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). 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. 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. 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."
