Sunday, 30 August 2015

Santhara Judgement Issue

Why in news?


Judgement passed by Rajasthan High court in the case of Nikhil Soni vs. Union of India that Santhara is illegal as it amounts to suicide. Attempt to suicide is punishable under section 309(upheld in Gian Kaur Case) of IPC. And also abetment of suicide is punishable under section 306 of IPC. 
  • Appeal has now been filed in SC - for decision and complete analysis CLICK HERE
 
Some factual information
  • What is santhara
    • Centuries-old Jain practice of voluntarily starving to death.
    • 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
  • The word Santhara means a way of life and encompasses a way of dying as well. 
    • In Jainism, the body is seen as a temporary residence for the soul which is reborn. 
Points in support of Judgement


  • 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 . 
  • 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.
    • Article 25  guarantees to all persons an equal entitlement to freedom of conscience and the right to profess, practise and propagate religion subject only to public order, morality, and health, and other recognised fundamental rights.
      • However, as the debates in the Constituent Assembly demonstrate, these community exceptions were included purely to ensure that the guarantee of religious freedom did not come in the way of the state’s ability to correct age-old social inequities. It wasn’t the Assembly’s intention to allow organs of state any substantial latitude in determining which religious practices deserved constitutional protection. But, in practice, perhaps out of an anxiety to ensure that the state is not constrained in passing legislation to remedy social evils, the Supreme Court has interpreted Article 25 in a manner that has greatly restricted the scope of religious liberty.
  • How can death ever be justified on basis of anyone's faith?
    • The court has held that extinguishing life, sacrificing it or effacing it cannot be considered as acts of dignity. 
    • A right to die cannot be a part of a right to life. 
      • but this point is opposed on the ground that it enshrines a piece of Christian theology and Anglo-Saxon law.
        • Eventually, the judgment creates a monologic sense of life and a standardised sense of what death and dying is. 
Points against Judgement
  • Etymology
    • We must appreciate the difference between "Suicide" and " Santhara." 
    • One must remember that a word can embrace a multiplicity of worlds and meanings. As a result, translation is one of the most difficult of acts. It demands a delicacy of understanding about words which, in their consequences, can be lethal. Equivalences are welcome when we seek unity but we need a unity that can sustain the multiple senses of difference.
      • Word Suicide fails to appreciate this difference.
    • There are critical nuggets of information in the initial pages. It claims that the Jain attitude to the body is different from the Christian attitude to the body and that Santhara is a ritual farewell to the body; it is an act of non-violence performed as an ethical act. The court hints that for the petitioners, Santhara cannot be suicide. The etymology and the cosmologies are radically different.
    • The English word ‘suicide’ means a deliberate killing of oneself and it has stigma attached to suicide. Right from its origins up to the French Revolution, suicide was a mark of stigma of criminality and pollution. But this does not hold true for Santhara though it might be true of suicide. Santhara is different
    • Santhara encapsulates a different narrative. It is a ritual act of purification, done in consultation with a guru, and follows the most detailed of procedures. It cannot be an impulsive act or an egoistic one. It bears the imprimatur of theology and the approval of society.
    • Santhara is a multivalent term which cannot be reduced to the dreariness of suicide as closure or a termination. The English term cannot comprehend Santhara in terms of being a ritual exit and a rite of passage to a different world. Santhara, performed correctly, is ritual non-violence. In fact, I would feel that the court’s judgment misinterprets both the word and world.
  • Religious aspect
    • 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.
  • Historical aspect
    • India colonised --> Indian rituals under critical Anglo-Saxon legal exegesis --> Misinterpretation of Santhara
    • As one looks at the colonial interpretation, the critique of sati, where a woman sacrifices herself for her husband, brought condemnation. Santhara was read in a different way as an act of non-violence tuned to the deepest norms of Jain culture.
  • Sociological aspect
    • Is Santhara a giving up of life or of taking death in one’s stride? For a culture that believes in rebirth, is Santhara philosophically or ethically suicide? The frame widens as the drama becomes sociological because then there will have to be a differentiation made between sati, suicide and Santara.
    • French sociologist Emile Durkheim, in his Suicide, a groundbreaking book in the field of sociology, basically made a differentiation between three forms of suicide — the anomie, the egoistic and the altruistic genres of suicide (based on the personalities of people). 
      • Anomie (
        lack of the usual social or ethical standards in an individual or group
        )
        is a state of normlessness of rootlessness where an individual commits suicide because nothing binds him.
      • Egoistic suicide occurs when the individual feels full of himself. These are suicides committed by persons who are self-centred and to whom self-regard is the highest regard. 
      • In altruistic suicide, a person sacrifices himself. It is a form of sacrifice in which a person puts an end to his life by some heroic means in order to promote or further the interest of the cause or idea dear to him. In a sociological sense, this form of suicide comes closest to Santhara. 
        • It is a ritual of giving up the body in times of old age, famine or catastrophe or when an individual feels the need to be closer to cosmic cycles.
  • It is voluntary unlike Sati which is generally under coercion
    • Many people have pointed to the coercive, even aspirational aspects of the practice. Witnesses claim that families whose reputations are at stake often refuse to let a person change his mind. There is an aspirational aspect as families of the individual who wishes to observe Santhara get respect and status, so they often tend to advertise the act. Here, Santara is often presented as sati. Its voluntariness is forgotten.
  • Confusion between Santhara, Euthanasia, Sati and Suicide
    • The court had to make a differentiation between Santhara and euthanasia, sati and suicide. It has made brief and superficial attempts to do so. And in this abortive act of comparative sociology, the ritual dignity of Santara has been lost. In the confusion between the literal and the symbol, between a construction of fact and celebration, the meaning is lost.
  • Narrow view of court vis-a-vis test of essentiality
    • The court — after its abbreviated move through philosophy, ethics, language and law — has reduced the whole to one narrow issue, namely the test of essentiality (first envisaged in the Shirur Mutt case, decided in 1954)
    • It asks where Santhara is an essential tenet of Jainism and declares that it is not. 
      • Such a litmus test might work in textbook chemistry but it fails to work in the contextuality and polysemy of culture. 
  • In fact, it has missed an opportunity to look at life and death and the ethics of dignity and dying in a creative way. In creating such a standardised theology, the fact of justice becomes secondary. This has wider implications because words in one culture cannot lose their meaning in translation. Language and justice die or are diminished when language is deprived of its right to polysemy and to a multiplicity of meaning. When language is rendered captive, justice loses out in the long run.
  • Unlike a Christian believer who looks upon the human body as a God-given ‘temple of the human soul’, a devout Jain views that same body as a ‘prison of the human soul’

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