The practice of Santhara a tradition followed in Jain religion was brought the social front when a PIL[1] was filed in the Rajasthan High Court which opened the debate as to whether the practice of Santhara falls within the ambit of section 309 of IPC amounting to suicide and if the people who gave their support to the practice can be charged under section 306 of IPC as abettors of suicide.
This issue was not only important for the Jain community as it not only contained religious significance but also opened the debate if the Right to life included the right to death as well and if this interference by the state infringes with the freedom of religion.
Concept of Santhara
Santhara or Sallekhana is a religious practice among the Jain community where it is believed to be a medium through which moksha(salvation) can be attained it involves a person undertaking fast unto death when he has completed all the purposes of his life, or his body is not functioning.
The practice of Santhara is carried out in the following manner:
a) Person willing to undertake Santhara has to discuss it with his priest first before taking the pledge of Santhara.
b) Further, he has to proclaim it publically.
c) He also practices michhami dukkadam, where he apologises to people for the hurt caused him during his lifetime, and subsequently takes meditation for introspection.
d) He then slowly starts restraining himself from food and water, whereby eventually his soul leaves body and attains moksha(salvation).
According to Jains this is a way to purge oneself of the bad karma and attain moksha. Among Jain community ,it is a greatly respected practice of renouncing of all passions and desires and taking the death in its own stride. Although, there is no mention of a particular age for undertaking santhara, since it requires all purposes of life to be over, it is taken by old aged people only.[2]
The Controversy of Santhara
Santhara and Suicide: The difference
It had been stated in the PIL that Santhara amounts to self destruction and therefore amounts to suicide under section 309 of IPC and is also violative of Right to life as Right to death is not provided by part III of the constitution. In the instant case[3] however, there were contentions given to differentiate Santhara from suicide:
“The main psychological and physical features of suicide are: (1) The victim is under an emotional stress; (2) He or she is overpowered with a feeling of disgrace, fear, disgust or hatred at the time when suicide is resorted to; (3) The main intention of committing suicide is to escape from the consequences of certain acts or events; disgrace, agony, punishment, social stigma or tyranny of treatment etc. (4) The kind is far away from religious or spiritual considerations (5)The means employed to bring about the death are weapons of offence or death; (6) The death is sudden in most cases unless the victim is rescued earlier; (7) The act is committed in secrecy (8)it causes misery or bereavement to the kith and kin.”
Thus, on the basis of comparison between these features and the steps involved in Santhara one can easily state the stark difference between the two.
Moreover, the judgments of Gian Kaur[4] in which the Constitution bench of the Supreme Court upheld the constitutional validity of section 309 IPC by overruling P. Rathinam’s[5] case and holding that article 21 of the Constitution does not include the ‘right to die’ or the ‘right to be killed’ and Aruna Ramchandra Shambhaung[6] there still exists a vacuum which needs to be filled regarding the concept of suicide and the ‘right to die’. Gian Kaur which invalidates the unlawful termination of life while Aruna Shambhaung only recognizes passive euthanasia[7] but in both the cases, death in question was preferred due to escapism from life and out of remorse and evasion of life. Where one deals with the cases where out of remorse and dissatisfaction with life, a person makes a sudden decision to end the life and the latter deals with a situation where out of continuous and unbearable pain and suffering, it is believed that death would be a relief rather than continued existence in this manner and that too only through passive means and not by actively terminating the life. The case with santhara does not fall in either of the two spheres because here nor the decision to terminate life is a sudden decision to evade life out of dissatisfaction and neither it is on account of continued and unbearable pain and suffering that decision is taken i.e., it is not a case of ‘mercy killing’. It is a situation where the person who believes that all his worldly tasks are over and not he/she must celebrate death also and accept death in its own stride.[8]
Not an essential practice
The judgement of the High Court also holds Santhara as not an essential practice under the Jain religion and therefore it cannot be granted the protection of the constitution under religious freedom.
The court says there is no dignity whatsoever in the act of fasting, and that therefore, there exists no freedom to practice Santhara as an extension of one’s right to life under Article 21. Since 1960’s, the court, on a case-by-case basis, has examined individual religious canons to determine what constituted an essential religious practice. “We do not find in any of the scriptures, preaching, articles or practices followed by the Jain ascetics, the Santhara has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha.”[9]
However, the Jain community contested that the Santhara is not an exercise in trying to achieve an unnatural death, but is rather a practice intrinsic to a person’s ethical choice to live with dignity until death. It is a ritual act of purification, done in consultation with a guru, and follows the most detailed of procedures. According to religious texts, it is permitted and is an integral part of Jainism.
Conclusion
The Supreme Court in its appeal was satisfied that the practice of Santhara is different from that of suicide under section 306 of IPC and stayed the decision given by the Rajasthan High Court declaring Santhara as an offence.
Edited by Sakshi Raje
Reference:
[1] NIKHIL SONI v. UNION OF INDIA 2015 Cri LJ 4951
[2] Nikhil Soniv. UOI, Case Comment, ILI Review, Summer Issue, 2016.
[3] Supra note 1
[4] Gian Kaur v. State of Punjab (JT 1996(3) SC 339).
[5] 1994 SCC (3) 394.
[6] (2011) 4 SCC 454.
[7] Euthanasia is of two types: Active and Passive. The former involves the use of a lethal substances or forces to kill a person (e.g. a lethal injection given to a person with terminal cancer who is in terrible agony) while the latter entails withholding of medical treatment for the continuance of life (e.g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart-lung machine). The difference is that in one, something is done to end the patient’s life while in the other something is not done that would have preserved the patient’s life; See Ratanlal & Dhirajlal, The Indian Penal Code, 1789 (Lexis Nexis Publication , 2013)
[8] One of the cases in which a similar kinds of logic was presented before the Court is when in the matter C.A.
Thomas Master v. Union of India 2000 CrLJ 3729 (Ker), and the petitioner claimed that all the purposes of his life are over and he has led a successful life and he wishes to terminate his life which was rejected by the Court. But such a question has not been open before the apex court.
[9] NIKHIL SONI v. UNION OF INDIA 2015 Cri LJ 4951
