On the 10th of August the Jaipur Bench of the Rajasthan High Court delivered its verdict on “Santhara/Salekhana”. In their judgement Honourable Chief Justice Sunil Ambwani and Honourable Justice V S Sirdhana after hearing out the petitioner and the respondents said the following :
“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.”
This led to a major discontent in the 4.5 million strong Jain Community for they felt in interfered and encroached upon their Fundamental Rights as Guaranteed under Article 25, 26 and 29 of our Constitution. What these articles essentially provide is the freedom to practice, propagate and profess ones religion. The representatives of the Jain Community had argued in the courts that by equating Santhara with Suicide and make it punishable under IPC, this PIL interferes with their religious rights.
Whats is a Santhara??
As has been put forth by the respondent and I Quote “According to Jain scriptures, Santhara means to weaken the strength of body and passion for putting an end to the bodily existence without consciously coveting death by fasting. It is undertaken when one is faced with an unavoidable natural calamity, severe drought, old age or an incurable disease. Prior to the adoption of the vow, one is required to give up all feelings of love, hatred, companionship and worldly attachments with a pure all humanity at the same time forgiving them sincerely. It is also desired that one may undertake the great vow of Santhara after discussing it thoroughly and frankly with one’s guru (religious preceptor).”
While deciding on the PIL the Honourable Court said that the practice of Santhara is not an essential Religious Practice of Jainism and thus not have the protection that is available under the Article 25, 26 an 29 of our Constitution. For these articles just protects those practices that are essential to any religion and can be curtailed on account of public order, morality and health. In a Judgement the courts have ruled that the protection under Articles 25 and 26 of the Constitution is with respect to religious practice, which forms an essential part of the religion. A practice may be religious but not an essential and integral part of practice of that religion. The latter is not protected by Article 25.
The judiciary have over the years in various judgement have refused to legitimatise activities for they were not essential or integral part of the religion, for example :
- The Practice of Ex Communication on religious grounds was also not permitted.
- In the name of religion activities that disturb the old, students having their sleep in early hours or during the day cannot be permitted.
- As was the practice of slaughter of Cows not permitted as was not an essential religious practice.
- The practice of Sati was also not permitted even as late as 1987 by the courts after the Room Kunwar Sati case.
No religion lives in time warp or is static, it has to move and adapt with the times. What may have been just and right centuries ago cannot stand true now or what is held right now may not be the same for future.
What this judgement has done is open a Pandora’s Box. The same people who vehemently opposed the action of the then PM Rajiv Gandhi ji and hailed the judgement in the Shah Bano case and wanted to implement the Uniform Civil Code are now deriding the courts for interfering in their religious freedoms. Like Shekhar Gupta the renowned journalist tweeted “See Santhara this way. If faith supreme here, Rajiv was right on ShahBano. If law was right on Shah Bano it must be supreme on Santhara too”
The Jain community took out a nationwide peaceful march against the judgement on the 24th August and I am sure soon the judgement would be challenged in the higher courts and the same would have to once again pass through the test of our Constitution.
“Every man must give an account of himself to God, and therefore every man ought to be at liberty to serve God in that way that he can best reconcile to his conscience” —John Leland, The Rights of Conscience Inalienable
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