1IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH,
JAIPURD.B.Civil Writ PetitionNo.7414/2006 (Public Interest
Litigation)Nikhil SoniV/sUnion of India&ors.Date of Order::-
10.8.2015PRESENTHONBLE CHIEF JUSTICE MR.SUNIL AMBWANIHONBLE
MR.JUSTICE VEERENDR SINGH SIRADHANAMr.Madhav Mitra with )Mr.Nishant
Sharma )Mr.Veerendra Singh )-for the petitioner.Mr.Abhishek
Naithany )Mr.P.C.Bhandari with )Mr.Rakesh Chandel )Mr.Abhinav
Bhandari )Mr.Dinesh Pareek )Mr.S.K.Gupta,Addl.Advocate
General)Mr.J.K.Singh,Sr.Counsel assisted by )-for the
respondents.Mr.Anuroop Singhi)Mr.Saurabh Jain )Mr.Ajeet Bhandari
)Mr.Sunil Nath )Mr.Uday Sharma )Mr.Vimal Choudhary
)ORDER(Reportable) BY THE COURT (Per Hon'ble Sunil Ambwani, Chief
Justice)1. In this writ petition filed under Article 226 of the
Constitutionof Indiainpublicinterest, thepetitioner,
apractisinglawyer atJaipur Bench of the Rajasthan High Court, has
prayed for directions totheUnionof IndiathroughSecretary,
Department of Home, NewDelhi-respondent no.1 and the State of
Rajasthan through Secretary,2Department of Home, Secretariat,
Rajasthan, Jaipur-respondent
no.2,totreatSANTHARAorSALLEKHANAasillegal andpunishableunder the
lawof the land and that the instances given in
thepleadings,beinvestigatedandsubjectedtosuitableprosecutionofwhich,
the abetment be also treated as criminal act.2. The Santhara, which
means a fast unto death, is a practiceprevalent in Shvetambara
group of Jain community. According to thepetitioner, it is a
religious fast unto death on the pretext that whenall purpose of
life have been served, or when the body is unable toserve any
purpose of life, the Santhara will obtain Moksha(salvation). A
person, after taking vow of Santhara stops eating andeven drinking
water and waits for death to arrive. It is submitted thatthe
Santhara is religious thought, which has no place under the
lawoftheland.TheConstitutionofIndiaguaranteesrighttolife,andprotectsthelifeofanindividual.Therighttofreedomofreligionunder
Article-25 in Part-III-FundamentalRights,issubjecttopublicorder,
morality and health and to the other provisions of this
Part,whichincludes Article21. All persons
areentitledtofreedomofconscienceandtherightfreelytoprofess,
practiceandpropagatereligion. Apractice, however, ancient it may
beto a particularreligion, cannot be allowed to violate the right
to life of anindividual.3. It is submitted that a voluntary fast
unto death is an act of self-destruction, which amounts to suicide,
which is a criminal offenceand is punishableunder section 309 IPC
with simple imprisonment for3a term which may extend to one year or
with fine or with both.
Theabetmentofsuicideisalsopunishableundersection306IPCwithimprisonmentofthetermwhichmayextendtotenyearsandalsoliable
to fine. Suicide means an intentional killing of oneself. Everyact
of self-destruction by a human being subject to discretion is,
incommon language described by the word suicide provided it is
anintentional act of a party knowing the probable consequence of
whathe is about to do. Suicide is never to be presumed.Intention is
theessential legal ingredient under section 309 IPC.4. It is
submitted that Shvetambara group of Jain religion believesthat the
Santhara is a means to attain moksha. A person adopting theSanthara
is helped by the entire community in designing
itceremoniously.Peoplevisitthepersonforhis/herdarshanandtowitness
the occasion with reverence. The house of such personbecomes a
place of pilgrimage. The entire act is considered to be anact of
courage and rational thinking on the pretext that soul neverdies.
They glorify the act and its eventuality. The petitioner has
givenseveral examples of the Santhara to show that it is not an age
old andforgotten practice and that it is being practiced even now
regularly.Some of the instances of Santhara have been given in
paragraph 4 ofthe writ petition as follows:-(i) SohanKumariji
administeredthevowofSANTHARA,on7th Oct.1993. Her fast lasted for 20
days.(ii) Premji Hirji Gala in Nov.1994. Fasted uptil 212
days.(iii) Jethalal Zaveri fast lasted for 42 days in 1997.4(iv)
Nirmalananda (illustration taken from the Deccan HeraldJan.10,
1997) the fast lasted for three weeks.(v) Haraklalji Bhairulalji
Mehta in Oct.2000 Ahmedabad. Fastlasted for 23 days. He hails from
Mahendra Garh near Bhilwara,Rajasthan.(vi) Sadhvi Nerbhay Vani.
Fasted for 20 days, 24th May 2003 atJain Temple Gohana Town and
Muni Matiryaji Maharaj,
Fastedfor35daysbelongingtoTerapanthDharamSanghatUdasarnear Bikaner,
Rajasthan.5. An additional affidavit was filed bringing on record
the adoptionof the Santhara by late Vimla Jain, who was given the
status of Sadhviand her fast unto death was widely publicized by
her family memberswith her photographsin the obituary columns for
having adopted theSanthara. The decorated photograph of her dead
body was alsopublishedinthenewspaper. Thenewspaper report
publicizedthereligious meetings and glorified the act of late Vimla
Devi raising thestatusof thefamilyinthecommunity. Thoughit
wasanoffenceunder section 309 IPC for which the entire family and
the communityabetted, no action was taken by the police as the
Administration inRajasthan acceptsthe act as a part of religious
practice.6.
Noticesofthepetitionwereissuedon22.9.2006alsocallingupon the
Superintendent of Police (East), Jaipur to do the needful
ifthepetitionerapproacheshimwithacomplaint.Onthenextdatefixed on
21.12.2006, a large number of individuals soughtintervention, to
which an objection was taken by the petitioner that5they are not
true representatives of the Jain community. The Courtobserved that
if all the sundry are formally impleaded as respondentsand allowed
to file their respective replies, it would make theexercise
difficult and cumbersome and thus, allowed intervention
bybodies/associations and they were added as respondents
andindividual intervenors to be heard.7. On2.5.2007, theCourt
permittedShri ManSinghMehtatointervene in the matter as an
individual as others were also allowedto intervene.8. The matter
has, thereafter, been on voyage on the cause listfrom 6.8.2008 for
seven years until it was heard on 23.4.2015. Thecauseof
thepetitionfor thelast nineyearshasbeenasubjectmatter of curiosity
by the general public, and a lot of concern of theJaincommunity.
The matter was argued and defended with
passion.Thepetitionerisadvocatingmodernthoughtandthinking,andhasrelied
heavily upon the Constitution of India to be the governing lawof
the land. The respondents on the other hand are represented byShri
Mr.P.C.Bhandari withMr.RakeshChandel, Mr.AbhinavBhandariand
Mr.Dinesh Pareek as lawyers andmembers of the Jain
communityandMr.S.K.Gupta, Addl.Advocate General representing the
State ofRajasthan. Mr.J.K.Singhi, Sr.Counsel, Mr.Anuroop Singhi,
Mr.SaurabhJain, Mr.Ajeet Bhandari, Mr.Sunil Nath and Mr.Uday
Sharmaparticipated in the hearingwith curiosity and concern.9.
Theresponseof theStatetotheprayers madeinthewritpetition is mixed
with respect and reverence for the religion, and6protection of
ancient and rich culture of Jain community, which haseconomic
dominance in the State of Rajasthan. Out of the confusionand
protectionist attitude arises a curious plea by the State that
theright of individualpractising Santhara or Sallekhana is
protected as areligious practice under the Constitution.It is
stated in the reply thatthe petitioner is seeking relief to declare
the Santhara or Sallekhanaas illegal, which is areligious practice
or religious feeling followed
bytheSocietyofJainsincetimesimmemorial.Thebasisofthewritpetition is
that under section 309 IPC, such practice amounts to anoffence,
however, the petitioner has failed to substantiate as to howthis
public interest litigation is maintainable for declaring
thereligiousactivitypunishableundercriminal law. Hehasfailedtoplace
on record any sort of evidence or particular instance, whichfalls
withintheambit of Section309 IPCandthus,
thepetitiondeservestobedismissedasbaseless.Itisfurtherstatedthatthedelayed
investigation of such instances is meaningless and for whichthe
writ petition is not maintainable at all. The petitioner has
placedon record some clippings of the newspaper, but in absence
ofmatters falling within the ambit of Section 309 IPC and as
nocomplaint has been filed in the Police Station, the investigation
is notpermissible in law. It isstated that the petitioner has not
carried outany research and has also failed to go through the
Article 25 of theConstitution of India, which gives right to
freedom of religion. Thepetitioner has not placed on record any
such facts or material, whichmay demonstrate glorifying of Sati,
which is an offence under the7law and in no religion glorifying of
Sati Pratha is religious activity orreligious faith or amounts to
belief in God.10. TheStateGovernment has reliedonastudycarriedout
byJustice T.K.Tukol, former Vice-Chancellor, Bangalore University,
whohas written a book published from Ahmedabad, namely,
Sallekhanaisnotsuicideinwhichalotofresearchworkandinstanceshavebeen
given and which provides the procedure, stage, situation for
theperson, who wants to adopt or follow the religious path known
asSallekhana.It is submitted on behalf of the State that it is not
inpublic interest to entertain such petition. In paragraph 5 of the
reply,affirmedbyShri OmPrakashSharma, Addl.S.P.(East), Jaipur,
itisstated that the petitioner has not placed on record any example
inwhich the practice of Santhara amounts to offence under section
309IPC, whereas commonly and religiously it is known as religious
activityor faith in Jain religion like other religions. He has
failed to submiton record that the practice of Santhara/Sallekhana
is practised underforce or compulsion and does not amount to
religious activity,whereas it is sufficient tostateat this stage
that this religiouspractice or activity or faith is nowhere defined
as illegal or criminalact andassuch, thesameisneither punishablenor
subjectedtoinvestigation unless any specific complaint is received
by the
policeauthorities.Thewritpetitioniswithoutanyresearchworkinthefieldand
thus, liable to be dismissed at the threshold.11. A reply has been
filed by ShriVimal Chand Daga, Secretary ofStanakvasi Jain Shravak
Sangh, Jaipurimpleaded as respondent no.3.8It is stated in the
reply that the petitioner is a busy body and thus isnot entitled to
maintain the writ petition in public interest on thelawdeveloped by
Hon'ble Supreme Court. He is a meddlesomeinterloper, at
whoseinstancetheissuemaynot beraisednor isjusticiable. The issue is
justiciable when it can be resolved throughjudicial process.
Thepresent litigationisneither bonafidenor forpublic good. It is a
cloakfor attaining private ends by a member
oftheHinduSocietyagainstareligiousminoritycommunityknownasJain,whichisasectionofthecitizens.InAppeal
No.9575/2003decided on 21.8.2006, the Supreme Court held that Jain
religion isundisputedly not a part of Hindu religion. The
pronouncement of
lawdoesnotappeartobeacceptabletosomeofthemembersoftheHinducommunityandthus,
thepetitioner bedirectedtodepositsecurity of Rs.one lac as payment
of cost in case the writ petition isdismissed.12.
ThereplydefendsthepracticeofSanthara/Sallekhanaasanexercise ofself
purification and apopularreligious practice throughout the history
of Jainism. It is known as voluntary vowwithmeditation till the
person lives by abstaining from food, water andevery kind of
nourishment to the body when one is approaching theend of life.It
is stated thatSallekhana is not giving up life, but it
isverymuchtakingthedeathinitsownstride.Jainismbelievesinrebirth and
so the consequences of our Karmas are dependent uponown good and
bad thoughts, words and deeds. In order to
appreciatethereplygivendefendingSanthara/Sallekhana,
whichaccordingto9the answering respondent no.3 is saved by Articles
25, 26 and 29 ofthe Constitution of India, it will be necessary to
reproduce thecontents from paragraphs 2 to 8 of the reply as
follows:-2. That the contents of para (2) of the writ petition are
notadmitted. The allegations are false and not well founded.
Theanswering respondents respectfully submit that petitioner
iscompletely ignorant of the Vrat of Santhara orSallekhana. It is
absolutely wrong to say that Jain communityis divided intotwo
groups. Digambaras and Shwetambarasare not two groups of Jain
community. Santhara or Sallenkna isprevalent in the entire Jain
community. Santhara is notadoptedinorder toobtainMoksha. It is not
admittedthatSanthara is a voluntary suicide. Sallekhna is the key
to attainsalvation in the least possible number of birth and death
cyclesahead by consciously toiling to purge the soul from
karmas.According to Jainism, every individual soul, by its
nature,is pure and perfect, with infirm perception,knowledge
powerand bliss. But from eternity, it is associated with Karmic
matterand has therefore become subject to birth and rebirth
innumerous forms of existence. The supreme object of religion isto
show the way for liberation of the soul from the bondage
ofKarma.ThetruepathofliberationliesintheattainmentofRightFaith,RightKnowledgeandRightconductincompleteunion
and harmony.The basic concept underlying the vow is that man who
isthe master of his own destiny should face death in such a wayas
to prevent influx of new Karmas even at the last moment ofhis life
and at the same time liberate the soul from bondage ofKarmas that
may be clinching to it then.SantharaAccording to Jain scriptures,
Santhara means to weakenthestrengthof bodyandpassionfor
puttinganendtothe10bodily existence without consciously coveting
death by fasting.It is undertaken when one is faced with an
unavoidable naturalcalamity, severe drought, old age or an
incurable disease. Priortotheadoptionof thevow, oneis
requiredtogiveupallfeelings of love, hatred, companionship and
worldlyattachments with a pure all humanity at the same
timeforgiving themsincerely. It is also desired that one
mayundertake the great vow of Santhara after discussing itthroughly
and frankly with one's guru (religious
preceptor).ItisinterestingtofindthatinJainReligionthereisatraditionof
atypical systematicfasting, whichis knownasSallekhna. It is
absolutely misconstrued as a step to end life orfast unto death. It
is a Code of Right Conduct and selfdiscipline practiced with a
healthy desire for elevation of lifeand self realization akin to
shifting to one's own house from arental house (the body). It leads
to the inward path of Nirvritifrom Pravriti by complete detachment
form the sensorysystem. Santhara is an exercise for
self-purification.
ThisreligiousactknownasSallekhna-Santharahasremainedverypopular
through out the history of Jainism. It is mostly knownfor a
voluntary vow meditation till the person lives: (Santhara)by
abstaining from food, water and every kind of nourishmentto the
body when one is approaching the end of life. Sallekhnais not
giving up life but it is very much taking the death in itsown
stride.Jainismbelievesinrebirthandsotheconsequencesofour Karmas are
dependent upon our own good and badthoughts, words and deeds. Every
living being is responsible forits own activities the consequences
of which work outautomatically. One cannot escape from one's Karmas
except byexperiencing their consequences, goodor bad. TheKarmasbear
fruit and are therefore responsible for our Karmic bodies.Depending
on the nature of the individual's Karma, the next life11may be
human or otherwise.In Ratna-Karanda Sravakacara for Sallekhna it is
statedas under:-The holy men say that sallekhna is giving up the
body(by fasting) when there is an unavoidable calamity,severe
draught, old age or incurable disease, in order toobserve the
discipline of religion.It is emphatically denied that Santhra is a
voluntarysuicide.Sallekhna(Santhara)isarbitrarilyequatedwiththeoffence
of suicide or Sati or euthanasia in the PIL. The mainpsychological
and physical features of suicide are: (1) thevictim is under an
emotional stress; (2) He or she isoverpowered with a feeling of
disgrace, fear, disgust or hatredat the time when suicide is
resorted to; (3) The main
intentionofcommittingsuicideistoescapefromtheconsequencesofcertain
acts or events; disgrace, agony, punishment, socialstigma or
tyranny of treatmentetc. (4) The kind is far awayfrom religious or
spiritual considerations (5) The meansemployed to bring about the
death are weapons of offence ordeath; (6) The death is sudden
inmost cases unless the victim isrescuedearlier; (7) Theact is
committedinsecrecy(8) itcauses misery or bereavement to the kith
and kin.The basic concept underlying the vow of Santhara is
thatamanwhoisthemaster of hisowndestinyshouldresolvehimself to
follow the best method of leaving the body. A Jainresolving to
undergo Santhara knows it well that he has eaten alot of food to
sustain his body during his life. Now, when thebodydoes not
cooperatetohelpinlivingmeaningfullyanymore, the person should
resolve for Santhara. During
Santhraonemustnotwishtoliveonordesiresensualpleasuresbutequally he
must not seek for death to come swiftly.3. That the contents of
para (3) of the writ petition are notadmitted. Theallegations
madeagainst
theJaincommunity12arewildandderogatorymakingthepetitioner liablefor
anoffence of defamation. It appears that the petitioner
iscompletely ignorant about the Vrata of Santhara or Darshan
orSallekhna as already explained above. It is denied
thatSantharaorSallekhnaviolatestheprovisionsofIndianPenalCode or
the Constitution of India. It is further submitted thatthe
petitioner has taken the liberty ofmaking wild
allegationsagainsttheentireJainCommunitybuthasfailedtoimpleadtheJaincommunityinthewritpetitionaslaiddownintheCode
of Civil Procedure. It is thus submitted that theallegations made
in para (3) should be eschewed fromconsideration in the absence of
Jain community as party to thePIL and the petition may kindly be
dismissed with heavy costsas it is a case of nonjoinder of
necessary party.4. That the contents of para (4) may be true. From
para (4)it appears that the petitioner has taken the information
fromthe Internet. But he speaks lie as in his affidavit
whilesupporting the writ petition he says that the contents of
para(4) are true and correct to the best of his personal
knowledge.In this para it is submitted that the petitioner has
givensome of the instances of Santhara which is pinnacle of glory
oflife and death from 1993 to 2003. It is prevalent in the
Jaincommunity for more than 2000 years or say since timeimmemorial
by the followers of the worlds oldest Jain religion.Justice
T.K.Tukol, former Vice-Chancellor, Bangalore Universityin his book
Sallekhna is not suicide has given completehistory. In Chapter 3
under title Sallekhna in practice, he hasgiven various instances of
Sallekhna prevalent in the country inJaincommunity. It reflects
cultureof Jaincommunity andproves that Sallekhna was prevalent in
the Jain community as acustomor practiceor ritual andhas
beenrecognizedas
acultureofthecommunityasartofliving.Jainsaretheonlycommunitywhocelebrates
birthanddeathboth. It maybe13mentioned that culture is a collective
name for the material,social-religious and artistic achievements of
human growthincludingtraditions, customsandbehavioural patternsall
ofwhich are unified by a common place and values. Since India isa
secular state the State is not to associate with religion and isnot
to interfere with it. The way in which the writ petition hasbeen
filed amounts to making mockery of Jain religiouspractice and the
right of Jain to manage their own affairs inthe matter of religion
as guaranteed by Article 25, 26(b) and 29of the Constitution.It is
an admitted case of the petitioner that the practiceof Santhara is
being followed as part of customary and religiouspractice. It is
thus clear that Santhara is religious practice orritual
andassuchcanbeperformedasperreligioustenets,usages and custom.
Before appreciating upon the propriety ofSanthara practice one has
to understand the metaphysicalethical and social concepts of
Jainism which are different fromother religion. Jain metaphysics
divides the Universe intoeternally co-existing but independent,
categories, One Jiva-thesoul-second Ajiva-the non-soul. The body is
the non-soul. Soulis the central theme in Jaina system. The
ultimate goal of ahuman life in Jainism is the realization of the
soul viz- AtmaDarshan after its emancipation from the entanglement
of non-soul of the body.5. Thatthecontentsofpara(5)
ofthewritpetitionareemphatically denied.6. That the contents of
para (6) of the writ petition appearsto have been not interpreted
properly. Under Section 309 IPCpunishment has beenprovidedfor
attempt tosuicide. Inachanging society, notions of what is
objectionable have alwaysbeen changing. Prevention or punishment of
particular conductis dependent upon the scope and the purpose of
the criminallaw that is in force for the time being. A crime
predominantly14is dependent upon the policy of the State. It may be
mentionedthat some time back Law Commission in its report
hasrecommended for abolition of Section 309 IPC. A Division Benchof
theHon'bleSupremeCourthadheldSection309IPCasviolative of Article 21
of the Constitution of India. Though thesaid judgment of the
Division Bench stands over ruled but theConstitution Bench has
recognized that the right to lifeincluding the right to live with
human dignity would mean
theexistenceofsucharightuptotheendofnatural lifewhichmeans right to
a dignified life up to the point of
deathincludingadignifiedprocedureofdeath.Inother
wordsthismayincludetherightofdyingmantoalsodiewithdignitywhen his
life is ebbing out. 7. That the contents of para (7) of the writ
petition are notadmitted. It appears that the learned petitioner
has notcorrectly appreciated the judgment of the Constitutional
BenchoftheHon'bleSupremeCourtinSmt.GyanKaurVs.StateofPunjab (JT
1996(3) SC 339). The Supreme Court in Gyan Kaurhas declared the law
as under:-Aquestionmayarise,inthecontextofadyingman,who is,
terminally ill or in a persistent vegetative statethat he may be
permitted to terminate it by a prematureextinction of his life in
those circumstances. Thiscategory of cases may fall within the
ambit of the 'rightto die' with dignity as a part of right to live
with dignity,when death due to termination of natural life is
certainand imminent and the process of natural death hascommenced.
These are not cases of extinguishing life butonly of accelerating
conclusion of the process of naturaldeath which has already
commenced. The debate even insuchcases topermit
physician-assistedterminationoflife is inconclusive. It is
sufficient to reiterate that the15argument to support the view of
permitting
terminationoflifeinsuchcasestoreducetheperiodofsufferingduring the
process of certain natural death is
notavailabletointerpretArticle21toincludethereintheright to curtail
the natural span of life.Every man as per Hindu religion lives to
accomplish fourobjectives of life(1) Dharma (2) Artha (3) Karma
and(4)Moksha. Whentheearthlyobjectives arecomplete, religionwould
require a person not to clinch to the body. Thus a manhas moral
right to terminate his life, because death is simplychanging the
old body into a new one.Ourmythologyisfull
ofincidentswhenourGodshaveterminated their life. Lord Ramtook
Jalsamadi in riverSaryu. Lord Mahavir and Lord Budha achieved death
by seekingit. In recent days Shri Vinoba Bhave met his end by
undertakingfast. So was the case of Swami Ram Krishna Param Hans.
Ma-Anandmai.ThefolkdeityofRajasthan'RAMDEOJIhastakenliving samadhi.
India Saints every year willingly relinquishthebody which is called
'Samadhi Maran'. Instances are there whereJain munis have
terminated their lives by going on fast that
is,byadoptingthepracticeof Santhara. Shri RaichandBhai,religious
guru of Mahatma Gandhi took Samadhimaran at theage of 33
years.Santhara may fall within the category of cases which mayfall
within the group of right to die with dignity as a part of lifewith
dignity when death is certain and imminent and theprocess of
natural death has commenced. There is longtradition of Santhara in
Sharamanic culture which is anexpressionof fearless towards death.
It is rising aboveallbodily pains and sufferings. It is a process
of painlessness andbecoming a Stith Progya.8. That the contents of
para (8) of the writ petition have no16relevancy withthecaseinhand.
It is a case of differentcircumstances. There are lots of cases
where Anglo-BritishCourts have permitted the withdrawal of the life
supports.Somecases cameupfor hearingbeforetheSupremeCourt of New
Jersy, where a question was raised as to whethera person can direct
the physician to terminate his life supportviz respirator. G-tube
(Gastrostomy tube) etc., or whether hehas anabsoluteright tocontrol
thecourseof his medicaltreatment. In Re Quinlan 70 N.J.10 and in
Re-Conroy, 486 A, 2nd1209 the patient was in a vegetative state. In
the former casehe was unconscious and in the latter case he was
though awakeandconscious but his mental andphysical functioning
waspermanently impaired. In the both the case the
Courtpermittedthewithdrawal ofthelifesupports.InRe-Quinlanthe life
support was withdrawn with the consent of
thepatient'sfamily.InMcKayVs.Bergstedfonapetitionbeingfiled in the
Court for removal of life support the Courtpermitted disconnection
of his respirator. The Supreme Courtof Nevada affirmed the
Court'sdecision in appeal. The Courtheld that desire of the patient
for withdrawal of his
respiratordidnotamounttosuicide.SimilarapproachmaybeseeninBouvia Vs
Superior Court (225 Cal.Reporter 297) (CT App 1986)and Barting Vs.
Superior Court(209 Cal Reporter 220 (CT App1984). The House of
Lords has ruled in Airedale NHS Trust Vs.Bland, 1993 All ER 821
(859) that euthanasia is permissible
inlaw.InarecentcasewhichitoccurredinMarch,2005theCourt allowed the
removal of the feeding tube. It was a case ofTerrie Schiavo. Terri
Schiavo is nowdead. She remainedunconscious for more than 15 years
on account of some tragedyrendering braindeath. Shewas kept
onfeeding tube. Herhusband applied to the Court for removal of the
feeding tube.Her parents opposed to it. The Court allowed the
removal of17feeding tube. The matter went up to an Appellate Court.
TheCourt alsodeclinedtointerfere. TheFederal Appeals Courthowever
agreed to consider an emergency motion requesting
anewhearingontherequest of her parentsonthequestionwhether to
reconnect their severely brain damaged daughter'sfeeding tube. In
requesting the new hearing, a plea was raisedthat aFederal
JudgeinTempashouldhaveconsideredtheentireStateCourt recordandnot
whether previous FloridaCourt''s ruling met legal standards under
Statelaw. It alsostatedthat
AllandaFederaAppellateCourtdidnotconsiderwhether therewas
enoughclear andconvincingevidencethat Terri
Schiavowouldhavechosentodieinher currentcondition. However, before
hearing was done Terri died. Onceher feeding tube was removed at
the behest of her husband nocoursewas left but for Terri
todiealingeringdeath. Thequestion is whether she was allowed to die
with dignity. Againa debate has come up as to whether right to life
includes righttoapeacefulandwillingdeath. The question requires to
bedecided as to who decides the right to die.9.
Thatthecontentsofpara(9) ofthewritpetitionaremisplaced. No analogy
can be demonstrated between SantharaandoffenceunderSati
PreventionLaws. InSati PreventionLaw it is the glorification which
has been made an offence. Theact of Sati has been held to be
immoral. 10. That the contents of para (10) of the writ petition
arenot admitted. Underthelawof thecountrynobodycanbeforced to eat
or drink against his/her will. The case of
hungerstrikeisquitedifferent. Inthecaseof hungerstrikeif
thedemandis madethepersonconcernedwouldautomaticallywithdraws the
fast. As suchthe case of Santhara is quitedifferent. Further, as
already submitted above, the practice ofSanthara has become part of
the culture of Jain community. Itis a part of religious practice
for the persons who voluntarily18takes vow of Santhara. It is not
suicide as contemplated underthe provisions of the India Penal
Code. The true idea ofSanthara is only this that when death does
appear at last oneshould know how to die, that is, one should die
like a Monk andnot like a beast bellowing and panting and making
vain effortsto avoid the unavoidable. The Jain Sallekhna leaves
ample timefor further reconsideration of the situation as the
processwhich is primarily intended to elevate the will is extended
overa period of days and is not brought to an end at
once.Itwouldbelegallywrongandmorallyinsupportabletocategorize death
by Sallekhna as a suicide which is sudden self-destruction due to
emotional and neurasthenic upsetment.Suicide causes harm to the
person committing it as also to thesociety whose concern it is to
ensure the safety of its member.Umasvami has definedhimsa(violence)
as 'severance ofvitalities out of passion' (pramatta-yogat
pramavyaparopanaimhimsa). A person actuated by passion is pramatta.
The activityof such a person ispramatta-yoga. Amrtacandra Suri
hasexpressed similar views; He who injures the real nature of
Jivacommitshimsa. Any injury whatsoever to the material orconscious
vitalities caused through passionate activity of mind,body or
speech is undoubtedly himsa. Himsa is sure to result, ifone acts
carelessly under the influence of passions. Evenwhere there is
injury to the vitalities, there is no himsa if themanis not
movedbyanykindof passionandis carefullyfollowing Right Conduct.
Thus, it is only when a person putsan end to his own life due to
his passionate activity that thereis suicide.It has already been
explained that in the observance of thevow of Sallkhana, there is
complete absence of passion and theconduct is directed to liberate
the soul from the bondage ofkarma. When such individual advances
himself spiritually by hisausterities and meditation, his life
elevates the community
of19devoteesandotheronlookersbypurifyingthemindofeveryindividual
and by creating anawareness in him or her of theinherent
potentialities of the self. The conquest of all passionsandfull
detachmentfromworldlydesiresandpossessivenessvisible in the conduct
of the ascetic or the householder evokeourreverenceforhim.
Hisquietandjoyful deathmakesusconscious of what is good for the
individual and the communityat large. His path of absolute
renunciation and his marchtowards self-realization enables and
enlightens the society atlarge. Such death is not suicide and
cannot be categorized assuch either according to law or morals. The
Saints and sages ofIndia are known for defiance of death. When they
realize thefutilityoftheirperishablebodyorwhentheyachievedtheirgoal
for seeking the love of life, they voluntarily invoke
death.Theyhaverisenabovelifeanddeath.Inthebrahamicitiscalled living
samadhi. To treat it as suicide, amounts toignorance of the Indian
culture.The constitutions of democratic countries
guaranteefreedomto practice, propagate and preserve one's
ownreligion. This right is subject tointerests of
publicorder,moralityandhealth. Everycitizenhas right toprofess
andpractice his religion freely. It is one of the cardinal
principlesof Jaina religion that the noblest or the most spiritual
way ofmeeting death is to resort to the vow of Sallekhna when,
dueto circumstances already mentioned, a person is unable to liveup
to his religion and maintain the purity of his mind and heart.Even
if the Indian Penal Code does not refer to this freedom ofreligion
enshrined in Article 25 of the Constitution theConstitution
overrides the lawin the Penal Code or otheridentical provisions in
any other law. The implications of theconstitutional
guaranteearethatactssanctionedbyreligionand termed in accordance
with the prescribed rites would notbe punishable under any law of
the land. Any law which
curtails20thefreedomguaranteedbytheConstitutioncannothavethesanctity
of law and as the same would be unenforceable by anyauthority or in
any court of law.The practice of Sallekhna does not interfere with
publicorder, health or morality. Sallekhna is pinnacle of glory of
lifeand death. It is not an immolation but promotion of soul. It
isin no way a tragedy. Jainism speaks of death very boldly and ina
fearless tone toimpress that death should be well
welcomedwithcelebrations.Sallekhanais aretreat topeaceintruesense,
to be yourself entirely free from all distractions for
purecontemplation and introspection.The right of individuals
practice Sanllekhana or Santharais protected by right of privacy.
The practice of Santhara hasbeen recognized by Privy Council in the
year 1863 to beprevalent from time immemorial. The right of privacy
has beenrecognized in the case of alleged suicide by
AcharyaVinobabhaveinawell knownjudgment.InthecaseofMuniBadri Prasad
who practiced Santhara, the Hon'ble SupremeCourt in 1987 did not
even consider the case fit for admission,where it was equated to
suicide.Article 26 lays down that every religious denomination
oranysectionthereof shall havetheright tomanageits ownaffairs in
the matter of religion.It is submitted that practice of Sanllekhana
is impossiblefor each and everybody to adopt the vow of Sallekhna
becauseitrequiresthedevoteetopossessanunshakeableconvictionthat
thesoul andthe body are separate, that the body is theresult of
accumulated karmas and that liberation from karmasis possible only
by an austere life of supreme conduct foundedon right faith and
knowledge.The right is also protected under Article 29 of
theConstitution of India. It cannot be denied that Jains have
theirown culture and therefore any section of the citizens
residing21in the territory of India having culture of its own has
the rightto conserve the same. The Jain community is a
religiousminority community andalso it is a cultural minority
andtherefore it is the mandate of the constitution that the
Stateshall not impose upon it any other culture which may be
localor otherwise. The state has no authority to force feed a
Sadhakwho has taken the vow of sanllekhna.In the PIL Sallekhna that
is Santhara in completeignorance is equated with the offence of
suicide, sati customand euthanasia. It is outlandish notional and
ultra-vires. By
nostretchofimaginationSantharacanbetermedorconfusedwith any one of
the aforesaid offences at all, strictly prohibitedin Jainism
itself. The difference between Santhara and suicidehas been vividly
explained in many articles by the Scholars. Theanswering respondent
shall be submitting the same at the timeof making submissions.By
fasting is meant voluntaryabstinence from all food. Itis the oldest
method of cure in disease even animals resort to
itinstinctively.11. That the contents of para (11) are not admitted
and inreply to the allegations made therein the answering
respondentwould like to reiterate what has been submitted in
theforegoing paragraphs. It is again reiterated that Santhara is
notsuicide.12. That the contents of para (12) of the writ petition
areneither relevant nor correct. If necessary, the
answeringrespondents reiterate what has been submitted
above.PRELIMINARY OBJECTIONS1. The petitioner has no locus-standi
to file this writpetition as Public Interest Litigation. The
petitioner is neither ascholar in Jainism nor he has studied the
practice ofSanllekhana or Santhara. In this regard he appears to be
a busybody or meddlesome anteloper.222. That in the petition
hypothetical question has beenraised without any material
particulars. The petition thus is notmaintainable. The petitioner
has neither made the ladies whohadtakenSantharaas parties
tothepetitionnor theJaincommunity. It is by way of additional
affidavit that their nameshavebeendisclosed. It is settledlawthat
noamount ofevidence can be looked into for which there are no
pleadings.3. That the writ petition suffers from the defect
ofmultifariousness. Neither the necessary parties have
beenimpleadednorthepetitiondisclose the cause of action.
Theanswering respondents fails to understand as to why Union
ofIndia or the State of Rajasthan has been impleaded as a partyto
this writ petition. However, one thing is certain that theyhave
been impleaded as party because the petitioner wasaware of the fact
that without impleading themno writpetition is maintainable against
Jain community such asStanavwasi Jain Sangh and Shreemal Sabha. It
is notmaintainable otherwise as the writ petition is not
maintainableagainst private persons who have no public duty to
discharge.4. That Stanakvasi Jain Shravak Sangh and Shreemal
Sanbhaarenot legal persons. They are private persons. They
aremerely representative institutions of private persons. No
writpetition is maintainable against them.5. That the writ petition
is addressed to Jain community assuch the Jain community should
have been impleaded as
party.Thewritpetitionthereforeisliabletobedismissedonthiscount in
the absence of the necessary party.6. That the writ petition is not
maintainable as prima-facieit violates principles of natural
justice as the entire Jaincommunity has been condemned without
being heard.7. That the practice of Santhara is saved by Articles
25, 26and 29 of the Constitution of India as already discussed
above.8. That as the State is unable to guarantee an individual
life23and freedom of expression implies freedom of silence, the
rightto die voluntarily is a right of privacy and self termination
oflife should not come between an individual and his/herconscience.
One has the subtle discriminative power to discernthe matter from
the eternal. It caused annoyance to the entireJain community when
Smt.Vimla Devi, Kamla Devi and
Keladeviwerethreatenedwithpoliceactionandlegal implicationsinthis
land of Rishis, Munis and Thrithankaras, when it is the
onlycommunity practicing righteousness and believes in AhimsaIt is,
therefore, prayedthat thewrit petitionof thepetitioner may kindly
be dismissed with special costs.13. The petitioner has described
the practice of Santhara asabhorrent to modern thinking. He submits
that no religion howsoeverhistorical, pure or revered, can permit
or allow a person to commitdeath by choice. The fast until death is
nothing but a self-destructionin whatever form and belief it may
be, and that fundamental right tofreedom of religion cannot protect
a criminal act as it is subject topublic order, morality and
health. The guarantee given by theConstitution under Article 25 is
that every person in India shall havethefreedomofconscienceandshall
havetherighttoprofess,practiceandpropagatereligion,subjecttorestrictionsimposedbytheStateonthegrounds(i)publicorder,moralityandhealth;(ii)other
provisions of the Constitution; (iii) regulation of
non-religiousactivityassociatedwithreligious practice; (iv) social
welfareandreform; (v) throwing open of Hindu religious institutions
of a publiccharactertoall
classesofHindus.Nopracticeorbeliefortenet,which isabhorrent to
public order, morality and health and violates24other provisions of
the Part-III, namely, Article 21, can protect thereligious
practice. 14. It is submitted that the freedom of conscience isnot
necessaryto be connected with any particular religion or any faith
in God. Italso implies the right of a person not to be converted
into anotherman's religion or to bring to any religion at all. A
knowledge or senseof right or wrong, moral judgment that opposes
theviolationofpreviously recognized ethical principles and that
leads to feelings ofguilt if one violates such a principle. The
freedom of conscience asdefined in Webster's New World Dictionary
has been encircled withthe public order, morality and health and
the right to life and therights of other persons guaranteed under
Part III of the Constitution ofIndia.15. It is submitted that
religious practices, which are violative ofpublic order, morality
andhealthandinwhichpublic order willinclude violation of the
provisions of the Indian Penal Code (IPC) havebeen rejected to be
protected under Article 25 by the Supreme Courtin various
pronouncements. In Jagadishwaranand Avadhuta
Acharya,V/sPoliceCommissioner,Calcutta(AIR1984SC51),theSupremeCourt
upheld the power of the police to prohibit deleteriouspractices,
suchas thesacrificeof humanbeings inthenameofreligion, or to direct
the exhumation or removal of graves or interredcorpses for the
purpose of detection of crime or for preventing breachof the peace
between fighting communities or to prohibitperformanceof
the'tandava' dancebytheAnandamargis inthe25publicstreets or places.
Referencewas madeonthedecisioninGulam Abbas V/s State of UP (AIR
1983 SC 1268).16. Reliance has been placed on the decision of the
Supreme Courtin Church of God (Full Gospel) in India V/s
K.K.R.Majestic ColonyWelfare Association ((2000) 7 SCC 282), in
which the Supreme Courtobservedthat inacivilizedsocietyinthenameof
thereligion,activitieswhichdisturboldorinfirmpersons,studentsorchildrenhavingtheir
sleepintheearlyhours or duringdaytimeor otherpersons carrying on
other activities cannot be permitted. 17. Reliance has also been
placed on the decisions in
N.AdithayanV/sTravancoreDevaswomBoard((2002)8SCC106)andJaved&ors.
V/s State of Haryana & ors.((2003) 8 SCC 369) in which it
wasobserved that the right of the State to impose such restrictions
as aredesired or found necessary on the grounds of public order,
health andmorality is inbuilt in Articles 25 and 26 of the
Constitution of India.The religious practice which forms an
essential and integral part ofreligious is protected. A practice
may be a religious practice but notan essential and integral part
of the religion.18. It is submitted that religion is a social
system in the name ofGod laying down the code of conduct for the
people in society. It is awayof
lifeinIndiaandanunendingdiscoveryintotheunknownworld. People living
in society in which they are born or by choicehavetofollowsomesort
of religion. Itisasocial institutionandsociety accepts religion in
a form which it can easily practice. Faith inreligioninfluences
thetemperament andattitudeof thethinker.26Religionincludesworship,
faithandextendseventorituals. Jainreligion has been found to be a
distinct social systemwith itsindividuality andpurpose. It cannot,
however, claima practiceancient it may be, as an essential part or
belief or tenet, which isviolativeof
thepublicorderandmoralityacceptedbytheStateunder the provisions of
law including in section 309 IPC. The right tohis/her death cannot
be treated as part of the tenet of the religion,as religion which
takes life cannot be allowed to advocate that thetaking of life in
however purified form is a way of life, which is alsoan essential
tenet of religion.19. Thepetitioner
appearinginpersonhastriedtodemonstratethat adoption of Santhara, an
act with criminal content,has becomea means of climbing social
ladder. Any person adopting Santhara isnot allowed to go back on
his vow, and the entire family andcommunity forces him/her to
complete the process in which he has togo through inhuman and
intolerant conditions. He/she is some timestied to the chair or
bedand is not allowed to eat and drink, even ifhe/she wants to come
out of the vow or suffers from pain on theground of criticism. A
person adopting Santhara is surrounded by thegroups singing Bhajan
and Kirtan and he/she is made to looseconscience and drawn by
religious fanaticism, to accept the processof death. It is nothing
but killing a person, who may or may not
haveinthereligiousbeliefvowedtoadoptSantharaasameanstoendhis/her
life. It is submitted that this notorious, abhorrentand
tribalpracticeinthereligionmustbestoppedatallcostsandtheState27Government
should not be allowed to protect the practice in order toprotect
Jain religion, which has the economic dominance in the Stateof
Rajasthan. When the State of Rajasthan can stop Sati and
thoseabetting Sati are treated as offenders, in which case,
theinvestigations are carried out and punishment is awarded,
theSanthara is no different and it is also a process to commit
suicide
inthenameofreligionasinthecaseofSati.Thereisabsolutelynoneed to
protect the practice of Santhara by the State. 20. Learned counsel
appearing for the respondents havepassionatelydefended the Santhara
as an inseparable tenets of Jainreligion. They have tried to
connect it with the way of life and sourceto attain moksha, which
is the ultimate purpose of Jain religion.ShriP.C.Bhandari has
explained to us in great detail as to howtheSanthara is practiced
reciting the Mantras and narrating the stages ofattaining the
Santhara with reverence.He submits that it is a highestorder in
Jain religion. He has explained to us the manner in which thevow of
Santhara is taken and has recited theslokas in a loud voice
intheCourt, totheamusement of thegeneral publicsittingintheCourt.
It is submitted by him that Article 25 has no application to
anessentialreligious practice and has relied upon the decision
inGianKaur V/s State of Punjab (JT 1996(3) SC 339), in which the
SupremeCourt has protected the right to die by a person, who is
terminally illor inpersistent vegetativestatetoterminatehis
lifeandthoughsetting aside the declaration of
lawinP.Rathinam/NagbhushamPatnaik V/s Union of India (JT 1994(3) SC
394), raising a doubt in the28case of terminally ill or for a
person in persistent vegetative state tobe permitted physician
assisted termination and keeping theargument open,
whichwastriedtobeaddressedbytheSupremeCourtin
ArunaRamchandraShanbaugV/sUnionofIndia&ors.((2011) 4 SCC
454).21 In this writ petition filed in public interest, we are
concernedwith the short question as to whether the practice
ofSanthara/Sallekhanapractisedby theShvetambaras groupof
Jainreligionisanessential tenetoftheJainreligionprotectedbytheright
to religion under Article 25 of the Constitution of India.22. Shri
Madhav Mitra, learned counsel appearing for the petitionersubmits
that the Jain community is divided into two groups
ofDigambaraandShvetambara. TheSanthara, areligious fast untodeath,
isprevalent in Shvetambara, whereas a similar kind of fastcalled
Sallekhana in the Digambara.The Santhara is a kind of
self-emulation, wherein the person adopting it starts fast to
achieve thegoal of death in which he stopped consuming food, water
andmedicines. It is nothing but suicide under the garb of religious
beliefs.No individual has a right to take his own life. The Supreme
Court inGian Kaur Vs. State of Punjab (supra) held that Section 309
IPC isvalid and not violative of Article 21 of the Constitution of
India.
Therighttolifedoesnotincludetherighttodie.Therighttohumandignity
does not include the right to terminate natural life and it
hasover-ruled the previous judgment of its own Court in P.Rathinam
V/sUnion of India (supra).2923. It is submitted that in Aruna
Ramchandra Shanbaug V/s Unionof India & ors. (supra), the
Supreme Court held that botheuthanasiaand assisted suicide are not
lawful in India. The right to life does notinclude the right to die
and that euthanasia could be lawfulonly bylegislation. Both the
abetment of suicide under Article 306 IPC andattempt to commit
suicide in Section 309 IPC are criminal
offence.Section309IPCisconstitutionallyvalid.ItwasheldinGianKaur'scase
(supra) that the debate topermit physician-assisted
terminationoflifeisinconclusive. Theeuthanasiaisoftwotypes;
activeandpassive. The active euthanasia entails the use of lethal
substances orforces to kill a person. The passive euthanasia
entails withholding ofmedical treatment for continuance of life,
withholding of
antibioticswherewithoutgivingitapatientislikelytodie,orremovingtheheartlung
machine, from a patient in coma.Both the methods areillegal without
legislature, provided certain conditions and
safeguardsaremaintained. Generally,
theeuthanasiamaybevoluntaryandnon-voluntary. The voluntary
euthanasia is where the consent is takenfromthepatient, whereas
non-voluntaryeuthanasiais wheretheconsent is unavailable, when the
patient is in coma, or is
otherwiseunabletogiveconsent.Involuntarypassiveeuthanasiaaperson,who
is capable of deciding for himself decides that he would prefer
todie which may be for various reasons including unbearable pain
orthat he does not have the money for his treatment. He
consciouslyandoutofhisfree-will
refusedtotakelifesavingmedicines.TheSupreme Court held that in
India, if a person consciously and30voluntarily refuses to take
life saving treatment, it is not a crime,but whether not taking
food consciously and voluntarily with the aimof ending one's life
is a crime under section 309 IPC is a question,which need not be
decided in the case. After considering the
questionofnon-voluntarypassiveeuthanasia,
theSupremeCourtlaiddowncertainguidelines for theprocedurefor
permittingdeath, undercertain conditions. The Supreme Court laid
down a proceduredetailing the conditions for suchactiontill the Act
is enacted by theParliament. The procedure provides for a decision
to be taken by thepatients todiscontinuelifesupport or thespouseor
other closerelatives and in their absence by a person next or by
the doctorsattending the patient. The decision must be bonafide and
thereafter,approval must besought fromtheHighCourt
byfilingapetitionunder Article 226 of the Constitution of India.
The High Court in suchcase acts as parens patriae.The matter should
be decided by atleasttwo Judges. TheBench will constitute a
Committee of three reputeddoctors after consulting such medical
authorities/medicalpractitioners, preferably comprising of a
Neurologist, Psychiatrist andPhysician. The report of the Committee
is to be made available tothe patients and his close relatives to
obtain their views andthereafter, the High Court should give its
decisionassigning reasons,keeping in view the best interest of the
patient. 24. ItissubmittedthatalthoughinArunaRamchandraShanbaugV/s
Union of India (supra),the Supreme Court left the question as
towhether not taking food consciously and voluntarily with the aim
to31end one's life is a crime,the substance of the judgments in
Gian Kaur(supra) and Aruna Ramchandra Shanbaug (supra) is that no
person hasa right to take his own life consciously, as the right to
life does notinclude the right to end the life voluntarily.25. It
is submitted on behalf of the petitioner that even the actcommitted
with the consent of the individual to end his/her life ispunishable
under the Indian Penal Code. The offence of murder undersection 300
IPC prohibits exception,which goes to show that such anact may not
amount to murder, but would be termed as culpablehomicide. Section
92 precisely relates to medical practitionerswhereintheact
doneingoodfaithfor thebenefit of aperson,without consent has also
been made a criminal act punishable underthe law of the land. 26.
It is submitted that the religious belief of the Jain community
isnotprotectedunderArticle25oftheConstitutionofIndia,asthefreedom
of conscience and free profession, practice and propagationof
religion is subject to public order, morality and health and to
theother provisions of this Part, which includes Article 21
guaranteeingrighttolifeandwhichcannotbetakenawayeithervoluntarilyorinvoluntarily.
The underlying principle is that if a person cannot givelife, he
has no right to take life ashimself or of others.27. It is
submittedthat the'Santhara' or 'Sallekhana' is not areligious
practice adopted regularly. It is adopted occasionally bythe
individual and instigated by others to achieve the salvation.
Noreligion propagating salvation permits taking the life of
any32individual, which includes the persons taken their own life.
The'Santhara' is also not protected under Article 25 or 29 of
theConstitutionof India, inasmuchas, it innomanner protects
thefreedomof religion or the interest of minorities. The
personsprofessing Jain religion though in religious minority, do
not have anyspecial status nor does the interest of minority
permits taking life andgives a constitutional right.28. The
Advocates belonging to the Jaincommunity have filedbulky written
arguments to support the Santhara as a religiouspractice, quoted
from scriptures and preaching of Jain religion, whichis not by way
of taking one's life for attaining any status or relief frompain.
They state thatadopting Santhara is notsuicide. It is a deathwith
equanimity in pursuitof immortality.It is a victory over deathor
rather the fear of death. Persons taking vow of Santhara face
itbravely and boldly whenever death becomes to them. They
arespiritual aspirants, who retain their equanimityin the face of
deathand their death does not remain fearful but becomes peaceful.
Suchpeaceful death is called Samadhimarana. It is practiced by
thoseinveterate spiritual aspirants, who are in eternal pursuit
toimmortality. Jainism is known for many a unique spiritual
practiceand accomplishment since its propounding by the first Lord
ProphetRsabhadeva, centuries agoat the beginning of time cycle.
Theantiquity of Jain religion and Santhara is unquestionably proven
byits mentionintheancient scriptures. It is equally
modernandrational in itsphilosophy and approach. It is modern in
the sense that33spiritual aspirants, inthepursuit of immortality,
undertakethispractice. It is rational in the sense that the very
purpose of humanexistence in its spiritual evolution to perfection
and to overcome allimpedimentsthathinder
itsprogresstowardsthisnoblegoal. Thefear of death is one such
hindrance and in that sense, the Santharaovercomes this hindrance
and paves the way for spirit's attainment ofperfection. It not only
enables the spiritual aspirant to overcome
thefearofdeathbutalsohighlightstheindomitablehumanspiritthatwould
not stop short of achieving its goal whatever may be in the
say.Reference has been made to the book of Dr.Colonel D.S.Baya,
whichcovers almost all aspects of this spiritual
practicebytheJainasacross the sectarian divisions and across the
world. The book justifiesthe Santhara as religious practice, which
is essential to the religion ofJain. Quoting fromthe Jain
scriptures and using a researchmethodology including literary,
field research and research finding, itwas concluded in the book
thatembracing voluntary peaceful deathby fasting unto death after a
preparatory penance is the
ultimateformofpenancethatculminatesinafearlessdeathinastateofequanimity
of mind.It isa noble form of death, which does not useany violent
means to die in a fit of the moment and it is perfectlynon-violent
as it causes noinjury totheself or theother. TheSanthara is
perfectly peaceful, calm and quiet and is distinct from
thevoluntary death practiced by the followers of the other faiths
in
thatitusesnoviolentmeanstodieandthatthereisnodesiretodieassociated
with it. It is simply a noble way to voluntarily discard and34worn
out and diseased body that does not remain
spirituallyproductiveanylonger.ThepracticehasbeenatraditionwiththeJain
ever since the dawn of civilization and it has been practiced bythe
Jain ascetics and lay followers since the time of BhagwanRsabhadeva
to the present age. The Jain scriptures, rock
inscriptionsandmediareportamplybearevidencetothefacts.Itcannotbecompared
with suicide, Sati or any other form of honour deaths and
itattracts no provisions of law against it.Justice T.K.Tukol opined
thatomissiontotakefoodisnot anoffenceunder section309of
theIndianPenal Codewhichdeals withsuicideandthat it is not
anoffence because it does not injure others. It was finally
concluded inthe book thatit is a noblest way todie in the pursuit
of immortality.29. In the written arguments filed by Shri Vimal
Choudhary,Advocate, Shri Sunil Nath, Advocate appearing for
respondent no.3,Shri Anuroop Singhi, Advocate settled by Shri
J.K.Singhi, SeniorAdvocate,Shri
VivekDangi/VijayChoudhary,AdvocatessettledbyShri Virendra Dangi,
Senior Advocate, Shri Ajit Maloo, Advocatesettled by Shri
N.K.Maloo, Senior Advocate, Shri HemantSogani/Himanshu Sogani,
Advocates appearing for the applicant-Veerendra Kumar Jain and Shri
Ajit Bhandari, Advocate appearing forthe respondent no.4, reliance
has been placed on various books
andarticlesandreferenceshavebeenmadetothereligiousscripturesincluding
the opinions of Shri Swami Samantbhadra Acharya,Shrimadacharya
Pujyapad, Shri Acharaya Uma Swami and Shri DhyanSagar Ji Maharaj
and articles of Justice T.K.Tukol and Justice35N.K.Jain. Reliance
has also been placed on various studies carried outby the scholars
including the scholars of Jain Vishva BharathiUniversity, in
support of the argument that the Santhara orSallekhana is not by
way of suicide, but for attaining the moksha andit is accepted form
of death in the Jain religion for salvation.30. References have
also been made to the Acharanga
Sutra(pages421,432,438,439and444)andpreaching of Jain
MunijiMaharaj.References have also been made to Sutra 122
RatnakarandaSravakacara, ShreeBhagwati
SutrafromDeathwithEquanimity(Para 0.2.06), Jnata Dharma Kathanga
Sutra, Rai Paseniya Sutra,Acharanga Sutra, Sthnang Sutra, Acharanga
Sutra (page 252 to 255)and Acharanga Sutra (pages 262 to 267).31.
In all the written arguments, reliance has been placed on
thejudgmentsoftheSupremeCourtinGianKaur(supra)andArunaRamchandraShanbaug(supra),
inwhichthedebateof voluntarydeath by a peaceful method was left
inconclusive.32. Inwrittenarguments providingdetails of references
tothereligious scriptures and the opinions of monks as well as the
researcharticles, it is sought to be advocated that the Santhara or
Sallekhanaisnotsuicide,whichispunishableundersection309oftheIndianPenal
Code. It is accepted form of voluntary death taken step by stepto
achieve moksha, with full wisdom and insight. It is not a
violentmethodof deathandis permissibleintheJainreligion. All
thecounsels appearing for therespondents intheir oral
andwrittenarguments have tried to impress the Court to dismiss the
writ36petition, as the old-aged practice of Santhara or Sallekhana
isprotected by Article 25 of the Constitution of India.33. In Onkar
Singh etc. etc. V/s State of Rajasthan ( RLR1987 (II)957), a
Division Bench of this Court in a celebrated progressivejudgment
considered the challenge to the Rajasthan Sati
(Prevention)Ordinance, 1987, on the ground of violation of Articles
25, 26, 174,213 and 51A of the Constitution of India. After
referring to the RigVedaMantras, AtharvaVedaandvariousscriptures,
inwhichthepractice of Sati was alleged to have been accepted;
referring to thepractice of Sati allegedly religious practice
referred to in the VishnuPuranaShastraprevalent invarious sects of
Punjab, OrissaandBengal; referring to the studies by Professor Kane
and Cromwell inthe book Raja Ram Mohan Rai his era and ethics;
referring to thejudgments in Ramdaya V/s Emperors (AIR 1914
All.249), Emperor V/sVidyasagar (AIR 1928 Pat.497) &
Kindarsingh V/s Emperor (AIR 1933All 160), in whichthe abetment of
Sati was held to be an offence andsentences were inflicted, the
Division Bench observed that in all theages, the Rajas, Maharajas,
Jagirdars and Emperors have made effortsto stop, ban and punish
those persons, who abetand propagate theglorification of Sati.It
was declared an offence in the year 1987
andcannotbesaidtobeprotectedbytheConstitutionofIndiainanyway.
ThechallengetotheOrdinancewas dismissedexcept forClause 19 of the
Ordinance, which was held to be ultra viresbeingviolative of
Articles 13,14, 21, 25 and 51-A(e) of the Constitution ofIndia,
providing for the continuance of ceremonies in the temples
in37connection with the Sati constructed prior to the commencement
ofthe Act. The landmark judgment is a piece of great legal work,
whichreaffirmedtheruleoflawintheStateofRajasthan,inwhichthesections
of people glorified the practice of Sati as a religious
practiceprotected by Article 25 of the Constitution of India.34. In
SardarSyedna Taher Saifuddin Saheb V/s State of Bombay(AIR 1962 SC
853), a Constitution Bench of the Supreme Court heldthatArticles 25
and 26embody the principles of religious tolerationthat has been
the characteristic feature of the Indian civilization fromthestart
of history.They serve to emphasize the secular nature ofthe Indian
Democracy, which the founding fathers considered,
shouldbetheverybasisoftheConstitution.Inparas40,44and57,theSupreme
Court held as follows:-Where an excommunication is itself based on
religious groundssuchas lapsefromtheorthodoxreligious creedor
doctrine(similar to what is considered heresy, apostasy or schism
undertheCanonLaw)orbreachofsomepracticeconsideredasanessential part
of the religion by the DawoodiBohras in general,excommunication
cannot but be held to be for the purpose ofmaintaining the strength
of the religion. It necessarily followsthat the exercise of this
power of excommunication on religiousgrounds forms part of the
management by thecommunity,throughits religious headof its
ownaffairs inmatters ofreligionguaranteedunder Article26(b).
TheimpugnedActmakes even such excommunication invalid and takes
away thepower of the Dai as the head of the community
toexcommunication even on religious grounds. It, therefore,clearly
interferes with the right of the Dawoodi Bohracommunity under
cl.(b) of Art.26 of the Constitution.....38The right under
Art.26(b) is subject to cl.(2) of Art.25
oftheConstitution.TheimpugnedAct,howeverdoesnotcomewithin the
saving provisions embodied in cl.(2) of Art.25. Quiteclearly, the
impugned Act cannot be regarded as a lawregulating or restricting
any economic, financial political
orothersecularactivity.Themerefactthatcertaincivil rightswhich
might be lost by members of the Dawoodi Bohracommunity as a result
of excommunication even though madeon religious grounds and that
the Act prevents such loss, doesnot offer sufficient basis for a
conclusion that it is a lawproviding for social welfare and reform
within Art.25(2). Asthe Act invalidates excommunication on any
groundwhatsoever, including religious grounds, it must be held to
bein clear violation of the right of the Dawoodi Borha
communityunder Art.26(b) of the
Constitution.AstherightguaranteedbyArt.25(1)isnotconfinedtofreedom
of conscience in the sense of the right to hold a
beliefandtopropagatethat belief, but includes theright
tothepracticeof religion, theconsequences of
thatpracticemustalsobear thesamecomplexionandbethesubject of
likeguarantee. It is not as if the impugned enactment saves onlythe
civilconsequences of an excommunication not interferingwiththeother
consequences of anexcommunicationfallingwithin, the definition. On
the other hand, it would be correctto say that the Act is concerned
with excommunication whichmight havereligious significancebut
whichalsooperatetodeprive persons of their civil rights.35.
InGianKaurV/sStateofPunjab(supra),theSupremeCourtdisagreeing
withthe reasons giveninP.Rathinam's case (supra)observed in paras
21 to 25 as follows:-3921. From the above extract, it is clear that
in substance thereason for that view is, that if a person has a
right to live, healso has a right not to live. The decisions relied
on for takingthatviewrelatetootherfundamental rightswhichdeal
withdifferent situations and different kind of rights. In those
casesthe fundamental right is of a positive kind, for
example,freedom of speech, freedom of association, freedom
ofmovement, freedom of business etc. which were held to
includethenegativeaspectoftherebeingnocompulsiontoexercisethat
right by doing the guaranteed positive act. Those decisionsmerely
held that the right to do an act includes also the rightnot to do
an act in that manner. It does not flow from thosedecisions that if
the right is for protection from any intrusionthereof by others or
in other words the right has the negativeaspect of not being
deprived by others of its continued exercisee.g. theright tolifeor
personal liberty, thentheconversepositive act also flows
therefromto permit expressly itsdiscontinuanceor
extinctionbytheholder of suchright. Inthose decisions it is the
negative aspect of the right that wasinvoked for which no positive
or overt act was required to bedone by implication. This difference
in the nature of rights hasto be borne in mind when making the
comparison for theapplication of this principle. 22. When a man
commits suicide he has to undertake certainpositiveovert acts
andthegenesis of thoseacts cannot betraced to, or be included
within the protection of the 'right tolife' under Article 21. The
significant aspect of 'sanctity of life' isalso not to be
overlooked. Article 21 is a provision guaranteeingprotectionof
lifeandpersonal libertyandbynostretchofimaginationcanextinctionof
life' bereadtobeincludedinprotection of life'. Whatever may be the
philosophy ofpermitting a person to extinguish his life by
committing suicide,40we find it difficult to construe Article 21 to
include within it theright todie' as apart of thefundamental right
guaranteedtherein. 'Right tolife' is anatural right embodiedin
Article21 but suicide is an unnatural termination or extinction of
lifeand, therefore, incompatible and inconsistent with the
conceptofrighttolife'.Withrespectandinall
humility,wefindnosimilarity in the nature of the other rights, such
as the right tofreedom of speech'etc. to provide a comparable basis
to holdthat the'right tolife' alsoincludes the'right todie'.
Withrespect, the comparison is inapposite, for the reason
indicatedin the context of Article 21.The decisions relating to
otherfundamental rights wherein the absence of compulsion
toexercise a right was held to be included within the exercise
ofthatright,arenotavailabletosupporttheviewtakeninP.Rathinam qua
Article 21. 23. To give meaning and content to the word 'life'in
Article21, it has been construed as life with human dignity. Any
aspectof life which makes it dignified may be read into it but not
thatwhichextinguishesitandis,therefore,
inconsistentwiththecontinued existence of life resulting in
effacing the right itself.The right to die', if any, is inherently
inconsistent with the rightto life' as is death' with life'. 24.
Protagonism of euthanasia on the view that existence inpersistent
vegetative state (PVS) is not a benefit to the patientof a terminal
illness being unrelated to the principle of 'sanctityof life'or the
right to live with dignity'is of no assistance todetermine the
scope of Article 21 for deciding whether theguarantee of right to
life' therein includes the right to die'. Theright to life'
including the right to live with human dignity wouldmean the
existence of such a right upto the end of natural life.This also
includes the right to a dignified life upto the point of41death
including a dignified procedure of death. In other words,this
mayincludetheright of adyingmantoalsodiewithdignity when his life
is ebbingout. But the 'right to die'withdignity at the end of life
is not to be confused or equated withthe right to die'an unnatural
death curtailing the natural spanof life. 25. A question may arise,
in the context of a dying man, whois, terminally ill or in a
persistent vegetative state that he maybe permitted to terminate it
by a premature extinction of hislifeinthosecircumstances. This
categoryof cases mayfallwithin the ambit of the 'right to die'with
dignity as a part ofrighttolivewithdignity,
whendeathduetoterminationofnatural life is certain and imminent and
the process of naturaldeath has commenced. These are not cases of
extinguishing
lifebutonlyofacceleratingconclusionoftheprocessofnaturaldeath which
has already commenced. The debate even in suchcases to permit
physician assisted termination of life isinconclusive. It is
sufficient to reiterate that the argument tosupport the view of
permitting termination of life in such casesto reduce the period of
suffering during the process of certainnatural death is not
available to interpret Article 21 to includetherein the right to
curtail the natural span of life. 36.
InGianKaur'scase(supra),theSupremeCourtrepelledthechallenge based
on Article 14 of the Constitution to the right to lifeunder
Article21andreaffirmedretainingtheSection309intheIndian Penal Code.
The Supreme Court held that abetment of
attempttocommitsuicideisoutsidethepurviewof Section306andit
ispunishable only under section 309 read with section 107 IPC.
Theassistedsuicideandassistedattempt
tocommitsuicidearemade42punishablefor cogent reasons intheinterest
of society. Suchaprovision is considered desirable to also prevent
the danger inherentintheabsenceof suchapenal provision.Theabettor
is vieweddifferently, inasmuch as he abets the extinguishment of
life ofanother persons and punishment of abetment is considered
necessaryto prevent abuse of the absence of such a penal
provision.It alsoheld thatassisted suicides outside the category of
physician assistedsuicide or euthanasiahave no rational basis to
claim exclusion of thefundamental principles of sanctity of life.
The argument that right todie isincluded in Article 21 of the
Constitution and is protected as areligious practicehas no
substance and is not acceptable.37.
InJavedandors.V/sStateofHaryana&ors.(supra),theSupreme Court
rejected the argument that Article 21, which has tobe read
alongwith the Directives Principles and Fundamental rights,includes
the right to procreate as many children asone
pleases.Thefreedomunder Article25issubject topublicorder,
moralityandhealth. The protection under Articles 25 and 26 of the
Constitution iswith respect to religious practice, which forms an
essential part
ofthereligion.Apracticemaybereligiousbutnotanessentialandintegral
part of practice of that religion. The latter is not protectedby
Article 25. A statutory provision casting disqualification
oncontestingfor, or holding, anelectiveofficeis not
violativeofArticle 25 of the Constitution. The Supreme Court relied
onM.IsmailFaruqui (Dr.) V/s Union of India((1994) 6 SCC 360) and
thejudgments in Sarla Mudgal V/s Union of India ((1995) 3 SCC
635),43Mohd.AhmedKhanV/sBhahBanoBegum((1985)2SCC556)andMohd.Hanif
Qureshi V/s State of Bihar (AIR 1958 SC 731).38. In State of
Gujarat V/s Mirzapur Moti Kureshi Kassab Jamat &ors.((2005) 8
SCC 534), a Constitution Bench considering theBombay Animal
Preservation (Gujarat Amendment) Act, 1994restrictingthe bulls and
bullocks below the age of 16 years could notbe slaughtered,
repelled the challenge on the ground
thatslaughteringofcowsonBakrI'sisneitheressentialnornecessarilyrequiredas
apart of thereligious ceremony. Anoptional religiouspracticeis not
coveredbyArticle25(1). Onthecontrary, it iscommon knowledge that
the cow and its progeny i.e. bull, bullocksand calves are worshiped
by Hindus on specified days during Diwaliand other festivals. 39.
In order to save the practice ofSanthara or Sallekhana in theJain
religion from the vice of criminal offence under section 309
IPC,which provides the punishment for suicide and Section 306 IPC,
whichprovides punishment for abetment of suicide, theargument
thatSanthara or Sallekhana is an essential religious practice of
the Jainreligion, has not been established. We do not find that in
any of thescriptures, preachings, articles or the practices
followed by the Jainascetics, the Santhara or Sallekhana has been
treated as an essentialreligious practice, nor is necessarily
requiredfor thepursuit ofimmortality or moksha. There is no such
preaching in the religiousscriptures of theJain religion or in the
texts writtenbythe reveredJain Munis that the Santhara or
Sallekhana is the only method,44without whichthemokshaisnot
attainable. Thereisnomaterialwhatsoever to show that this practice
was accepted by most of theascetics or persons following the Jain
religion in attaining the nirvanaor moksha. It is not an essential
part of the philosophy and approachof the Jain religion, nor has
been practiced frequently to give up thebody for salvation of soul.
It is one thing to say thatthe Santhara orSallekhana is not suicide
as it is a voluntary act of giving up of one'sbody for salvation
and is not violent in any manner, butit is anotherthingtosaythat it
is permissiblereligious practiceprotectedbyArticles 25 and 26 of
the Constitution of India.40. The Constitution being governing law
and fountain headof thelaws in India, guarantees certain freedoms
as fundamental rights andalso provides for constitutional rights
and duties and statutory rightsunder the laws made under it.It does
not permit nor include underArticle 21the right to take one's own
life, nor can include the rightto take life as an essential
religious practice under Article 25 of theConstitution.41.
Article25oftheConstitution of India guarantees freedom ofconscience
and free profession, practice and propagation of religionunder the
heading Right to Freedom of Religion,subject to publicorder,
morality and health and to the other provisions of this Part,which
includes Article 21. No religious practice, whether essential
ornon-essential
orvoluntarycanpermittakingone'sownlifetobeincludedunder Article25.
Theright guaranteedfor
freedomofconscienceandtherighttofreelyprofess,practiceandpropagate45cannot
include the right to take one's life, on the ground that
righttolifeincludestherighttoendthelife.
Eveninextraordinarycircumstances, the voluntary act of taking one's
life cannot
bepermittedastherighttopracticeandprofessthereligionunderArticle 25
of the Constitution of India.42. The respondents have failed to
establish that the Santhara or'Sallekhana' is an essential
religious practice, without which thefollowing of the Jain religion
is not permissible. There is no evidenceor material to showthat the
Santhara or Sallekhana has beenpracticed by the persons professing
Jain religion even prior to or
afterthepromulgationoftheConstitutionofIndiatoprotectsuchrightunder
Article25of theConstitutionof India. Theover-ridingandgoverning
principles of public order, morality and health, conditionsthe
right to freedom of conscience and the right to freely
profess,practice and propagate religion.The right under Article 25
issubjectto theother provisions of this Part, which includes
Article 21. We areunabletoacceptthesubmissionthatthepracticeof
'Santhara' or'Sallekhana' asareligiouspracticeisanessential partof
theJainreligion, to be saved by Article 25 orArticle26 or Article
29 of theConstitution of India.43. The writ petition is allowed
with directions to the Stateauthoritiestostopthepracticeof
'Santhara' or'Sallekhana' andtotreat it as suicide punishable under
section 309 of the Indian
PenalCodeanditsabetmentbypersonsundersection306oftheIndianPenal
Code. The State shall stop and abolish the practice of46'Santhara'
and 'Sallekhana' in the Jain religion in any form. Anycomplaint
made in this regard shall be registered as a criminal caseand
investigated by the police, in the light of the recognition of
lawintheConstitutionofIndiaandinaccordancewithSection309orSection
306 IPC, in accordance with law. 44. Beforeparting withthematter,
wethanklearnedcounselsappearing for the parties for their valuable
assistance given to Courtin deciding the matter.(VEERENDR SINGH
SIRADHANA),J.(SUNIL AMBWANI),CJ.ParmarCertificate:All corrections
made in the judgment/order have been incorporated in
thejudgment/order being emailed.Parmar, PS