Santhara: Did Supreme Court just allow suicide?

Tradition and modernity clash on whether there is a right to die. In the eyes of modernity, tradition has too many peculiarities that restrain the nation's essential flight into progress. In the eyes of tradition, an overrated modernity denies people the right to live their lives in their own way. Who will provide the answer: society, time, politics or the law?

The British saw India an "apparatus of cruel absurdities" (Maine). It was relative easy for them to suppress Sati as illegal. But Sati flickered on, resurrected in the Roop Kanwar controversy of 1987 and further legislation against its abetment and glorification. The deification of cows has yielded Supreme Court decisions in 1958, 1961 and 2007.

Social pressure

The right of Jains to Santhara is part of a long line of controversies which enter the womb of law and position. The 82-year-old Badana Devi Dagga was fasting on the 26th day of fasting to death when on August 10 the Rajasthan High Court declared Santhara unconstitutional.

Marches and protests followed until August 31 when the Supreme Court stayed the HC decision. If the law applies, as it did to protesting Irom Sharmila, Badana Devi would have to undergo force-feeding that was obviated by the latter by trying to complete her fast in hiding. This move was not possible without social and familial support. In India, many widows are terribly treated, disrespected if powerless, sent to Vrindavan for prayer - a kind of socially imposed prison sentence.

Although, Santhara renunciation are taken by men, we cannot resist the argument that old women in the Jain community are socially pressurised to believe that suicide is their real, perhaps only, salvation. Jains may not accept that there is moral pressure or abetment to Santhara. Others may question whether the decision is voluntary.

Petitioner Nikhil Soni, a lawyer, produced seven examples from 1993-2003.

People watched this spectacle of death and did not interfere. As in the case of Roop Kanwar, the additional affidavit says that when Vimla Jain starved to death she was venerated as a sadhvi, her dead body glorified and her flower covered photograph paraded, adding status to her living family. There is a moral question we need to address: Can we watch someone die?

Even if she commits a painful suicide by starving at home, can we ignore it? If the suicide is celebrated with religious fervour, does that make it better?

Abetment

The SC invalidated the criminalisation of suicide in 1994 but that was reversed in 1996 in Gian Kaur which is now prevalent constitutional orthodoxy. Attempting suicide is a crime. Those who abet it are criminals and liable to be prosecuted. I am personally unhappy with the Gian Kaur decision. While there is a constitutional duty to save life, people do commit suicide. My concern is that those who survive should not be prosecuted and treated as criminals. Decriminalise suicide but not abetment to suicide. Abettors are criminals inviting punishment up to ten years jail and fine.

But even if suicide were legal, as it was between 1992-94, a slow and painful death is surely an abomination.

Distress

The argument of the Jains was partly based on a study by Justice TK Tukoi, former vice-chancellor of Bangalore University, and expert on Jain traditions. Curiously, the Ratna-Karanda Sravakacara states: "The Holy Men say that sallekhna is giving up the body (by fasting) when there is unavoidable calamity, severed draught, old age or incurable disease in order to observe the discipline of religion" (emphasis added). One possible interpretation of this may well be that Santhara is distress related. Indeed the argument was "when the body does not cooperate to help in living meaningfully any more, the person should resolve for Santhara". This too is distress related.

If suicide were unconstitutional, Santhara would be legalised, but not its abetment. But suicide is criminal and unconstitutional. If Santhara is not just part of the faith but an essential practice within it (Srirur Math case, 1954) Santhara would be legal. The Jains were not able to establish this unless one accepts that every part of the living faith is essential. The learned judgement did not notice that the right to religion cannot be contrary to "public order morality or health" (Article 25 (2)).

The Rajasthan judgement is clumsy but a slow death by fasting abetted and celebrated by co-religionists is abhorrent - an affront to humanity.