Earlier the Rajasthan High Court banned the Jain ritual of ‘Santhara’ in ‘Nikhil Soni v. Union of India’, comparing it to an act of suicide which is punishable under Section 309 of the IPC.
Later Supreme Court restored the Jain religious practice by staying the order of the Rajasthan HC.
What is Sallekhana/Santhara:
Santhara is a part of Jain religion, in which people undertake a ritualistic voluntary fast unto death, believing that it will help them attain ultimate salvation. Jain scholars say that it is a fundamental component of the Jain principle of ahimsa (non-violence).
Arguments against Santhara:
- Right to die is not protected under Art 21.
- Santhara, as a religious practice, is not an essential part of Jainism, and is hence not protected by Article 25
- The practice of Santhara involves abetment of suicide and it can easily be exploited against the old and infirm
- fasting to death constitutes an obvious violence towards one own self and hence cannot claim to be non-violent
SC’s reasoning for restoring the ritual:
- SC declared that Santhara is a component of non-violence
- The Supreme Court said that Jain scholars were not consulted by the High Court before it criminalised the practice.
- SC issued notice to the Centre and Rajasthan on the question raised in the petitions whether “essential and integral parts of a religion can be restricted by the State”.
- 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.
The doctrine of ‘essential religious practices:
The Santhara case brought forward the debate over the Shirur Mutt case, decided in 1954. In it, a doctrine was created: that Article 25 protects only those exercises that are considered “essential religious practices.” Since then the court began to examine whether a particular exercise was indispensable to the proper practice of a religion. 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.
Rajasthan HC, took this doctrine and declared that Santhara is not an essential part of religion.
Some say this doctrine has curtailed their religious freedoms. Restricting religious freedom should instead focus on whether: any social inequities arise out of the practice, of whether any other right of its practitioners are violated, of whether the rights of any other person are infracted when a person performs his religious practices.