Death and the sovereign

Santhara judgment is court’s bid to colonise ways in which death can be interpreted and life given meaning.

Written by Pratap Bhanu Mehta | Published:August 19, 2015 12:00 am
Santhara, jainism, jainism fast, jain illegal fast, illegal jain fast, rajasthan news, narendra modi, india news, vasundhara raje, santhara, santhara suicide, santhara ritual, india news, express column The court, in a remarkably perfunctory treatment, has dismissed this practice. It claims, dubiously, that ‘santhara’ is not essential to Jainism.

Nation-states and religion are the only two ideologies that both regulate and consecrate the meaning of death. This also makes them competitors. The ultimate exercise of sovereignty by the state is its claim to determine the conditions under which death is permissible. It also decides what forms of dying can be given public meaning — death for the nation-state is valorised. Any other attempt to determine the conditions under which we die is a usurpation of sovereignty, and other public meaning or consecration of forms of dying need to be eviscerated. Even the difference between what is religious and what is secular is not an antecedently given distinction; it is a distinction internal to the exercise of sovereignty. The state decides what is religious and what is not; it even decides what is essential to religion. These decisions sometimes wear the garb of neutrality. But the state’s own view of dying and death often carries unconscious theological baggage it regards as neutral. Certainly the IPC has traces of a Christian view of life and dying. It cannot even contemplate alternative modes in which that event in life has been imagined.

It is not surprising, therefore, that in Nikhil Soni vs Union of India, the Rajasthan High Court has concluded that the Jain practice of santhara or sallekhana shall be considered a criminal offence under Section 309 of the IPC, which provides for punishment for attempted suicide, and Section 306, which provides for punishment for abetment of suicide. Sallekhana is the Jain practice of withdrawing from taking food, under some very special circumstances, as a way of subduing all passions that cause himsa and preparing for a purified passage into the death state and beyond. The theological issues are complex. There are varieties of santhara, from a willed long fasting to a short-lived ritual withdrawal from food under conditions of extreme distress. It is often now used in a token sense to give significance to the last moments of cancer patients at the edge of death. The conditions under which it can be undertaken and the forms of supervision for this practice have also evolved historically. Some of this is wonderfully captured in Shekhar Hattangadi’s documentary on the subject. The existential pathos and struggle of trying to subdue all passions prematurely was brilliantly dramatised in Ship of Theseus.

The court, in a remarkably perfunctory treatment, has dismissed this practice. It claims, dubiously, that it is not essential to Jainism. The subduing of all desire is the central thread of Jainism; this is merely one expression. The “essential practices” test is a piece of contorted chicanery. It implies that if a practice were “essential” but morally wrong, it could not be regulated, and it takes away the believer’s autonomy to decide what is essential. The state should decide what is in the interest of justice, and religions need to comply — essential practice or not. It dismisses the idea that the right to life can include, under some circumstances, controlling the conditions of your exit with dignity.

It dismisses the claim every Jain text makes that sallekhana has to be distinguished from suicide. Here, the narrowness of English and incommensurable ideas of death run into a head-on collision. Just as English often flattens translations from Sanskrit by describing all nine varieties of love as “love”, so it is with death. How can an IPC or a Christian theology make sense of a tradition that emphatically says suicide is wrong, but provides room for the idea that one can reach a state where ahimsa requires you neither prolong life nor court death? In Jain texts, sallekhana is differentiated from suicide by the quality of intent; the IPC recognises only form for intent. To be fair, what distinguishes an intent borne out of the conquest of passions and ahimsa, and suicide in a conventional sense, may be hard for judges, unmusical to different varieties of death, to understand.

The state is right to intervene in practices that are unjust, essential or not. Sallekhana is different because it is not usually associated with two evils most religions inflict: the subordination of women and outright coercion. Sallekhana, unlike sati, with which silly comparisons are drawn, has not historically been associated with the subordination of women. Both men and women do it. It is voluntary, though it can be debated whether the social attraction of being remembered as an adept is a kind of coercive pressure. In some renditions of the practice, having once taken a vow, the community censure on withdrawing was significant. Equally, in the regulation by Jain monks, the vows were often graded, gradually escalating, so that the process could be stopped if circumstances changed. Yes, there is in some cases the risk of social pressure, but the tradition itself had regulatory answers to compensate for that. But let us face it: If social pressure alone were the test of illegitimacy of a practice, almost all social institutions would be declared invalid, beginning with marriage. Where is the bright line between choice and pressure?

The court held that santhara is simply a religion-based exception to current prohibitions on euthanasia. We had dealt with this issue so far with a kind of “don’t ask, don’t tell” policy. The state did not prosecute these cases; it did not even prosecute a similar refusal to nutrition by Vinoba Bhave. On a literal interpretation, the court is correct. Even if the tradition makes a distinction between santhara and suicide, it is hard to see a judge being able to confidently state the difference. The possibilities of nuanced judgements within communities collide with the simple-minded logic of juridification. But no state is going to grant leeway to community judgement in these matters. Some have argued that attempted suicide must be decriminalised altogether. Others argue that rather than make a religion-based exception, the right to die must be extended to all individuals, so long as it does not harm others.

The Supreme Court should reconsider the high court judgment. It goes against the identity of a religion whose central tenet is reverence for life, and it is a practice whose harm, in most cases, is not obvious. The community, for its part, will need a conversation on the conditions under which santhara should be permitted. It is one thing for the state to protect life and promote justice. It is another for it to colonise the various ways in which death can be interpreted, and life be given meaning. Unfortunately, the judgment does just that.

The writer is president, Centre Policy Research, New Delhi, and a consulting editor for ‘The Indian Express’.

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  1. A
    Aug 20, 2015 at 4:42 pm
    I think Court is right......
    1. N
      Naim Naqvi
      Aug 19, 2015 at 6:09 pm
      If life happens, death is the logical next step. it is the cycle of nature. However, to terminate life is not a choice that could be called natural. Any form of forced killing of oneself with any or every pious intention is an individual offense inflicted upon state. The judgment of court in Santhara issue is highly laudable.
      1. A
        Anil Maheshwari
        Aug 19, 2015 at 1:59 pm
        The religious upbringing of the learned writer seems to have overridden his rationality. What is the difference between suicide and Santhara? Should not we then justify the SATI ? It is a fight between supersion and rationalism in the country. The issue should not be politicised as a few years ago, the Jain community got themselves declared a religious minority, just to run their educational insutions at their will without the check of the State.
        1. C
          Aug 23, 2015 at 10:13 pm
          Please try to understand what is Sallekhana. Just calling it 'fast unto death' in English does not do justice with it. Its not about killing but welcoming the last natural breath.
          1. C
            Chanchalkumar Dagade
            Aug 20, 2015 at 7:42 am
            Live & let live is jain slogan..we all jain will protest again high court order under Jain Dharma Raksha Andolan on 24 aug. Do visit
            1. M
              Mukesh Vora
              Aug 19, 2015 at 1:51 pm
              If Santhara is to be permitted , then why not mercy death for ailing ?
              1. G
                G M
                Aug 19, 2015 at 8:43 pm
                Life in death and death in life is an experiance and is the deciding factor for eternity. Otherwise why judge come across a situation where criminal begs for life and denied and non violent Jain begs for death and denied. Speechless ?, go for enlightenment.
                1. G
                  Aug 19, 2015 at 6:31 am
                  I sympathize with the author's perspective. However, I wonder if he realizes that this is simply a continuum of our left wing policies, that he has been a frequent supporter of. For 60 years, we have been taught that Indian culture and religion is bad by our socialist elites. They rewrote history and filled it with lies, they highlighted bad practices (that occur in every society) as unique to India. Laws were made, often with good intentions, that were often in opposition to common beliefs and practices. In other words, the socialist elites, just as in Soviet Union and China, sought to control what we read, what we think and what we believe. This is a continuation of that thinking. Until we stop treating our own people with contempt, we will never reform or change. Just because something isn't right is no reason to legislate. Democracy means respecting other traditions and opinions even when we are certain that they are not right. Just maybe they are or maybe people need time to change. But the change must come from the heart and not by a socialist state diktat.
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