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ABSTRACT
The Rajasthan High Court criminalized the Jain practice of ritual voluntary death, variously termed sallekhana or santhara in 2015. The petition that sought its criminalization, and the court judgment were both framed in the language of religious reform and invoked judicial memory of sati. The Jain defenders of the practice, insisted on its difference from sati on the one hand, and suicide and euthanasia on the other, which too continued to remain beyond the pale of legality. However, in setting it up as an ‘essential practice’, which would afford it the protection of Article 25, they simultaneously drew upon Jainism’s ethical teachings – mobilizing a range of ancient texts, providing a list of their religious figures and historical personalities who met ‘death with equanimity’ – and the moral and legal arguments utilized by euthanasia advocates, in particular the debates around the Right to Life. This paper thus examines the anxieties that have framed the debate on both sides, and asks what happens when piety and belief enter, or rather, are dragged into the courtroom: when one party seeks its denunciation and another its validation, or indifference even, from modern, rational law? The paper also examines if the High Court judgment is the result of the Christian/colonial legal legacy, which abhorred and outlawed suicide, as claimed by many commentators, by scrutinizing the colonial attitudes to sallekhana.
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Notes
1. Caillat, “Fasting unto death according to the Jaina tradition.”
2. Nikhil Soni v. Union of India and others. A rash of special leave petitions by Jain individuals and organisations were filed in the Supreme Court seeking a stay on the Rajasthan High Court judgment. The SC stayed the judgment vide its order on 31 August 2015. Dhawal Jiwan Mehta versus Nikhil Soni and Others, Supreme Court of India. S. 309 pertains to attempt to commit suicide and S. 306 to abetment to suicide.
3. On this, see the excellent studies by Bilimoria, “The Jaina Ethic of Voluntary Death”; Chapple, “Nonresistant Death”; and Laidlaw, “A life worth leaving.”
4. Bilimoria, “The Jaina Ethic of Voluntary Death,” 338.
5. Times of India, 18 March 2010.
6. Baya, Death with Equanimity, 260, 262.
7. Baya, Death with Equanimity, 262–4.
8. D.B. Civil Writ Petition no. 7414/2006 (henceforth Writ), Para 3.
9. Writ, Para 5.
10. Ibid., 9.
11. Ibid., 4.
12. Nikhil Soni v Union of India (henceforth judgment), para 19.
13. Trial by Fire.
14. Dhavan, “Did Supreme Court Just Allow Suicide.”
15. Talwar Oldenberg, “The Roop Kanwar Case,” 104.
16. Sangari and Vaid, “Institutions, Beliefs, Ideologies,” WS-10.
17. Laidlaw, “A Life Worth Leaving,” 193.
18. Judgment, para 19.
19. Hawley, Sati, The Blessing and the Curse, 10.
20. Judgment, see paras 11 and 12.
21. The Indian Constitution through its article 25 guarantees freedom of conscience and free profession, practice and propagation of religion with the caveat that this right will be subject to public order, morality and health. However, according to the petitioner, neither this, nor Article 26 that grants complete autonomy to a religious denomination or organization to manage its own affairs, nor for that matter Article 29, which guarantees the protection of interests of minorities by devolving on them the right to conserve their culture sanctions sathara.
22. Judgment, para 39.
23. Judgment, para 33.
24. The Bombay High Court in Maruti struck down S. 309, declaring it to be ultra vires articles 14 and 21 of the Constitution, and quashed all pending prosecutions under the section in the state of Maharashtra. Maruti Shripati Dubal vs. the State Of Maharashtra. In State vs. Sanjay Kumar Bhatia, 1985 Crl.L.J.931, the division bench of the Delhi High Court called S. 309 an ‘anachronism unworthy of human society like ours’. In Chenna Jagadeeswar and another Vs. State of Andhra Pradesh, 1988 Crl.L.J.549, the Division Bench of the Andhra Pradesh High Court rejected the challenge to the constitutional validity of Section 309 IPC, and the argument that Article 21 included the right to die. The Supreme Court in P. Rathinam vs. Union Of India declared S. 309 to be void concluding that ‘an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State’s interference with the personal liberty of the persons concerned is not called for.’ The Mental Health Care Act 2017, which came into effect in 2018, has effectively decriminalized suicide by presuming that suicides are driven by extreme stress, and holding that those who attempted suicide would not be ‘tried and punished under the said Code.’ The Mental Heath CareAct, 46.
25. Smt. Gyan Kaur vs. The State Of Punjab.
26. Aruna Ramachandra Shanbaug v. Union of India.
27. Mehta, “Death and the Sovereign.”
28. “Language and justice die or are diminished when language is deprived of its right to polysemy and to a multiplicity of meaning. When language is rendered captive, justice loses out in the long run.” Viswanathan, “A Reductive Reading of Santhara.”
29. Almost all commentators critical of the judgment reference Macaulay’s Christian devoutness.
30. See note 27 above.
31. Viswanathan, “A Reductive Reading of Santhara.”
32. Hattangadi, “Santhara in the eyes of the Law.”
33. Judgment, paras 9 and 10.
34. Summa Theologiae, q. 64, article 5.
35. Droge and Tabor, A Noble Death, 129.
36. Straw, “A Very Special Death,” 39.
37. Colt, The Enigma of Suicide,156. Augustine’s stricture against suicide is said to have sprung from his desire to discredit the North African sect of Donatists amongst whom the numbers of martyrs was particularly high.
38. Flavian and Cuprian cited in Straw, 39.
39. A Penal Code prepared by the Indian Law Commissioners, 78.
40. Ibid., 61.
41. Ibid., 61.
42. Ibid., 78.
43. see Flugel, “Invention of Jainism.”
44. See Orr, “Orientalists, Missionaries, and Jains.”
45. Numark, “The Scottish ‘Discovery’ of Jainism.”
46. Buhler, On the Indian Sect of the Jainas, 14. Durkheim drew upon upon Buhler’s lecture while formulating his concept of altruistic suicide, where “the individual kills himself purely for the joy of sacrifice, because, even with no particular reason, renunciation in itself is considered praiseworthy.” Durkheim, 181–82.
47. Buhler, On the Indian Sect of the Jainas, 15.
48. See Numark and Orr.
49. Forbes, Ras Mala, 328.
50. Rice, Inscriptions at Sravan Belgola, 15.
51. C.R. Jaini’s translation of the text was still some years away.
52. Ibid., 17.
53. Stevenson, The Heart of Jainism, 221.
54. Ibid., 30.
55. Ibid., see especially 221–2.
56. Ibid.,168.
57. Ibid., 296.
58. Ibid., 168.
59. Ibid., 248.
60. Even so, santhara or sallekhana did not always receive attention. For example, John Wilson, a Scottish missionary based in Bombay who was engaging polemically with Jain scholars as early as 1835 makes no mention of santhara. In none of his interactions with the Jains does he debate or dispute the practice of starving to death. His theological and philosophical refutation of Jainism focuses on the absence of a creator God. See “Letter to the Jaina Priests of Palitana” in Life of John Wilson, 195–6. Wilson’s penal and reformist energies were focused on infanticide in Kathiwar, whose suppression by the colonial government he detailed in a full volume. Wilson, History of the Suppression of Infanticide in Western India.
61. See note 50 above.
62. Barry, Breaking the Thread of Life, 48.
63. Ibid., 77.
64. Galanter, “The Displacement of Traditional Law in Modern India,” 17–18.
65. 9 M.I.A. 387, decided on 30.06.1863.
66. Lata Mani, “Contentious Traditions.”
67. Prakasi cited in Cassells, Social Legislation of the East India Company, 114.
68. Ahuja, “The Bridge Builders,” 103.
69. Tukol, Sallekhana is not Suicide, 95.
70. Baya, Death with Equanimity, xxxvii.
71. Baya, 269–270.
72. Jaini, “The Jainas and the Western Scholar,” 33.
73. Jain, “Some Misconceptions regarding Jainism,” 177–82.
74. Jain, “Festival of Death,” 110–15.
75. Tukol, Sallekhana is not Suicide, 83.
76. 42nd Law Commission Report, 244.
77. Ibid., 243.
78. See footnote above. Also see The 210th Law Commission Report on Humanization and Decriminalization of Suicide, 2008.
79. Justice Panachand, D.R. Mehta, Shugan Jain, etc., at ‘The Legality and Jurisprudence of Sallekhana/Santhara/Samadhimrana/Pryopavesa in the Indian Traditions” at National Law University Dwarka, Delhi on 26–27 February 2016.
80. This tendency has blighted the scholarship on Jains and Jainism. See Cort, “Singing the Glory of Asceticism.”
81. Jain, Ratnakaranda Sravakcara, 9.
82. Ibid., 58.
83. See Laidlaw, Riches and Renunciation, 152; On materialization of wifely bodies, see Kelting, “Candanbālā’s hair.” It is also important to note that among the temple going Jain sects, the idols of the Tirthankars represent their spiritually perfect bodies. On debates on iconography, see Cort, Framing the Jina.
84. Luithe-Hardenberg notes a similar trend in the context of child diksha as the current discussion centres almost exclusively on rights of children as opposed to 19th-century debates where those campaigning against the practice were mostly exercised by whether children could possibly uphold the rigours of an ascetic life, and the fear that this failure would bring ignominy.
85. Mridul Goswami, Shugan Jain, Justice Panachand and others at the NLUD conference.
86. On this see Luithe-Hardenberg.
87. For a discussion on this, see Bhuwania, Courting the People.
88. Since every citizen is a “valuable asset” and “integral part of nation,” according to Soni, he must contribute “his best toward to his motherland” (sic). “Customs and rituals” such as voluntary death a good citizen cannot renounce his “rights and liabilities towards his family and nation.”
89. Judgment, Para 8.