Why some Indians are fighting for the right to starve to death

GlobalPost
Jains chant religious slogans during a protest in Mumbai against the Rajasthan State High Court order on Santhara, a Jain practice of fasting unto death.
PUNIT PARANJPE

NEW DELHI, India — India’s Jains may no longer have the right to die in the way of their choosing.

Last month, the High Court of Rajasthan ruled that the practice of Santhara — the ancient religious practice of starving to death, practiced by Jains since 300 BC — is against the law.

The ruling, which came in response to public interest litigation filed in 2006, found that the ritual constituted a criminal attempt of suicide, and that those who encouraged the practice could be booked for abetment. The court also found that the practice violates the fundamental right to life guaranteed by the Indian constitution.

“Suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life,” the statement read.

In response, thousands in the economically and socially powerful Jain community poured out on the streets in protest.

"Santhara is nothing but an art of dying."

Jains, a religious minority, have argued that the ruling violates their religious freedom, and misreads the practice of ritual self-starvation entirely. “[The Rajasthan High Court] has not tried to understand what Santhara is,” said A.K. Jain, the founder and president of the Ahimsa Foundation, an umbrella organization for Jain groups.

Jain explained that the religion’s scriptures state that the soul does not die, but is transferred from one body to another, or in the case of salvation, released from its earthly form. “When you accept Santhara, it is a process of purification of your soul. You leave all your old karma and start a new life in a new body,” said Jain. He described how a person who takes Santhara must ask his family for permission to do so, and has the opportunity to say goodbye. Death is considered a time of celebration and prayer. “In suicide you are alone, but in Santhara everybody is supporting you. Santhara is nothing but an art of dying.”

However, religious freedom in India is not absolute, and must not violate other fundamental rights. The judiciary set the precedent that only a religion’s ‘essential practices’ need to be protected, and those which are not widely practiced or found necessary to belong to a certain faith can be declared illegal if they contradict other laws. While the High Court found that Santhara was not an essential practice, Jains claim that the respondents, who included lawyers and members of the Jain community, did not adequately explain and defend the importance of the ritual.

The issue also brings up another non-religious debate India has struggled with — whether the right to life includes the right to death. So far, as euthanasia and mercy killing remain illegal, it does not.

"Are you going to start prosecuting people who have a smoking habit of committing suicide?"

“If a person chooses non-violently not to take food or water or medicine, that emanates from their right to life and liberty,” said Alok Prasanna Kumar, a senior resident fellow at the Vidhi Centre for Legal Policy. “Santhara should be seen as someone peacefully exercising their right to autonomy over their own body.”

The group filed an intervention petition in 2005 supporting the consideration of living wills, which express the desire of an individual regarding their end-of-life medical care, if they are unable to communicate it themselves. Such wills are currently not accepted in India, as the right to life does not include the right to death, or to refuse treatment. Kumar argued that the religious practice of Santhara does not align with suicide, as the latter must be an active measure to end one’s life. The notion of harm to oneself cannot be extended well into the future, according to Kumar.

“Are you going to start prosecuting people who have a smoking habit of committing suicide?” he said. “I believe it should be placed at the level of a civil liberty, not just a religious right, to say your right to determine what happens to your body is your own.”

Recently, the government has mulled decriminalizing suicide, and to consider it a mental health problem rather than a crime. The Indian Law Commission recommended such a step and the government promised to take up the process last December, but no action has been taken yet.

However, there is opposition to the decriminalization of suicide, and the reasons are relevant in the case of Santhara as well. According to Madhav Mitra, the attorney who filed the Rajasthan High Court petition on behalf of Nikhil Soni, India cannot approach the right to death the same way other countries do.

“Literacy levels are very poor in India. We cannot ascertain that the person who is giving consent understands the pros and cons,” said Mitra, speaking against including the right to death in the right to life. He felt that such a law could be misused to acquire property or to remove the financial burden of an aged parent, and that doctors could be bribed to comply.

In his petition, Soni had given examples from his childhood, of watching aged and helpless Jains die painful deaths as their families forced them to take up Santhara. “Even if it is not a coercive decision, after one or two days of fasting, the relatives do not allow them to revert [from Santhara],” said Mitra.

"If you are a mighty community [you can] demonstrate all over India just in order to prejudice the court."

The Jain community went to the Supreme Court to protest the High Court decision, and on Tuesday, the ban was stayed until further notice. Further legal arguments will decide if the practice will be declared illegal or not, but for now, the ban cannot be enforced. Mitra expressed disappointment in the Supreme Court action, which he felt did not fully consider the social evil of Santhara.

“The [High Court judgement] has been stayed without even hearing us. The SC has stayed the judgement in 60 seconds,” said Mitra. He pointed out that the Hindu practice of sati, where a widow burned herself at her husband’s pyre, was also outlawed by the Rajasthan High Court, but the decision was not appealed at the Supreme Court despite protests.

He contrasted this with the effect of the vociferous opposition mounted by Jains. “If you are Jain, if you are a mighty community [you can] demonstrate all over India just in order to prejudice the court.”