Freedom To Die
A writ petition against the Jain practice of fasting-unto-death could finally force the Indian judiciary’s hand on the legality of religious suicides.
| Human rights activists in India are up in arms — metaphorically speaking — against a traditional Jain practice called Santhara (or Sallenkhana) in which a person starves to death voluntarily. Ever since Lord Mahaveer, the 24th and last Tirthankara, established the current tenets of Jainism in 400 B.C., thousands of his followers down the ages have taken their spiritual master’s cue and embraced this essential feature of Jain orthodoxy. The antiquity of the practice and its religious significance notwithstanding, Santhara has of late come within the cross-hairs of a campaign by activists to abolish the practice for its alleged abuses.
That year, after failing to get the police to prevent Bimla Devi’s demise through Santhara, Soni filed a writ petition against the practice in the Rajasthan High Court. Calling it “a social evil” that should be deemed an act of “suicide” — and therefore illegal — under Indian law, his petition demands that practitioners of Santhara should be prosecuted under Section 309 of the Indian Penal Code for “attempt to commit suicide” and that their supporters — who encourage it by venerating them as “spiritually elevated” beings — charged with abetting a crime. The battle lines are clearly drawn. If Soni’s petition invokes the right to life enshrined in Article 21 of the Indian Constitution, the Santhara advocates posit its very corollary. The right to life, they argue, is meaningless without the corresponding right to stop living — i.e. the right to die. The same Article, they underline, also grants a person the right to personal liberty in such matters. Their defense — bolstered considerably by the active support of retired
Articles 25 and 26 of India’s Constitution allow followers of all faiths to freely profess, practise and propagate their religious faith; and the freedom to manage their religious affairs. Mindful of the country’s ethnic and cultural diversity, Article 29 guarantees citizens with a distinct culture, the right to conserve the same. And Article 18 of the Universal Declaration of Human Rights — of which India is a signatory — says: “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.” But all of the above collides head-on with the very citadel of India’s highest judiciary. If the Santhara followers have the country’s constitution and an international covenant apparently on their side, Nikhil Soni has the weight of judicial opinion firmly in his favor. After two judgments on the more controversial side of the “right-to-die” divide — notably Maruti Shripati Dubal v State of Maharashtra (1986) and P.Rathinam v Union of India (1994) which respectively held that “if destruction of one’s property or its deliverance to others for a cause or no cause is not an offence, there is no reason why sacrifice of one’s body for a cause or without a cause or for the mere deliverance of it should be regarded as an offence” and that Sec 309 of IPC was “unconstitutional and hence void” — a five-judge bench of the
Should the Rajasthan High Court accept the Supreme Court’s precedent in Gian Kaur and outlaw Santhara, the decision would seriously dent the religious sensitivities of nearly six million practising Jains worldwide (25,000 to 75,000 of them in the USA — see sidebar), for whom the centuries-old ritual holds a pride of place among their sacred traditions. Its apologists — including Justice Jain — have already anticipated this eventuality and, in a clever attempt to pull the rug from under Soni’s petition, argue that Santhara cannot be characterized as “suicide” in the first place if only because, far from being an act of extreme desperation fuelled by anguish and hopelessness, a person relinquishing food and drink voluntarily by this method has arrived at that decision after calm introspection, with an intent to cleanse oneself of karmic encumbrances and thus attain the highest state of transcendental well-being. Santhara, for them, is therefore simply an act of spiritual purification premised on an exercise of individual autonomy. They point to an ecological dimension as well. Santhara practitioners reduce the burden that the rest of us eaters-and-drinkers routinely place on other life-forms in our environment, including plants. Devout Jains subscribe to a hierarchy of sorts on the amount of “bad” karma resulting from the consumption of certain foods. Thus, eating a single-seed fruit (like a mango) is less “sinful” than chomping on a multi-seed strawberry because of the latter’s natural potential to procreate several more “lives” in the flora. The same philosophy, sociologists point out, prompts Jains to shun vocations like farming — which cause “violence” to plant and micro-organic life in the soil — and to opt for relatively “non-violent” commercial pursuits, such as banking and trading in diamonds. Soni and his fellow-activists remain unimpressed by the nuances of this convoluted theological rationale. They are convinced that Santhara is, at best, suicide simpliciter masquerading as religious practice wrapped in the mantle of hoary tradition. At its worst, Santhara could well be nothing short of ritualized murder, devised to rid the family of the economic burden of taking care of its aged and unproductive members. Soni recalls the typical modus operandi exemplified in the Bimla Devi case. Diagnosed with terminal cancer, the elderly woman was too weak and depressed to protest as her relatives went about publicly announcing “her decision” to undertake Santhara. And, in her final hours, when Bimla Devi began screaming in a last-ditch effort to get food and water, her cries were drowned out by loud bhajans sung to the accompaniment of high-decibel percussion, he claims.
The parallels with Sati are chilling. Most of the Santhara “volunteers” (or “victims” according to its opponents), it turns out, are women — elderly widows with relatives keen to celebrate their deaths. Says Sudhir Hirawat, grandson of another Santhara volunteer and a widow, Keila Devi Hirawat of Jaipur: “Our entire community is celebrating. This fasting is not to die, but a festival to face death. She is only cleansing her soul. This is our festival.” Adds Keila Devi’s daughter-in-law, Nirmala: “Everyone in the family is very happy. After all, she has brought name and fame to our family.” And how “voluntary” is their decision, when it is in fact taken and often persevered with under the threat of being socially ostracized if they entertain second thoughts? Going strictly by scripture, a Jain Stravak (lay person) cannot perform Santhara without the express permission of the dharma guru or religious head. How many of the 200-plus Santharas undertaken annually (according to media reports) have religious sanction is a matter of pure conjecture. For, it is well known that such permission is not easily forthcoming. While the Jain priesthood is quick to defend the practice in theory as an act of rational thinking and courage, and often bristles at its comparison with suicide, it is more cautious in the concept’s real-world application. The venerated Jain monk Vimal Sagarji Maharajsaheb concedes that there may be a very thin line between Santhara and suicide. “In certain instances, people have faced immense mental and physical tests [challenges] while observing Santhara and have not easily felt peace with themselves,” he admits. “So whether Santhara is suicide or a holy practice to attain moksha, I feel, is for the person embracing Santhara to answer for himself.”
It is perhaps the fear of exposing such double-standards in the polity as well as the apprehension of antagonizing a small but financially powerful Jain minority that explains the Court’s foot-dragging for over four years on the Soni petition. Writ petitions, by their very nature, tend to jump the line in court ahead of regular suits. Which is why jurists are astonished at the protracted course of the anti-Santhara petition. But with the Rajasthan state administration filing its final reply to the petition in September 2010 and the concluding court hearings scheduled for early 2011, Rajasthan’s additional advocate-general S.N. Kumawat expects that the case will be resolved soon — and in his favour. “The government’s stand, which is reflected in our reply, is simply that a long-established religious practice like Santhara cannot be called suicide, and that deeming it as such would create serious problems in a society like ours,” he warns darkly.
Nikhil Soni v Union of India & Ors will undoubtedly be a landmark case. Not for the first time has an Indian court been called upon to decide between conflicting constitutional provisions concerning religion. In 1958, the Supreme Court in M.H.Qureshi & Ors v State of Bihar took on the issue of a ban on cow slaughter [Art 48] impinging on Muslim festivities during Bakr-Id [Arts 25, 26] and on the fundamental right of butchers to carry on their trade [Art 19(1)(g)]. But this time, the issue is decidedly more sensitive, and its consequences far more profound: it involves the extinguishment of a human life.
The Ajmer tragedy — which attracted little public attention and no state intervention, such as police action — could perhaps be explained away as a stray instance of irrational misinterpretation of an imagined cult diktat. But, in these frenzied times of religious intolerance and knee-jerk opportunism, even the boldest judge would understandably be loath to open that Pandora’s box.
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