The Jain religion of India has been embroiled in legal controversy surrounding the practice of Santhara or Sallekhana. The Jains, a religious minority in the country, believe in the immortality of the soul and practice renunciation of the world when the body has served all its function, achieved through the gradual giving up of food until death. It is reported that around 200 people of Jain faith, suffering as a result of very old age or fatal illness, embrace death through Santhara ‘fast unto death’ each year, in order to attain Moksha (salvation).
Back in 2006, advocate Nikhil Soni instituted public interest litigation in the High Court of Rajasthan asking to criminalise this practice. In the pro-life versus pro-choice debate on the right to die, the Judeo-Christian groups strongly support the pro-life claims. However, the eclectic religious texts born out of the Indian subcontinent have extensively deliberated on death from multiple viewpoints, and voluntary death in certain circumstances has been respected and exemplified through various religious heads, including Mahavira. Thus, the Jain religious groups argued vehemently in the court that their ‘religion would require a person not to clinch to the body. A man has moral right to terminate his life’ as a part of religious freedom guaranteed under the Constitution of India.
While the state government supported this freedom, the petitioner argued for its curtailment on the grounds of ‘public order, morality and health.’ Amidst these competing claims, the High Court in its judgment dated August 10, 2015 finally adjudicated on the matter. The judgment is, however, highly problematic in its approach to religious freedom and understanding of the practice of Santhara.
The Court adopted the ‘essential religious practices’ doctrine which allows the judges to sit “as high priest…as ‘living oracle’ of law”(Blackstone: 1825) and decide what constitutes an essential part of religion, thereby only protecting those religious doctrines it deems essential and integral (in other words, suitable) from State interference. This colonial method has inevitably led to the judiciary digging into religious texts to fashion religion according to ‘modern thoughts’, without acknowledging that ‘modern’ laws introduced by the British themselves carry rigid Christian ethics. Thus the Court, encouraged by the petitioner who equated Santhara to Sati and called it a ‘notorious, abhorrent and tribal practice’, was quick to reject the claim that Santhara was an ancient practice integral to the Jain religion. Such intervention by the Court, of course, comes at a time when the State itself continues to decide question of life and death in cases of reproductive freedoms (see Javed v. State of Haryana 2003 (8) SCC 369) and the death penalty (which is still legal in India as discussed in Bachan Singh v. State of Punjab (1980) 2 SCC 684, see also the latest Law Commission Report, dated August 2015).
In approaching the crucial question of whether Article 21 of the Indian Constitution (right to life and personal liberty) includes right to die with dignity, Gian Kaur v. State (1996) 2 SCC 648 had left a window open for:
“[a] category of cases [which] may fall within the ambit of the ‘right to die’ with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced.”
Again, the Court did not closely examine whether Santhara fits within this description, because it equated Santhara with voluntary suicide, thereby ignoring that the practices have grossly different intent and purpose, and that Santhara is essentially a non-violent act. It penalised Santhara as attempted suicide under Section 309 of the Indian Penal Code 1860, despite this provision coming under intense scrutiny during ongoing discussions of the mental health bill and the Law Commission of India’s recommendation that it be abolished.
Amidst growing protests against the decision from the Jain community, the Supreme Court has stayed the decision and is set to hear an appeal against the High Court judgment. It is hoped that the court will return to the issue with a more nuanced, contextual understanding of the religious practice. As hinted at earlier in this post though, in order to do so, the Court must make a more concerted effort to overcome its colonial biases. Finally, in the interest of fairness and justice, the Court and the Jain community should also closely examine the claims of alleged abuse of the practice of Santhara (see paras 5 and 10 of the Soni judgment).