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Santhara in the eyes of the law (Religion ,Fundamental Rights,GS paper 1 , Paper 2 , The HIndu )

Unlike a Christian believer who looks upon the human body as a God-given‘temple of the human soul’, a devout Jain views that same body as a ‘prison of thehuman soul’

That conflicting religious philosophies often propel nations into war has long been a truism of history. But whenSamuel P.Huntington gave the oft-used “clash of civilizations” phrase a foreboding — even menacing —contemporary context during a 1992 lecture in the aftermath of the Gulf War, it’s unlikely that the Americanpolitical scientist was thinking of an emaciated Jain muni peacefully awaiting death on a bed of dry grass afterweeks of starvation.Although it may seem far from obvious, Huntington’s thesis — that differences in religion and culture would spawnconflict in the post-Cold War world — lies at the root of the angst that has gripped the Jain community following theRajasthan High Court’s verdict against Santhara. Earlier this week [Monday, 10 Aug], the court’s Jaipur Benchruled on a public-interest litigation (PIL) filed in May 2006 against the centuries-old Jain practice of starving todeath. It held that Santhara would henceforth be treated as “suicide” and accordingly made punishable under therelevant sections — Section 309 (attempt to commit suicide) and Section 306 (abetment of suicide) — of theIndian Penal Code. In the use of harsher language in its directive to the State — that the latter shall “stop andabolish” the practice “in any form” and register any complaint against it “as a criminal case” — the court made itsabsolute rejection of the Jain philosophy underlying the practice unequivocally clear. It also unwittingly bared thecultural divide between disparate end-of-life concepts.

During the five-year-long research for my documentary film on this controversy — Santhara: A Challenge to IndianSecularism? — I met several members of the Jain clergy and other lay adherents of the faith as well as scholarswho had studied the philosophy of Jainism through its scriptures and rituals. Without an exception, they were all atpains to point out the fallacy of characterizing Santhara as a form of suicide. True, both acts culminate in the self-extinguishment of a human life, but the motivations of the actors are poles apart. Whereas suicide is an act ofextreme desperation fuelled by anguish and hopelessness, a Santhara practitioner relinquishing food and drinkvoluntarily by this method has arrived at that decision after calm and unruffled introspection, with an intent tocleanse oneself of karmic encumbrances and thus attain the highest state of transcendental well-being. Santhara,for him, is therefore simply an act of spiritual purification premised on an exercise of individual autonomy.

Admittedly, dietary abstinence as religious ritual isn’t unique to Jainism. There’s Ramzan among Muslims, Lentamong Christians, fasting during Yom Kippur and Tisha B’av among Jews, and a host of astronomy- andastrology-related fasts among Hindus. But none of the others takes fasting to the point of starvation and ultimatelydeath as does Santhara. Since any kind of eating or drinking would result in a disruption (however minimal) of andadd a burden (however small) to the natural ecology around them, orthodox Jains consider zero-consumption —i.e. starvation unto death a la Santhara — to be the high-point among the Jain traditions of austerity and self-denial, and therefore the truest real-world act of ahinsa or non-violence, the fundamental tenet of Jainism.

Disregard, for a moment, the radical extremism of the act itself. And contrast its broader theological rationale —which is more or less common to Eastern religions, and which resonates nicely with the basic theory of karma thatunderlies the beliefs and practices of most Indian religions — with the ecclesiastical values prevalent in thecultures that brought us the forms of governance we presently live with. A conspiracy of history, circumstance andexpedient decision-making has resulted in our law-making and law-administering bodies being structured on theWestminster model of our colonial rulers, not to mention our judicial machinery and its key statutes — notably,criminal laws — remaining largely untouched since the time they were first designed by the British and written withtheir colonial feather-pens. Even the bulk of our Constitution, mulled over for all of three years on the cusp ofIndependence by worthy home-grown sons and daughters representing a cross-section of our population, was

derived from the Government of India Act, 1935 and arguably its most important articles (i.e. those enshrining ourFundamental Rights) were inspired by the American Constitution.

The concept of suicide associated with religion is a repugnant one for the mainstream Anglo-Saxon West, whoseJudeo-Christian beliefs would denounce such an act as antithetical to the moral and ethical principles espousedby Christianity. The systematic codification of Indian criminal law as we know it today began soon after thecolonialists survived the blood-soaked Mutiny of 1857 and formally established the British Raj. The IPC, whichforms the bulwark of our criminal jurisprudence, bears an 1860 vintage (it came into force two years later) and wasdrafted by Lord Thomas Macaulay who was known to be a devout Christian. Inevitably, it would appear, the wilyadministrator put forth a code that not only set a low threshold of culpability for political dissent and for spreadingdisaffection against the government — which was tacitly welcomed by successive regimes well into the post-Independence era, and which is why it’s still so easy to slap “sedition” cases against innocuous cartoonists — butwhich also reflected his own deeply held convictions about right-and-wrong, and good-and-evil.

The Crown couldn’t have found a more faithful and capable servant. As a public policy maker, Macaulay hadtelescoped his personal beliefs into an official document that upheld the “civilizing mission” of his masters whiletaking care of the everyday chore of maintaining law and order among the unruly “natives” as well as the trickytask of subverting their pagan values. The IPC accomplished the first, and Macaulay’s introduction of English as amedium of instruction in schools and colleges contributed to the second. It paved the way for Christianmissionaries to press forward with their conversions mainly among the needy, and with their “convent education”among the aspiring middle-classes. From this large-scale acculturation emerged a new generation of brownsahibs and babus eminently qualified to maintain the institutions of the Raj.

But it also set the ball rolling for a fundamental and deep-seated — albeit seldom articulated — discordancebetween the Western ideologies that created those institutions and devised their operating norms and procedures,and the Eastern philosophies that shaped the world-view of the people those institutions were meant to serve.Compare, for instance, the singularly focused zeal of a proselytizing religion like Christianity with the Jain tenet ofanekantavada (non-absolutism or openness to differing—and even contrasting—opinions and beliefs) or with theinclusive live-and-let-live approach of Hinduism, and you begin to empathize with Rudyard Kipling’s twain-shall-never-meet conundrum.

“Instead of the earth, the meek religions of the sub-continent have thus inherited an ill-fitting legal template forged,so to speak, in the smitheries of the West. ”

And the Santhara case serves to emphasize the seemingly irreconcilable difference in perspective on the specificissue of “suicide.” In contrast to a Christian believer who looks upon the human body as a God-given “temple ofthe human soul” and therefore beyond the realm of willful and deliberate destruction by any human being, adevout Jain views that same body as a “prison of the human soul,” the fulfillment of whose needs corresponds tothe accumulation of bad karma.

This basic contradiction between a statute founded largely on a Christian-inspired bioethic and the essentiallyEastern variant of the idea of spiritual advancement through abstinence and renunciation rears its head wheneveran ancient religious practice like Santhara collides with contemporary law. The conflict becomes particularlyglaring in a faith-based society like ours whose polity has embraced norms of governance and administration thatare transplants from an alien soil.

What, according to me, remains a significant take-away from the court proceedings in the Santhara case is not somuch the petitioner’s — and consequently, though not expressly, the court’s — characterization of the death-ritualas suicide simpliciter masquerading as a religious practice wrapped in the mantle of hoary tradition. Thatapproach could arguably be critiqued as a narrow, unkind and mechanical application of the law. More tellinghowever is the fact, recorded for posterity in the judgment, that the pro-Santhara counsel, seeking to establish thescriptural validity of the practice, recited slokas “to the amusement of the general public sitting in the Court.” Is therecitation of a sloka in an Indian courtroom during the hearing of a case involving the legality of an ancient rite orritual such an incongruous act that it should invite mirth and derision? Could there be a more vivid illustration ofthe incompatibility between traditional religion and modern governance?

Are countries such as those in Europe, which enforce a strict separation between religion and governance andwhich discourage public displays of religious festivity, faring any better?

Having painstakingly achieved that ideal — the Church-State divide — through centuries of struggle, thesecountries are apt to look askance particularly at the Indian nation-state where an avowedly “secular” (the wordfigures in the Preamble to our Constitution) government regulates religious institutions, subsidizes Haj trips anddeploys state resources to safeguard Amarnath Yatra pilgrims.

But times might be changing. Although the conventional idea of secularism in western democracies largely keepsreligion out of governance, the influx of immigrants of various faiths into these countries in recent times and theirassertive — even militant — stance with regard to their rights of religious practice has made these countriesconfront the problem anew. The spiky issues of burqa-wearing in France and of circumcision in Germany manifestthe same law-religion conflict with which we are grappling here. The unease over Santhara may well be part of aglobal discontent.

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 religiousfreedom in India

The Rajasthan High Court, in a judgment on the August 10, 2015, declared the Jain practice of Santhara, whichinvolves a voluntary fast-unto-death, an offence punishable under the Indian Penal Code (IPC). This decisionin Nikhil Soni v. Union of India, is likely to have far-reaching consequences, not only amongst the Jain communityin 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 constitutionaljurisprudence.

The court’s judgment is superficially reasoned, misconstrues findings of the Supreme Court, and, mostsignificantly, 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 — envisagesthe intervention of the state in matters of religion, where general social welfare or substantial civil liberties are atstake. But, what our Constitution, properly interpreted, does not permit is the bestowal of any specific discretion onthe courts to tell us which of our beliefs and practices are essential to the following of a religion. By directing theState government to move towards abolishing the practice of Santhara, and by holding that the practice istantamount to an attempt to commit suicide, punishable under Section 309 of the IPC, the High Court in NikhilSoni 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, thatJains believe will help them attain ultimate salvation. As pointed out in The Hindu ( “Santhara in the eyes of thelaw”, August 15) by Shekhar Hattangadi, Santhara is embedded in deeply philosophical beliefs. The practice ispremised on a foundational idea that the act of fasting, as an exercise of bodily autonomy, allows a believer toattain a state of utter transcendence. However, the court has now found that such matters of integrity, of choosinghow one wants to lead life, do not enjoy any constitutional protection, and that voluntary fasting is nothing but aperformance in self-destruction. By any reasonable construction, fasting ought to be considered indistinguishablefrom 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 tolife does not include within its ambit a promise of a right to die, and therefore, that the practice of Santhara is notprotected by Article 21 . Second, that Santhara, as a religious practice, is not an essential part of Jainism, and ishence not protected by Article 25 , which guarantees a person’s right to religious freedom and conscience. Whileon 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 ofreligion.

As the Rajasthan High Court correctly recognises in Nikhil Soni, Section 309 , which criminalises the attempt tocommit suicide, has been found to be constitutionally valid by the Supreme Court, in 1996, in the case of GianKaur v. State of Punjab. However, the Supreme Court was concerned here primarily with the unnaturalextinguishment of life. To die through an act of suicide, the court held, is not an extension, or a recognisedcorollary, of one’s right to life under Article 21. But contrary to what the High Court holds in Nikhil Soni, as a recentintervention petition filed by the Delhi-based Vidhi Centre for Legal Policy points out, the Supreme Court in GianKaur explicitly recognises that a person’s right to life also partakes within its ambit the right to live with humandignity. “…This may include the right of a dying man to also die with dignity when his life is ebbing out,” the courtwrote, 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.”

A dignified choice

The Jaina practitioners contend that Santhara is not an exercise in trying to achieve an unnatural death, but israther a practice intrinsic to a person’s ethical choice to live with dignity until death. These arguments werebrushed aside by the Rajasthan High Court. It simply found, based on an incorrect reading of Gian Kaur, that thereis no dignity whatsoever in the act of fasting, and that therefore, there exists no freedom to practise Santhara asan extension of one’s right to life under Article 21. But, perhaps, even more damagingly, the court in NikhilSoni also rejected arguments that sought to locate such liberty in Article 25. Here, though, the folly in its reasoningwasn’t as much a product of its own making, as it was a consequence of a vague doctrine established by theSupreme Court.

Plainly read, Article 25 guarantees to all persons an equal entitlement to freedom of conscience and the right toprofess, practise and propagate religion. The right is subject only to public order, morality, and health, and otherrecognised fundamental rights. However, as the debates in the Constituent Assembly demonstrate, thesecommunity exceptions were included purely to ensure that the guarantee of religious freedom did not come in theway of the state’s ability to correct age-old social inequities. It wasn’t the Assembly’s intention to allow organs ofstate any substantial latitude in determining which religious practices deserved constitutional protection. But, inpractice, perhaps out of an anxiety to ensure that the state is not constrained in passing legislation to remedysocial evils, the Supreme Court has interpreted Article 25 in a manner that has greatly restricted the scope ofreligious liberty.

Interpreting religious practices

The court’s constriction of this freedom has been achieved by invoking a rather curious principle: that Article 25protects only those exercises that are considered “essential religious practices.” Through the 1960s, this doctrine,which was first envisaged in the Shirur Mutt case, decided in 1954, ingrained itself as an integral part of India’sconstitutional theory. The court, on a case-by-case basis, often examined individual religious canons to determinewhat constituted an essential religious practice. Significantly, the court began to examine whether a particularexercise was indispensable to the proper practice of a religion.

This interpretation has allowed the court authority to determine for the people what their religious beliefs andpractices, through a correct reading of their religious texts and customs, ought to comprise. Invariably, thedetermination of what constitutes an essential religious practice, therefore, amounts to a very particular form ofmoral judgment — a form of cultural paternalism that is quite antithetical to a liberal democracy.

It is this authority, which the High Court in Nikhil Soni, has invoked to rule that the criminalisation of Santharawould not breach a Jain’s right to religious freedom. “We do not find that in any of the scriptures, preachings,articles or the practices followed by the Jain ascetics, the Santhara…has been treated as an essential religiouspractice, nor is necessarily required for the pursuit of immortality ormoksha,” the judgment states. This analysis, asis evident, does not consider whether a person indulging in Santhara performs the act out of an intrinsic belief thatthe practice flows from his religion, but rather adopts an almost-avowedly paternalistic outlook. It tells followers ofJainism that under a purportedly proper interpretation of their religious texts, Santhara is simply not an essential

practice. As a result, the question of whether a Jain’s right to religious freedom is violated by prohibiting Santharais examined in a wholly unsatisfactory manner.

If, and when, the Supreme Court sits on appeal over the judgment in Nikhil Soni, it must ask the right questions: ofwhether any social inequities arise out of the practice, of whether any other right of its practitioners are violatedthrough Santhara, of whether the rights of any other person are infracted when a person goes on fast. In so doing,the court must also reconsider its now age-old doctrine of essential practice, which has caused a substantialweakening of the state of religious freedom in India.