Mar 21, 2010

Is santhara against the law?

Hemali Chhapia and Mansi Choksi

The century-old practice of santhara has been in the eye of a storm since 2006 when the case of 93-year-old Keila Devi Hirawat from Jaipur had the world's media debating whether there was any place for santhara in the modern world. Human rights activist and lawyer Nikhil Soni and his lawyer Madhav Mishra filed a public interest litigation (PIL) in the Rajasthan high court, claiming that santhara was a social evil and should be considered suicide under Indian law. One of the concerns raised in the petition was that it is old people who usually resort to santhara - and allowing an elderly person to suffer without medical assistance, food and water is inhuman. Jains, however, argue that it is a voluntary act of rational thinking and marks the beginning of a journey of understanding the inherently painful and flawed nature of earthly existence. For millions of Jains in India, the PIL was a direct violation of the Indian Constitution's guarantee of religious freedom.

While opponents of santhara equate the practice with suicide and argue that it's a fundamental breach of Article 21 of the Indian Constitution, which guarantees the right to life but not death, supporters say that the right to life includes a corresponding right not to live. Pana Chand Jain, former Rajasthan high court judge, wrote in The Times of India, "Sallekhana is a system of belief which Jains regard as conducive to their spiritual well-being . The preamble to the Constitution states that the Constitution secures to all its citizens liberty of thought, expression, belief, faith and worship . Article 25 guarantees that every person in India shall have freedom of conscience and a right to profess, practice and propagate religion. Article 29 goes further and declares that any section of citizens having a distinct culture shall have a right to conserve the same. If any law comes in conflict with constitutional rights, it will have to yield."

Jains believe that santhara cannot be considered suicide - they say it is something that one does with full knowledge and intent, unlike suicide which is viewed as emotional and hasty. Vimal Sagarji maharajsaheb, a Jain monk, offers a different view when he says that there is a thin line between santhara and suicide. "In most cases, Jains have successfully elevated themselves after embracing santhara , he says. "But in certain instances, people have faced immense mental and physical test while observing santhara and have not easily felt peace with themselves. So, whether santhara is suicide or a holy practice to attain moksha, I feel, is for the person embracing santhara to answer for himself."

Another bone of contention is the prolonged nature of santhara, with supporters arguing that the individual is given enough time to reflect on his or her life. They say that the individual has the freedom to change his or her mind through the fast. However, this claim is shouted out by opponents who argue that undoing the santhara may incur social ostracism within the community.

Legal experts too are divided on this issue. Advocate Mahesh Jethmalani says that if deprivation of food and water eventually leads to death, it is considered suicide. "Even Sati is ordained by the Hindu scriptures, but it is banned because it clashed with criminal law. There is a constitutional right which guarantees the freedom to practice the religion of your choice. But that cannot hold before criminal law. That's the law of the land."


On the other hand, advocate Sanjay Jain says that santhara is merely a practice of giving up food. "No one can force you to eat," he says. Articles 25 and 26 of the Indian Constitution protect all religious practices , unless otherwise prohibited by law. "The Indian government passed an act banning Sati. That has not been done for santhara," Jain argues to counter Jethmalani's views.

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