September 2, 2015 1:25:42 am
It took less than a minute for the Supreme Court on Monday to stay the Rajasthan High Court order that had compared Santhara, the Jain ritual of fasting unto death, with suicide and made it an offence punishable under the IPC. Jains were as quick to welcome the apex court order as they had been to denounce the High Court judgment of August 10.
What was the Santhara case before the Rajasthan High Court?
In 2006, Jaipur-based lawyer Nikhil Soni filed a public interest litigation and sought directions under Article 226 to the central and state governments to treat Santhara, the fast unto death practised by Swetambara Jains (Digambars call it Sallekhana), as illegal and punishable under the laws of the land. Calling it suicide and, therefore, a criminal act, the PIL also sought prosecution of those supporting the practice for abetment to suicide. The PIL argued that death by Santhara was not a fundamental right under Article 25 (freedom of conscience and free profession, practice and propagation of religion), because it violated the right to life guaranteed under Article 21. It argued that religious freedom is subject to public order, morality and health.
What did the Jain community say in defence of the practice?
Representatives for the community argued that Santhara/Sallekhana is an ancient religious practice aimed at self-purification. The vow of Santhara/Sallekhana is taken when all purposes of life have been served, or when the body is unable to serve any purpose of life. It is not the giving up of life, but taking death in their stride.
What did the court say in its order?
The Bench said that it was not established that Santhara or Sallekhana is an essential practice of the Jain religion. Jain scriptures or texts don’t say that moksha (salvation) can be achieved only by Santhara/Sallekhana. According to the judges, it was one thing to argue that Santhara is not suicide, and quite another to say that it is a permissible religious practice protected by Articles 25 and 26. The court asked the state to stop the practice in any form, and directed that any complaint made in this regard be registered as a criminal offence in accordance with Section 309 (attempted suicide) or Section 306 (abetment to suicide) of the IPC.
How did the Jain community react to the judgment? What line have the Rajasthan, Madhya Pradesh and central governments taken?
No government has articulated an official line, but politicians, including ministers, have criticised the judgment. Members of the Jain community took to the streets immediately by organising protest rallies. On August 24, the community took out massive silent rallies in several cities and towns. In meetings held before the rallies, members of the community openly criticised the judges, calling them ignorant and disrespectful of religious practices.
How common is the practice of Santhara/Sallekhana? Who can undertake it?
Even though Jain religious figures like monks and sadhvis, as well as lay followers, can take the vow to undertake Santhara/Sallekhana, it’s not very common. Some monks and sadhvis on their deathbeds do it, but it’s rare among common practitioners of Jainism. Mostly only those who are in the last phase of their lives — who are either too old or suffering from serious ailments — starve themselves to death. The vow is carried out in stages, by gradually giving up solid food, liquid food, and finally, even water. No specific numbers are available for Santhara/Sallekhana.
Why do some people oppose it?
Human rights activists allege that it’s a social evil, and old people are made to undertake Santhara/Sallekana by family members who don’t want to look after them for a variety of reasons. The petition in the High Court compared the practice with that of Sati.
Why are Jains so agitated if so few people undertake Santhara/Sallekhana?
To many Jains, death by Santhara/Sallekhana is an act of supreme renunciation and great piety, which only the most spiritually pure undertake. While the court’s judgment has been criticised as being shallow and thoughtless, religious communities are frequently touchy about intervention in their religious practices. The protests and appeal against the High Court order was also driven by apprehensions that if an immediate challenge was not mounted, similar PILs may be filed in other states.
Have other religious practices faced legal challenges earlier?
Bal Diksha, the controversial practice in which children as young as 8 years take diksha to become ‘Bal Munis’, a role that requires them to observe a strict, regimented lifestyle, has been challenged in the courts. Recently, a case was filed in Goa against a naked Digambar monk for obscenity. When an amendment in the Wildlife Protection Act was proposed to ban domestic trade of peacock feathers, the community feared that monks would be stopped from carrying peacock feathers. The community is also against a ban on open defecation because that is the way some monks answer nature’s call.
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