Death and the sovereign

Santhara judgment is court’s bid to colonise ways in which death can be interpreted and life given meaning.

Written by Pratap Bhanu Mehta | Published:August 19, 2015 12:00 am
Santhara, jainism, jainism fast, jain illegal fast, illegal jain fast, rajasthan news, narendra modi, india news, vasundhara raje, santhara, santhara suicide, santhara ritual, india news, express column The court, in a remarkably perfunctory treatment, has dismissed this practice. It claims, dubiously, that ‘santhara’ is not essential to Jainism.

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’.

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  1. A
    Ajay
    Aug 20, 2015 at 4:42 pm
    I think Court is right......
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    1. N
      Naim Naqvi
      Aug 19, 2015 at 6:09 pm
      If life happens, death is the logical next step. it is the cycle of nature. However, to terminate life is not a choice that could be called natural. Any form of forced killing of oneself with any or every pious intention is an individual offense inflicted upon state. The judgment of court in Santhara issue is highly laudable.
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      1. A
        Anil Maheshwari
        Aug 19, 2015 at 1:59 pm
        The religious upbringing of the learned writer seems to have overridden his rationality. What is the difference between suicide and Santhara? Should not we then justify the SATI ? It is a fight between supersion and rationalism in the country. The issue should not be politicised as a few years ago, the Jain community got themselves declared a religious minority, just to run their educational insutions at their will without the check of the State.
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        1. C
          chetan
          Aug 23, 2015 at 10:13 pm
          Please try to understand what is Sallekhana. Just calling it 'fast unto death' in English does not do justice with it. Its not about killing but welcoming the last natural breath.
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          1. C
            Chanchalkumar Dagade
            Aug 20, 2015 at 7:42 am
            Live & let live is jain slogan..we all jain will protest again high court order under Jain Dharma Raksha Andolan on 24 aug. Do visit
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            1. M
              Mukesh Vora
              Aug 19, 2015 at 1:51 pm
              If Santhara is to be permitted , then why not mercy death for ailing ?
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              1. G
                G M
                Aug 19, 2015 at 8:43 pm
                Life in death and death in life is an experiance and is the deciding factor for eternity. Otherwise why judge come across a situation where criminal begs for life and denied and non violent Jain begs for death and denied. Speechless ?, go for enlightenment.
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                1. G
                  Gopal
                  Aug 19, 2015 at 6:31 am
                  I sympathize with the author's perspective. However, I wonder if he realizes that this is simply a continuum of our left wing policies, that he has been a frequent supporter of. For 60 years, we have been taught that Indian culture and religion is bad by our socialist elites. They rewrote history and filled it with lies, they highlighted bad practices (that occur in every society) as unique to India. Laws were made, often with good intentions, that were often in opposition to common beliefs and practices. In other words, the socialist elites, just as in Soviet Union and China, sought to control what we read, what we think and what we believe. This is a continuation of that thinking. Until we stop treating our own people with contempt, we will never reform or change. Just because something isn't right is no reason to legislate. Democracy means respecting other traditions and opinions even when we are certain that they are not right. Just maybe they are or maybe people need time to change. But the change must come from the heart and not by a socialist state diktat.
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                  1. G
                    Gopi
                    Aug 19, 2015 at 12:20 pm
                    Sir, This is simple extension - and application - of what your hero, JL Nehru, started...
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                    1. J
                      Joyjeet Chowdhury
                      Aug 19, 2015 at 9:56 am
                      We often forget that Indian Parliament had ped hindu code bill. Not exactly hindu code bill but some various different format, i don't want to go into that. When supreme court has said to come up with common civil code then why we are not doing that and instead particularly targeting different factions of hindus. Why it don't bring to light which will go for all factions of society. Like marriage and divorce. Many incidents are there where we need to focus. Let's come the point in question here, giving up food cannot be counted as suicide, we cannot say that anyone who has given up food to go to next life is not same as taking self's life in an instance or swiftly. If that is the case what shall we call upon the hunger strike? Anna hazare should be booked under attempt of suicide, if the judgement shall be taken into consideration...
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                      1. B
                        BharatK
                        Aug 20, 2015 at 12:47 am
                        Any form of supersion must be banned legally. No matter which religion one belongs to. And sikularist supersion too should be banned.
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                          ashok
                          Aug 18, 2015 at 11:57 pm
                          Have great respect for the religion, partly because my wife is a devout Jain, but I would endorse the High Court's view. There has been a long, continuing battle between supersion and rationalism in India, the last scene has by no means pla out. One hopes the community will not circle its wagons and make this a political issue. For a reason I do not understand, the Jains have also got themselves declared a religious minority, eligible for state largesse, even as they are arguably the most affluent of citizens.
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                            narendra nahata
                            Aug 19, 2015 at 12:19 pm
                            Though Jain community would appeal to Apex court , it was as essential and important to explain to the society the difference between Death and Sallekhana as the final decision of Supreme court . Thanks Prof Mehta.
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                              Ramesh Grover
                              Aug 19, 2015 at 8:16 am
                              An extremely luminous exposition of the practices of santhara and sallekhanna. Though I do not have enough understanding of tradition, but being born in India and somewhat exposed to Jainism too, it is obvious to me that proponents are on highest moral ground when they subscribe to either one of them, depending upon conditions involved. Over here, law has to fall in line and not the other way round.
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                              1. R
                                Romi Jain
                                Aug 27, 2015 at 7:42 am
                                Sati pratha was for women who were expected to immolate themselves. Santhara is not only for both men and women but is also one's personal wish to purify oneself by denying oneself food. Santhara is not an instant act of killing oneself through immolation or anything else-- it is an act of liberating oneself from matter, which forms the body, through self-control. In Jainism, the soul's ociation with matter forms its bondage. There's a deeper philosophy behind Santhara- it is not an act of suicide which is committed out of sorrow, depression, or spouse's death (for example, husband's death was ociated with the practice of Sati).
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                                  rshaymu
                                  Aug 19, 2015 at 12:23 pm
                                  Few weeks back Faizan Mustafa wrote on headscarf and he too just like Prof. Mehta argued that courts should not decide essential and non essential features of any religion. State has been given enough powers to bring in social reforms under restrictions to freedom of religion
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                                  1. S
                                    Sanket Dash
                                    Aug 19, 2015 at 7:18 am
                                    I think the esteemed columnist has for once let his religious upbringing over-ride his rationality. Suicide is the intent to destroy one's body and I do not see how Santhara does not fall under this definition. By consciously refusing to take nutrition, the person is willingly destroying his/her body. The comparisons to Sati are also not unjustified. Both involve a willful destruction of one's body and in both cases, the protagonist is glorified. If one is banned, why not the other. I do not believe suicide should be banned. But if suicide is banned, santhara cannot be an exception.
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                                    1. S
                                      SK
                                      Aug 19, 2015 at 3:20 pm
                                      True ...exactly my thoughts
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                                        JaiShankar Tiwary
                                        Aug 19, 2015 at 9:56 am
                                        A really erudite and eye-opening piece on santhara,;enough reasons have been given for reconsideration by the apex court
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                                        1. V
                                          Vijay Jain
                                          Aug 21, 2015 at 6:17 am
                                          Sallekhana – the zenith of human life All samsari jivas are embodied according to their individual spiritual status, and are subject to the cycle of births and deaths. The body, ociated with each soul, is subject to growth, old age, decay and death. Death entails that the soul must quit the existing body to acquire a fresh body consistent with and determined by the record of the karmic conditions, of which the soul itself is a repository. One of the most contentious issues in metaphysics is the relationship between the soul and the body. The Jaina metaphysics holds that the two are entirely different enies but live together for a certain period of time and then depart. From the point of view of the modes in bondage, owing to the influence of karmas, the soul is corporeal in the embodied state. From the point of view of its pure nature, the soul is incorporeal. Though the soul is one with the body in the embodied state, it is different from the body because of its distinctive characteristics. The corporeal nature of the soul is predicated in the non-absolutistic or relativistic sense only. From one point of view the soul is incorporeal, but from another point of view it is corporeal. A person is deluded when he identifies an animate object, soul (jiva), as inanimate, and an inanimate object, non-soul (ajiva), as animate. A deluded person breeds attachment to the body which is intimately bound to him, and with persons or objects like friends, clothes, houses, riches and geographical territories, which are not so bound to him. He desires their possession, ownership and company, and their separation brings about grief to him. He spends his w life in acquiring and then protecting them, and their inevitable separation causes unbearable misery to him. He lives under the fear of death. All human beings who have not met with an untimely death p through eight experiential stages in life – birth, infancy, childhood, adolescence, youth, adulthood, old age, and death. We are mostly dependent on others till we reach the stage of youth. In these formative years, most decisions pertaining to our upbringing are taken by others. As we reach adulthood, we become aware of our inherent likes and dislikes, strengths and weaknesses, and start pondering over matters like our objectives and goals in life. We take decisions on our career, family, and social life. By the time we reach the stage of advanced adulthood we have enough experience to look back to and vision to look forward to. We are mature enough to understand the meaning of life, its pleasures and pains. We are able to observe the ups and downs in the lives of people around us. More importantly, we are able to reflect on whether there is something we must do regarding the direction of our life, or live life just as it comes. In our worldly life we seek pleasure and try to avoid pain and suffering. No sooner do we make headway in acquiring and then using an object of pleasure than a feeling of its inadequacy creeps into our mind. We want something superior in terms of both, the quality and the quantum of pleasure. We become slaves of pleasure. Typically, we over-indulge at night, get a terrible hangover the next morning, but crave for the same thing again at the fall of night. We get overpowered by the senses and become addicted to pleasure. As the harmful effects of this addiction on our mind and body surface in due course of time, the realization dawns that perhaps we have moved too far ahead in the wrong direction. We get disheartened to see that pleasure is short-lived and is followed, sooner or later, by pain and suffering. Despondency sets in; we wish to do something about it but it is too late by then. Stark reality that we must leave behind, voluntarily, all material possessions strikes in our face. There is no escape from this plain truth; if we do not volunteer to do it ourselves, death will perform the act for us, rather ruthlessly. The idea of separation from our prized possessions leaves us in great pain and misery. Enjoyment of a few pleasures in the past is no solace to a grieving soul. Realization of this basic truth early in life can save us from much hardship and agony later on. Wise men start looking at the realities of life and ways to cope with these as soon as the realization dawns that they have just one or two score years of the present life left. They clearly apprehend that the worldly existence is full of misery; disease, old age, separation from kith and kin, accident, natural disaster, failure, and death are but some of the realities of life that one has to run into. They take corrective actions to make the best use of the remaining years. While they commiserate with people living in conditions of poverty, deprivation, impairment or disease, they do not allow despondency to set within themselves. They are not particularly attracted towards the pleasures that worldly objects have to offer. They realize that pain and suffering are inextricably linked to the worldly life and are attributed to our karmas. Our virtuous karmas in the past have provided us with whatever good and enjoyable we have in this life and we must now make efforts to engage ourselves only in actions that will provide us with joyous feelings in the remaining years of this life, and the next. When a man turns his consciousness exclusively to the Ideal of the pure soul, he is saved from indulging in activities that result in perennial entrapment in the world. Knowing the body as unconscious, mortal, and a product of karmas, one who does not undertake activities pertaining to the body performs the essentials of detachment from the body. The soul has the intrinsic attribute of darting upward and the body, being physical matter, is an instrument of pulling the soul downward. The body, being a direct outcome of karmas, is absolutely worth dissociation and detachment for anyone who is treading the path to liberation. Only with such discrimination between the soul and the body can one develop interest and inclination towards the soul and disinterest and disinclination towards anything that is anhetical to the soul. The way to make human birth meaningful is through renunciation of worldly pleasures, meditation, austerities, propagation of true faith, and finally attaining a pious and pionless death by relinquishing the body through the method of sallekhana. Vijay K. Jain Jain Scholar, Dehradun
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                                          1. I
                                            Indian
                                            Aug 19, 2015 at 6:20 am
                                            IS-LAM and CHRI-STIANITY consider LIFE as GOD GIVEN and hence insist that death too has to be decided by GOD and not individuals. Indian LAWS inherited from BRITISH SYSTEM follow that principle. ......................... But HIN-DUISM, JAIN-ISM, BUDDHISM etc do not accept this theory and so allow taking of ONE'S OWN LIFE - Lard Ram vanished at GUPTHAR GHAT on his choice and even VANAPRSTHAM of HIND-UISM is a way of taking OWN LIFE- the "sustenance drawn" from the food intake is less than the CALORIE expended to sustain life- even the PANDAVAS did it. ...................... So Hin-dus, Jains, Buddhist etc should be aliowed to take their OWN LIFE.
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