SC rightly stays ban on Jain fast-to-death ritual
Given the weak, if not downright flawed, foundation of the Rajasthan High Court’s ban on the Jain religious practice of Santhara, it was only a matter of time before the verdict was set aside. And so it comes as no surprise that the Supreme Court, on Monday, swiftly suspended the ban. Of course, the case is not technically closed yet; only a stay order has been issued, and the apex court over time will hear arguments from both sides before a final judgement is handed down. In the meantime, the Jains can breathe easy.
Santhara, the practice of voluntary fasting till death, is not particularly widespread within the community — it is undertaken primarily by monks — but the ritual is clearly an important aspect of Jain beliefs, as the many public protests in opposition to the Rajasthan High Court’s order last month stand proof. The Santhara ban was premised on two arguments: First, it was decided that the ritual was not an ‘essential religious practice’ and hence ineligible for the constitutional protections available under the Article 25 which guarantees religious freedom; and second, Santhara was conflated with suicide, a criminal offence under Section 309 of the Indian Penal Code, and, therefore, deemed illegal. Both are problematic. In the first case, the Court observed that there was nothing in Jain religious texts and scriptures that tagged Santhara as an ERP without which it would be difficult to practice Jainism. But Jain religious scholars argue that this is factually incorrect.
Also, the ERP test in itself is hardly robust. It was set up to ensure that regressive practices that cause harm to individuals or society (such as Sati) can be outlawed without infringing upon broad religious freedoms. In the Santhara case, the Jaipur-based lawyer who filed the public interest litigation was reportedly motivated by the fact that many sick, elderly citizens who couldn’t fend for themselves were being goaded by their caretakers to end their lives. If this indeed the case, then there are enough laws in the book to punish the wrong-doers. Besides, the fundamental idea of the judiciary deciding on the essentiality of religious beliefs (and, by extension if some beliefs are more worthy of legal protection than others), especially in India where religion is not a monolithic institution but inextricably and organically linked to culture and tradition, is a matter of serious debate.
As for the second issue of whether Santhara is suicide, much depends on how previous court pronouncements on the issue are interpreted. Though suicide is illegal, the apex court has made clear that its primary concern is the unnatural termination of life while Jains believe that Santhara is undertaken only at the end of one’s natural life. Also, the Union Government is steadily moving towards the argument that the Right to life includes the right to die with dignity. It is looking into euthanasia and actively considering the decriminalisation of suicides — as which should make this entire debate redundant.