But times might be changing. Although the conventional idea of secularism in western democracies largely keeps religion out of governance, the influx of immigrants of various faiths into these countries in recent times and their assertive — even militant — stance with regard to their rights of religious practice has made these countries confront the problem anew. The spiky issues of burqa-wearing in France and of circumcision in Germany manifest the same law-religion conflict with which we are grappling here. The unease over Santhara may well be part of a global discontent.
When the Supreme Court sits on appeal over the judgment, it must rethink its age-old doctrine of essential practice, that has substantially weakened religious freedom in India
The Rajasthan High Court, in a judgment on the August 10, 2015, declared the Jain practice of Santhara, which involves a voluntary fast-unto-death, an offence punishable under the Indian Penal Code (IPC). This decision in Nikhil Soni v. Union of India, is likely to have far-reaching consequences, not only amongst the Jain community in Rajasthan but also across the country. Unfortunately, it conflates several important issues of constitutional law, and symbolises the confusion over the fundamental guarantee of religious freedom in our constitutional jurisprudence.
The court’s judgment is superficially reasoned, misconstrues findings of the Supreme Court, and, most significantly, ignores vital considerations that go to the root of a person’s right to ethical independence.
It is undeniable that Indian secularism — a form quite distinct from western conceptions of the term — envisages the intervention of the state in matters of religion, where general social welfare or substantial civil liberties are at stake. But, what our Constitution, properly interpreted, does not permit is the bestowal of any specific discretion on the courts to tell us which of our beliefs and practices are essential to the following of a religion. By directing the State government to move towards abolishing the practice of Santhara, and by holding that the practice is tantamount to an attempt to commit suicide, punishable under Section 309 of the IPC, the High Court in Nikhil Soni has created a damaging precedent, which requires immediate re-examination.
Santhara, which is increasingly widely practised by Jains in India, is a voluntary tradition of fasting till death, that Jains believe will help them attain ultimate salvation. As pointed out in The Hindu ( “Santhara in the eyes of the law”, August 15) by Shekhar Hattangadi, Santhara is embedded in deeply philosophical beliefs. The practice is premised on a foundational idea that the act of fasting, as an exercise of bodily autonomy, allows a believer to attain a state of utter transcendence. However, the court has now found that such matters of integrity, of choosing how one wants to lead life, do not enjoy any constitutional protection, and that voluntary fasting is nothing but a performance in self-destruction. By any reasonable construction, fasting ought to be considered indistinguishable from an act specifically aimed at ending one’s own life.
Effectively, the judgment in Nikhil Soni is predicated on two primary grounds. First, that the guarantee of a right to life does not include within its ambit a promise of a right to die, and therefore, that the practice of Santhara is not protected by Article 21 . Second, that Santhara, as a religious practice, is not an essential part of Jainism, and is hence not protected by Article 25 , which guarantees a person’s right to religious freedom and conscience. While on the first ground, the court’s reasoning is difficult to accept, on the second ground, the court’s finding is premised on a wrongly considered doctrine, carved by the Supreme Court in its earliest rulings on the right to freedom of religion.
As the Rajasthan High Court correctly recognises in Nikhil Soni, Section 309 , which criminalises the attempt to commit suicide, has been found to be constitutionally valid by the Supreme Court, in 1996, in the case of Gian Kaur v. State of Punjab. However, the Supreme Court was concerned here primarily with the unnatural extinguishment of life. To die through an act of suicide, the court held, is not an extension, or a recognised corollary, of one’s right to life under Article 21. But contrary to what the High Court holds in Nikhil Soni, as a recent intervention petition filed by the Delhi-based Vidhi Centre for Legal Policy points out, the Supreme Court in Gian Kaur explicitly recognises that a person’s right to life also partakes within its ambit the right to live with human dignity. “…This may include the right of a dying man to also die with dignity when his life is ebbing out,” the court wrote, in Gian Kaur. “But the “right to die” with dignity at the end of life is not to be confused or equated with the “right to die” an unnatural death curtailing the natural span of life.”
A dignified choice
The Jaina practitioners contend that Santhara is not an exercise in trying to achieve an unnatural death, but is rather a practice intrinsic to a person’s ethical choice to live with dignity until death. These arguments were brushed aside by the Rajasthan High Court. It simply found, based on an incorrect reading of Gian Kaur, that there is no dignity whatsoever in the act of fasting, and that therefore, there exists no freedom to practise Santhara as an extension of one’s right to life under Article 21. But, perhaps, even more damagingly, the court in Nikhil Soni also rejected arguments that sought to locate such liberty in Article 25. Here, though, the folly in its reasoning wasn’t as much a product of its own making, as it was a consequence of a vague doctrine established by the Supreme Court.
Plainly read, Article 25 guarantees to all persons an equal entitlement to freedom of conscience and the right to profess, practise and propagate religion. The right is subject only to public order, morality, and health, and other recognised fundamental rights. However, as the debates in the Constituent Assembly demonstrate, these community exceptions were included purely to ensure that the guarantee of religious freedom did not come in the way of the state’s ability to correct age-old social inequities. It wasn’t the Assembly’s intention to allow organs of state any substantial latitude in determining which religious practices deserved constitutional protection. But, in practice, perhaps out of an anxiety to ensure that the state is not constrained in passing legislation to remedy social evils, the Supreme Court has interpreted Article 25 in a manner that has greatly restricted the scope of religious liberty.
Interpreting religious practices
The court’s constriction of this freedom has been achieved by invoking a rather curious principle: that Article 25 protects only those exercises that are considered “essential religious practices.” Through the 1960s, this doctrine, which was first envisaged in the Shirur Mutt case, decided in 1954, ingrained itself as an integral part of India’s constitutional theory. The court, on a case-by-case basis, often examined individual religious canons to determine what constituted an essential religious practice. Significantly, the court began to examine whether a particular exercise was indispensable to the proper practice of a religion.
This interpretation has allowed the court authority to determine for the people what their religious beliefs and practices, through a correct reading of their religious texts and customs, ought to comprise. Invariably, the determination of what constitutes an essential religious practice, therefore, amounts to a very particular form of moral judgment — a form of cultural paternalism that is quite antithetical to a liberal democracy.
It is this authority, which the High Court in Nikhil Soni, has invoked to rule that the criminalisation of Santhara would not breach a Jain’s right to religious freedom. “We do not find that in any of the scriptures, preachings, articles or the practices followed by the Jain ascetics, the Santhara…has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality ormoksha,” the judgment states. This analysis, as is evident, does not consider whether a person indulging in Santhara performs the act out of an intrinsic belief that the practice flows from his religion, but rather adopts an almost-avowedly paternalistic outlook. It tells followers of Jainism that under a purportedly proper interpretation of their religious texts, Santhara is simply not an essential practice. As a result, the question of whether a Jain’s right to religious freedom is violated by prohibiting Santhara is examined in a wholly unsatisfactory manner.
If, and when, the Supreme Court sits on appeal over the judgment in Nikhil Soni, it must ask the right questions: of whether any social inequities arise out of the practice, of whether any other right of its practitioners are violated through Santhara, of whether the rights of any other person are infracted when a person goes on fast. In so doing, the court must also reconsider its now age-old doctrine of essential practice, which has caused a substantial weakening of the state of religious freedom in India.
