November 6, 2017
Through this paper, I wish to shed light upon the Jain practice of ‘Sallekhana’ or ‘Santhara’ and how will argue why the judgement Nikhil Soni v. Union of India is flawed in categorising ‘Sallekhana’ as suicide.
Jainism – one of the ancient religions of the subcontinent – is known for its principles of non-violence, non-absolutism and non-attachment. One of the first religions to put forth the notion of distinguishing the ‘body’ from the ‘soul’, Jainism’s philosophy propounds that the universe is eternal and every ‘soul’ in it has the potential to win over its “inner enemies” such as attachment, greed and arrogance. ‘Souls’ which are able to do so are considered as synonymous to Godhood. The religion further prescribes ‘Five Great Vows’ and ‘Seven Supplementary Vows’ to its followers. The practice of ‘Sallekhana’ is a part of these supplementary vows.
‘Sallekhana’ literally means to ‘thin out’ or ‘slender the passions of the body by abstaining from the consumption of food and drink. Its practitioners – which may include both Jain ascetics and householders – fast to death by gradually reducing their intake of food and liquids. Through the Jaina text – ‘Ratnakaranda Srāvakācāra’, we can gather that the practice is viewed as the thinning of human passions (leading to ‘ahisma’) and a means of destroying rebirth-influencing Karma (built on the Jain premise that ‘rebirth is suffering’) by withdrawing from all physical and mental activities (which are the root cause of ‘himsa’).
‘Sallekhana’ at all times is voluntary and those undertaking it, publicly announce their intentions to the community – which wholeheartedly supports and reveres their decision to do so – in their quest to attain the ultimate salvation. It is of prime importance to understand that the act is never assisted with any chemicals and tool nor is an act of passion and thus is not deemed as “suicide” by Jain scholars. However, mere ratification from the Jain scholars in itself isn’t enough for the commission of ‘Sallekhana’ to not fall under the scope of “attempt to suicide” in the eyes of the law. Rather, it must be put to test through the definitions of the laws of the land.
On August 10th, 2015, the Rajasthan High Court, in the case of Nikhil Soni v. Union of India[1], ruled the Jain practice of ‘Sallekhana’ as suicide, making it an offence punishable under s. 309 of the Indian Penal Code (attempt to commit suicide) and those assisting its practitioners under s.306 (abetment to suicide).
There was major backlash and criticism to the judgement in the Jain community which felt that the practice premised on the idea that the act of fasting is an exercise of bodily autonomy, allowed a believer to attain a state of absolute transcendence. However, the Court, in the words of film-maker Shekhar Hattangadi “found that such matters of integrity, of choosing how one wants to lead life, do not enjoy any constitutional protection, and that voluntary fasting is nothing but a performance in self-destruction.”[2]
The High Court’s judgement throws up two issues for consideration. Firstly, whether practicing ‘Sallekhana’, irrespective of its protection as an integral part of the Jain religion, will amount to suicide. Secondly, what is the implication of the constitutional protection under Article 25 to the practice of ‘Sallekhana’ being an integral part of Jainism. This research paper will be focusing more on the first issue and shall examine whether the practice of ‘Sallekhana’ will attract the criminality enacted under s. 309 of the Indian Penal Code.[3]
IPC leaves glaringly undefined. We are therefore left to gather the meaning of the term from legal precedents and external aids of interpretation.
Mens rea and actus reus are the fundamentals of comprising a crime. In mens rea, it must be proved that there was an intention to commit a crime. Without intention no criminal offence will come into existence (apart from a few exceptions). Even in s.309 of the Indian Penal Code[4], an important requirement for the prosecution to prove is that the accused had the intention to commit suicide. Simply put, the prosecution must prove that the intention of the accused was to deliberately and voluntarily put an end to his life. On the other hand, if no such intention exists but the act of death is incidental to a similar act, performance of which is the real intention when there is no mens rea to commit suicide. With that logic in play, people partaking in life-threatening stunts would also fall under the scope of attempt to suicide!
Jains by the practice of ‘Sallekhana’ aspire to keep their mental faculties alert while proceeding from the present life to whatever lies ahead. Moreover, this is an integral part of their religion in the hope of attaining a good Karma. Several similar practitioners have performed this act and recorded their experiences in endeavour seeks to fathom the mystery of life. Death arising out of starvation is not the intention but supplementary to the real intention of seeking the ultimate salvation. Death is merely incidental and not intentional. On these grounds, I’d like to assert my claim that s.309 of the Indian Penal Code must not apply to the execution of the practice of ‘Sallekhana’.
In light of the second bone of contention, ‘Sallekhana’ – as explained in the former part of the paper – being an integral part of the Jain religion, must be granted protection under Article 25 of the constitution. Article 25 provides that every citizen will have the freedom to freely profess, practice and propagate their religion. The Rajasthan High Court is wrong in taking the judgement of the Supreme Court in the Gian Kaur case as precedent as the case never considered the constitutional protection to religious practice under Article 25. Incidentally, the judgement of the Supreme Court did not consider the aspect relating to intention of the party
Due to all the aforementioned reasons, I reiterate my claim of ‘Sallekhana’ not being violative of s. 309 of the Indian Penal Code and being protected under Article 25 of the Constitution of India. Furthermore, I truly hope that the verdict of the High Court – which has received an interim stay order – will be duly reversed when the case is contested by the Supreme Court of India.
[1] Nikhil Soni v. Union of India 2016 (1) CLT 238
[2]<http://www.thehindu.com/opinion/op-ed/santhara-in-the-eyes-of-the-law/article7541803.ece> accessed 30th October 2017.
[3] s. 309 of the Indian Penal Code, 1860.
[4] s. 309 of the Indian Penal Code, 1860
Bhrigu A. Pamidighantam 
Leave a comment