Even as the Supreme Court stays the Rajasthan High Court verdict making Santhara illegal, all eyes are on what the final verdict will be. Is one’s religion more important than the law of the land?
By Kalyani Shankar
In multi-cultural and multi-religious societies, occasional clashes occur on sensitive religious and social issues. The question is how does a state that allows religious freedom deal with religious practices that contravene the laws of the land? Since religion predates the legal framework, a conflict arises when things are seen through the prism of current laws. One such practice is that of Santhara, practiced by the Jains, where the person willfully embraces death. However, this is at variance with the legal framework, which tends to see this as suicide.
In other countries too, religious practices have clashed with the law of the land. France was the first European country to ban the wearing of the full veil. Belgium adopted a similar ban in 2011. In Spain, the city of Barcelona and some other towns brought in similar bans, as have towns in Italy. In 2014, the European Court of Human Rights upheld the French law. On the other hand, Sikhs won a case in the UK this month, to wear turbans in workplaces.
Questions are being raised about who will decide the right to die and what about the right to privacy and personal liberty of the person undergoing Santhara. Courts are also looking into the constitutional rights of the citizen.
In India, concerns over social justice have forced courts to create a division between religious and secular practices and between essential and non-essential practices of a religion. In the fifties, the apex court upheld the entry of Dalits in temples on the basis of social justice. But of late, with rising awareness of rights, ease of litigation through PILs and proactive NGOs and the media, religious practices that are considered inimical are being challenged in court.
It is not surprising that certain religious practices are no longer considered sacrosanct in India. The courts had dealt with several issues like the entry to Sabarimala as demanded by women, PILs filed against child diksha (the practice of choosing a child as a successor to the head of a mutt), participation of children in Muharram rituals and the right to excommunicate of the Bohras.
The practice of Santhara is also now being challenged. Devout Jains believe that Lord Mahavira allowed Santhara or Sallekhana. Here, the ultimate goal is purifying the body and mind by embracing death voluntarily through denying oneself food and water. While some of those who choose Santhara are Jain monks, a majority are lay people, of whom 60 percent are women.
However, questions are being raised about who will decide the right to die and what about the right to privacy and personal liberty of the person undergoing Santhara. There is also the question of minority rights as Jains were declared a minority last year. While this community is invoking religion for practicing Santhara, the court is questioning it.
It also matters that the four million-strong Jain community is wealthy. The Santhara issue came into the limelight after Nikhil Soni, a lawyer and human rights activist from Jaipur, approached the Rajasthan High Court and cited public interest to outlaw Santhara in 2006. He equated it with Sati.
On August 10, 2015, the Rajasthan High Court declared Santhara illegal and held that its practice would be punishable under Section 309 of the IPC as an attempt to commit suicide. The guarantee of a right to life does not include within its ambit a right to die, and so it is not protected by Article 21, the Court held. It added: “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. The premise is that Santhara is not an essential part of Jainism and therefore not protected by Article 25.”
“It is one thing for the state to protect life and promote justice. It is another for it to colonize the various ways in which death can be interpreted, and life be given meaning. Unfortunately, the Rajasthan HC judgment does just that.” —Bhanu Pratap Mehta, social scientist
In the seventies, Ananda Margis in Calcutta wanted to march on the streets with swords and sticks and do the tandava dance claiming it was an essential practice of their religion. The police commissioner would not allow it, stating that it would contravene public order. The court went into the antecedents of the issue and said that since it was a relatively new practice in their religion, it would not count as an essential practice.
When the Jains appealed, the apex court stayed the High Court verdict on August 31, 2015. The community is now getting ready to prove that suicide and Santhara are two different things and it is an essential practice. It has also assumed a political flavor with rallies and processions being taken out and Jains seeking the support of organizations like the Vishwa Hindu Parishad, apart from knocking at the doors of governors of various states.
RIGHT TO LIFE
While Soni’s petition invokes Right to Life under Article 21 of the constitution, Santhara advocates quote the same article to argue that Right to Life is meaningless without the corresponding right to die with dignity. They claim that while people commit suicide due to depression, anger or loneliness, Santhara is observed amid festivity. In India, euthanasia is banned and suicide is considered a crime. If Santhara is banned, so should the samadhi undertaken by Vaishnavites (Devotees of Lord Vishnu) or the fast-unto-death. They also dismiss comparisons with the hunger strikes by Mahatma Gandhi during the freedom struggle or Vinobha Bhave giving up food and water.
Quoting historical evidence, the supporters point out that Chandragupta Maurya renounced his throne under the influence of the great Jain ascetic, Bhadrabahu, and ended his life observing Santhara (298 BC).
Incidentally, in December 2014, Minister of State for Home Haribhai Parthibhai Chaudhary said in parliament that the government has decided to decriminalize the attempt to suicide by deleting Section 309 of the IPC, which said that a suicide bid is punishable with imprisonment up to a year or with a fine or both. This was based on a Law Commission report in 2008 which noted that an attempt at suicide may be regarded more as manifestation of a diseased mind, deserving treatment and care rather than punishment. It recommended to the government to initiate the process to delete the section. Incidentally, five states—Bihar, Madhya Pradesh, Delhi, Punjab and Sikkim expre-ssed reservations against such a move. On February 24, 2015, Chaudhary said the proposal had been sent to the law ministry After the Rajasthan verdict, the Jains have got support from such legal luminaries as retired High Court judge Pana Chand Jain. In a documentary on Santhara produced by law professor Shekhar Hathangadi, he points out that Articles 25 and 26 of the constitution allow followers of all faiths to freely profess, practice and propagate their religious faith and the freedom to manage their religious affairs. He says: “Mindful of the country’s ethnic and cultural diversity, Article 29 guarantees citizens with a distinct culture, the right to conserve the same.” He further says: “Article 18 of the Universal Declaration of Human Rights says that everyone has the right to freedom of thought, conscience and religion; (and the right) to manifest his religion or belief in teaching, practice, worship and observance.”
Congress spokesman and eminent lawyer Abhishek Manu Singhvi claims that the Supreme Court for the first time will decide the constitutional validity of Santhara. “It will go into fundamental questions of life and death and into the religious belief of Jains, whether Santhara interferes with human rights or whether it should be allowed to continue. It will be a momentous issue.”
Singhvi is the lead counsel for the Jain groups. Shekhar Hathangadi, an award-winning documentary filmmaker on Santhara, obser-ves that Indian laws ignore some of the beliefs of Indian religions since it is based on the Westminster model of colonial rulers. Describing the Rajasthan court verdict as “historic as no other court has criminalized a centuries-old ritual with a rejection of its theological rationale,” he reportedly said that no other world religion takes its fasts to this fanatical point.
Shurith Parthasarathy, a Madras High Court advocate, has also been quoted in the media as hoping that the apex court would ask the right questions “of whether any social inequities arise out of the practice, of whether any other right of its practitioners are violated through Santhara, of whether the rights of any other person are infracted when a person goes on fast”.
While only a fraction of the Jain community practices Santhara, it has widespread support among them. The apex court verdict will be watched as it also has legal ramifications for other religious practices. The Indian state, in responding to the verdict, has to decide whether it should intervene at all in such a practice.
As social scientist Bhanu Pratap Mehta argues: “The community, for its part, will need a conversation on the conditions under which Santhara should be permitted. It is one thing for the state to protect life and promote justice. It is another for it to colonize the various ways in which death can be interpreted, and life be given meaning. Unfortunately, the judgment does just that.”
Any reform must come from within the community itself. But change is often resisted. Religious beliefs are age-old and faith often too strong to be broken.