Nation-states and religion are the only two ideologies that both regulate and consecrate the meaning of death. This also makes them competitors. The ultimate exercise of sovereignty by the state is its claim to determine the conditions under which death is permissible. It also decides what forms of dying can be given public meaning — death for the nation-state is valorised. Any other attempt to determine the conditions under which we die is a usurpation of sovereignty, and other public meaning or consecration of forms of dying need to be eviscerated. Even the difference between what is religious and what is secular is not an antecedently given distinction; it is a distinction internal to the exercise of sovereignty. The state decides what is religious and what is not; it even decides what is essential to religion. These decisions sometimes wear the garb of neutrality. But the state’s own view of dying and death often carries unconscious theological baggage it regards as neutral. Certainly the IPC has traces of a Christian view of life and dying. It cannot even contemplate alternative modes in which that event in life has been imagined.
It is not surprising, therefore, that in Nikhil Soni vs Union of India, the Rajasthan High Court has concluded that the Jain practice of santhara or sallekhana shall be considered a criminal offence under Section 309 of the IPC, which provides for punishment for attempted suicide, and Section 306, which provides for punishment for abetment of suicide. Sallekhana is the Jain practice of withdrawing from taking food, under some very special circumstances, as a way of subduing all passions that cause himsa and preparing for a purified passage into the death state and beyond. The theological issues are complex. There are varieties of santhara, from a willed long fasting to a short-lived ritual withdrawal from food under conditions of extreme distress. It is often now used in a token sense to give significance to the last moments of cancer patients at the edge of death. The conditions under which it can be undertaken and the forms of supervision for this practice have also evolved historically. Some of this is wonderfully captured in Shekhar Hattangadi’s documentary on the subject. The existential pathos and struggle of trying to subdue all passions prematurely was brilliantly dramatised in Ship of Theseus.
The court, in a remarkably perfunctory treatment, has dismissed this practice. It claims, dubiously, that it is not essential to Jainism. The subduing of all desire is the central thread of Jainism; this is merely one expression. The “essential practices” test is a piece of contorted chicanery. It implies that if a practice were “essential” but morally wrong, it could not be regulated, and it takes away the believer’s autonomy to decide what is essential. The state should decide what is in the interest of justice, and religions need to comply — essential practice or not. It dismisses the idea that the right to life can include, under some circumstances, controlling the conditions of your exit with dignity.
It dismisses the claim every Jain text makes that sallekhana has to be distinguished from suicide. Here, the narrowness of English and incommensurable ideas of death run into a head-on collision. Just as English often flattens translations from Sanskrit by describing all nine varieties of love as “love”, so it is with death. How can an IPC or a Christian theology make sense of a tradition that emphatically says suicide is wrong, but provides room for the idea that one can reach a state where ahimsa requires you neither prolong life nor court death? In Jain texts, sallekhana is differentiated from suicide by the quality of intent; the IPC recognises only form for intent. To be fair, what distinguishes an intent borne out of the conquest of passions and ahimsa, and suicide in a conventional sense, may be hard for judges, unmusical to different varieties of death, to understand.
The state is right to intervene in practices that are unjust, essential or not. Sallekhana is different because it is not usually associated with two evils most religions inflict: the subordination of women and outright coercion. Sallekhana, unlike sati, with which silly comparisons are drawn, has not historically been associated with the subordination of women. Both men and women do it. It is voluntary, though it can be debated whether the social attraction of being remembered as an adept is a kind of coercive pressure. In some renditions of the practice, having once taken a vow, the community censure on withdrawing was significant. Equally, in the regulation by Jain monks, the vows were often graded, gradually escalating, so that the process could be stopped if circumstances changed. Yes, there is in some cases the risk of social pressure, but the tradition itself had regulatory answers to compensate for that. But let us face it: If social pressure alone were the test of illegitimacy of a practice, almost all social institutions would be declared invalid, beginning with marriage. Where is the bright line between choice and pressure?
The court held that santhara is simply a religion-based exception to current prohibitions on euthanasia. We had dealt with this issue so far with a kind of “don’t ask, don’t tell” policy. The state did not prosecute these cases; it did not even prosecute a similar refusal to nutrition by Vinoba Bhave. On a literal interpretation, the court is correct. Even if the tradition makes a distinction between santhara and suicide, it is hard to see a judge being able to confidently state the difference. The possibilities of nuanced judgements within communities collide with the simple-minded logic of juridification. But no state is going to grant leeway to community judgement in these matters. Some have argued that attempted suicide must be decriminalised altogether. Others argue that rather than make a religion-based exception, the right to die must be extended to all individuals, so long as it does not harm others.
The Supreme Court should reconsider the high court judgment. It goes against the identity of a religion whose central tenet is reverence for life, and it is a practice whose harm, in most cases, is not obvious. The community, for its part, will need a conversation on the conditions under which santhara should be permitted. It is one thing for the state to protect life and promote justice. It is another for it to colonise the various ways in which death can be interpreted, and life be given meaning. Unfortunately, the judgment does just that.
The writer is president, Centre Policy Research, New Delhi, and a consulting editor for ‘The Indian Express’.