The Flawed Reasoning in the Santhara Ban

When the Supreme Court sits on appeal over the judgment, it must rethink its age-old doctrine of essential practice, that has substantially weakened religious freedom in India

The Rajasthan High Court, in a judgment on the August 10, 2015, declared the Jain practice of Santhara, which involves a voluntary fast-unto-death, an offence punishable under the Indian Penal Code (IPC). This decision in Nikhil Soni v. Union of India, is likely to have far-reaching consequences, not only amongst the Jain community in Rajasthan but also across the country. Unfortunately, it conflates several important issues of constitutional law, and symbolises the confusion over the fundamental guarantee of religious freedom in our constitutional jurisprudence.

The court's judgment is superficially reasoned, misconstrues findings of the Supreme Court, and, most significantly, ignores vital considerations that go to the root of a person's right to ethical independence.

It is undeniable that Indian secularism — a form quite distinct from western conceptions of the term — envisages the intervention of the state in matters of religion, where general social welfare or substantial civil liberties are at stake. But, what our Constitution, properly interpreted, does not permit is the bestowal of any specific discretion on the courts to tell us which of our beliefs and practices are essential to the following of a religion. By directing the State government to move towards abolishing the practice of Santhara, and by holding that the practice is tantamount to an attempt to commit suicide, punishable under Section 309 of the IPC, the High Court in Nikhil Soni has created a damaging precedent, which requires immediate re-examination.

Santhara, which is increasingly widely practised by Jains in India, is a voluntary tradition of fasting till death, that Jains believe will help them attain ultimate salvation. As pointed out in The Hindu ( "Santhara in the eyes of the law", August 15) by Shekhar Hattangadi, Santhara is embedded in deeply philosophical beliefs. The practice is premised on a foundational idea that the act of fasting, as an exercise of bodily autonomy, allows a believer to attain a state of utter transcendence. However, the court has now found that such matters of integrity, of choosing how one wants to lead life, do not enjoy any constitutional protection, and that voluntary fasting is nothing but a performance in self-destruction. By any reasonable construction, fasting ought to be considered indistinguishable from an act specifically aimed at ending one's own life.

Effectively, the judgment in Nikhil Soni is predicated on two primary grounds. First, that the guarantee of a right to life does not include within its ambit a promise of a right to die, and therefore, that the practice of Santhara is not protected by Article 21 . Second, that Santhara, as a religious practice, is not an essential part of Jainism, and is hence not protected by Article 25 , which guarantees a person's right to religious freedom and conscience. While on the first ground, the court's reasoning is difficult to accept, on the second ground, the court's finding is premised on a wrongly considered doctrine, carved by the Supreme Court in its earliest rulings on the right to freedom of religion.

As the Rajasthan High Court correctly recognises in Nikhil Soni, Section 309 , which criminalises the attempt to commit suicide, has been found to be constitutionally valid by the Supreme Court, in 1996, in the case of Gian Kaur v. State of Punjab. However, the Supreme Court was concerned here primarily with the unnatural extinguishment of life. To die through an act of suicide, the court held, is not an extension, or a recognised corollary, of one's right to life under Article 21. But contrary to what the High Court holds in Nikhil Soni, as a recent intervention petition filed by the Delhi-based Vidhi Centre for Legal Policy points out, the Supreme Court in Gian Kaur explicitly recognises that a person's right to life also partakes within its ambit the right to live with human dignity. "…This may include the right of a dying man to also die with dignity when his life is ebbing out," the court wrote, in Gian Kaur. "But the "right to die" with dignity at the end of life is not to be confused or equated with the "right to die" an unnatural death curtailing the natural span of life."





Save Religion, Save Jainism Application

Jain community strongly believes that santhara is a ritual to attain salvation by fastening death. Conceptually Santhara or Sallekhana is different from suicide as this practice is not taken either in passion or in anger. It is a conscious practice of spiritual purification where one does not attempt suicide but seeks to spiritual purification to reduce the influx of karmas," The practice is extremely considered as an achievement and is trusted as a form of sacrifice and a great blessing. Through this application, our aim is to make people believe that Santhara is a holy practice to attain 'Moksha'.



Register for Protest

Now you can also register your protest over Santhara ban by visiting www.savejainism.com
Let's all come together to register our protest...all these registered protests will be forwarded to honourable Supreme Court and President of India. So you are requested to register your protest ASAP if not till now and be a part of "Save Religion - Save Jainism" Campaign started to make sure removal of ban over "Santhara".



An Initiative To Save Jainism, Save Religion!

It's our belief that Santhara is a divine for purifying body & mind by fastening to death (not an attempt to suicide), an initiative is regulated by us, to support Santhara in order to save Jainism. It's a holy practice to attain salvation and thereby saving religion.

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Being a follower of Jainism, we believe that achieving the liberation of soul by fastening for the death is a state of achieving bliss.

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We believe that Santhara is an age old tradition among the Jain community and has religious significance. We truly support the Santhara, as it is a process of purifying body at the final stage of life.
We appeal to stay connected with us in order to support Santhara, to save 'JAINISM'.

The "Samasth Jain Samaj" has demanded that the Prime Minister intervene immediately to ensure that the religious rights and interests of Jains were well protected by all the three pillars of democracy.