Ritual Death in a Secular State: The Jain Practice of Sallekhana

Introduction to Sallekhana and its Legal Challenge

Subject of the Paper: The Jain practice of ritual voluntary death, known as sallekhana or santhara (also samadhimaran or panditamarana).
Core Practice: According to ancient Jain texts, Jains are enjoined under specific circumstances to progressively renounce food and water until life naturally ceases.
Legal Background:
- In 2015, the Rajasthan High Court criminalized sallekhana.
- It ruled that the state must abolish it and register criminal cases under Sections 309 (attempt to commit suicide) and 306 (abetment to suicide) of the Indian Penal Code (IPC) against anyone practicing or abetting it.
- This judgment culminated a decade-long legal battle initiated by a Public Interest Litigation (PIL) writ petition.
Paper's Purpose:
- Not to defend or critique sallekhana, nor to explain its meaning to practitioners.
- Instead, it examines what happens when piety and belief are brought into a courtroom, where one party seeks its denunciation and another its validation or indifference, from modern, rational law.
- It analyzes the anxieties framing both sides of the debate: those triggering the lawsuit and the court's response, and the vigorous defense by the Jain community against perceived loss of faith.
- It also investigates if the High Court judgment reflects a Christian/colonial legal legacy that outlawed suicide, by scrutinizing colonial attitudes towards sallekhana.
Key Issues: Religious reform, judicial memory of sati, essential religious practice doctrine, Right to Life (Article 21), suicide, euthanasia, colonial legal legacy.

Sallekhana as a 'Social Evil' and its Link to Sati

Lack of Reliable Statistics: There are no precise figures for Jains undertaking sallekhana annually.
- 1992 estimate by Billimoria: 5 to 10 cases yearly, potentially higher for unpublicized instances.
- Babulal Jain Ujjwal's annual newsletter: average of 550 santharas in 2009 and 465 in 2008.
- Baya's sample (January 1994–December 2003): 350 cases over a decade, extrapolating to 20 per month or 240 per year (conservative estimate).
Gender and Sectarian Differences (Baya's Sample):
- Data not gender-disaggregated overall, but public announcements confirm participation of both men and women.
- Digambars: 46\% monks and 39\% nuns, versus 1\% lay men and 0.6\% lay women.
- Shvetambars: Overwhelmingly lay followers.
- Societal Perception: Persistent gossip and insinuation that women outnumber men, and that sallekhana is a patriarchal tool to dispose of older, dependent female family members. This perception draws parallels with the campaign against sati.

Colonial Anti-Suicide Law and its Legacy

Historical Context: The Indian Penal Code's Sections 309 (attempt to commit suicide) and 306 (abetment to suicide) stem from English common law.
- English Common Law: Historically deemed suicide a crime against God, the King, and nature, often resulting in ignominious burials and forfeiture of property.
- Colonial Adaptation: British colonial rulers introduced these laws to India, largely ignoring local traditions or religious practices that might involve self-willed death, such as sallekhana.
- Impact on Sallekhana: The framing of sallekhana as suicide aligns with a colonial perspective that views all forms of self-willed death through the lens of criminality, rather than religious or philosophical choice.
- Disregard for Nuance: This legal framework fails to distinguish between impulsive, despair-driven suicide and religiously motivated, premeditated sallekhana.

Article 21 and the Right to Life

Indian Constitution (Article 21): Guarantees the right to life and personal liberty, stating "No person shall be deprived of his life or personal liberty except according to procedure established by law."
Judicial Interpretation: Over time, Indian courts have expanded Article 21 to include the "right to live with dignity" and, controversially, the "right not to live" or "right to die."
- P. Rathinam v. Union of India (1994): The Supreme Court held that the right to life under Article 21 included the right to die, making Section 309 IPC unconstitutional. This decision was later overturned.
- Gian Kaur v. State of Punjab (1996): A larger bench of the Supreme Court overturned Rathinam, stating that the right to life does not include the right to die. It distinguished between the right to die and the right to a dignified life until natural death. The court differentiated between suicide and euthanasia.
  - Suicide: Defined as the unnatural extinction of life, not covered by Article 21.
  - Euthanasia: Considered an aid to a dignified death for incurable patients, but still legally complex in India.
- Common Argument Against Sallekhana: Opponents argue that if the right to die is not part of Article 21, then sallekhana, viewed as suicide, cannot be protected under this article.

Sallekhana and Religious Freedom (Article 25)

Indian Constitution (Article 25): Guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion.
- Limitations: This right is subject to public order, morality, and health, and to other provisions of Part III of the Constitution (Fundamental Rights).
"Essential Religious Practice" Doctrine: To claim protection under Article 25, a practice must be an "essential" or "integral" part of a religion.
- Judicial Test: Courts determine what constitutes an essential practice, often relying on religious texts and scholarly opinions.
- Challenge for Sallekhana: The legal debate revolves around whether sallekhana is an essential practice of Jainism or merely an optional ascetic discipline.
  - Proponents' View: Jains argue it is a sacred vow, a path to spiritual purification, and a core tenet of their religion.
  - Opponents' View: Argue it is not universally practiced, not mandated for all Jains, and thus not essential.
Sati Precedent: The legal battle over sati (widow immolation) in the 19th century and its subsequent criminalization serves as a backdrop. The state argued sati was not an essential religious practice but a social evil. This historical precedent influences the modern debate on sallekhana.

Conclusion to the Legal Conflict

Rajasthan High Court Judgment (August 2015): The court ruled that sallekhana is not an essential religious practice of Jainism and criminalized it under Sections 309 and 306 IPC.
- Reasoning: The court largely aligned with the petitioner's argument, categorizing sallekhana as suicide and drawing parallels with societal evils like sati.
- Impact: Triggered widespread protests and legal challenges from the Jain community.
Supreme Court Stay (August 2015): The Indian Supreme Court stayed the Rajasthan High Court's order, effectively allowing the practice to continue pending further review.
- Current Status: The legal status of sallekhana remains pending before the Supreme Court, highlighting the ongoing tension between religious freedom, individual rights, and the state's role in regulating perceived social evils.
Broader Implications: The case underscores the difficulties in applying secular legal frameworks to define and regulate religious practices, particularly when they involve life and death decisions.