‘Santhara’ is the Jain practice where a person voluntarily gives up food and water until death occurs due to starvation. Jains believe that Mahavira, the last of the Tirthankaras (person who has conquered the cycle of death and rebirth) allowed Santhara or Sallekhana, as it as also known, as the ultimate test of spirituality and will power. The controversy existing with regard to this practice, with some equating it with suicide, was recently brought into focus with the judgment of the Rajasthan High Court that declared Santhara as an offence punishable under Section 309 (which criminalize attempt to suicide) and Section 306 (which criminalize abetment to suicide). The Rajasthan High Court decision was the result of a Public Interest Litigation filed by Nikhil Soni, an advocate and human rights activist.
Contentions of the Petitioner:
- The practice is purely religious and has ‘no place in the law of the land.’ Every act of self-destruction by a human being, in common language is suicide, provided that it is an intentional act. Just like Sati (or, bride-burning), Santhara is also a process to commit suicide in the name of religion and should not be protected by the State. Thus, those who abet Santhara should be subject to investigation and punishment as is done in the case of Sati.
- The petitioner asserted that a person adopting Santhara is not allowed to go back on his vow and is often subject to various forms of cruelty by his family and community, such as being tied to a bed or chair and refused food and drink even if he wants to come out of his vow. This, alleged the petitioner, is no different from killing.
- The fundamental right to freedom of religion under Article 25 cannot protect a criminal act, as this right is subject to public order, morality and health. The Supreme Court has refused to protect religious practices that violate public order, morality and health. The petitioner relied on Jagdhishwaranand Avadhutta Acharya Police Commissioner, Calcutta, where the Supreme Court upheld the power of the police to prohibit practices such as human sacrifices done in the name of religion and to impose restrictions on the performance of the tandava dance in public streets.
Though this practice amounted to suicide, which was being abetted by the family as well as the community, neither the police nor the administration in Rajasthan have taken any action.
- The Supreme Court has held in previous decisions that the right to life does not include the right to die. The substance of these decisions is that no person has the right to end his life voluntarily.
The Petitioner therefore claimed that Santhara should thus be declared to be illegal and punishable under the law, and the instances of this crime listed in the pleadings as well as their abetment should be investigated and subject to prosecution.
Contentions of the Respondent:
- Santhara is completely different from suicide. It was claimed that a person commits suicide when he is under emotional stress, the main intention being to escape the consequences of certain events, agony or social stigma. Unlike Santhara, it is far removed from religious or spiritual considerations. Death in case of suicide is sudden, and the act is committed with secrecy. Santhara, on the other hand is an act of ‘self-purification’ and is not giving up life but ‘taking death in its own stride.’ Santhara is not suicide, but the key to ‘attain salvation in the least possible number of birth and death cycles.’ It is voluntary process, and the person’s ‘quiet and joyful death’ enlightens society at large.
- Though Section 309 of the Indian Penal Code criminalizes attempt to suicide, punishment of a particular conduct depends on the scope and purpose of criminal law. What would constitute a crime depends on the policy of the State. In fact, even the Law Commission has recommended the decriminalization of attempt to suicide. The Supreme Court has recognized the right to live with human dignity, which means the right of a dying man to die with dignity.
- The Respondents also referred to various decisions of courts in other countries where the withdrawal of life support was permitted.
- Article 25 of the Constitution enshrines freedom of religion and the Constitution overrides the Indian Penal Code or other such laws.
The individuals practicing Santhara further have the right to privacy, which has been upheld by the Supreme Court in various cases.
- The Jain community is a religious and cultural minority, which means that under Article 29, the State may not impose any other culture on them, such as force feeding a person who has taken the vow of Santhara.
Decision of the High Court:
The Court held that Santhara is an illegal practice and directed the State authorities to stop this practice and treat it as an attempt to suicide, which is punishable under the Indian Penal Code. The reasons given by the court were:
- It is true that the right to life includes the right to die with dignity when life is ebbing out. However this is not to be equated with the right to die an unnatural death, curtailing the natural life span. Extinguishing life is different from accelerating the process of natural death that has already commenced.
- The right to freedom of religion under Article 25 of the Constitution is subject to public order, morality and health. Also, the Constitution protects only those practices, which form an ‘essential part of the religion.’ The Jain scriptures do not preach that Santhara is an essential religious practice, which must necessarily be undertaken to achieve salvation. Article 25 does not protect such optional religious practices.
Appeal before the Supreme Court:
Members of the Jain community filed appeals against the decision of the High Court. The Supreme Court stayed the order of the Rajasthan High Court, which means that the practice of Santhara will not be considered an offence, at least for the time being, until the Supreme Court declares its verdict on the issue.
Reactions to the Rajasthan High Court judgment
The judgment has generated a substantial amount of controversy. Some who criticize the judgment argue that Article 25 does not mention ‘essential religious practices.’ This phrase, when used by the Supreme Court in 1950 was used in contradistinction to secular practices and not to determination of the relative importance of practices within the religion. The judgment characterizes the objective of Santhara as speedy death, ignoring the fact that there are certain pre conditions such as terminal illness or a great natural disaster, that are to be fulfilled before a person takes the oath of Santhara. Others argue that the Constitution does not give courts the authority to decide what practices are essential to a religion and impose their own interpretation on its followers.
On the other hand, some human rights activists allege that Santhara is a social evil, and that elderly persons are made to undertake the vow by family members who do not wish to care for them. Some question whether the decision to take Santhara can truly be called voluntary since it is taken under the risk of being socially ostracized in case of a change in decision. Others ask what the rationale is for force feeding protesters on a hunger strike but allowing Santhara to continue unrestricted.
The interplay of Religion and Law in India:
Various religious practices have been challenged before the Courts previously. In the often remarked case of Mohd. Hanif Quaraishi & Ors. v. State of Bihar, the practice of cow-slaughtering by the Muslim community was challenged by members of a Hindu right-wing party. The Supreme Court, from an interpretation of Quaranic texts finally held that though animal sacrifices were necessary during some festivals, it was not necessary for cows specifically to be sacrificed.
In 1983, the Supreme Court held that the government had the authority to impose restrictions on the performance of the ‘tandava dance’ that involves the use of weapons and skulls, since it was not an essential practice for the followers of the Anandamargis sect and was also a threat to the public order.
Earlier this year, the Gujarat High Court, in a case relating to a forged notification, which stated that ‘bal sanyasis’ do not fall within the Juvenile Justice Act, criticized the practice of bal dikhsha (a practice where children as young as eight years old renounce the world to become ‘bal munis’), questioned why the Central and State governments had maintained complete silence on the issue and also recommended that Government should consider coming out with legislation in this regard. Controversy also arose when a proposed amendment in the Wildlife Protection Act suggested ban in domestic trade in peacock feathers, which are traditionally carried by Jain monks
Legal challenges to religious practices are not unique to India. When the Religious Freedom Restoration Act, 1993 was passed in the U.S.A, courts for over three decades adopted an approach that allowed religious communities to practice any custom, even if this meant overriding criminal laws prohibiting them. A major turning point was the case of Employment Division v. Smithwhere the Supreme Court held that criminal laws could curtail the use of a certain drug without a proper prescription even if it was being used by certain people as a part of their religious calling to do the same.
With the Supreme Court order staying the Rajasthan High Court’s decision, the status quo remains. However a decision in this case might lead to further developments in the debate regarding the interpretation of the ‘right to die with dignity,’ which may influence the legal position on euthanasia as well. The Supreme Court’s verdict on the scope of religious freedom guaranteed under Article 25 will impact the several cases relating to religious practices that are pending in the Courts. The decision may pave the way for many more challenges to religious practices or possibly make it much more difficult for such challenges to be successful. Whatever may be the case, considering the overwhelmingly large role religion plays in Indian society, the verdict when reached will have far reaching consequences for the country.
Disclaimer: The views expressed in this article are those of the authors and do not necessarily reflect the views of National Law University, Jodhpur or those of the Legal Aid and Awareness Committee.
 Sandipan Sharma, Debating Santhara: This Jain Practice is not suicide but Indian laws don’t see it that way at http://www.firstpost.com/india/debating-santhara-the-jain-practise-isnt-suicide-but-indian-laws-dont-see-it-that-way-2408134.html. (last visited on September 20, 2015)
 Jagdhishwaranand Avadhutta Acharya v. Police Commissioner, Calcutta, AIR 1984 SC 51.
 Gian Kaur v State of Punjab, 1996 (2) SCALE 881.
 Bouvia v Superior Court (225 Cal. Reporter 297) (CT App 1986), Barting v Superior Court (209 Cal Reporter 220 (CT App 1984), Airedale NHS Trust v. Bland, 1993 All ER 821 (859).
 R. Rajgopal v State of Tamil Nadu, 1994 SCC (6) 632; PUCL v Union of India, (1997) 1 SCC 30; Selvi v State of Karnataka, AIR 2010 SC 1974.
 Abhishek Manu Singhvi,’Santhara is not Suicide: Rajasthan High Court judgment equating the two must be rectified’ at <http://blogs.timesofindia.indiatimes.com/candid-corner/santhara-is-not-suicide-rajasthan-high-court-judgment-equating-the-two-must-be-rectified-2/> (Last visited on August 28, 2015).
Suhrith Parthasarathy, The flawed reasoning in the Santhara ban at http://www.thehindu.com/opinion/op-ed/the-flawed-reasoning-in-the-santhara-ban/article7572183.ece. (Last visited on September 20, 2015)
Milind Ghat, The Jain religion and the right to die by Santhara at http://indianexpress.com/article/explained/the-jain-religion-and-the-right-to-die-by-santhara/. (Last visited on September 20, 2015)
 Manasi Phadke & Tanushree Venkatraman, Santhara: Glorified Suicide or essential practice? at http://indianexpress.com/article/india/india-others/the-rite-death-santhara-jain/ (Last visited on September 20, 2015).
 Mohd. Hanif Quaraishi & Ors. v. State of Bihar, AIR 1958 SC 731.
Acharya Jagdishwaranda Avadhuta and Ors. v. The Commissioner of Police, Calcutta and Anr., (1983) 4 SCC 522.
 Rameshbhai Vora & Others v State of Gujarat, Civil Writ Petition No. 7414/2006. (8/5/2015).Judgment may be viewed here:
 Supra note 8.
 Employment Division v. Smith 494 U.S. 872(1990).
 Doug Linder, Free Exercise of Religion-The issue: When may the government enforce a law that burdens an individual’s ability to exercise his or her religious beliefs? at http://law2.umkc.edu/faculty/projects/ftrials/conlaw/freeexercise.htm (Last Visited on September 20, 2015).