Santhara: A Critical Analysis

Friday, April 8, 2016

   

India have a great diversity with unity in which many religion and cultures flows parallel. Jainism is the religion under the India in which there is practice known as SANTHARA means facing death voluntary at the end of owns life. This practice allowed only when a person is suffering from incurable disease or great disability or when a person is nearing his end. It is a highly respected practice among the members of the Jain Community. According to Jain Community, sallekhana leads to ahinsa (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 founded on ahimsa as the basis[1], “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.” [2] as person observing sallekhana subjugates the passions, which are the root cause of hinsa[3] (injury or violence). There is a similar Hindu practice known as sanjeevansamadhi. It is a type of a type of tapasya[4] (self-suffering) according 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 practises 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. Practised mostly by elders nearing death or having no desire to live any more, this ritual demands the practitioner to even give up drinking water; it is never advisable for young adults or children.

 

Jains regard Santhara or Sallekhana to be the highest form of passage, or death and in a way not the same as suicide. It is done in full consciousness and in peace and it does require that the practitioner fast in the process of letting go of your life force[5].

 

IN PRACTICE

Basically this practicaly was started in HINDU religion. The starting of this concept is Hindu methdology. In Bhagwadgita Bhishmpitamah also used Iksha Mrutiue. In ancient period the Great Emperor Chandragupta also used this concept and taken diksha of Jaind Dharm from Jaini religious Guru Bhadrabahu. The Great Emperor used santhara in Shravangolbela.

According to a survey conducted in 2006, on an average 200 Jains[6] 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 atop Chandragiri Hill, ŚravaṇaBeḷgoḷa, Karnataka. Acharya Shantisagar, a highly revered Digambara Jain saint of the modern India took Sallekana on 18 August 1955. He decided to take the vow in July 1955, on account of inability to walk without help and weak eye-sight. He died on 18 September 1955[7].

Santhara, the centuries old Jain practise 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 Tirthankar, advised Santhara, or Sallekhana, as the supreme test of spirituality, a way of subduing all passions that cause himsa 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 Iccha Mrityu has been a part of Indian culture, Even in Mahabharat, Gangaputra Bhism was blessed with the power of dying of his own will which he later exercised after the great war[8].

 

Here is what you all need to know about the centuries old Jain tradition of Santhara:

  1. Contrary to popular notion, Santhara is not only observed by Jain monks who have renounced worldly affairs. "In fact, ordinary Jains practice santhara more than monks," says Jitendra Shah, director of the LD Institute of Indology told TOI.

  2. 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 family’s consent.

  3.  According to the Press Trust of India, an average 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.

  4.  Jains also claim that the tradition could not be compared to Sati pratha 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.

  5.  In Jain texts, Santhara is differentiated from suicide by the quality of intent; the Indian Penal Code recognises only form for intent so it would be difficult to convince the court that Salekhana is different from suicide.

  6.  Under this tradition, more than one person of the same family rarely undergo through the ritual of Sallekhana. However, a Bangalore Mirror report says that researches have found evidence of six people of the same family, who lived in the 12th-13th century AD, that underwent the sacrificial rite.

  7.  Around 300 BC, Chandragupta Maurya (founder of the Maurya Empire) undertook Sallekhana atop Chandragiri Hill, Śravaṇa Beḷgoḷa, Karnataka.

  8.  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.

  9. 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, Mahesh Jethmalani argues that any practice that eventually leads to death is attempted suicide.

  10. ) The Jains believe Santhara is not only about death, destruction of life and mortal body. They believe that Santhara leads to non-violence, as person observing this practice subjugates the passions, which are the root cause of violence.

 

Marches and protests followed until August 31 when the Supreme Court stayed the HC decision. The SC invalidated the criminalisation of suicide in 1994 but that was reversed in 1996 in Gian Kaur[9] 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[10] decision. While there is a constitutional duty to save life, people do commit suicide. My concern is that those who survive should not be prosecuted and treated as criminals. Decriminalise 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 IromSharmila, 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 terribly treated, disrespected if powerless, sent to Vrindavan for prayer - a kind of socially imposed prison sentence[11].

 

Right to Life or Death Vs. “Santhara”- Case Reffrence

There is a latest writ petition of Nikhil Soni6 in Rajasthan High Court, the practice of ‘Santhara’ or ‘Sullekhana’, a Jain ritual of voluntary and systematic fasting to death as illegal, the view of petitioner court accepted and directed the State to treat it as an offence punishable under section 309 of the Indian Penal Code and its abetment thereof under section 306 of the Indian Penal Code.

The view came in writ petition filed by Nikhil Soni[12] who has requested to the Hon’ble court that the practice is illegal and announced ban on this ritual, on the ground that it amounted to suicide,  it is a criminal offence and this is 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 a self-destruction in whatever form and belief 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.[13]

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 with the aim 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.[14]

As if this weren’t complicated enough, the judiciary thinks very differently on this issue. While Santhara followers evoke the Constitution and international covenant, Soni has the weight of judicial opinion firmly on his side of the right-to-die debate[15]  which respectively held that “if destruction of one’s property or its deliverance to others for a cause or no cause is not an offence, 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 offence” and that Sec 309[16] of IPC was “unconstitutional and hence void.” This ruling by a five-judge bench of the Supreme Court ruled in SmtGian Kaur v State of Punjab (1996) that “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 over-ruling both Dubal and Rathinam[17], was categorical that “by no stretch of 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 practising 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 imagination. It is no where remotely an act of extreme desperation fuelled by anguish.”

Although Hon’ble Supreme Court stayed the Rajasthan High Court order which had declared the Jain ritual of Santhara a penal offence — a person, after taking a vow 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 offence 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.[18]

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 who 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 Markandey Katju and Gyansudha 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 offence 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 is 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 such time as Parliament enacts a suitable law on euthanasia. Until then, the following process will be followed:

1 A special two-judge bench will be formed in every high court to decide applications seeking permission for euthanasia.

2 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.

3 Notices will be issued to all those concerned with the doctor’s report attached.

4 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[19] of the Indian Penal Code that makes attempt to suicide an offence.

 

CONCLUSION

The Jaina 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 Gian Kaur[20], that there is no dignity whatsoever in the act of fasting, and that therefore, there exists no freedom to practise Santhara as an extension of one’s right to life under Article 21. But, perhaps, even more damagingly, the court in Nikhil Soni[21] 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.

Plainly read, Article 25[22] guarantees to all persons an equal entitlement to freedom of conscience and the right to profess, practise and propagate religion. The right is subject only to public order, morality, and health, and other recognised 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 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[23].

 

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 in accordance with section 309 (attempt to suicide) and section 306 (abetment)."

The petitioner had argued 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 prior to or after the promulgation of the Constitution. The over riding 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 inhuman. 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 in accordance with section 309 (attempt to suicide) and section 306 (abetment)."

The petitioner had argued 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 prior to or after the promulgation of the Constitution. The over riding 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 inhuman. 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 in accordance with section 309 (attempt to suicide) and section 306 (abetment)."

The petitioner had argued 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 prior to or after the promulgation of the Constitution. The over riding 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 inhuman. 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 in accordance with section 309 (attempt to suicide) and section 306 (abetment)."

The petitioner had argued 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 prior to or after the promulgation of the Constitution. The over riding 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 inhuman. 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 in accordance with section 309 (attempt to suicide) and section 306 (abetment)."

The petitioner had argued 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 prior to or after the promulgation of the Constitution. The over riding 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 inhuman.

 

 

 

 

 

[1] M. K. GANDHI, An Autobiography or The Story of My Experiments With truth, Ahmedabad; Navajivan Trust, 2003, 254.

 

[2] The New Zion’s Herald, July/August 2001, vol. 175, issue 4, 17

 

[3] M. K. GANDHI, Young India, 22-11-1928, The Collected Works of Mahatma Gandhi, Vol. xxxviii, Ahmedabad; Navajivan Trust, 1970, 69

 

[4] M. K. GANDHI, Nonviolence in Peace and War,(2nd ed.) Ahmedadad, Navijivan Trust, 1944, 49.

 

[5]Available at http://www.quora.com/What-is-Santhara-or-Sallekhana-in-Jainism last seen 06/09/2015

 

[6] Available at- https://en.wikipedia.org/wiki/Jainism last seen 06/09/2015

 

[7]Availabe at-http://www.business-standard.com/article/current-affairs/things-to-know-about-santhara-jains-ritual-of-death-115083100981_1.html last seen 5/09/2015

 

[8]Available at- India TV News Desk Updated 27 Aug 2015, 18:03:18

 

[9]1996 AIR 946, 1996 SCC (2) 648

 

[10] Ibid

 

[11] Available at- http://www.dailyo.in/politics/jainism-santhara-rajasthan-judgement-sati-roop-kanwar-irom-sharmila-badana-devi/story/1/6099.html last seen 04/09/2015

6 Nikhil Soni vs. Union of India & Ors. Civil Writ Petition No.7414/2006

 

[12] Ibid

 

[13] Ibid

 

[14] Ibid

 

[15]MarutiShripatiDubal v State of Maharashtra (1986) and P.Rathinam v Union of India (1994)}

 

[16] 309. Attempt to commit suicide.—Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year 1[or with fine, or with both].

 

[17] P.Rathinam vs Union Of India on 26 April, 1994 AIR 1844, 1994 SCC (3) 394

 

[18] Available at- http://indianexpress.com/article/india/india-others/supreme-court-stays-rajasthan-high-court-order-on-santhara/ last seen19/09/2015

 

[19]Supra note 7

 

[20] Smt. Gian Kaur vs The State Of Punjab on, 1996 AIR 946, 1996 SCC (2) 648

 

[21] Supra Note 6

 

[22] Article 25 “The Constitution Of India” Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

 

 

[23] Available at- http://www.thehindu.com, last seen 04/09/2015

 

 

 

 

 

 

 

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