SANTHARA: AN EXCEPTION OR CRIME UNDER PROVISIONS OF INDIAN PENAL CODE, 1860
Author: Nikhil Parakh
Co-Author: Sejal Makkad
Amity Law school, Amity University Chhattisgarh
India being a secular country, gives freedom for professing religions freely. The freedom as provided under Article 25 of The Constitution of India gives rights to citizens of India to profess their religion and practices freely. The religious practice of under Jainism is known as Santhara is no less than committing suicide by one’s own will. Section 309 of IPC which attempts to suicide a crime should also include Santhara in it. The Constitution of India provides Right to Life to its citizens under Article 21 and it was held by the Supreme Court in a landmark judgment that it does not include Right to Die. Whereas, Santhara portrays the will of a person to die while practicing religion. Religious practices are basically for a person to worship God and to thank god in different ways. Such practices should have a restriction according to which it should be professed. Also, the people who influence people to practice them must be held guilty under Section 306 of IPC. The more will be such religious practices, more will be the rate of deaths due to suicide.
This paper consists of the historical background of Santhara, it’s a relation to euthanasia. It also includes how this practice is ultra vires to Article 21 of The Constitution of India. Most importantly, it includes the relation of Santhara to IPC and treating it as a crime under it.
- Should Santhara be criminalized?
- Is Santhara a religious practice or suicide?
The author has done this research which is truly based on qualitative research and secondary sources to gather the information to achieve its objective in this research.
India has a great diversity with unity in which many religion and cultures flows parallel. Jainism is the religion in India under which there is a practice known as SANTHARA which means, facing death voluntarily by one’s will. This practice is allowed only when a person is suffering from an incurable disease or a great disability or when a person is near his end. It is a highly respected practice among the members of the Jain Community. According to the Jain Community, Sallekhana leads to ahimsa (non-violence or non-injury). “Ahimsa is the basis of the search for truth. I am realizing that this search is vain unless it is found on ahimsa as the basis“He (Gandhi) said ahimsa means love because, if you have love towards somebody, and you respect that person, then you are not going to do any harm to that person.” as a person observing Sallekhana subjugates the passions, which are the root cause of himsa (injury or violence). There is a similar Hindu practice known as sanjeevansamadhi. It is a type of Tapasya (self-suffering) according to religious views and monk speeches.
The ancient ritual of Santhara, also called Sallekhana, consists of voluntary starvation to embrace death. The Swetambar (white sect) community, which practices the ritual, considers it the ultimate way to attain moksha (release from the cycle of rebirth) when one believes his or her life has served its purpose. Practiced mostly by elders nearing death or having no desire to live anymore, this ritual demands the practitioner to even give up drinking water. Also, it is never advisable for young adults or children.
Jains regard Santhara or Sallekhana to be the highest form of passage for attaining moksha. It is done in full consciousness and peace and it does require that the practitioner fasts in the process of letting go of one’s own life.
This practice was started in the HINDU religion. The starting of this concept is the Hindu methodology. In Bhagwat Gita BhishmaPitamah also used IkshaMrutiue. In the ancient period, the Great Emperor Chandragupta also used this concept and took Diksha of Jain Dharma from Jain religious Guru Bhadrabahu. The Great Emperor used santhara in Shravangolbela.
According to a survey conducted in 2006, on an average 200 Jains practice sallekhana until death each year in India. Statistically, Sallekhana is undertaken both by men and women of all economic classes and among the educationally forward Jains. Statistically, it is done by more women than men. In around 300 BC, Chandragupta Maurya (founder of the Maurya Empire) undertook Sallekhana on top of Chandragiri Hill, ŚravaṇaBeḷgoḷa, Karnataka. Acharya Shantisagar, a highly revered Digambara Jain saint of modern India took Sallekhana on 18 August 1955. He decided to take the view in July 1955, on account of the inability to walk without help and weak eye-sight. He died on 18 September 1955
Santhara, the centuries-old Jain practice of facing death voluntarily was recently banned by the Rajasthan High Court, triggering widespread protests by the community. The devout Jains believe that Mahavira, the 24th Tirthankara, advised Santhara, or Sallekhana, as the supreme test of spirituality, a way of subduing all passions that cause him and preparing for a purified passage into the death state and beyond. Of late, Santhara has been embroiled in controversy, with critics equating the practice with suicide. But IcchaMrityu has been a part of Indian culture, even in Mahabharata, GangaputraBhism was blessed with the power of the death of his own will which he later exercised after the great war.
Here is what you all need to know about the centuries-old Jain tradition of Santhara:
- Contrary to popular notion, Santhara is not only observed by Jain monks who have renounced worldly affairs. “Ordinary Jains practice santhara more than monks,” says Jitendra Shah, director of the LD Institute of Indology told TOI.
- According to Jains, the purpose of Santhara is to purge old karmas and prevent the creation of new ones. Jain YuvaMahasabha president Sachin Jain told India TV that Santhara is not about death it’s a path to achieve Moksha, it’s a way to appreciate both life and death. It happens with the family’s consent.
- According to the Press Trust of India, an average of 240 Jains practice Sallekhana each year in India. Also in the first half of 2015, around 118 Jains performed Santhara across India, says a TOI report.
- Jains also claim that the tradition could not be compared to Sati’s path as it is entirely a personal decision, both men and women do it. And can also be withdrawn if the person feels that he cannot undergo the process.
- In Jain texts, Santhara is differentiated from suicide by the quality of intent. The Indian Penal Code recognizes only form for intent so it would be difficult to convince the court that Sallekhana is different from suicide.
- Under this tradition, more than one person of the same family rarely undergoes through the ritual of Sallekhana. However, a Bangalore Mirror report says that researchers have found evidence of six people of the same family, who lived in the 12th-13th century AD, that underwent the sacrificial rite.
- Around 300 BC, Chandragupta Maurya (founder of the Maurya Empire) undertook Sallekhana atop Chandragiri Hill, Śravaṇa Beḷgoḷa, Karnataka.
- The woman-man ratio of Santhara practitioners stands at 60:40, perhaps because women are generally more strong-willed and have a religious bent of mind.
- Even the legal fraternity is divided on the issue, while advocate Sanjay Jain says that Articles 25 and 26 of the Indian Constitution protect all religious practices unless otherwise prohibited by law. Whereas, Mahesh Jethmalani argues that any practice that eventually leads to death is attempted suicide.
- The Jains believe that Santhara is not only about death, destruction of life and a mortal body. They believe that Santhara leads to non-violence, as a person observing this practice subjugates the passions, which are the root cause of violence.
Marches and protests were followed until August 31 when the Supreme Court stayed the HC decision. The SC invalidated the criminalization of suicide in 1994 but that was reversed in 1996 in Gian Kaur which is now prevalent constitutional orthodoxy. Attempting suicide is a crime. Those who abet it are criminals and liable to be prosecuted. I am personally unhappy with the Gian Kaur decision. While there is a constitutional duty to save a life, people do commit suicide. My concern is that those who survive should not be prosecuted and treated as criminals. Decriminalize suicide but not abetment to suicide. Abettors are criminals inviting punishment up to ten years’ jail and fine.
If the law applies, as it did to protesting Irom Sharmila, Badana Devi would have to undergo force-feeding that was obviated by the latter by trying to complete her fast in hiding. This move was not possible without social and familial support. In India, many widows are treated, disrespected if powerless, sent to Vrindavan for prayer – a kind of socially imposed prison sentence.
RIGHT TO LIFE OR DEATH VS. “SANTHARA”- CASE REFERENCE
There is a writ petition of Nikhil Soni  in Rajasthan High Court, In which the practice of ‘Santhara’ or ‘Sallekhana’, a Jain ritual of voluntary and systematic fasting to death as illegal. The view of the petitioner was accepted and, the court directed the State to treat it as a punishable offense under section 309 of the Indian Penal Code. Also, its abetment thereof under section 306 of the Indian Penal Code.
The view came in the writ petition filed by Nikhil Soni who has requested to the Hon’ble court that the practice is illegal and announced a ban on this ritual? As it is a criminal offense and punishable under section 309 IPC.
No practice or belief or tenet, which is abhorrent to public order, morality, and health and violates other provisions of the Part-III, namely, Article 21, can protect the religious practice. The petitioner describing the practice of Santhara as abhorrent to modern thinking submitted that no religion howsoever historical, pure or revered, can permit or allow a person to commit death by choice. The fast until death is nothing but self-destruction in whatever form and believe it may be, and that fundamental right to freedom of religion cannot protect a criminal act as it is subject to public order, morality and health.
It was also argued by the petitioner that though in Aruna Ramchandra Shanbaug V/s Union of India , the Supreme Court left the question as to whether not taking food consciously and voluntarily to end one’s life is a crime. The substance of the judgments in Gian Kaur and Aruna Ramchandra Shanbaug is that no person has a right to take his own life consciously as the right to life does not include the right to end the life voluntarily.
As if this wasn’t complicated enough, the judiciary thinks very differently on this issue. While Santhara followers evoke the Constitution and international covenant, Soni weights judicial opinion firmly on his side of the right-to-die debate. This respectively held that “if destruction of one’s property or its deliverance to others for a cause or no cause is not an offense, there is no reason why sacrifice of one’s body for a cause or without a cause or for the mere deliverance of it should be regarded as an offense” and that Sec 309 of IPC was “unconstitutional and hence void.” This ruling by a five-judge bench of the Supreme Court ruled in Smt Gian Kaur v State of Punjabthat “the right-to-life is a natural right embodied in Article 21 but, suicide is an unnatural termination or extinction of life and therefore incompatible and inconsistent with the concept of right-to-life.” Emphasizing the sanctity of human life, the Court, in overruling both Dubal and Rathinam P. Rathinam vs Union of India on 26 April 1994, was categorical that “by no stretch of the imagination,” can “extinction” of life be read to be included in “protection” of life.
All eyes are now on the Rajasthan High Court. Will it accept the Supreme Court’s precedent in Gian Kaur and outlaw Santhara? Will such a decision ‘hurt’ religious sensitivities of nearly 6 million practicing Jains worldwide, for whom the centuries-old ritual holds a pride of place among their sacred traditions? Justice Jain seems to have already anticipated this eventuality. He argues, “Santhara can’t be called “suicide” by no stretch of the imagination. It is nowhere remotely an act of extreme desperation fueled by anguish.”
Although Hon’ble Supreme Court stayed the Rajasthan High Court order which had declared the Jain ritual of Santhara a penal offense — a person, after taking a view of Santhara, stops eating and drinking water and awaits death. A bench led by Chief Justice H.L. Dattu ordered a stay on the High Court order and issued notices to the state government and others. The bench also admitted the appeal for hearing and granted leave. This means that the matter will come up for hearing only after a few years from now when other older appeals are decided. On August 10, the Rajasthan High Court banned Santhara, a Jain ritual of voluntary fasting unto death, and made it an offense under Section 309 (attempt to suicide) of the Indian Penal Code. It held that any person supporting the practice would be prosecuted for abetting suicide.
EUTHANASIA VIS A VIS SANTHARA
In the absence of legislation on the controversial issue of euthanasia, the Supreme Court has stepped in and ruled that ‘active euthanasia’ or administering a lethal injection to end life cannot be permitted. The court was ruling in the case of 60-year-old Aruna Shanbaug in Aruna Ramachandra Shanbaug v. Union of India has been lying in a vegetative state for 37 years after being brutally attacked and raped. The Supreme Court of India has, for the first time, laid down guidelines for euthanasia and made a distinction between ‘active’ and ‘passive’ euthanasia. It said that causing the death of a person who is in a permanent vegetative state, with no chance of recovery, by withdrawing artificial life support is not a “positive act of killing”.
Terming this “passive euthanasia,” a bench of Justices MarkandeyKatju and Gyan Sudha Misra held that this could be permitted on a case-by-case basis.
“The withdrawal of life support by the doctors is in law considered as an omission and not a positive step to terminate life. The latter would be euthanasia, a criminal offense under the present law in UK, USA, and India.”
‘Active’ euthanasia, on the other hand, which could mean administering the patient a lethal drug to cause his or her death, was illegal as it is a “positive step to terminate a life,” the bench ruled.
The court was hearing a plea filed by Pinki Virani representing 60-year-old nurse Aruna Shanbaug who has been lying in a vegetative state for 37 years after being attacked by a sweeper at KEM hospital in 1973. The nurses of the hospital have since been taking care of her. Virani petitioned the court that Shanbaug be allowed to die by withdrawing food and medicines, as she has been in a vegetative state for over three decades.
The court clarified that stopping treatment (which it has allowed) and giving a lethal injection (which has not allowed) are not both deliberate acts and therefore the same thing. “The difference between active and passive euthanasia is that in active euthanasia something is done to end the patient’s life, while in passive euthanasia something is not done that would have preserved the patient’s life,” the bench observed.
The court also laid down guidelines for passive euthanasia such as that the matter must be referred to the high court for a decision and that the doctor or the parents or spouse of the patient must be the ones to petition for the withdrawal of life-support. In the absence of any of these, a person or a body of persons acting as ‘next friend’ can be permitted. Virani, the petitioner, in this case, was not the right person, the hospital was, the judges held.
The judgment allowing passive euthanasia will remain in force until Parliament enacts a suitable law on euthanasia. Until then, the following process will be followed:
- A special two-judge bench will be formed in every high court to decide applications seeking permission for euthanasia.
- A committee of three reputed doctors from a panel constituted by the high court in consultation with the state government will examine the patient and submit its report to the high court bench.
- Notices will be issued to all those concerned with the doctor’s report attached.
- After hearing everyone, the bench will give its verdict. The matter must be dealt with speedily as delays prolong the agony of the patient.
The judges also made a significant recommendation: that the Union government repeal Section 309 of the Indian Penal Code that attempts to suicide an offense.
Brilliant example, where religion seemingly prevailed over all the principles of our constitution and where a pack of people who alleged that their religious sentiments were hurt by a brilliantly authored judgment of Rajasthan High Court. This forced the Supreme Court to put a stay on the order of the High Court which held Santhara(Sallekhana) as unconstitutional and a criminal offense under section 309 of the Indian Penal Code (attempt to suicide). Also, anyone supporting religious practice would be held for abetment. Santhara or Sallekhana is when one gives up food and water and embraces death voluntarily due to old age, disease, attack of enemy or wild animal or any other such reason. He abandons all the worldly attachments and meditates until the soul parts the body Aruna Ramachandra Shanbaug v. Union of India, According to the famous Jain text, Ratnakarandaśrāvakācāra, the Sallekhana can be observed only on the arrival of unavoidable calamity, distress, senescence, and disease.This Religious practice was challenged through a Public Interest Litigation by a Lawyer in the case of Nikhil Soni v. Union of India before the Rajasthan High Court. The petitioner prayed before the Hon’ble Court to treat SANTHARA or SALLEKHANA as illegal and punishable under the law of the land and that the instances given in the pleadings, be investigated and subjected to suitable prosecution of which, the abetment be also treated as a criminal act.
The petitioner argued that the practice of Santhara amounts to suicide under Section 309 of the Indian Penal Code. They also pleaded that practice is violative of Article 21 as ‘Right to Life’ does not include ‘Right to Die’ and the Constitution of India guarantees the right to life and protects it23. The right to freedom of religion under Article-25 in Part-III-Fundamental Rights, is subject to public order, morality and health and to the other provisions of this Part, which includes Article 21.
The respondents contended that Santhara is completely different from suicide as suicide is related to fear, disgrace and hatred whereas Santhara is done when all worldly cannot be equated to ‘Sati’ because Santhara is a voluntary practice whereas Sati was most of the time forced. Also, Santhara forms an essential part of Jainism religion and Article 25 guarantees freedom of religion hence it will override the Indian Penal Code.
SANTHARA: A CRIME UNDER IPC?
The Court after considering all these arguments in a landmark judgment held Santhara or Sallekhana illegal and unconstitutional. It also held that it is not an ‘essential practice’ to Jainism religion. The right under Article 25 is subject to the other provisions of this Part, which includes Article 21.
The practice of Santhara was made a punishable offense under section 309 of IPC. This judgment caused a large hue and cry in Jain community who took on the street to save their religion which was allegedly in danger and it took nearly no time to put a stay on the high court decision and grant a special leave against it.
The author thinks that the rational taken by the High Court was correct and the bold decision reaffirming the superiority of the Constitution as the supreme law of the land over any religion is laudable. Even if Santhara forms an essential part of Jain religion still it cannot be allowed to infringe a basic principle of ‘Right to life’ when already Freedom of religion under Article 25(1) is made subject to public order, morality and health. In Aruna Ramchandra Shanbaug V/s Union of India Aruna Ramchandra Shanbaug V/s Union of India  Supreme Court has itself held that even voluntarily no one can give their life except for some exceptional circumstances where also there is proper supervision scrutiny of the court and it is presumed on the part of the author that religion cannot change the equation. Also, Santhara stands in line with sati as the critiques fail to understand that not even forceful but voluntary practice of sati is also prohibited by the law. Also, some people argue that the Constitution does not give courts the authority to decide what practices are essential to religion and impose their interpretation on its followers. They fail to understand the authority of the constitutional courts and appreciate the impartiality and wisdom of our courts.
A fitting example to justify this judgment is Employment Division v. Smith Employment Division v. Smith
where U.S. Supreme Court accepted that even religious relevance cannot prevent the prohibition of a drug by criminal law.are over and the person accepts death in its own stride. They also submitted that the practice of Santhara the Jain practitioners contend that 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. These arguments were brushed aside by the Rajasthan High Court. It simply found, based on an incorrect reading of Smt. Gian Kaur vs The State of Punjab, that 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.
But, perhaps, even more damagingly, the court in Nikhil Soni also rejected arguments that sought to locate such liberty in Article 25. Here, though, the folly in its reasoning wasn’t as much a product of its own making, as it was a consequence of a vague doctrine established by the Supreme Court. Read, Article 25 guarantees to all persons an equal entitlement to freedom of conscience and the right to profess, practice and propagate religion. The right is subject only to public order, morality, and health, and other recognized fundamental rights.
However, as the debates in the Constituent Assembly demonstrate, these community exceptions were included purely to ensure that the guarantee of religious freedom did not come in the way of the state’s ability to correct age-old social inequities. It wasn’t the Assembly’s intention to allow organs of the state any substantial latitude in determining which religious practices deserved constitutional protection. But, in practice, perhaps out of an anxiety to ensure that the state is not constrained in passing legislation to remedy social evils, the Supreme Court has interpreted Article 25 in a manner that has greatly restricted the scope of religious liberty.
The court of chief justice Sunil Ambwani and justice V. Siradhana, issuing the order on a PIL filed by a human rights activist Nikhil Soni, said, “The state shall stop and abolish the practice of Santhara 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 by section 309 (attempt to suicide) and section 306 (abetment).”
The petitioner had argued that the Constitution guarantees the right to life and protects life. “The right to freedom of religion under Article 25 is subject to public order, morality, and health. A practice, however ancient, cannot be allowed to violate the right to life of an individual,” the petitioner argued. The court said the respondents had failed to establish Santhara as an essential religious practice without which the following of Jain religion would not be possible.
“There is no evidence or material to show that Santhara has been practiced by persons professing Jain religion even before or after the promulgation of the Constitution. The overriding and governing principle of public orders, morality and health conditions the right to freedom of conscience and the right to freely profess, practice and propagate religion,” the court said. Soni and his lawyer Madhav Mishra had filed the PIL claiming Santhara should be considered suicide under the law. One of the concerns raised was that it is old people who usually resort to Santhara and that allowing an elderly person to suffer without medical assistance, food and water is in humans. The court of chief justice Sunil Ambwani and justice VS Siradhana, issuing the order on a PIL filed by a human rights activist Nikhil Soni, said, “The state shall stop and abolish the practice of Santhara 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 by section 309 (attempt to suicide) and section 306.
Santhara (Sallekhana) is an example from a wide range of issues about national importance in a country where religion is a significant aspect of the life of people. In India, religion is an unparalleled authority and even the almighty ‘state’ tries to avoid touch this delicate part of the people’s sentiment. It has been very rightly pointed out in Shah Bano v. Union of India that ‘Legislative Competence’ is one thing and ‘Political Courage’ is quite another. The shackles of religion have held our society in a standstill. Gender discrimination, atrocities against the fellow human being, and unreasonable activities have been featured in religious practices of almost all the religions. No religion forwards such message but maybe it’s a result of the circumstances under which religion evolved.
The idea behind the insertion of ‘freedom of religion’ as a fundamental right was that no person should be robbed of his belief but the constitution-makers would never have thought that one day this belief would become so overwhelming force that the state will yield in from of its will. The problem is also not with the right but with the people of this county. One of the contentions of the plaintiff in Nikhil Soni v, Union of India was that although people can revert even if they take this special view but in present-day any person adopting this view is not allowed to go back and is forced by family and society by means of inhuman and intolerant condition which includes tying to chair or bed. No religion warrants such a kind of practice. The state will have to intervene at some points, courts have taken few bold steps but they also have to ultimately yield to political and social pressure after all they are not entrusted with the task of governing and framing policy such as a Uniform Civil Code for the country.
have come a long way from the country of snake charmers to a potential
superpower. A lot has been done. Rationality is taking its place slowly and
gradually, but a lot has to be done. People will have to understand that
religion is not omnipotent and it cannot govern the country. The Political
parties will have to take the initiative and think in the national interest
rather in their political interest.
M. K. GANDHI, AN AUTOBIOGRAPHY OR THE STORY OF MY EXPERIMENTS WITH TRUTH, AHMEDABAD; NAVAJIVAN TRUST, 2003, 254.
M.K. GANDHI, NONVIOLENCE IN PEACE AND WAR, (2ND ED.) AHMEDABAD, NAVIJIVAN TRUST, 1944, 49.
M. K. GANDHI, YOUNG INDIA, 22-11-1928, THE COLLECTED WORKS OF MAHATMA GANDHI, VOL. XXXVIII, AHMEDABAD; NAVAJIVAN TRUST, 1970, 69.
NEW ZION’S HERALD, JULY/AUGUST 2001, VOL. 175, ISSUE 4, 17.
M. K. GANDHI, An Autobiography or The Story of My Experiments with truth, Ahmedabad; Navajivan Trust, 2003, 254.
The New Zion’s Herald, July/August 2001, vol. 175, issue 4, 17
M. K. GANDHI, Young India, 22-11-1928, The Collected Works of Mahatma Gandhi, Vol. xxxviii, Ahmedabad; Navajivan Trust, 1970, 69
M. K. GANDHI, Nonviolence in Peace and War, (2ND ed.) Ahmedabad, Navijivan Trust, 1944, 49.
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