Rajasthan HC judgment on Santhara ritual and its implication

The article explores the judgment and the ground on it was based from the constitutional viewpoint. It also analyses the impact of the decision in general.

Created On: Sep 30, 2015 15:02 ISTModified On: Oct 6, 2015 15:05 IST

The ancient religious Jain practice of Santhara, which involves a voluntary fast-unto-death, is a ritual farewell to the body. It is an act of supreme renunciation and great piety.

Rajasthan High Court’s Jaipur Bench on 10 August 2015, ruled on 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  of the Indian Penal Code (IPC), viz., Section 309 (attempt to commit suicide) and Section 306 (abetment of suicide).

The bench further directed the State — that the latter shall “stop and abolish” the practice “in any form” and register any complaint against it “as a criminal case”.

Judgment predicated on two primary grounds
The judgment in the Nikhil Soni case 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 of the Indian Constitution.

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 person’s right to religious freedom and conscience.
Thus, the bench stated “We do not find that in any of the scriptures, preaching, articles or the practices followed by the Jain ascetics, the Santhara…has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha.”

Further, it was argued that right to freedom of religion under Article 25 is subject to public interest, morality and health. And a practice, however ancient, cannot be allowed to violate the right to life of an individual.
The court held that extinguishing life, sacrificing it or effacing it cannot be considered as acts of dignity. A right to die cannot be a part of a right to life.

Difference between Suicide and Santhara
True, both acts suicide and santhara culminate in the self- extinguishment of a human life, but the motivations of the actors are poles apart.

While, suicide is an act of extreme desperation fuelled by anguish and hopelessness, a Santhara practitioner relinquishing food and drink as a ritual act of purification, done in consultation with a guru, and follows the most detailed of procedures. It cannot be an impulsive act or an egoistic one.

Impact of the Judgment
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.
In a faith-based society like ours which accepts, and even encourages, public displays of religiosity 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).

Apart from being a faith-based society in a larger sense, we are also a society with multiple faiths. So Santhara judgment can have indirect effect 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. Examples being practices like bal-diksha, the use of wine in church rituals in States where consumption of alcohol is prohibited, and so on.

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.

Mob: The article explores the judgment and the ground on it was based from the constitutional viewpoint. It also analyses the impact of the decision in general.


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