xaam.

in

http://www.xaam.in/2015/08/santhara-in-eyes-of-law-religion-law-gs.html

Santhara in the eyes of the law (Religion ,Fundamental Rights,

GS paper 1 , Paper 2 , The HIndu )
Unlike a Christian believer who looks upon the human body as a God-given
temple of the human soul, a devout Jain views that same body as a prison of the
human soul
That conflicting religious philosophies often propel nations into war has long been a truism of history. But when
Samuel P.Huntington gave the oft-used clash of civilizations phrase a foreboding even menacing
contemporary context during a 1992 lecture in the aftermath of the Gulf War, its unlikely that the American
political scientist was thinking of an emaciated Jain muni peacefully awaiting death on a bed of dry grass after
weeks of starvation.
Although it may seem far from obvious, Huntingtons thesis that differences in religion and culture would spawn
conflict in the post-Cold War world lies at the root of the angst that has gripped the Jain community following the
Rajasthan High Courts verdict against Santhara. Earlier this week [Monday, 10 Aug], the courts Jaipur Bench
ruled on a public-interest litigation (PIL) filed in May 2006 against the centuries-old Jain practice of starving to
death. It held that Santhara would henceforth be treated as suicide and accordingly made punishable under the
relevant sections Section 309 (attempt to commit suicide) and Section 306 (abetment of suicide) of the
Indian Penal Code. In the use of harsher language in its directive to the State that the latter shall stop and
abolish the practice in any form and register any complaint against it as a criminal case the court made its
absolute rejection of the Jain philosophy underlying the practice unequivocally clear. It also unwittingly bared the
cultural divide between disparate end-of-life concepts.
During the five-year-long research for my documentary film on this controversy Santhara: A Challenge to Indian
Secularism? I met several members of the Jain clergy and other lay adherents of the faith as well as scholars
who had studied the philosophy of Jainism through its scriptures and rituals. Without an exception, they were all at
pains to point out the fallacy of characterizing Santhara as a form of suicide. True, both acts culminate in the selfextinguishment of a human life, but the motivations of the actors are poles apart. Whereas suicide is an act of
extreme desperation fuelled by anguish and hopelessness, a Santhara practitioner relinquishing food and drink
voluntarily by this method has arrived at that decision after calm and unruffled introspection, with an intent to
cleanse oneself of karmic encumbrances and thus attain the highest state of transcendental well-being. Santhara,
for him, is therefore simply an act of spiritual purification premised on an exercise of individual autonomy.
Admittedly, dietary abstinence as religious ritual isnt unique to Jainism. Theres Ramzan among Muslims, Lent
among Christians, fasting during Yom Kippur and Tisha Bav among Jews, and a host of astronomy- and
astrology-related fasts among Hindus. But none of the others takes fasting to the point of starvation and ultimately
death as does Santhara. 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
i.e. starvation unto death a la Santhara to be the high-point among the Jain traditions of austerity and selfdenial, and therefore the truest real-world act of ahinsa or non-violence, the fundamental tenet of Jainism.
Disregard, for a moment, the radical extremism of the act itself. And contrast its broader theological rationale
which is more or less common to Eastern religions, and which resonates nicely with the basic theory of karma that
underlies the beliefs and practices of most Indian religions with the ecclesiastical values prevalent in the
cultures that brought us the forms of governance we presently live with. A conspiracy of history, circumstance and
expedient decision-making has resulted in our law-making and law-administering bodies being structured on the
Westminster model of our colonial rulers, not to mention our judicial machinery and its key statutes notably,
criminal laws remaining largely untouched since the time they were first designed by the British and written with
their colonial feather-pens. Even the bulk of our Constitution, mulled over for all of three years on the cusp of
Independence by worthy home-grown sons and daughters representing a cross-section of our population, was

derived from the Government of India Act, 1935 and arguably its most important articles (i.e. those enshrining our
Fundamental Rights) were inspired by the American Constitution.
The concept of suicide associated with religion is a repugnant one for the mainstream Anglo-Saxon West, whose
Judeo-Christian beliefs would denounce such an act as antithetical to the moral and ethical principles espoused
by Christianity. The systematic codification of Indian criminal law as we know it today began soon after the
colonialists survived the blood-soaked Mutiny of 1857 and formally established the British Raj. The IPC, which
forms the bulwark of our criminal jurisprudence, bears an 1860 vintage (it came into force two years later) and was
drafted by Lord Thomas Macaulay who was known to be a devout Christian. Inevitably, it would appear, the wily
administrator put forth a code that not only set a low threshold of culpability for political dissent and for spreading
disaffection against the government which was tacitly welcomed by successive regimes well into the postIndependence era, and which is why its still so easy to slap sedition cases against innocuous cartoonists but
which also reflected his own deeply held convictions about right-and-wrong, and good-and-evil.
The Crown couldnt have found a more faithful and capable servant. As a public policy maker, Macaulay had
telescoped his personal beliefs into an official document that upheld the civilizing mission of his masters while
taking care of the everyday chore of maintaining law and order among the unruly natives as well as the tricky
task of subverting their pagan values. The IPC accomplished the first, and Macaulays introduction of English as a
medium of instruction in schools and colleges contributed to the second. It paved the way for Christian
missionaries to press forward with their conversions mainly among the needy, and with their convent education
among the aspiring middle-classes. From this large-scale acculturation emerged a new generation of brown
sahibs and babus eminently qualified to maintain the institutions of the Raj.
But it also set the ball rolling for a fundamental and deep-seated albeit seldom articulated discordance
between the Western ideologies that created those institutions and devised their operating norms and procedures,
and the Eastern philosophies that shaped the world-view of the people those institutions were meant to serve.
Compare, for instance, the singularly focused zeal of a proselytizing religion like Christianity with the Jain tenet of
anekantavada (non-absolutism or openness to differingand even contrastingopinions and beliefs) or with the
inclusive live-and-let-live approach of Hinduism, and you begin to empathize with Rudyard Kiplings twain-shallnever-meet conundrum.
Instead of the earth, the meek religions of the sub-continent have thus inherited an ill-fitting legal template forged,
so to speak, in the smitheries of the West.
And the Santhara case serves to emphasize the seemingly irreconcilable difference in perspective on the specific
issue of suicide. In contrast to a Christian believer who looks upon the human body as a God-given temple of
the human soul and therefore beyond the realm of willful and deliberate destruction by any human being, a
devout Jain views that same body as a prison of the human soul, the fulfillment of whose needs corresponds to
the accumulation of bad karma.
This basic contradiction between a statute founded largely on a Christian-inspired bioethic and the essentially
Eastern variant of the idea of spiritual advancement through abstinence and renunciation rears its head whenever
an ancient religious practice like Santhara collides with contemporary law. The conflict becomes particularly
glaring in a faith-based society like ours whose polity has embraced norms of governance and administration that
are transplants from an alien soil.
What, according to me, remains a significant take-away from the court proceedings in the Santhara case is not so
much the petitioners and consequently, though not expressly, the courts characterization of the death-ritual
as suicide simpliciter masquerading as a religious practice wrapped in the mantle of hoary tradition. That
approach could arguably be critiqued as a narrow, unkind and mechanical application of the law. More telling
however is the fact, recorded for posterity in the judgment, that the pro-Santhara counsel, seeking to establish the
scriptural validity of the practice, recited slokas to the amusement of the general public sitting in the Court. Is the
recitation of a sloka in an Indian courtroom during the hearing of a case involving the legality of an ancient rite or
ritual such an incongruous act that it should invite mirth and derision? Could there be a more vivid illustration of
the incompatibility between traditional religion and modern governance?

Are countries such as those in Europe, which enforce a strict separation between religion and governance and
which discourage public displays of religious festivity, faring any better?
Having painstakingly achieved that ideal the Church-State divide through centuries of struggle, these
countries are apt to look askance particularly at the Indian nation-state where an avowedly secular (the word
figures in the Preamble to our Constitution) government regulates religious institutions, subsidizes Haj trips and
deploys state resources to safeguard Amarnath Yatra pilgrims.
But times might be changing. Although the conventional idea of secularism in western democracies largely keeps
religion out of governance, the influx of immigrants of various faiths into these countries in recent times and their
assertive even militant stance with regard to their rights of religious practice has made these countries
confront the problem anew. The spiky issues of burqa-wearing in France and of circumcision in Germany manifest
the same law-religion conflict with which we are grappling here. The unease over Santhara may well be part of a
global discontent.

The flawed reasoning in the Santhara ban

When the Supreme Court sits on appeal over the judgment, it must rethink its ageold doctrine of essential practice, that has substantially weakened religious
freedom in India
The Rajasthan High Court, in a judgment on the August 10, 2015, declared the Jain practice of Santhara, which
involves a voluntary fast-unto-death, an offence punishable under the Indian Penal Code (IPC). This decision
in Nikhil Soni v. Union of India, is likely to have far-reaching consequences, not only amongst the Jain community
in Rajasthan but also across the country. Unfortunately, it conflates several important issues of constitutional law,
and symbolises the confusion over the fundamental guarantee of religious freedom in our constitutional
jurisprudence.
The courts judgment is superficially reasoned, misconstrues findings of the Supreme Court, and, most
significantly, ignores vital considerations that go to the root of a persons right to ethical independence.
It is undeniable that Indian secularism a form quite distinct from western conceptions of the term envisages
the intervention of the state in matters of religion, where general social welfare or substantial civil liberties are at
stake. But, what our Constitution, properly interpreted, does not permit is the bestowal of any specific discretion on
the courts to tell us which of our beliefs and practices are essential to the following of a religion. By directing the
State government to move towards abolishing the practice of Santhara, and by holding that the practice is
tantamount to an attempt to commit suicide, punishable under Section 309 of the IPC, the High Court in Nikhil
Soni has created a damaging precedent, which requires immediate re-examination.
Santhara, which is increasingly widely practised by Jains in India, is a voluntary tradition of fasting till death, that
Jains believe will help them attain ultimate salvation. As pointed out in The Hindu ( Santhara in the eyes of the
law, August 15) by Shekhar Hattangadi, Santhara is embedded in deeply philosophical beliefs. The practice is
premised on a foundational idea that the act of fasting, as an exercise of bodily autonomy, allows a believer to
attain a state of utter transcendence. However, the court has now found that such matters of integrity, of choosing
how one wants to lead life, do not enjoy any constitutional protection, and that voluntary fasting is nothing but a
performance in self-destruction. By any reasonable construction, fasting ought to be considered indistinguishable
from an act specifically aimed at ending ones own life.
Effectively, the judgment in Nikhil Soni is predicated on two primary grounds. First, that the guarantee of a right to
life does not include within its ambit a promise of a right to die, and therefore, that the practice of Santhara is not
protected by Article 21 . Second, that Santhara, as a religious practice, is not an essential part of Jainism, and is
hence not protected by Article 25 , which guarantees a persons right to religious freedom and conscience. While
on the first ground, the courts reasoning is difficult to accept, on the second ground, the courts finding is premised

on a wrongly considered doctrine, carved by the Supreme Court in its earliest rulings on the right to freedom of
religion.
As the Rajasthan High Court correctly recognises in Nikhil Soni, Section 309 , which criminalises the attempt to
commit suicide, has been found to be constitutionally valid by the Supreme Court, in 1996, in the case of Gian
Kaur v. State of Punjab. However, the Supreme Court was concerned here primarily with the unnatural
extinguishment of life. To die through an act of suicide, the court held, is not an extension, or a recognised
corollary, of ones right to life under Article 21. But contrary to what the High Court holds in Nikhil Soni, as a recent
intervention petition filed by the Delhi-based Vidhi Centre for Legal Policy points out, the Supreme Court in Gian
Kaur explicitly recognises that a persons right to life also partakes within its ambit the right to live with human
dignity. This may include the right of a dying man to also die with dignity when his life is ebbing out, the court
wrote, in Gian Kaur. But the right to die with dignity at the end of life is not to be confused or equated with the
right to die an unnatural death curtailing the natural span of life.
A dignified choice
The Jaina practitioners contend that Santhara is not an exercise in trying to achieve an unnatural death, but is
rather a practice intrinsic to a persons ethical choice to live with dignity until death. These arguments were
brushed aside by the Rajasthan High Court. It simply found, based on an incorrect reading of Gian Kaur, that there
is no dignity whatsoever in the act of fasting, and that therefore, there exists no freedom to practise Santhara as
an extension of ones right to life under Article 21. But, perhaps, even more damagingly, the court in Nikhil
Soni also rejected arguments that sought to locate such liberty in Article 25. Here, though, the folly in its reasoning
wasnt as much a product of its own making, as it was a consequence of a vague doctrine established by the
Supreme Court.
Plainly read, Article 25 guarantees to all persons an equal entitlement to freedom of conscience and the right to
profess, practise and propagate religion. The right is subject only to public order, morality, and health, and other
recognised fundamental rights. However, as the debates in the Constituent Assembly demonstrate, these
community exceptions were included purely to ensure that the guarantee of religious freedom did not come in the
way of the states ability to correct age-old social inequities. It wasnt the Assemblys intention to allow organs of
state any substantial latitude in determining which religious practices deserved constitutional protection. But, in
practice, perhaps out of an anxiety to ensure that the state is not constrained in passing legislation to remedy
social evils, the Supreme Court has interpreted Article 25 in a manner that has greatly restricted the scope of
religious liberty.
Interpreting religious practices
The courts constriction of this freedom has been achieved by invoking a rather curious principle: that Article 25
protects only those exercises that are considered essential religious practices. Through the 1960s, this doctrine,
which was first envisaged in the Shirur Mutt case, decided in 1954, ingrained itself as an integral part of Indias
constitutional theory. The court, on a case-by-case basis, often examined individual religious canons to determine
what constituted an essential religious practice. Significantly, the court began to examine whether a particular
exercise was indispensable to the proper practice of a religion.
This interpretation has allowed the court authority to determine for the people what their religious beliefs and
practices, through a correct reading of their religious texts and customs, ought to comprise. Invariably, the
determination of what constitutes an essential religious practice, therefore, amounts to a very particular form of
moral judgment a form of cultural paternalism that is quite antithetical to a liberal democracy.
It is this authority, which the High Court in Nikhil Soni, has invoked to rule that the criminalisation of Santhara
would not breach a Jains right to religious freedom. We do not find that in any of the scriptures, preachings,
articles or the practices followed by the Jain ascetics, the Santharahas been treated as an essential religious
practice, nor is necessarily required for the pursuit of immortality ormoksha, the judgment states. This analysis, as
is evident, does not consider whether a person indulging in Santhara performs the act out of an intrinsic belief that
the practice flows from his religion, but rather adopts an almost-avowedly paternalistic outlook. It tells followers of
Jainism that under a purportedly proper interpretation of their religious texts, Santhara is simply not an essential

practice. As a result, the question of whether a Jains right to religious freedom is violated by prohibiting Santhara
is examined in a wholly unsatisfactory manner.
If, and when, the Supreme Court sits on appeal over the judgment in Nikhil Soni, it must 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. In so doing,
the court must also reconsider its now age-old doctrine of essential practice, which has caused a substantial
weakening of the state of religious freedom in India.