Conflicts of Religion with Law(Santhara Issue)

CONFLICTS OF RELIGION WITH LAW

‘Santhara’ – Conflicts between Religious choice of a Jain and Prescription of law through judgments in the absence of Statutes.

RELIGION:

1. It is claimed that the Jain Religion dates back more than 1,000 years before Christ (24th Tirthankara Mahavira (599 BCE–527 BCE), also known as Vardhaman), from the available religious scriptures relied by the preachers of the religion. It can also be noticed while looking into the early scriptures of Jainism that the religious leaders chose not to employ Sanskrit as their language to propagate Jainism. Perhaps, they believed that Sanskrit would restrict the religion from being spread to the larger section of the society, as only Brahmins knew and were using Sanskrit at that time. Therefore it is seen from records that a non Sanskrit language which formed basis for many other dialects in the country by name ‘Ardha Magadhis’ was used to propagate Jainism. The ancient scriptures are compilation of Kahas, Rasas and Grammars collectively known as Apabhramsa. It is understandable that any religion of such ancient origin would have evolved over the years by rituals, practices, customs, usage, etc., which would have later on got codified into written text i.e., scriptures.

2. Valuable teachings of each of their leaders i.e., 24 Tirtankaras, got to be written into several texts which are collectively the pride of Jain religion. The most popular Tirtankara happen to be Lord Mahavira, (who is believed to be the founder of Jainism by mistake, by many people). In fact he was the last Tirtankara. The religious literature is called Prakirma sutras.

3. Sanstaraka (later on known as Santhara) is found in one of the Agam by name Prakrina Agam. This happens to be the religious recording of the concept and practise of Santhara amongst early Jains. It pronounces starvation or fasting from a particular point of time unto death. This according to the religious is a known method in Jainism to attain salvation (‘moksha’). The evidence in the religious text also shows that Mahavira’s parents took to Santhara and obtained salvation. Lord Mahavira is also said to have attained salvation through Santhara. Many religious and staunch practitioners of Jain religion take the religious vow of ‘Santhara’ towards their end.

4. Renunciation of all worldly pleasures and attachments and bondage and commitment of any nature to any person are essential pre-requisites for a person who can take this vow according to religious scholars of the religion.

LAW:

1. Huge judicial attention was centred around a recent judgment from the Hon’ble High Court of Rajasthan in the case of Nikhil Soni vs. State of Rajasthan reported in manupatra bearing citation Manu/RH/1345/2015, judgment dated 10.08.2015. The following portions are extracted from the judgment for a better understanding and a healthy debate on the subject;

Quote

“.......

39. In order to save the practice of Santhara or Sallekhana in the Jain religion from the vice of criminal offence under section 309 IPC, which provides the punishment for suicide and Section 306 IPC, which provides punishment for abetment of suicide, the argument that Santhara or Sallekhana is an essential religious practice of the Jain religion, has not been established. 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. There is no such preaching in the religious scriptures of the Jain religion or in the texts written by the revered Jain Munis that the Santhara or Sallekhana is the only method, without which the moksha is not attainable. There is no material whatsoever to show that this practice was accepted by most of the ascetics or persons following the Jain religion in attaining the nirvana or moksha. It is not an essential part of the philosophy and approach of the Jain religion, nor has been practiced frequently to give up the body for salvation of soul. It is one thing to say that the Santhara or Sallekhana is not suicide as it is a voluntary act of giving up of one's body for salvation and is not violent in any manner, but it is another thing to say that it is permissible religious practice protected by Articles 25 and 26 of the Constitution of India.

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43. The writ petition is allowed with directions to the State authorities to stop the practice of 'Santhara' or 'Sallekhana' and to treat it as suicide punishable under section 309 of the Indian Penal Code and its abetment by persons under section 306 of the Indian Penal Code. The State shall stop and abolish the practice of 'Santhara' and 'Sallekhana' in the Jain religion in any form. Any complaint made in this regard shall be registered as a criminal case and investigated by the police, in the light of the recognition of law in the Constitution of India and in accordance with Section 309 or Section 306 IPC, in accordance with law.”

6. Even though this case was filed by Nikhil Soni, Advocate as public interest litigation in the year 2006, the judgment was rendered by the Hon’ble High Court of Rajasthan on 10.08.2015. The prayer sought in the writ petition was for a declaration that Santhara on account of religion can be treated as a suicide and case can be lodged as per law.

7. It is to be noted that at the time of writing this article, we are given to understand that the said judgment has been assailed by one Shri Dhaniwal Jiwan Mehta before the Hon’ble Supreme Court of India and the same is likely to be heard very soon.

CONFLICT:

8.  Article 25 of the Constitution of India reads as follows:-

“Freedom of conscience and free profession, practice and propagation of religion;

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

9. The freedom granted by the Constitution of India appears to be restrictive freedom with liberty to the State to enact laws from time to time curtailing certain practices if found to be against public order, morality and health, and against any existing laws of the land. Perhaps the Hon’ble High Court of Rajasthan has interpreted article 25 considering the self speaking restrictions therein and bringing in sections 306 and 309 of Indian Penal Code within the meaning of the existing laws of the land.

10(i) The practice of santhara is to ultimately liberate the soul from the human body which is in other words known as “death”. If any voluntary act leads to death of a person it means suicide in ordinary parlance. People who commit suicide cannot be punished but people who attempt suicide can be punished under section 309 IPC. Whether attempt requires an act or even omission can be considered as an attempt? Not taking food or water can at best be considered as an omission. How can it be equated to an attempt to commit suicide which is normally attempted by acts such as :

a)Consumption of  poisonous substances

b) Consuming sleeping pills in large quantity

c) Suicide by hanging

d) Suicide by setting oneself by fire

e) Suicide by drowning in Well, River, Sea etc.,

f) Suicide by running over of bus, train etc.,

g) Suicide by use of weapons capable of killing oneself

h)Suicide by falling from hilltop or elevated buildings/towers, etc.,

Attempt as defined in various English Dictionaries are as follows:

Oxford Advanced Learner's Dictionary

Make an effort to achieve or complete (something difficult)

Merriam Webster: to try to do (something): to try to accomplish or complete (something)

Black's Law Dictionary:

What is ATTEMPT?

In criminal law. An effort or endeavor to accomplish a crime, amounting to more than mere preparation or planning for it, and which, if not prevented, would have resulted in the full consummation of the act attempted, but which, in fact, does not bring to pass the party’s ultimate design.

10(ii)  Aiding or abetting a person to commit suicide is punishable under section 306 IPC.

11.  What is achieved after death by a person may be wholly immaterial for the law. Death leaves a void in the family and society. No welfare State can encourage voluntary death for any reason or purpose and the extension of this logic is that even for religious purpose such voluntary acts (such as starvation in the case of santhara) leading to ones death should not be entertained in law.

12. The following questions keep coming to my mind again and again while reading the recent judgment mentioned above.

(a) Whether the freedom granted under article 25 of our constitution relates only to the restricted freedom to practice compulsory principles of a religion or it gives the complete freedom to practice any religious principle as propagated and promoted by the said religion out of one’s choice?

(b) Whether the law has been stretched into interpretation to mean and include santhara as an act of suicide without considering the spiritual aspects religious prescription and the elevated principle already in practice in the said religion?

(c) Whether the religion of Jainism can be depicted as if prescribing suicide (through santhara) as a mode to attain moksha?

It is sad that there is no convincing answers to the above questions in the judgment of the Hon’ble High Court of Rajasthan which is the subject matter of this debate. In my personal opinion that compulsion or un avoidable rules by a religion to identify it as a religion versus the choices of various elevated spiritual principles in the doctrines of various religion available to be chosen by an individual practising such religion ought to have been considered at a detailed level while interpreting provisions relating to freedom and fundamental rights guaranteed by the Constitution of India. I also feel that, ‘commission of acts ‘amounting to an attempt to commit suicide should not have been equated to self imposed ‘omissions’ (not doing required acts such as eating and drinking-fasting ) for religious reasons. These aspects ought to have been elaborately dealt with particularly when there are prerequisite conditions enshrined in the sacred religion for the practice of santhara at least when the said religious practice was going to equated to criminal offence and termed equivalent to suicide.

13. Eventhough the Rajasthan High Court has dwelled in to the subject of santhara at length, perhaps the religious and spiritual concept of santhara was not properly covered or understood in the right perspective, the campaigners of pro-santhara movement would have wanted the High Court to have appreciated while rendering an elaborate and impactful judgment on a sensitive religious subject.

14. The following are some general compilation of some distinctive factors between suicide and santhara and the same have been enlisted herein for consideration during any healthy debate on the subject:

(a) In Jainism, the concept of choosing the manner and time of one's death is a centuries-old ritual. The devout Jains believe that Mahavira, the 24th Tirthankar, allowed Santhara, or Sallekhana, as the ultimate test of spirituality, will power, whose ultimate goal is purifying body and mind and facing death voluntarily.

(b) According to the ritual, which Jains believe has been prevalent for thousands of years, a person voluntarily gives up food and water, either because of an incurable illness or due to the belief that the end is near. It is reserved only for the old and the invalid and is practised rarely.

(c)  Santhara or Sanlekhna is a bold spiritual decision to face the death at the final stage of life, can only be taken by a sensible person with the due permission of his dependents and a preacher after he has discharged all of his personal, family and social responsibilities.

(d) In fact it is quite natural and peaceful way to bid good bye to this materialistic world simply just by the way of fasting. Another form of Santhara or Sanlekhna is being practiced in short intervals during the holy quarter of a year (Chaumasa as commonly known amongst Jains), basically to quit food & water, not necessary until death. 

15. Suicide is known to be a cowardly taken decision either due to depression or due to aggression by an insane mind to escape from the hardships of life by killing himself violently and instantly and running away from the responsibilities of life causing immense hardships, emotional, materialistic and otherwise to the dependent family members and is not done with the consent of the family members and upon the advice of a preacher and after clearing all his personal, family, social commitments.                                   

16. The compulsions of a religion are different from the choices available under a religion. Jainism does not compel any person to adapt to Santhara. Every religion has prescribed and promoted fasting and self inflicted pains as supreme sacrifices to please the almighty and thereby become less of “you” and more of the “divine” and thereby walk the path of thorns to attain “moksha”, “nirvana”, “salvation” etc., There is huge media report about enactment of live crucification scenarios as it took place for Jesus Christ on the good Friday every year at Philippines. It is also to be noted that the government prescribed the use of sterilised iron nails compulsory during such enactment. Whether the choice of religious freedom is considered too important in Philippines and whether such a freedom is being curtailed even for the right purposes in our country which has given birth to the world’s most number of practising religions and faiths. Whether the words ‘choice’ and ‘freedom’ is being tinkered and tampered with by judicial precedents are all answers that will hopefully come out in detailed manner from our coveted and academically rich apex court in the days to come.

(An article inspired by discussion with advocate Mr. Aashish Dafaria and legal research from Advocates Amar K. Panwar and S. Revathy)

M.L. Joseph
Managing Partner/Advocate
M/s.Chennai Law Associates

 

M.L.Joseph 
on 31 August 2015
Published in Constitutional Law
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