SANTHARA: A Custom In Question

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India is a land of religions and customs, though the recent developments in India have kept the religion and growth at equal level, which was not there fifty years back. After our independence in 1947, massive developments have taken place in our country but the religious customs and beliefs are still being practiced as a part and parcel of our lives in India. None of the religious communities appreciate Judiciary or any other third party interfering and fidgeting with their customary laws and changing the laws that were followed by them since time immemorial. The perfect example of the same is the after math of the Shah Bano Decision, where there was a huge protest by the Muslims in India after the Hon’ble Supreme Court gave a decision that was against the Muslim personal laws in India, after which there was a huge uproar in the Muslim community which forced the Rajiv Gandhi government to enact The Muslim Woman (Protection of Rights on Divorce) Act, 1986 thereby nullifying the Shah Bano Decision.

That was 1986, but today we are facing a similar state of affairs with respect to the Jain community in India. The paradigm of confusion and chaos started after the Rajasthan High Court, gave an order in the matter of Nikhil Soni vs. Union of India, a PIL filed by the activist lawyer Ms. Nikhil Soni, with respect to banning of the practice of Santhara amongst the Jain community in India. The court gave an order on 10th of August 2015 which brought an uproar amongst the Jain communities all over India.

‘Santhara’ is a religious ritual prevalent amongst the Jains. It is a customary practice that allows a Jain to fast until death and is believed that it is one of the ways to attain ‘moksha’. The judgment of the Rajasthan High Court is basically based on two premises, one being, that the Constitution of India does not guarantee the right to die and hence it is not under Article 21 of the Constitution and secondly, the custom being a custom that is not an essential custom in Jainism and hence not protected by Article 25 of the Constitution.

While giving an opinion upon the custom being a proper custom, the Rajasthan High Court used the clause ‘essential test’ in its order and quoted that, the Santhara as a religious custom has not been found in the texts and scriptures. The essential test is the basic test in determining whether a community has followed a custom in the past continuously or not and if there is not enough evidence to prove that there has been a continuous follow up of the custom, the custom is not considered a valid one. Hence, it cannot be guaranteed under the Article 25 as it is not essential for a Jain to observe the same.

The term ‘essential’ has been turned and twisted with time to address the changes in the society. In The Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, it was held by the Apex court that essential custom of a religion will be whatever the doctrines and tenets of the religion prescribe. Where as in Qureshi v. State of Bihar, the court took a different approach and said that, for Muslims the cutting of a cow isn’t an essential form of custom. This is how the courts have interpreted the word ‘essential’ since 1957 and now it is narrowed to courts analogy on finding what is ‘essential’ based on the texts and the practices being followed. Here, the court has rightly interpreted the text and has adopted a paternalistic outlook rather than being simply intrinsic the term essential, and concluded that Santhara is not an essential practice for the Jains as per the religious texts of Jainism.As per the provisions of the Indian Penal Code, 1860 (IPC), it is an offence to take away one’s life voluntarily, the act is also termed as suicide, and the custom of Santhara being an act where a person voluntarily gives away the life, the Honourable Supreme Court of India, in its various judgments, has taken up the matter of self-killing and has opined that such acts are illegal. Though the court in P. Ratinam v. Union of India, deviated a little, saying that, a person, if he has a right to live, he has also the right to die. But the same was reversed in Gyan Kaur v. State of Punjab where it was stated by the court that, death cannot be considered at par with life and there has to be a distinction between them.

In India religion plays an important role in governing the lives of the people. Religion is a way of life here and is imbedded in the minds and hearts of the people. Whereas the Constitution is the protector of the rights of the people in the State. It is that statute which is considered as the law of the land and any law or act against the Constitution stands to be invalid. It is an agreed presumption that the religious practice of Santhara by the Jain has a major significance in the religionist philosophies, but such act cannot be entertained if it is against the basic rights of the people. Being a State, where welfare of the people is considered aa a top priority, practices of Santhara cannot be entertained in today’s society. Giving a plain reading of the Article 25 of the Constitution, we see a valid presumption that every individual has a right to practice, profess, and propagate his religion, but this application of law has to be in consonance with Article 21 of the Constitution, where the act does not curtail some one’s life unnaturally though the person is in taking the last breath of his life. The religious practice should be subject to other fundamental rights and morality of the society. Jurisprudence says, self-killing is as per the choice and liberty of the person but still it is penalised. The sole reason behind this is that it would disturb the morality of the State and the people. Hence, each religious act should not be against the morals of the society and maintain a decorum in relation to social peace and harmony.

The High Court in the current case has rightly interpreted the case as such acts will favour immoral behaviour and unevenness in the State. The situation of this custom is similar to that of Sati, which was forbidden. As Santhara was also found against the morality guarded by the State, the Court took necessary steps and banned Santhara under Section 306 and 309 of the Indian Penal Code.

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