Santhara in the eyes of the law – Shekhar Hattangadi

Prof Shekhar Hattangadi“The systematic codification of Indian criminal law … began soon after the colonialists survived the blood-soaked Mutiny of 1857 and formally established the British Raj. The IPC, which forms the bulwark of our criminal jurisprudence, bears an 1860 vintage … and was drafted by Lord Thomas Macaulay who was known to be a devout Christian. Inevitably, … the wily administrator put forth a code that not only set a low threshold of culpability for political dissent and for spreading disaffection against the government … but which also reflected his own deeply held convictions about right-and-wrong, and good-and-evil.” – Prof Shekhar Hattangadi

Jain Hand : The word inside the Dharma Chakra reads That conflicting religious philosophies often propel nations into war has long been a truism of history. But when Samuel P. Huntington gave the oft-used “clash of civilizations” phrase a foreboding—ven menacing—contemporary context during a 1992 lecture in the aftermath of the Gulf War, it’s unlikely that the American political scientist was thinking of an emaciated Jain muni peacefully awaiting death on a bed of dry grass after weeks of starvation.

Although it may seem far from obvious, Huntington’s thesis—that differences in religion and culture would spawn conflict in the post-Cold War world—lies at the root of the angst that has gripped the Jain community following the Rajasthan High Court’s verdict against Santhara. Earlier [Monday, 10 Aug], the court’s Jaipur Bench ruled on a public-interest litigation (PIL) filed in May 2006 against the centuries-old Jain practice of starving to death. It held that Santhara would henceforth be treated as “suicide” and accordingly made punishable under the relevant sections—Section 309 (attempt to commit suicide) and Section 306 (abetment of suicide)—of the Indian Penal Code. In the use of harsher language in its directive to the State—that the latter shall “stop and abolish” the practice “in any form” and register any complaint against it “as a criminal case”—the court made its absolute rejection of the Jain philosophy underlying the practice unequivocally clear. It also unwittingly bared the cultural divide between disparate end-of-life concepts.

During the five-year-long research for my documentary film on this controversy—Santhara: A Challenge to Indian Secularism?—I met several members of the Jain clergy and other lay adherents of the faith as well as scholars who had studied the philosophy of Jainism through its scriptures and rituals. Without an exception, they were all at pains to point out the fallacy of characterizing Santhara as a form of suicide. True, both acts culminate in the self-extinguishment of a human life, but the motivations of the actors are poles apart. Whereas suicide is an act of extreme desperation fuelled by anguish and hopelessness, a Santhara practitioner relinquishing food and drink voluntarily by this method has arrived at that decision after calm and unruffled introspection, with an intent to cleanse oneself of karmic encumbrances and thus attain the highest state of transcendental well-being. Santhara, for him, is therefore simply an act of spiritual purification premised on an exercise of individual autonomy.

Admittedly, dietary abstinence as religious ritual isn’t unique to Jainism. There’s Ramzan among Muslims, Lent among Christians, fasting during Yom Kippur and Tisha B’av among Jews, and a host of astronomy- and astrology-related fasts among Hindus. But none of the others takes fasting to the point of starvation and ultimately death as does Santhara. Since any kind of eating or drinking would result in a disruption (however minimal) of and add a burden (however small) to the natural ecology around them, orthodox Jains consider zero-consumption—i.e. starvation unto death a la Santhara—to be the high-point among the Jain traditions of austerity and self-denial, and therefore the truest real-world act of ahimsa or non-violence, the fundamental tenet of Jainism.

Disregard, for a moment, the radical extremism of the act itself. And contrast its broader theological rationale—which is more or less common to Eastern religions, and which resonates nicely with the basic theory of karma that underlies the beliefs and practices of most Indian religions—with the ecclesiastical values prevalent in the cultures that brought us the forms of governance we presently live with. A conspiracy of history, circumstance and expedient decision-making has resulted in our law-making and law-administering bodies being structured on the Westminster model of our colonial rulers, not to mention our judicial machinery and its key statutes—notably, criminal laws—remaining largely untouched since the time they were first designed by the British and written with their colonial feather-pens. Even the bulk of our Constitution, mulled over for all of three years on the cusp of Independence by worthy home-grown sons and daughters representing a cross-section of our population, was derived from the Government of India Act, 1935 and arguably its most important articles (i.e. those enshrining our Fundamental Rights) were inspired by the American Constitution.

Thomas Babington MacaulayThe concept of suicide associated with religion is a repugnant one for the mainstream Anglo-Saxon West, whose Judeo-Christian beliefs would denounce such an act as antithetical to the moral and ethical principles espoused by Christianity. The systematic codification of Indian criminal law as we know it today began soon after the colonialists survived the blood-soaked Mutiny of 1857 and formally established the British Raj. The IPC, which forms the bulwark of our criminal jurisprudence, bears an 1860 vintage (it came into force two years later) and was drafted by Lord Thomas Macaulay who was known to be a devout Christian. Inevitably, it would appear, the wily administrator put forth a code that not only set a low threshold of culpability for political dissent and for spreading disaffection against the government—which was tacitly welcomed by successive regimes well into the post-Independence era, and which is why it’s still so easy to slap “sedition” cases against innocuous cartoonists—but which also reflected his own deeply held convictions about right-and-wrong, and good-and-evil.

The Crown couldn’t have found a more faithful and capable servant. As a public policy maker, Macaulay had telescoped his personal beliefs into an official document that upheld the “civilizing mission” of his masters while taking care of the everyday chore of maintaining law and order among the unruly “natives” as well as the tricky task of subverting their pagan values. The IPC accomplished the first, and Macaulay’s introduction of English as a medium of instruction in schools and colleges contributed to the second. It paved the way for Christian missionaries to press forward with their conversions mainly among the needy, and with their “convent education” among the aspiring middle-classes. From this large-scale acculturation emerged a new generation of brown sahibs and babus eminently qualified to maintain the institutions of the Raj.

But it also set the ball rolling for a fundamental and deep-seated—albeit seldom articulated—discordance between the Western ideologies that created those institutions and devised their operating norms and procedures, and the Eastern philosophies that shaped the world-view of the people those institutions were meant to serve. Compare, for instance, the singularly focused zeal of a proselytizing religion like Christianity with the Jain tenet of anekantavada (non-absolutism or openness to differing—and even contrasting—opinions and beliefs) or with the inclusive live-and-let-live approach of Hinduism, and you begin to empathize with Rudyard Kipling’s twain-shall-never-meet conundrum.

And the Santhara case serves to emphasize the seemingly irreconcilable difference in perspective on the specific issue of “suicide.” In contrast to a Christian believer who looks upon the human body as a God-given “temple of the human soul” and therefore beyond the realm of willful and deliberate destruction by any human being, a devout Jain views that same body as a “prison of the human soul,” the fulfillment of whose needs corresponds to the accumulation of bad karma.

This basic contradiction between a statute founded largely on a Christian-inspired bioethic and the essentially Eastern variant of the idea of spiritual advancement through abstinence and renunciation rears its head whenever an ancient religious practice like Santhara collides with contemporary law. The conflict becomes particularly glaring in a faith-based society like ours whose polity has embraced norms of governance and administration that are transplants from an alien soil.

What, according to me, remains a significant take-away from the court proceedings in the Santhara case is not so much the petitioner’s—and consequently, though not expressly, the court’s—characterization of the death-ritual as suicide simpliciter masquerading as a religious practice wrapped in the mantle of hoary tradition. That approach could arguably be critiqued as a narrow, unkind and mechanical application of the law. More telling however is the fact, recorded for posterity in the judgment, that the pro-Santhara counsel, seeking to establish the scriptural validity of the practice, recited slokas “to the amusement of the general public sitting in the Court.” Is the recitation of a sloka in an Indian courtroom during the hearing of a case involving the legality of an ancient rite or ritual such an incongruous act that it should invite mirth and derision? Could there be a more vivid illustration of the incompatibility between traditional religion and modern governance?

Which raises the question:

Are countries such as those in Europe, which enforce a strict separation between religion and governance and which discourage public displays of religious festivity, faring any better?

Having painstakingly achieved that ideal—the Church-State divide—through centuries of struggle, these countries are apt to look askance particularly at the Indian nation-state where an avowedly “secular” (the word figures in the Preamble to our Constitution) government regulates religious institutions, subsidizes Haj trips and deploys state resources to safeguard Amarnath Yatra pilgrims.

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. – The Hindu, 15 August 2015

» Prof Shekhar Hattangadi is a Mumbai-based professor of constitutional law and an award-winning documentary film maker.

Santhara

2 Responses

  1. India’s Supreme Court Permits Jains, a Prominent Religious Group, to Fast to Death – Rishi Iyengar – Time – 31 August

    The Jains — practitioners of one of India’s most ancient religions — on Monday won back the right to fast until death after the country’s Supreme Court suspended an order that deemed the practice illegal.

    The top court said it would consider the matter in greater detail but refused to uphold an earlier ban, the BBC reported.

    The practice of preparing for death by giving up food and water — known as santhara or sallekhana — was pronounced illegal earlier this month by a high court in the western Indian state of Rajasthan, which deemed it equivalent to suicide.

    Jains rose up in protest against the ruling, saying santhara — termed a “social evil” by some human rights groups — was a religious practice as opposed to the “sin” of suicide. The practice was fairly common only amongst terminally ill or very old Jains as a way to purge their bodies and prepare for inevitable death.

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