be noted also that this wasn’t a legal issue at all in the PIL because even the defenders of Santhara—particularly Panachand Jain, a retired judge of the Rajasthan High Court, who is the brain behind the legal defence of the practice—are categorically opposed to such forced Santharas, and want the culprits to be prosecuted and punished.

So you reject the characterisation of Santhara as a form of Sati?

One could arguably characterise a forced or coerced Santhara —doubtless, a most inhuman and dastardly act—as a variant of Sati. The comparison becomes all the more credible because of the similarity of the profiles of the victims. But no way would a voluntary Santhara come even close to Sati. Remember that the practice of Sati was in fact a clever “device” triggered by economic interests, and it only wore the dubious and fraudulent mask of religion for garnering social approval. If it indeed were a genuine religious practice among the Hindus of those times, why wasn’t it common all over India wherever Hindus lived? In the Dayabhaga system of succession that was prevalent in Bengal and surrounding regions, the widow could claim a share in the family property. So Sati was in a sense imposed in these regions to ensure that the property stayed within the family. The rest of the country followed the Mitakshara system, which made no such provision and which therefore never had to contend with the scourge of this practice. Ironic, but true.

What are the jurisprudential thoughts in other countries with respect to this law-versus-religion issue? Can you think of any comparable case?

I’m tempted to compare the Santhara case with the famous Peyote case in the U.S. Supreme Court (1990). Two members belonging to a sect of indigenous Americans were denied unemployment benefits after being dismissed from their jobs in a government-run drug and alcohol rehab facility. They were fired because they had ingested a banned substance called “peyote” at a religious ceremony of the Native American Church to which they owed allegiance. Rejecting the men’s claim that the law barring peyote consumption under all circumstances violated their religious freedom, the court held that freedom of religion did not allow individuals to break the law. When reading this judgment, one must also take into account the social and political climate (“war on drugs”) of that time, as compared to the more recent decriminalisation and liberalisation of drug use in that country. The revival of the peyote practice was also helped by the Religious Freedom Restoration Act of 1993 which protected this freedom.

We could see something similar happening in the case of Santhara. Talk about decriminalising the “attempt to commit suicide” has been capturing front-page headlines in newspapers with increasing frequency. If this does come to pass, the Santhara case will be rendered infructuous, though that will not necessarily bring a closure to the larger law-versus-religion conflict with which we’re grappling.