The recent ban on the Jain practice of death by starvation, which has been wrongly equated with suicide, tramples on religious freedom
A Division Bench of the Rajasthan High Court recently allowed a public interest litigation in Nikhil Soni vs Union of India. The Bench abolished the Jain practice of Santhara or Sallekhana (fast unto death), ruling it as equivalent to attempt to suicide, punishable under Section 309 of the Indian Penal Code. It also directed the State of Rajasthan to stop these practices in any form. The Bench reasoned that the practices did not form an essential part of the Jain religion. Nationwide protests have since followed. There are two legal aspects to the judgement that need special attention: The Essential Religious Practices doctrine and the interpretation of Section 309.
The ERP doctrine was developed by seven judges in the Shirur Mutt case (1954). It was held that Article 25 of the Constitution protects practices which form an essential part of a religion. The latest judgement in this context was delivered in February this year: The courts approved termination from services on grounds of polygamy, declaring that the practice was not an integral part of Indian Islam.
Since 1954, the ERP doctrine has been applied in various cases, notably in Mohd Hanif Qureshi, Syed Saifuddin, SR Bommai and Hindutva judgements. A collective reading of these verdicts makes it clear that there cannot be a set of fixed guidelines or a parameter to measure whether a particular religious activity is an essential tenet. On a case to case basis, factors such as antiquity, continuity, relativity and vulnerability have to be delicately used to calculate whether a practice is in contravention of any statute book or is ultra vires the Constitution, but primarily it is to be ascertained with reference to the doctrines of that religion itself. Through various interpretations and the zealousness to fly along with various societal changes, the ERP doctrine has given itself a shape, sharp enough to locate abolishable practices.
The Rajasthan High Court, however, brushes aside ratios of all judgements and the evolved doctrine, when in Para 41 of its judgement, it says: “No religious practice, whether essential or non-essential or voluntary, can permit taking one’s life to be included under Article 25.” The judgement does not differentiate between the unnatural extinguishment of life, the coercive and influential demand of life in the garb of religion, and surrendering one’s life to one’s faith in complete religious consciousness.
The ERP doctrine grants judicial discretion but takes away judicial destruction. While exercising delicate discretion, religious liberties guaranteed by the Constitution itself cannot be destroyed. It is here where the High Court failed first.
Section 309 contemplates that if anybody attempts to commit suicide, he shall be punished for a year year or fined or both. In the P Rathinam (1994) case, the Supreme Court quashed Section 309 as unconstitutional. In the Gian Kaur (1996) case, the provision was brought back again, holding that Right to life (Article 21) does not include right to die. In the Aruna Shanbaug (2011) case, it was held that euthanasia and assisted suicide are not lawful in India.
While laying down guidelines for permitting death in certain conditions, it was also held that if a person consciously refuses life saving treatment, it is not a crime. It directly flows from this finding that an individual has the right to subject himself to medication and nutrition willfully and that the state will not decide upto what extent an individual will have to feed himself through medicines or diet.
It is here that the Rajasthan High Court failed the second time. Right to life includes the right to live with dignity. This not only includes the right of a dying man to die with dignity but also the right of a conscious man to voluntarily choose the path of religious enlightenment.
Santhara must not be equated with suicide, as it is not an exercise to achieve an unnatural death. It is not depriving oneself of the life given. It is a person’s religious choice to subject himself to voluntary nutritional levels so as to exercise his right to live with dignity until death. It cannot be said that there is no dignity in fasting. Religious liberties cannot be bracketed as social evils and quashed. The judgement, based on incorrect reasoning, dilutes the liberal spirit of the Constitution.