The Missing Questions In the Santhara Ban Controversy

Court calling for a ban on Santhara is a bizarre judgement since the state should stay away from religious matters.

Dealing with Faith

• Seeking the state’s intervention is ironic since the Constitution mandates that the state keeps away from matters of faith
• PIL was essentially about the glorification of a custom, known to be grossly prejudiced against women and the powerless
• Weeding out of regressive and pernicious practices must come from within the community
• Courts should desist from foisting their opinions and beliefs
• Supreme Court should decide the matter without getting carried away by reformist zeal

Both the judiciary and the community must decide and act without fear or favour.

Criticism of the Rajasthan High Court’s judgement on the Jain practice of Santhara or Sallekhana can be divided into three broad categories. The first one is one of hurtful indignation and anger, accusing the court of miserably failing to realise that the Indian Penal Code, grounded as it is in Judeo-Christian theology of the Victorian era, simply ignores the complexities of Jainism and its practices, and accuses it of ‘colonising’ the meaning and interpretation of life and death.

The second one is more nuanced, relying mainly upon the problematic “essential practices test”. This test was a mechanism devised by the judiciary to ascertain whether a particular practice can be considered essential to a religion and its tenets, and if it isn’t, then it can be restricted, outlawed, or regulated. Judges are not theologians, and their wading into the muddy and choppy waters of religions and their numerous sects and their myriad beliefs (which are often in conflict with each other) is bound to create problems, and as Suhrith Parthasarathy argues here, result in shrinking the scope of religious freedom as mandated by the constitution.

Religion vs State

The third one, as seen in the appeal to the Supreme Court, is essentially an eulogy to the glory of ahimsa, concepts of sacrifice, and how Santhara is an embodiment of the ideal of attaining moksha or salvation. The petition contends that Nikhil Soni, who had filed the PIL in the Rajasthan High Court, is not a Jain and therefore ignorant of the “realities” and scriptural underpinnings of the practice. It also argues that the high court relied upon a grossly erroneous interpretation of Jain scriptures and equated Santhara with suicide, when in fact it’s a purely joyous and voluntary act by people who want to attain sainthood and reach the citadel of purity.

In the meanwhile, the community has also taken the political route, taking out rallies and processions in cities, galvanising opinion and indignation against the ruling, getting support from the Vishwa Hindu Parishad and urging the Maharashtra Governor to get the Centre to go on appeal to the Supreme Court. This is indeed ironical, because the fundamental right to freedom of religion, as guaranteed by Articles 25 and 26 of the Constitution, mandates the State to keep away from matters of faith. These provisions in fact prohibit state intervention in religious matters of minorities.

For example, if a Jain-run educational institution’s admission policy was tilted in favour of the community’s members, and the government stepped in to say that it was discriminatory, Jains would swiftly invoke Articles 25 and 26 and oppose such a move. So, this unctuous appeal to the governor is a carefully calibrated strategic move to coax the government into supporting its demands.

In this context, it would be beneficial to refer to paragraph 9 of the judgement, which mentions the Rajasthan government’s stance – that of respect and reverence for the economically dominant community’s freedom of religious practice. It would also be pertinent to ask, if any other minority community, which isn’t as munificent and hence powerful, was involved in the same case, would the government have taken a different stand?

Conflating Issues and Causes

The high court’s judgement isn’t without its share of loopholes and flaws, especially because it doesn’t address the principal issues which Soni had raised in his petition. It proceeds on a mistaken assumption that the right to die, or decriminalisation of attempt to commit suicide, was relevant to the topic. Far from it – Soni’s PIL was essentially about the glorification of a custom which, for all we know, was grossly prejudiced against women and the powerless. He moved court because while growing up in Churu, Rajasthan, the “Santhara capital of the world”, he was appalled at how hapless widows, elderly women with failing health and nil chances of recovery were being goaded into embracing death. All this was being coated with the pomp, fervour and glitter of achieving the pinnacle of Jain piety. An edit in the Times of India also makes the same error.

The sole question for judicial consideration and investigation should be this –in the name of religious freedom and hoary tradition, are people being compelled to end their lives? In the name of spiritual purification, are the puny and weak being compelled to forcefully end their mortal existence? One must ask and probe – is there any discrimination in the practice, and if there are cases of cajoled suicide instead of tranquil sacrifice.

Religious Conservatism and its Discontents

It would not be a stretch to draw parallels with the vehement and concerted opposition to the abolition of Sati by Lord William Bentinck in 1829, and also later in independent India when the government criminalised the practice and its glorification after the Roop Kanwar incident in 1987. Although sati was a far more gruesome act and spectacle, its defenders – the custodians of the faith, were combatively insistent that it was an essential practice of Hinduism. Similarly, in the present case, the orthodox in the community and sacerdotal authorities are emphatic upon the judiciary’s transgression of norms and conduct. For a moment, one needs to sidestep this running jeremiad and examine another aspect – when should judicial intervention become necessary and justified?

In ideal circumstances, any reform and weeding out of regressive and pernicious practices must come from within the community itself, and courts should desist from foisting their opinions and beliefs. However, there are outliers – cases in which the staunch opposition and resistance to change makes it imperative to intervene, especially if it involves matters of life and death.

Quite a few religious communities are known for their principled opposition to change, and Jains are not alone. However, and it cannot escape notice or scrutiny – certain sections among the community have been quite belligerent in their demand that what they consider to be their religious right and doctrines must prevail over the right to food and livelihood of others. It isn’t clear yet, if at all, and which of these sections are providing the impetus to the protests, but the possibility remains.

It could also be possible that these elements will strenuously resist any form of judicial examination of the charges of alleged discrimination. If that turns out to be the case, then the community would land itself in a tight spot. The only way out is that the Supreme Court should decide without getting carried away by reformist zeal and the Jain community should judiciously shun the throes of religious fervour.