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Published : June 18, 2017 | Author : aaksha11sajnani
Category : Miscellaneous | Total Views : 1116 | Rating :

  
aaksha11sajnani
pursuing Int BBA LLB from unitedworld school of law
 

Santhara: A Path To Death

Abstract
Traditions and customs have gradually and continuously interlinked with the society in an unbreakable and in an un-separable way. But sometimes these customs and traditions result in being a social evil for the society. As commonly said, "Time is changing and we should change with time” is the basic rule of nature.

Santhara is a 300 year old custom that is practiced by Jains till today. Santhara refers to the practice of decreasing the intake of food and water gradually in order to end one's life and attain "moksha". The practice of Santhara has been prescribed in the Jain scriptures as a way to achieve a peaceful and a dignified death. It is believed that it is a welcome to the death of a person that helps in accomplishing the feeling of self-actualization and spiritual liberation.

In 2006, A Public Interest Litigation (PIL) was documented in the Rajasthan High Court in order to ban this practice of Santhara. The Hon'ble High Court of Rajasthan declared this practice illegal as it attracts sec 306 and 309 of the Indian penal code. The Hon’ble High Court has declared this practice as a method of attempting suicide that is illegal and against the laws of the land because Article 21 of the constitution grants the citizens of India “Right To Life” but not “Right To Die”. Apparently, Supreme Court has declared a stay on the judgment given by High Court.

Introduction
Santhara is also known asSallekhana, Samadhi-maranaandSanyasana-marana.It is believed that it is the most peaceful, serene and desirable type of death. According to Jain scriptures the practice of Santhara canonly be taken by an individual under the following circumstances:

i. After attaining Old age or by suffering from any terminal disease from which death appears imminent.
ii. If there is any difficulty to perform normal bodily function.
iii. If the person has fulfilled all his responsibilities towards his family.
iv. The person must voluntarily choose Santhara in a good mental and emotional health.
v. If one wants to remove his bad karma that he has committed during his lifetime.
vi. If the person is strong believer of god and religion
vii. Permission has been granted from family members and relatives or in a situation where the family has consented for practicing Santhara.
viii. If one has strong desire to attain moksha.

According to the statistical data of census 2011, on an average 240 people practice Santhara every year as a mode of attaining death.

Performance of Santhara

Before dealing with the concept of Santhara, let us understand how Santhara is practiced. Santhara is a holy ritual that can be performed in the following manner:
1) A person makes up one's mind to practice Santhara and proclaims it publically.
2) He apologizes to everyone for any hurt caused to them by his actions in his lifetime. This practice is also known as "michhami dukkadam"
3) He takes pledge of Santhara after a discussion of his present condition with a saint.
4) He then starts meditation and tries to look inside his soul.
5) Further, He slowly and gradually restrains himself from food and water.
6) Eventually, His soul leaves from his body and attains moksha.

Therefore, Santhara is practice that needs consent from the members of family, relatives and also from teachers, saints or preachers of Jainism.

The practice of Santhara was carried more in the ancient times but most of the Jains these days don’t embrace this practice. They believe that this is an ancient ritual.

“The numbers have certainly declined but that is because we know this is the kalyug. People’s leaning towards religion is on the decline.”says a disciple of the guru.

Yet many of the strong believers of Jainism do practice Santhara to procure moksha.This practice is ascending sooner or later of time- more than 550 Jains took the pledge in 2009 contrasted with 465 in 2008.

Legal prohibition on Santhara by Rajasthan High Court

Since 2006 the act of Santhara has been the eye of the tempest. Advocate Nikhil Soni(Human activist) filed a Public Interest Litigation(PIL)in the Hon'ble High Court of Rajasthan in order to claim Santhara as an illegal practice and a mode of attempting suicidethat is against the law of the land. He moved towards the court in the wake of seeing the instance of Bimla Devi Bhansali, who was purportedly pressured into Santhara by her family and whose sobs for help were "disregarded".

According to the petitioner, Santhara violates article 21that permits right to life but not right to die. The practice of Santhara is as good as attempt to suicide that is punishable under sec 306and 309of the Indian penal code. Hence, in order to ban this practice which is acting as a social evil in the society, this appeal was lodged.

This petition raised a tremor in the society. The Main aspect of the petition was that usually an old person or an elderly person practices Santhara, but leaving an elderly person without water and food was a very inhuman and brutal behavior. He believed that in the sake of religion and its practices, people are neglecting the laws of humanity. It was further contended that the act of Santhara does not fall under article 25 of the constitution since appropriate to freedom of religion is subjected to public order, morality and health. The act of Santhara is going about as a social fiendishness in the general public.

But against the above arguments, the Jains expressed that the act of Santhara is an intentional practice and nobody is compelled to do it. A person is allowed to leave the world if he has fulfilled all his responsibilities and is willing to attain moksha or salvation. It is a purest form of death.It is not surrendering of life but rather taking passing in their walk. It is a nonviolent act as compared to suicide that is usually attempted in the heat of emotions.

But is this choice of death appropriate in nature? That is presently a matter of open deliberation since the Rajasthan High Court held routine of Santhara illicit and culpable under sec 306 and 309 of IPC and guaranteed it to be comparable to suicide. The bench likewise held that Santhara was not a "basic religious practice" of Jain religion that is required to be secured under article 25 i.e. freedom of to profess, practice and propagate religion.

"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)."

Held by Rajasthan High Court while declaring Santhara an illegal activity

Non -Violent Protest By The Jain Community

As soon as the judgment was passed, the Jain community started their protests nonviolently. They bombarded the streets with protest rallies in several cities all over India. While in conduct of their dissent the Jain community transparently censured the Court and the judges since they trusted that the Courts had an unmindful and discourteous conduct towards the religious practices and furthermore towards article 25 of the constitution that gifts freedom of religion to the citizens of India. Hence immediately after the judgment of High Court was announced, A SLP (Special leave petition) was brought under the steady gaze of the Apex court of India topped off by Akhil Bharatvarshiya Digambar Jain Parishad.

The petition stated that “Conceptually, Santhara or Sallekhana is different from suicide as this vow is not taken either in passion or in anger, deceit, etc. It is a conscious process of spiritual purification where one does not desire death but seeks to live his life, whatever is left of it, in a manner so as to reduce the influx of karmas"

"Santhara has essentially turned into socially acceptable suicide, the person who undertakes it is under immense pressure. He or she is sworn into it by a great saint and that is a commitment hard to break. The person is treated like a demi-god; people come for their darshan.”says Manchand Khandela, general secretary of the Akhil Bharatiya Jain Jagriti Parishad.

The Supreme Court took less than a minute to order a stay on the judgment given by Rajasthan High Court that has declared Santhara as a suicide in itself and made it punishable under IPC. The bench was led by Chief Justice H L Dattu. The Court issued notice to all state governments and agreed for hearing interests and conceded takes off.

Now the most important question that the Supreme Court is witnessing is whether Santhara is a suicide or is it an essential religious practice of the Jain community? And also whether people have right to die under article 21 of the constitution?

Santhara - An Acceptable Suicide

India is lately observing a great battle between Santhara, right to life and euthanasia. It is an intense time for the Supreme Court to make a practical harmony between the contentions of these self-personalities. The thought that is creeping in the minds of every individual today is whether Santhara is a suicide or a bliss. The Jain community strongly believes that Santhara is not a suicide. This is because, the act of suicide is performed in the state of anger, grief, pain or hustle but the practice of Santhara is a sacred practice that is performed voluntarily and not under any kind of force or pressure. It is performed to obtain moksha or salvation. It is a pure act so as to reduce the influx of karma.

In the case of Gian Kumar vs State of Punjab the Hon’ble supreme court held "that "right to life" under article 21 of the constitution does not include "right to die", the right to life is a natural right embodied in art 21 which means to die a natural death and does not include the right to commit suicide which is a unnatural extinction of life and inconsistent with the concept of the right of life."

There is a colossal debate going ahead since a long stretch with respect to the position of "Right To Die" in our nation. The people everywhere throughout the country are battling and attempting to either make "Right To Die" legitimate or to hold it to be illicit.

The argument raised in the Supreme Court against Santhara is that if article 21 of the constitution doesn’t gives any citizen right to die then Santhara cannot be held legal. But it very important for everyone to understand the difference between the concept of Santhara and the concept of right to die.

Let’s imagine a situation wherein the Supreme Court grants right to die to every citizen of the nation and strikes down sec 309 of IPC. Won’t there be a misuse of this right?

A student who is burdened with studies and work pressure may end up committing suicide and the government won’t have the capacity to make a move. Why? Because he has been granted Right to Die.

A businessman who suffered a loss in the business may commit suicide and no one can do anything about it. Why? Because the person has been granted right to die.

The motive behind Santhara is different from suicide, Santhara is a sacred practice wherein there is a need of procedure and criteria that is to be followed. Only an elderly person with failing health, who has fulfilled all his responsibilities and with the consent of his or her family can opt for this practice. Not every person on this earth can sit on Santhara whenever he wants to. Santhara is a task that needs determination and dedication to the highest level whereas suicide is a practice done in a sudden rush of blood or in the weak moment of emotions.

Eventually in the Case of Aruna Shanbaug vs union of India where a nurse was raped by a sweeper in the hospital she was working in remained in coma for 36 years.

The Supreme Court held that active euthanasia is illegal but it laid down conditions in which "passive euthanasia" may be implemented as long as it is bona fide and in the best interest of the patient.

The plea of euthanasia for MS Shanbaug was rejected but this case changed everlastingly India's way to deal with euthanasia. The decision on her case today permits passive euthanasia dependent upon conditions. The judgment makes it clear that passive euthanasia will "only be allowed in cases where the person is in persistent vegetative state or terminally ill."

So now after the emergence of passive euthanasia, the Jain community believes that if passive euthanasia is legal then Santhara should also be legal in nature. Hence, there is a strong need to identify the balance between euthanasia and Santhara also. Euthanasia and Santhara has also been a very debatable topic lately, let’s have a look on it.

Euthanasia and Santhara

Euthanasia is also known as assisted suicide, it can be also termed as mercy killing. It is a situation when person is voluntarily choosing to die to relieve from pain and suffering. It is also said that it is painless manner of death. But it is not often true.

Euthanasia is basically of two types:
1) Voluntary euthanasia: this means the death is conducted with the consent of the patient while on the other hand;
2) Involuntary euthanasia: here the death is conducted without the consent of the patient but by the consent of its family and relatives.

Further euthanasia is bifurcated into two types 1) active euthanasia and 2) passive euthanasia

As indicated by Medilexicon's medical dictionary:
Active euthanasia is: "A mode of ending life in which the intent is to cause the patient's death in a single act (also called mercy killing)."


Passive euthanasia is : "A mode of ending life in which a physician is given an option not to prescribe futile treatments for the hopelessly ill patient."

The contrast amongst suicide and euthanasia was unmistakably clarified on account ofNaresh Marotrao Sakhre v. Union of India,the bench was led by Justice M Ghodeswar and Justice R Lodha.

It was held that “Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one’s own act and without the aid or assistance of any other human agency while Euthanasia or mercy killing on the other hand implies the intervention of other human agency to end the life. Mercy killing is therefore not suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is performed.”

Apparently, the practice of Euthanasia is often compared to the practice of Santhara. Some people believe that Santhara is same as Euthanasia because it is also a deliberate attempt of dying. Hence if Supreme Court is against the practice of active Euthanasia then why is it supporting the practice of Santhara? This is the question that is being debated since a decade.

In any case, the Jains have been offended by such examination of euthanasia and Santhara. The Jain community has raised their voice against it and claimed that if Santhara is an attempt to suicide then in the same manner the practice of prayopaves in Hindus, wherein a person after fulfilling all his responsibilities can fast till death should also be considered in the ambit of attempt to suicide. The Jains believe that banning Santhara is an attempt of the Supreme Court to defame their community.

But if we have a closer glance over the difference between euthanasia and Santhara, both of them are different in various aspects. To begin with, Euthanasia is painless killing of a person who is suffering and is usually handled by a doctor or physician. There is a need of another person for it. Further euthanasia helps in release of pain and suffering caused to a person due to his health and body. Whereas Santhara is practiced when a person has fulfilled all his responsibilities and wants to submit himself to god by dying in the hope of attaining moksha.

Santhara is a spiritual and sacred practice whereas euthanasia is aiming to get rid of the pain and suffering that is physically caused to a person. Euthanasia is a quick and a fast process that may lead to immediate death but Santhara is a slow and a gradual process where one may leave his life slowly and submit himself to god.

The motive of both the practices is quite different in nature and so is the mode of obtaining death. There are certain cases where people opted for Santhara when there was no hope of their living left by the doctors

Kamla Devi experienced tumor and when specialists said they couldn't help her any longer, she was brought home. She started her Santhara on the night of June 5, 2006, and was dead inside seven hours. "Undertaking Santhara was her last wish".

A Man named Manikchand Lodha living in Pune, practiced Santhara on the same day as the Rajasthan High Court order was passed, he was bedridden for two-and-a-half years but was so determined to take Santhara that he stopped medicines.

Hence people often take up Santhara when there is no hope of life for them. They willingly submit themselves to god and achieve moksha. But now the question remaining is whether Santhara is an essential religious practice?

Santhara – An Essential Religious Practice

The Rajasthan High Court while passing the order of Santhara being punishable offence said that Santhara was not an essential religious practice of the Jain community, which needs to be protected under the right to freedom of religion under Article 25of the Constitution.

The judgment of Rajasthan High Court stated that:“We do not find that in any of the scriptures, preachings, articles or the practices followed by the Jain ascetics, the Santhara or Sallekhana has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha. There is no such preaching in the religious scriptures of the Jain religion or in the texts written by the revered Jain Munis that Santhara is the only method, without which the moksha is not attainable.”

The Jain community strongly resisted to this statement in the judgment and stated that the court did not receive proper knowledge of religious practices from the religious scholars and therefore the judgment of the court was not accepted by the Jain community which led to protest rallies.

Thus the decision in Nikhil Soni v. Union of India by the Rajasthan High Courtis probably going to have different results, among the Jain people group in Rajasthan as well as the nation all over. Lamentably, it conflates a few essential issues of constitutional law, and symbolizes the perplexity over the fundamental guarantee of religious freedom in our constitutional jurisprudence. One cannot deny the fact that the Indian secularism is different from the any other secularism in the world. The Indian Constitution when properly interpreted, does not permit of any specific discretion on the courts to tell us which of our beliefs and practices are essential to the following of a religion. By directing the State government to move towards abolishing the practice of Santhara, and by holding that the practice is tantamount to an attempt to commit suicide, punishable under Section 309 of the IPC, the High Court in Nikhil Soni has created a damaging precedent.

Many people believe that this doctrine of determining essential religious practice by the court is restricting the freedom of religion that has been granted under article 25 of the constitution.

On the other hand, article 26of the constitution involves the word "public order" and "morality". The Hon’ble Rajasthan High Court felt that the practice of Santhara is damaging the public order of the nation because in the name of this religious practice, the old and elderly people are forced to fast till death as their children are not ready to take care of them. The plea of those elderly people is ignored in the name of essential religious practice that is required to attain moksha. Therefore the High Court declared Santhara as a punishable offence. And hence this is leading to conflicts and differentiation of thoughts and interpretation of law in the public and in the courts.

In the case of Durgah Committee v. Hussain Ali The Court Held That Articles 25 and 26 provides only essential and integral parts of religion immunity from state intervention. It also held that"the immunity is provided not only to matters of doctrines or belief; but it extends to acts done in furtherance of religion such as rituals, observances, ceremonies, modes of worship which are considered to be fundamental parts of the religious practices. The Court also made an observation which stated that no immunity would be provided to superstitious, peripheral and unnecessary religious practices.

In the Calcutta High Court Justice B.P. Banerjee mentioned an exemplary objective fact which perused as "If courts began enquiring and choosing the reasonability of a specific religious practice, then there may be disarray and the religious practice would move towards becoming what the Courts wished the religious practice to be." This perception made by Justice Banerjee has been a standout amongst the most convincing and capable feedback of the basic capacities test.

Author’s perspective
The author believes, to understand the importance of Santhara and the value of Santhara in the life of every individual of the Jain community, it is very important to understand the very essence of Jainism first. It would be a great injustice on the part of the Jain community if a person comments on their religion without understanding their thoughts, beliefs and the meaning of their existence. So today before writing author's opinion on Santhara let us just take a tour about Jainism and the Jain community. The Jains are believed to be a unique substance in the universe. Jainism has flourished in India since ancient times. This community had come into existence in 6th century BC. "Jainism" is a word that has originated from Sanskrit. As we know the person who belongs to a Jain community is called a "Jain”. The word "Jain" itself refers to a spiritual victor. They believe in conquering above their emotions. It may be anger, desire, pride, jealousy etc. The reason behind their existence is their revolt against the Hinduism. The Jains believed that the Hindu principles are blindly being followed by the Hindus and they don’t keep much relevance in nature. The Hindus strongly followed the system of castes and social inequality. They had divided the entire community into four units: the Brahmins, sudras, Kshatriyas and Vaishyas. The Jain community was totally against this classification. Lord Mahavira raised a new hope and aspiration in the society where there is no social discrimination but presence of social equality. Lord Mahavira opened the doors of Jainism to all. Anyone irrespective of their caste, birth, sex or work can practice this religion. This was a new ray of sunlight for the people who were living in the dark world of discrimination. Hence this was the reason the Jain community evolved.

Now let’s further see what are the beliefs and the aspirations of the Jain community. The jains are strong believer of truth, non violence, non-stealing and non-possessiveness. But most importantly they are a very strong believer of "karma". Now what karma is? It is commonly believed and said that every action that a person does either good or bad, has an equal and opposite reaction on the doer. Karma is also known to be a "moral god". Karma observes the right and the wrongdoings of every person on this world and also puts equivalent emphasis on the intention of those actions. But why is karma so important? The answer to this question is that "based upon the actions of a person the karma decides whether the person deserves heaven or hell". So basically our actions decide our destination after death. The jains believe that our body is built up by small physical substances of karma. These substances are attached to our souls and observe each and every action. The good deeds of a person helps him to attain moksha or salvation. Therefore the Jainism is also known as path of liberation.

So in other words, According to the Author the very essence of Jainism is "karma" and the ultimate goal of Jainism is "achieving moksha".

Now coming back on point that is "Santhara"

As we know, Santhara is a Jain practice wherein a person slowly and subsequently leaves food and water and submits himself to god in order to achieve moksha. It has been prescribed in the Jain scriptures that by practicing Santhara one can get through with all his bad karma in life and attain moksha. Hence Santhara is a practice that helps the jains to reach towards their ultimate goal of existence. Now let’s decide isn’t it an essential religious practice for the jains?

Well the Author thinks it is a very essential religious practice of Jainism. This practice gives a meaning to their life and existence. The power of the Court that decides the essential religious practice of a religion is somewhere restricting a person's right to freedom of religion. The High Court by deciding that Santhara is not an essential religious practice has ignored the root cause of the existence of Jain community. This judgment has hampered and infringed the right granted to them in article 25 of the constitution. If Supreme Court considered Santhara as "not an essential religious practice" then one pleasant day it can also consider the normal practice of fasting as “not an essential religious practice” because a person can die without food and water in a single day also. (With reference to the Kamla Devi’s instance mentioned above)

Now further comparing Santhara with Suicide and Euthanasia. The Author feels that Santhara is neither suicide and nor euthanasia.

Firstly Santhara is not suicide because as rightly pointed out by the Jain community, suicide is an act that is done in the sudden passion of emotions, that may be anger guilt sadness etc. but the very concept of Jainism talks about conquering these emotions and having a control over them. This is a practice that is not done with sudden run of blood in veins but it is slow and gradual process of submitting oneself to god. The intention and the motive here is very different from the intention and motive of suicide. One of the main difference according to author is that Santhara is a practice that is done with the consent of the family and after one has fulfilled all his responsibilities towards his family and relative but suicide is committed in the heat of the moment without consenting the family and ignoring one's all responsibilities towards family and relatives. Suicide is a forceful death for oneself but Santhara is not a forceful death, one can anytime leave or take up Santhara according to his or her will.

The main point of argument here is Santhara needs patience and dedication; it is not a matter of minute. Only a person with strong desire to achieve moksha can do this and not any random person. And hence both the concepts are very different from each other.

Now further talking about Euthanasia, the Supreme Court has declared illegal to Active Euthanasia, but can we compare Active Euthanasia with Santhara? According to the author, No Santhara cannot be compared to Active Euthanasia. This is because Active Euthanasia deals with killing of a person purposefully. It is an unnatural death of a person but Santhara is a slow and gradual process and not very easy for any person and it leads to a natural death of a person. Also, the motive and intention of practicing Euthanasia and practicing Santhara are very different from each other.

Conclusion:
Apex Court is witnessing a great clash between different parts of constitutional provisions. There is a pressing need to make a harmony between the Secularism and right to life. The 2 mainstays of the instance of Nikhil Soni v. Union of India are right off the bat, the court needs to take up a stand on whether Santhara is an endeavor of conferring suicide and also, regardless of whether Santhara is a basic religious practice. The Supreme Court ought to likewise consider the way that whether the regulation of basic work on confining and disregarding the freedom of religion to all citizens of India. Thousands of individuals are sitting tight for the judgment of the Supreme Court in order to see whether India is a secular nation in a genuine sense or it's only a myth.

End Notes:
# Manasi Phadke &Tanushree Venkatraman,Santhara: Glorified suicide or essential practice, Indian Express, Sept 6,2015.
# Id.
# Hemali Chhapia & Mansi Choksi, More Jains embracing ancient Santhara ritual, Times of India, Mar 18,2010.
# Nikhil Soni v. Union of India and Ors. AIR (2006) Raj 7414.
# Constitution of India. Art 226 , cl. 1
# Black's law dictionary (2nd ed) "Suicide is the wilful and voluntary act of a person who understands the physical nature of the act, and intends by it to accomplish the result of self-destruction."
# Constitution of India. Art 21 Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law
# The Indian Penal Code,1860 sec 306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
# The Indian Penal Code,1860 sec 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].
# SupraNote 1
# Smt. Gian Kaur vs The State Of Punjab A.I.R 1996 SC 946.
# Aruna Ramchandra Shanbaug v. Union Of India A.I.R 2011 (4) SCC 454.
# Naresh Marotrao Sakhre vs Union Of India A.I.R 1996 (1) BomCR 92
# Constitution of India. Art 25, cl. 2
# Nikhil Soni v. Union of India and Ors. A.I.R 2006 Raj 7414.
# Constitution of India Art 26.
# The Durgah Committee vs Syed Hussain Ali and Others A.I.R 1961 SC 1402

 




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