IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO.
OF 2015
[From the final judgment and order dated 10.8.2015 passed by the Hon’ble High Court of Judicature for Rajasthan at Jaipur brnch, Jaipur in D.B. Civil Writ petition no. 7414 /2006.] WITH PRAYER FOR INTERIM RELIEF IN THE MATTER OF: Akhil Bharat Varshiya Digamber Jain Parishad. …
Petitioners
Versus Union of India & ors.. …
Respondents
WITH
I.A. No. ____________ OF 2015 Application for permission to file the special leave petition
PAPER
BOOK
FOR INDEX KINDLY SEE INSIDE
ADVOCATE FOR THE PETITIONER: SMT. PRATIBHA JAIN
INDEX S.NO.
Particulars.
1.
Office Report on Limitation
2.
Listing Proforma
3.
Synopsis & List of Dates
4.
Copy of the Final impugned judgment and order dated 10.8.2015 passed by the Hon’ble High Court of Judicature for Rajasthan at Jaipur bench, Jaipur in D.B. Civil Writ petition no. 7414 /2006 - APPEALED AGAINST-
5.
Special Leave Petition with Affidavit
6.
Annexure P-1 A copy of the D.B. Civil Writ Petition No. 7414/2006 filed before the Hon’ble High Court of Judicature for Rajasthan at Jaipur bench, Jaipur dated 29.5.2006
7.
Annexure P-2 A copy of the order dated 22.09.2006 of the Hon’ble High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Writ Petition No. 7414/2006
8.
Annexure P-3 A copy of the impleadment application filed before the Hon’ble High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Writ Petition No. 7414/2006 dated 29.9.2006
9.
Annexure P-4 copy of the order dated 21.12.2006 by the Hon’ble High Court of Hon’ble High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Writ Petition No. 7414/2006
10.
Annexure P-5 Written submissions filed by Shri Veerendra kumar Jain filed before the Hon’ble High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Writ Petition No. 7414/2006 dated nil.
11.
Annexure P-6 copy of the reply filed by the State Government filed before the Hon’ble High
Pages A
Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Writ Petition No. 7414/2006 dated 16.9.2006 12.
Annexure P-7 Copy of the order dated 23.04.2015 passed by the Hon’ble High Court Hon’ble High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Writ Petition No. 7414/2006
13.
Annexure P-8 Copy of the impleadment application No. 23487 of 2015 filed by the petitioner before the Hon’ble High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil Writ Petition No. 7414/2006
14.
I.A. No. of 2015 Application for permission to file the special leave petition
SYNOPSIS The
present
case
involves
substantial
question
as
to
the
interpretation of the words “Liberty of thought, expression, belief, faith and worship” used in the Preamble read with Articles 25(1), 26 and 29 of the Constitution of India. It is submitted that the Hon’ble High Court has in the impugned judgment, without appreciating the basic philosophy and tenets of the Jain religion and without compliance of its earlier order dated 21.12.2006 has finally directed as under: “43. The Writ Petition is allowed with the directions to the State authorities to stop the Practice of ‘Santhara’ or ‘Sallekhana’ and to treat it as a suicide punishable under section 309 of the Indian Penal Code and its abetment by persons under section 306 of the Indian Penal Code. The State Shall stop and abolish the practice of ‘Santhara’ or ‘Sallekhana’ in the Jain religion in any form. Any complaint made in this regard shall be registered as a criminal case and investigated by the police, in the light of the recognition of law in the Constitution of India and in accordance with section 309 or 306 IPC, in accordance with law” It is submitted that the aforesaid order impugned herein has been passed in a Public Interest Litigation petition filed in the year 2006 by the writ petitioner - respondent no.3 herein who is neither a Jain nor well versed with the concept of Sallekhana or Santhara. The petitioner herein most respectfully submits that the Hon’ble High Court has decided the aforesaid issue, which is part of religious faith of all the members of the Jain Community, without ensuring that the entire community and its sections, who would be affected by the decision and who have a vital interest in the lis, are duly represented. The petitioner most respectfully submits that the Digambar Jain Community, which is one of the major sect of the Jain Community was entirely unrepresented before the Hon’ble High
Court
and
the
writ
petitioner
did
not
implead
the
bodies/organizations in a manner so that there is a proper representation of all sections. It may be also submitted that the Hon’ble High Court also failed to appreciate that Sh. Virendra Kumar Jain, who was the only representative member of the Digambar Jain community had filed an application for impleadment under Order 1 Rule 10 of CPC and had also submitted written submissions
which
have
however
not
been
taken
into
consideration by the Hon'ble High Court. The petitioner herein most respectfully submits that the writ petition was filed by the Respondent no.3 – Shri Nikhil Soni on a
total misconception and false notion of Sallekhana or Santhara conjured
from
inadequate/erroneous
knowledge
of
a
pious
religious practice. It is submitted that the Hon’ble High Court without discussing the actual historical/ancient origin and object of Santhara/ Sallekhana and its religious importance as part of a basic element of Jainism i.e. “aparigriha” has proceeded to equate the same with the offence of suicide. It is submitted that the Hon'ble High Court has ignored the extensive submissions as well as the sculptures placed before the Hon'ble High Court showing the Jain faith in taking vow of Santhara/Sallekhana. It is submitted that before the Hon'ble High Court, Shri P.C. Bhandari also recited the Atra and shlokas and narrated the various stages of attaining the Santhara/Sallekhana and explained the same to the Hon'ble Court. The Hon’ble High Court has treated the said explanations given by Shri P.C. Bhandari as an object of amusement to the general public, which the petitioner submits amounts demeaning a pious religious practice which was entirely uncalled-for. It is submitted that the Hon’ble High Court has in the impugned judgment observed:“Shri P.C.Bhandari has explained to us in great detail as to how the Santhara is practiced reciting the Mantras and narrating the stages of attaining the Santhara with reverence. He submits that it is a highest order in Jain religion. He has explained to us the manner in which the vow of Santhara is taken and has recited the slokas in a loud voice in the Court, to the amusement of the general public sitting in the Court.” It is further submitted that Santhara being a religious practice is based on the ancient traditions of Jainism. True meaning and philosophy of this religious belief and practice could only be explained by references to the revered scriptures, which included Shloka and mantras. The Hon’ble High Court however did not appreciate the either the meaning of the shlokas or the philosophy behind the same. It is submitted that in the impugned judgment, though the Hon’ble High Court records some of the contentions in the written submissions filed by the interveners/impleaded parties but has failed to either discuss the same or consider the same on legal or religious principles. The Hon’ble High Court has not appreciated the form and context of the arguments and hence there was a complete non application of mind on the contentions put forth in the said written submissions.
Without prejudice to the above, the petitioners submit at the outset that the directions to equate Santhara with suicide have been given by the Hon'ble High Court without appreciating or realizing the basic philosophy and tenets of the Jain Religion and its practices – the concept of Ahimsa – non violence. The concept popularly known as “jiyo aur jine do” – “Live and let live” is one of the very fundamental tenet of Jain religion which believes in nonviolence and which abjures all forms of violence including violence to ones own self. It is submitted that it is unwise and improper to link a sacred practice of the Jain religion (i.e. Santhara or Sallekhana), which religion is itself premised on ahimsa (i.e. nonviolence) with a suicide - an inherently violent act. The Hon'ble High Court has also not appreciated the true concept of the vow of Sallekhana or Santhara and the purity and simplicity of the thought behind the said practice and has grossly erred in comparing it with “suicide” or “sati”- which finds a huge disfavour even in the Jain religion. It is submitted that the practice of Sallekhana or Santhara, conceptually and actually is very distinct from “Suicide” and cannot at all be termed or equated with it so as to attract the provisions of either section 309 or section 306 of the Indian Penal Code. It is submitted that the Hon'ble High Court has without dealing with the extensive submissions made before the Hon'ble High Court by the representatives of the Jain Community relating to the religious practice has simply in one sentence in para 42 observed that the members of the Jain Community had failed to establish that Sallekhana or Santhara is an essential religious practice without which the following of the Jain Religion is not possible and therefore does not enjoy the protection of Article 25 of the Constitution of India. PHILOSOPHY OF THE JAIN RELIGION AND THE VOW OF SALLEKHANA A. Jainism is a religion seeking happiness in renunciation – Tyag, Aparigraha and Veetragta: Jainism believes that the soul (the Jeev or Aatman) is eternal, pure and perfect. The soul in this pure form is an eternal bliss. However due to the acts that we commit (i.e. the karmas), which could be good or bad, the soul gets bound to the body and becomes subject
to cycle of “birth and rebirth”. The person gets happiness or woes in a birth according to his previous karmas. However this worldly happiness or sorrow is temporary and leads to further bondage of karmas. The only way therefore to attain eternal happiness or bliss (moksha) is the liberation of the soul from the bondage of karma. According
to
the
Jain
philosophy,
this
liberation
and
the
consequent state of eternal bliss (moksha) can be achieved by preventing the influx of new karmas (samvar) i.e. by getting rid of both bad karmas as well as good karmas. In order to prevent the influx of new karmas, the soul has to let go of the greed/lust for all material pleasures and has to adopt equanimity (samabhav) in happiness or in sorrow. This equanimity can be achieved by renunciation of anger, pride, deceit and lust for worldly pleasures. The
Jain
philosophy
therefore
lays
great
stress
on
Tyag
(renunciation), Aparigraha (non-attachment) and Veetragta (the absence of passion or hatred). It is submitted that in Jain religion, there is faith and belief of inculcating “tyaga” or renunciation from childhood itself. The followers of Jainism therefore have great faith in renunciation and endevour
to
renounce
various
material
pleasures
including
renunciation of food or fasting. They follow a systematic pattern of fasting or renunciation of food as per their ability as part of their routine lives. Many Jains renounce having food after “sunset” a practice called “chauvihar”. They also abstain from eating or using any meat or animal product which causes violence or “himsa”. Apart from this, on every Ashtami or Chaturdashi (the eighth day and the fourteenth day the lunar fornight), Jains observe some kind of renunciation of food, popularly called “vrat”, i.e either complete fast or one meal a day or renouncing some particular items of a meal as per the ability and choice of the person. This totals to 48 days of vratas in a year when food and other worldly pleasures are renounced in some form. Apart from this, the Jains also carry out a 10 day celebration called the Paryushan Parv in the Indian calendar month of “Bhadra pada” which is also nothing but a celebration of renunciation. All Jains young and old, Sadhus and Gruhasthas – do observe some kind renunciations in these days which could even be a 10 day fast without food and water. This makes 58 days of fasting or food renunciation in an year.
In the 10 days of Paryushan Parv, each of the 10 days (under the Digambar sect) stand for particular dharma as follows:Day 1- day of Kshama – seek forgiveness Day2 – day of Mardav – abjure wanton pride Day3- day of Aarjav – adopt simplicity and avoid deceit Day 4- day of Satya – Speak and adopt truth Day 5 – day of Sauch – adopt peity and purity in life Day 6- day of Sanyam – adopt discipline and curb desires Day 7- day of Tap – observe penance or “Tapasya” Day 8 – day of Tyag – renunciation Day 9- day of Ankinchan – reduction of desires to possess material things Day 10- day of Bhramcharya – renunciation of all worldly pleasures including sexual pleasures At the end of Paryushan Parv the day of Kshmavani is celebrated when all Jains seek forgiveness for their conduct from others irrespective of the age, social status and relationship. This mutual exchange of forgiveness even with the younger ones is intended to rid a person of his wanton pride and anger and leads to purification of his soul. Apart from the above, in shwetambara sect of Jains, the practice of “maaskhaman” is popular which involves fasting for one month drinking only warm water once a day. The Jain acharyas follow even stricter forms of renunciation i.e having food only once a day limiting themselves to 32 morsels including water and renouncing the food if the desired conditions are not met. (For a detailed reference on the lifestyle of Jain Acharyas the Petitioner craves leave to relavent portions of the Jain scriptures at the time of hearing). It is submitted that not only this, several other forms of renunciation like Dana (donations) and Aparigraha (limiting the number of facilities you enjoy) is also practiced widely. As is clear from the above, Jain religion seeks to achieve happiness by abjuring desires for material pleasures. It is believed that these desires lead to passions and bondage of “karma” which binds the soul and prevent it from attaining eternal bliss. Therefore the concept of renunciation to achieve eternal bliss is at the very core of Jainism which cannot be achieved without Tyag, Aparigraha and Veetragta and hence all forms of Tyag, Aparigraha and Veetragta constitute an essential religious practice which distinguishes it from other religions where God is worshipped for seeking material well being.
B. Sallekhana or Santhara is an extension of the basic philosophy of renunciation followed by the Jains through out their lives: It is submitted that renunciation or Tyag and Aparigraha are the very basic tenets of Jain philosophy and is at the core of the very philosophy of the religion. It is submitted that all Jains do practice them in their daily lives in some form according to their ability. They seek and endeavor to raise their spiritual level and decrease the influx of karma by taking up stricter renunciations of material pleasures for reduction of anger, deceit, wanton pride and greed. This
process
of
renunciation,
and
finding
contentment,
detachment from passions and hatred, is a way of life and goes on through out the life. The vow of Sallekhana is nothing but a systematic process of renunciation in which first the person tries to get himself rid of all gross passions, hatred, attachment, anger, pride, greed, deceit and finds contentment in renunciation of material pleasures. It is a process of curbing all desires – desires which lead to passions – which are responsible for the influx of karmas – which ultimately results in bondage of the soul and loss of the state of eternal bliss. In the Jain faith, a soul never dies, it only changes bodies till it achieves Moksha or the state of eternal bliss. Thus death, in Jainism, is not an end but a mere change, a departure of the soul from the body in order to acquire a new one unless the soul attains moksha. The state of eternal bliss is the state where the soul is pure and without the bondage of karma or body and is thus free from the cycle of birth and rebirth. Thus to get out of the said cycle, a vow of sallekhana is essential. At which stage of the cycle birth and re-birth a person may be is not known and this is error which the Honble High Court has committed to decide whether this practice forms a core of the religion. The High Court views the Jain religion followed by an individual in the spectrum of one life span only and therefore considers that since all Jains do not take Santhara or Sallekhana it cannot be termed as an essential religious practice. The Jain faith on the contrary is not limited to one life span and but accepts birth and rebirth until the soul attains moksha. Whether the soul gets liberated and achieves the eternal bliss is dependant on the karmas of all births and re-births which accumulate to decide the
liberation of the soul – at which stage of birth and re-birth a person actually is not known. The soul would ultimately get liberated only after being rid of all bondages or karmas. The basic concept underlying a vow of Sallekhna or Santahara is to prevent “influx” of new karmas so as to liberate the soul from bondage of karmas. Thus sallekhana forms the core of the philosophies of the Jain ideology. C. The Practice of Sallekhana or Santhara – how the vow is taken and how it culminates The word “sallekhana” is derived from the word “sat” and “lekhna”. Sat means “samyak” i.e. rational or true, “lekhna” means a gradual weakening of the passions/desires. Thus by Sallekhana a person seeks to renounce mundane desires, weaken the bondage of karmas and to achieve the consequent state of eternal bliss. Thus Sallekhana is only a continuation of the practice of renunciation and curbing of desires which a Jain follows throught his life. The culmination of Sallekhana is Santhara. Though the words Sallekhana and santhara are used synonymously there is difference between the two. The preparatory penance to overcome all forms of bondage is called Sallekhana and embracing death whenever it comes, in a state of peace and equanimity of mind is called samadhimaran or Santhara . It is also to be noted that Santhara cannot be taken on ones own choice and can be taken only if permitted by the sadhak gurus, family, friends and relatives who are satisfied that the death is imminent. Also, the vow of Sallekhana can be taken by the person only if he consents to it and the same cannot be forced upon him. The petitioner most respectfully submits that unlike the process suggested in the impugned order, Sallekhana is not an abrupt renunciation of all food and sustenance but is a slow and systematic renunciation first of the four vices, i.e. anger, pride, deceit and greed, then the desires of worldly pleasures, then the bondage of love and hatred. The renunciation of food is very gradual and is undertaken by the person only at his will depending upon the conditions of his body and his ability to undergo such renunciation peacefully. The person undertaking Santhara or Sallekhana has the choice of revoking the vow anytime if he feels
so and there is no compulsion on him to continue with the vow once taken. The most important aspect of the present case and the concept of Sallekhana or santhara is that there is no will to die as the idea is to renounce all desires including the desire to die also. It is submitted that there are instances where even after taking the vow of Sallekhana, the person has survived for several years. The Petitioner submits that a living example is Acharya Vidyanandi ji Maharaj who had taken the vow of Sallekhana several years ago and is still surviving. In Shewtambar Jain shastras namely Achrang Sutra and Shri Bhagwati Sutra and in Digambar Jain Shastras namely Bhagwati Aaradhana and Moolachar, we may trace the philosophy of Santhara or Sallekhna in detail. They lay down that Sallekhna an effort to live according to religious tenets till the last breath It is an experiment of cultivating detachment. The petitioner craves liberty to refer to these scriptures and produce further references and scriptures during the course of hearing. D.
Writ
petitioner’s
oral
version
of
the
practice
of
Sallekhana is totally misconceived. It is submitted that the act of sallekhana or santhara as potrayed by the writ petitioner which forms mention in para 19 of the impugned order that:“The petitioner appearing in person has tried to demonstrate that adoption of Santhara, an act with criminal content, has become a means of climbing social ladder. Any person adopting Santhara is not allowed to go back on his vow, and the entire family and community forces him/her to complete the process in which he has to go through inhuman and intolerant conditions. He/she is some times tied to the chair or bed and is not allowed to eat and drink, even if he/she wants to come out of the vow or suffers from pain on the ground of criticism. A person adopting Santhara is surrounded by the groups singing Bhajan and Kirtan and he/she is made to loose conscience and drawn by religious fanaticism, to accept the process of death. It is nothing but killing a person, who may or may not have in the religious belief vowed to adopt Santhara as a means to end his/her life.” is a perverse description of the true meaning of practice of Sallekhana or santhara. It is submitted that this perversity has stemmed from half baked or inadequate knowledge of the tenets of Jain religion. It is submitted that none of the aforesaid allegations were made in the Writ Petition or Reply or Additional Affidavit filed before the Hon’ble High Court. It is submitted that no
such
instance
is
there
in
the
Jain
religion
where
Santhara/Sallekhana has ever been misused by anyone in the community and the same is just contrary to Jain religion concepts altogether. The allegations are completely false and no proof or evidence to prove the aforesaid allegation has been filed by the writ petitioner alongwith the writ petition. E. Santhara is certainly not suicide – suicide is prohibited in Jain religion. Sallekhana or Santhara is not an act to terminate one’s life, but is a vow taken for the remaining duration of the life – whatever the remaining duration of the life may be. The vow is intended to purify the soul from the karmas and under no circumstances it can be equated to committing suicide. Santhara or Sallenkhana is conceptually different from suicide as this vow is not taken either in passion or in anger, deceit etc but it is a conscious process of spiritual purification where one does not desire death but seeks to live his life whatever is left of it in a manner so as to reduce the influx of karmas. Suicide on the other hand is an offence of passion, the grossest form of it and is therefore abhorred upon in the Jain religion. Suicide is undertaken by a person in severe bouts of passion in anger, depression or hatred – antithetical to the concept of peaceful and joyous renunciation – which is the basis of sallekhana. Suicide is preempted by a “will to die” – which will is absent in Sallekhana or santhara. Suicide is a self-assassination secretly committed by a person disgusted with his own life, while santhara is taken by a person who is above life and death and believes in immortality of soul. A person does not and cannot take santhara to run away from the problems he faces in life like the case with suicide. In santhara, a person changes his way of life, achieves contentment by reducing his passions and accepts death whenever it comes with dignity and peace. While dying an untimely and unnatural death in deep distress and frustration to get rid of wordly responsibilities and a life full of turmoil and turbulence, Suicide or an attempt to commit suicide is not a feature of a normal life. It is an incident of abnormality or of an extraordinary situation of an uncommon trait of personality. On the other hand the candidate observing
sallekhana is fully engrossed in purest contentment and he practices absolute abstinence for the liberation of the soul from karmas. He has no attachment to life and he is in no hurry to die and therefore does not cause any hurt or grievance to his family. F. Sallekhana brings peace and contentment The practice of Sallekhna cannot interfere with public order, health or morality as it intended to bring peace and contentment to the person undergoing it and those around him. Sallekhna is pinnacle of glory of both life and death. It is not an immolation but promotion of soul. In fact, any person observing a monk or a nun practicing the vow of Sallekhna will feel spiritually elevated and ethically purified at the sight of one who has renounced all the worldly belongings and desires, and whose sole objective is to attain salvation by being liberated from the travails of the body. Such a sight would be edifying to the individual and a lesson on piety to the society. It is submitted that preventing this practice by enforcing a ban or to treat this as an offence would result in complete collapse of the faith and force Jains to be eternally entangled in the cycle of life and death, birth or re-birth from which the Jains seek liberation. The basic premise of the philosophy of the religion and the faith of the members of the community to renounce karmas would get lost and hence the practice is the core of the right which cannot be interfered with. It is not a question of a practice being followed by all and without which the practice be said to be a Core of the religion. The religion believes in continuous cycle of birth and rebirth as a result of the karmas and the only way of renunciation of the karmas, when ever a person may chose to follow in whichever life, and achieve moksha is through a process of renunciation throughout the life culminating in the last with a process of sallekhana to prevent influx of any new karmas. The practice is therefore a core of the philosophy of the Jainism. G. Sallekhana or Santhara is an age old practice – as old as the religion and faith of Jainism It is submitted that the practice of Sallekhana/ Santhara is at the very core of the Jain philosophy and the practice is as old as the religion or faith itself. The observations of the Hon’ble High Court that:-
“There is no evidence or material to show that the Santhara or Sallekhana has been practiced by the persons professing Jain religion even prior to or after the promulgation of the Constitution of India to protect such right under Article 25 of the Constitution of India.” is exfacie wrong. The references to Sallekhana/Santhara are also found in the accounts of king Alexander and Augustus Ceaser. The Kalandri (Sirohi State) Inscription records Sallekhana by Jain monks way back in Samvat 1389 (E.I. Vol. XX, Appending p. 98 No. 691). Justice T.K.Tukol, former Vice-Chancellor, Bangalore University in his book “Sallekhna is not suicide” has given complete history. In Chapter 3 under title Sallekhna in practice, he has given various instances
of
Sallekhna
prevalent
in
the
country
in
Jain
community. He opines that that practice is prevalent from time immemorial. H.
The concept of Santhara or Sallekhana is not alien to
other religions It is submitted that the concept of Santhara/ Sallekhana is not alien to the vedic culture also. The two commendations of Manu, Govendhara and Kulluka say that a man may under take the “Maha prasthan” on a journey which ends in death, when he is incurably ill or meets with a great misfortune. The “Law of Manu” edited by F. Max Mullar adds a note stating that voluntary death by starvation was considered the befitting conclusion of hermits life. The antiquities and general prevalence of the practice may be inferred from the fact that the Jain ascetics too consider it meritorious. Suicide or attempt to commit it has never been an object of abhorrence or condemnation which would be so if life by it self was considered reverend. Everyman as per Hindu religion lives to accomplish four objectives of life” “Dharma” “Artha” “Karma” and “Moksha”. When the earthly objectives are complete, religion would require a person not cline to the body. Thus a man has moral right to terminate his life, as death is simply changing the old body to a new one. Life is sacred. It is the gift of god and he alone can take it. There is life after death and the individual soul must complete the full cycle of birth. In recent days Acharya Vinoba Bhave met his end by undertaking what could be termed as sallekhana. The erstwhile Prime Minister Mrs. Indira Gandhi cut short her Russia visit and came to persuade
Acharaya to break his vow. But Acharya very peacefully refused to do so. In Christianity, reference may be made to what Pope John Paul 11 stated when he gave his approval to the document issued by the sacred congregation stating: “when inevitably death is imminent in spite of the means used, it is permitted in conscience to take decision to refuse forms of treatment that would only secure precarious and burdensome prolongation of life, so long as the normal care due to sick person in similar cases is not interrupted......” Thus in view of the aforesaid, it is submitted that comparing sallekhana with suicide is premised on a misconception not only of the Jain philosophy but hindu vedic philosophy as well. The practice is permitted and accepted even in other religions as well. CONSTITUTIONAL PROTECTION A. The Petitioner submits that the Hon'ble High Court at the behest of a public interest litigant who had absolutely no understanding of the theme behind the practice, in purported “modern” thinking sought to impose the said thought on the members of the Jain Community, which the Petitioner submits is antithetical to the very basis of the Constitution of India. The high ideals mentioned in the preamble find incorporation into various provisions of the constitution which recognizes, entitles, allows and protects to every person to have the “Liberty of thought, expression, belief, faith and worship”. The said theme under the Constitution runs through various provisions of Part III of the Constitution:“25. Freedom of conscience and free profession, practice and propagation of religion.(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law(a)
regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b)
providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
The Petitioner most respectfully submits that the Article 25 protects a right of every person to the “freedom of conscience” which entitles a person to a right to have his own beliefs and faith and as such the so called “modern” thinking cannot be imposed on the members of the Jaina Community. It is further submitted the there is also no reason to believe that the Jaina thought of ‘aparigriha’ is not a modern thought which a member of the Jain community is entitle to “Profess”, “Practice” and “Propagate” B. It is submitted that the Hon'ble High Court has in the judgment committed a patent error of law in proceeding to decide the “issue” whether the practice of Santhara or Sallekhana constitutes an “essential religious practice” which the Petitioner submits did not arise for consideration at all in the present case. Without prejudice to the submission that the said practice is based on a basic philosophy of the Jain religion which has already been submitted before, it is submitted that the issue of “essential religious practice” arises which the state seeks to control or regulate a religious practice and which action is challenged in courts. In the present case the State Government expressly and in no uncertain terms submitted before the Hon'ble High Court that it found nothing wrong in the practice of Santhara or Sallekhana followed by the Members of the Jain community which is evident from the submissions of the state government recorded by the Hon'ble High Court in the Impugned judgment itself. There is no express provision to prohibit, control, restrict or prevent the practice of Sallekhana or Santhara. The restriction is sought to be brought in by an “interpretative” process of reading the said practice as “suicide”. It is submitted that where the state is not seeking to restrict the said practice, every person has a fundamental freedom of conscience and liberty of thought and belief. It is submitted that the issue in the present case was therefore whether the “Vow” of Santhara or Sallekhana was a “belief” which every individual was entiled to possess, practice and propagate. In any case it is submitted that the practice of Sallekhana and Santhara was connected intrinsically with the basic philosophy of the religion, which the members of the Jain Community may voluntarily adopt.
C. Without prejudice to the above, it is submitted that concept of essential religious practice is elucidated by this Hon’ble court in Commr.
of
Police
v.
Acharya
Jagadishwarananda
Avadhuta, (2004) 12 SCC 770 at page 782 “9. The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background, etc. of the given religion. (See generally the Constitution Bench decisions in Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC 282 : 1954 SCR 1005] , Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [AIR 1962 SC 853 : 1962 Supp (2) SCR 496] and Seshammalv. State of T.N. [(1972) 2 SCC 11 : AIR 1972 SC 1586] regarding those aspects that are to be looked into so as to determine whether a part or practice is essential or not.) What is meant by “an essential part or practices of a religion” is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part” It is submitted that in view of the philosophy and tenets of Jainism, Sanlekhana is essentially an embodiment of Tyaga – renunciation the basic theme underlying the Jain Religion and therefore it is an essential religious practice. It is submitted that the test is not whether all Jains have to follow it or not, the test is whether the nature of religion would change without that practice. It is submitted that without the practice of Sallekhana, the Jains believe that it is impossible to achieve Moksha – the ultimate goal of life and therefore Sallekhana is an essential religious practice. D. The rights of individual to practice Sallekhna or Santhara is a private act of the person as part of his faith in the religion to which subscribes. It is submitted that the right of privacy is an integral part of the right protected under Article 21.
E. Article 26 lays down that every religious denomination or any section thereof shall have the right to manage its own affairs in the matter of religious. Undoubtedly like all other fundamental rights this right is also subject to public order immorality and health. It is submitted that practice of Sallekhna is impossible for each and everybody to adopt the vow of Sallekhna because it requires the devotee to possess an unshakeable conviction that the soul and the body are separate that the body is the result of accumulated karamas and that liberation from karmas is possible only by an austere life of supreme conduct founded on right faith and knowledge. The right is also protected under Article 29 of the Constitution of India. It cannot be denied that Jains have their own culture and therefore any section of the citizens residing in the territory of India having culture if its own has the right to conserve the same. The Jain community is a religious minority community and also it is a cultural minority and therefore it is the mandate of the constitution that the State shall not impose upon it any other culture, which may be local or otherwise. The state has no authority to force feed a Sadhak who has taken the vow of Sallekhna. CONCLUSION In light of the very concept of Sallekhana, it is most humbly submitted that it would be legally wrong to categorize and compare the vow of Sallekhna with the offence of attempt to commit suicide. It is submitted that Santhara was in practice in Jain community and Prayopagmna in Hindu community having sanction of religion, which is practiced even today. It has become the culture of the said communities and thus stands on a very high pedestal and is fully protected by Articles of 26 and 29 of the Constitution of India. To term such practices as suicide exhibits ignorance about Vedic or Jain religion. Under the law of the country nobody can be forced to eat or drink against his /her will. The case of hunger strike is quite different. In the case of hunger strike if the demand is made the person concerned would automatically withdraw the fast. As such the case of Santhara is quite different. Further, as already submitted above, the practice of Santhara has become part of the culture of
Jain community. It is a part of religious practice for the person who voluntarily takes vow of Santhara. It is not suicide as contemplated under the provisions of the Indian Penal Code. It is therefore submitted that the Hon'ble High Court was entirely unjustified
in declaring
the holy and peaceful practice
of
Sallekhana and comparing it with suicide to make such practice a punishable offence under section 309 and 306 of the Indian Penal Code.
LIST OF DATES
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Santhara/ Salllenkhana is an ancient practice followed and practiced by the members of the Jain Community as part of and an extension of the philosophy of Tyaga and Aparigriha which forms the core of the Jain religion and ideology. As part of the said practice, a person takes a vow of renunciation in a gradual step by step manner to rid the soul of all bondages of worldly attachments for the remaining duration of the life whatever the period of life may be. In the said vow, there is no willingness to die and one does not invite death but a person waits in dignity and peace while renouncing all relationships, feelings and desires for the life. This practice in Jainism is a part of the basic philosophy and faith of the religion. History
is
replete
with
instances
of
monks
and
householders (grahasths) undertaking the practice of Santhara/ Salllenkhana to free themselves from the bondage of karma. 09.05.2006
A Writ Petition being D.B. Civil Writ Petition No. 7414/2006 was filed before the Hon’ble High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur seeking declaration
that
the
practice
of
“Santhara”
or
“Sallenkhana” practiced in the Jain community was illegal. A copy of the Civil Writ Petition No. 7414/2006 filed before the Hon’ble High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur is annexed herewith
and marked as Annexure P-1 It is submitted that the Petitioner is neither a Jain nor a person well versed in the Jain relegion, faith and practices and therefore the averments in the writ 21.9.2006
petitions are incorrect and incomplete. D.B. Civil Writ Petition No. 7414/2006 came up for consideration before the Hon’ble High Court when the Court was pleased to issue notice in the writ petition. The Court adjourned the matter and orally directed the petitioner’s
counsel
to
implead
bodies/associations
representing the Jain community as party respondents. It is submitted that the objective of the said direction was to ensure a representation of all sections of the Jain Community. It is submitted that in purported compliance of the said direction, the writ petitioner impleaded Sthanakvasi Jain Shrawak sangh through Shri Vimal chand Daga and Shrimal Sabha as respondent no. 3 and 4. It is submittd that no effort was made by the writ petitioner to implead any representative bodyof the Digambar Jain community. Infact, no digambar association was impleaded as respondent and thus they have not been heard in the present case. 22.09.2006
Hon’ble High Court was pleased to issue notice. A copy of the order dated 22.09.2006 of the Hon’ble High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in Writ Petition No. 7414/2006 is annexed herewith and marked
29.9.2006
as Annexure P-2. Shri Veerendra kumar Jain – a person belonging to the Digambar Jain Sect filed an impleadment application in the writ petition. A typed copy of the said impleadment application
is
enclosed
herewith
and
marked
as
Annexure P-3. 21.12.2006
The Hon’ble Court allowed the impleadment applications filed by the associations of Shwetambar associations and they would be impleaded as respondents and directed that the individual intervenors would be heard. It was held that: “Having regard to the significance of the issue we
are of the view that while intervention by bodies/associations representing the Jain community may be impleaded as respondents, individual intervenors may be heard. It need hardly be pointed out that if all and sundry are formally impleaded as respondents and allowed to file their respective reply, it would make the exercise difficult and cumbersome. In the above view of the matter, intervention by bodies/associations is allowed and they may be added as respondents. The individual intervenors may be heard.” A copy of the order dated 21.12.2006 by the Hon’ble High Court of Rajasthan in Writ Petition No. 7414/2006 is annexed herewith and marked as Annexure P-4 Written submissions were filed by Shri Veerendra Kumar Jain. The written submissions were not considered nor any
order
was
passed
on
his
application
for
impleadment. Copy of written submissions filed by Shri Veerendra kumar Jain is enclosed herewith and marked 16.9.2010
as Annexure P-5. The State Government of Rajasthan filed reply to the writ petition opposing the reliefs prayed in the writ petition. Typed copy of the reply filed by the State Government is enclosed herewith and marked as Annexure P-6. It is submitted that the Union of India, though a party in
23.04.2015
the writ petition, did not submit reply. The parties were heard in the petition and the Hon’ble High Court reserved the judgment grating liberty to the parties to file their written submissions. Copy of the order dated 23.04.2015 passed by the Hon’ble High Court in Civil WP 7414/2006 is enclosed herewith and marked as Annexure P-7.
12.5.2015
The Petitioner filed impleadment applications before the Hon’ble High Court as no representative body of the Digambar Jain sect had been represented. A copy of the impleadment application submitted by the petitioner is annexed herewith and marked as Annexure P-8. No orders were passed on the impleadment application.
10.08.2015
The Hon’ble High Court, vide order impugned herein allowed the writ petition no.7414/2006 and directed the
State authorities to stop the practice of 'Santhara' or 'Sallekhana' and to treat it as suicide punishable under section 309 of the Indian Penal Code and its abetment by persons under section 306 of the Indian Penal Code. Hence the present petition special leave petition
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION (Order XXI Rule 3(1) (a) SPECIAL LEAVE PETITION (CIVIL) NO.
OF 2015
(Under Article 136 of the Constitution of India) With prayer for Interim relief BETWEEN
Position of parties In the High Court
1. Akhil Bharat Varshiya Digamber Jain Parishad Registered Head Office Kalkaji New Delhi Having its Rajasthan Branch Office at Banji House Ghee Walon Ka Rasta, Johri Bazar, Jaipur, Through its President Rajendra Kumar Tholia s/o Seth Banji Lal Tholia.aged 86 years r/o Banji House Ghee Walon Ka Rasta, Johri Bazar, Jaipur
Not Party
In this Court Petitioner No.1
VERSUS 1. Union of India, through the Secretary, Deparment of Home, New Delhi
Respondent Contesting No. 1 Respondent No. 1
2. State of Rajasthan through The Secretary Revenue Department Sachivalaya Gandhinagar.
Respondent Contesting No.2 Respondent No.2
3. Shri Nikhil Soni, Advocate, Son of Shri S.M. Soni, Resident on 1/416, Vidyadhar Nagar, Jaipur 4. Sthanakwasi Jain Shravak Sangh, through its President, Lal Bhawan, Chaura Rasta, Jaipur, Rajasthan
Contesting respondent no.3 Respondent Proforma No.3 Respondent No.4
5. Shrimali Sabha – Moti Dungri, Dadwani, M.D. Road, Jaipur.
Respondent Proforma No.4 Respondent No.5
To, Hon'ble the Chief Justice of India
Petitioner no.1
and His Companion Judges of the Supreme Court of India at New Delhi. MOST RESPECTFULLY SHEWETH: 1. That the petitioners above named are filing the present petition seeking special leave to appeal against the final judgment and order dated dated 10.8.2015 passed by the Hon’ble High Court of Judicature for Rajasthan for Jaipur in D.B. Civil Writ petition no. 7414 /2006 whereby the Hon’ble High Court has allowed the writ petition filed by the respondent no.3. 1 A.
It is submitted that the LPA or W.A. not maintainable against
this impugned order. Questions of Law :
2.
The following questions of law arise for consideration by this Hon'ble Court:(i)
Whether the practices of Santhara and Sallekhana being followed with reverence by the members of the Jain community constitute a religious faith and belief of every member of the community as well as the community as a whole which is protected under articles 21, 25, 26 and 29 of the Constitution of India
(ii)
Whether the Hon'ble High Court has without appreciating the basic philosophy of the Jain religion including the concepts of Tyaga and Aparigriha, erred in equating the vow
of
sallekhana
and
santhara
with
suicide
and
punishable under section 309 and 306 of the Indian penal code (iii)
Whether the Hon'ble High Court has without considering or dealing with the material, scriptures and shastras submitted for the consideration of the Hon'ble Court, erred in holding that the members of the Jain community have failed to establish that the practice of Sallekhana is core of the religion
(iv)
Whether the Hon'ble High Court has erred in directing the State authorities to stop the Practice of ‘Santhara’ or ‘Sallekhana’ and to treat it as a suicide punishable under
section 309 of the Indian Penal Code and its abetment by persons under section 306 of the Indian Penal Code (v)
In view of the fact that the Jain religion which is premised on the philosophy of the Ahimsa or non-violence and which abjures all forms of violence including violence to ones own self whether it the Hon'ble High Court was wholly unjustified in linking a sacred practice of the Jain religion (i.e. Santhara or Sallekhana), which religion is itself premised on ahimsa (i.e. non-violence) with a suicide - an inherently violent act
(vi)
In view of the fact that Sallekhana or Santhara is not an act to terminate one’s life, but is a vow taken for the remaining duration of the life – whatever the remaining duration of the life may be and is intended to purify the soul from the karmas whether under any circumstances the practice can be equated with the act of committing suicide
(vii)
In view of the fact that Santhara or Sallenkhana is conceptually different from suicide as this vow is not taken either in passion or in anger, deceit etc but it is a conscious process of spiritual purification where one does not desire death but seeks to live his life whatever is left of it in a manner so as to reduce the influx of karmas, whether the Hon'ble High Court has erred in equating the practice with suicide so as to attract the provisions section 306 and 309 of the Indian penal code.
(viii) In view of the fact that the state has in no manner expressed its indication to prohibit, restrict or regulate the practice of santhara or sallekhana whether the Hon'ble High Court erred in invoking the doctrine of “essential religious practice” which did not arise for consideration in the present case (ix)
In view of the fact that the practice of santhara or sallekhana forms part of the core philosophies of Tyaga and Aparigriha of the Jain ideology and the religious belief that in order to get out of the cycle of birth and re-birth and for the liberation of the soul from the Karmas the vow of sallekhana and the practice of santhara is an essential religious practice, whether the Hon'ble High Court erred
in observing that the said practice does not constitute a core of the religion (x)
Whether the directions of the State Shall stop and abolish the practice of ‘Santhara’ or ‘Sallekhana’ in the Jain religion in any form constitutes and illegal encroachment of the religious beliefs which is protected under Articles 21, 25, 26 and 29 of the Constitution and which every person has a fundamental right to practice, profess and propagate
(xi)
Whether the Hon'ble High Court was justified in deciding the matter without ensuring that all sections of the Jain community were duly represented before the Hon'ble High Court to decide an issue which is and is also considered to be the core of the Jain ideology.
(xii)
Whether the Hon'ble High Court ought to have followed the procedure under order 1 rule 8 CPC
before
considering and deciding the issue which affects all members of the Jain Community 3.
Declaration in terms of Rule 3(2):
The petitioners state that no other petition seeking leave to appeal has been filed by the petitioners against the impugned judgment and order.
4.
Declaration in terms of Rule 5:
The annexure P-1 to P- 11 produced along with the Special Leave Petition is copy of the pleadings/documents which formed part of the records of the case in the Courts below against whose order the leave to appeal is sought for in this petition.
5.
Grounds: The Special Leave to Appeal is sought for on the following
amongst other grounds:-
A. BECAUSE the present case involves substantial question as to the interpretation of the words “Liberty of thought, expression, belief, faith and worship” used in the Preamble read with Articles 25(1), 26 and 29 of the Constitution of India. It is submitted that the Hon’ble High Court has passed the impugned
judgment,
without
appreciating
the
basic
philosophy and tenets of the Jain religion and without compliance of its earlier orders.
B. BECAUSE the Hon’ble High Court has decided the aforesaid issue, which is part of religious faith of all the members of the Jain Community, without ensuring that the entire community and its sections, who would be affected by the decision and who have a vital interest in the lis, are duly represented. The petitioner most respectfully submits that the Digambar Jain Community, which is one of the major sect of the Jain Community was entirely unrepresented before the Hon’ble High Court and the writ petitioner did not implead the bodies/organizations in a manner so that there is a proper representation of all sections. It may be also submitted that the Hon’ble High Court also failed to appreciate that Sh. Virendra Kumar Jain, who was the only representative member of the Digambar Jain community had filed an application for impleadment under Order 1 Rule 10 of CPC and had also submitted written submissions which have however not been taken into consideration by the Hon'ble High Court
C. BECAUSE the writ petition was filed by the Respondent no.3 – Shri Nikhil Soni on a total misconception and false notion of Sallekhana or Santhara conjured from inadequate/erroneous knowledge of a pious religious practice. It is submitted that the writ petitioner - respondent no.3 herei is neither a Jain
nor well versed with the concept of Sallekhana or Santhara and is a mere busybody and meddlesome interloper.
D. BECAUSE the Hon’ble High Court without discussing the actual historical/ancient origin and object of Santhara/ Sallekhana and its religious importance as part of a basic element of Jainism i.e. “aparigriha” has proceeded to equate the same with the offence of suicide. It is submitted that the Hon'ble High Court has ignored the extensive submissions as well as the sculptures placed before the Hon'ble High Court showing the Jain faith in taking vow of Santhara/Sallekhana. It is submitted that before the Hon'ble High Court, Shri P.C. Bhandari also recited the Atra and shlokas and narrated the various stages of attaining the Santhara/Sallekhana and explained the same to the Hon'ble Court. The Hon’ble High Court has treated the said explanations given by Shri P.C. Bhandari as an object of amusement to the general public, which the petitioner submits amounts demeaning a pious religious practice which was entirely uncalled-for E. BECAUSE though the Hon’ble High Court records some of the contentions
in
the
written
submissions
filed
by
the
interveners/impleaded parties but has failed to either discuss the same or consider the same on legal or religious principles. The Hon’ble High Court has not appreciated the form and context of the arguments and hence there was a complete non application of mind on the contentions put forth in the said written submissions. F. BECAUSE
Jainism
renunciation
is
a
religion
– Tyag, Aprigraha
seeking
happiness
in
and Veetragta. Jainism
believes that the soul (the Jeev or Aatman) is eternal, pure and perfect. The soul in this pure form is an eternal bliss. However due to the acts that we commit (i.e. the karmas), which could be good or bad, the soul gets bound to the body
and becomes subject to cycle of “birth and rebirth”. The person gets happiness or woes in a birth according to his previous karmas. However this worldly happiness or sorrow is temporary and leads to further bondage of karmas. The only way therefore to attain eternal happiness or bliss (moksha) is the liberation of the soul from the bondage of karma. According to the Jain philosophy, this liberation and the consequent state of eternal bliss (moksha) can be achieved by preventing the influx of new karmas (samvar) i.e. by getting rid of both bad karmas as well as good karmas. In order to prevent the influx of new karmas, the soul has to let go of the greed/lust for all material pleasures and has to adopt equanimity (samabhav) in happiness or in sorrow. This equanimity can be achieved by renunciation of anger, pride, deceit and lust for worldly pleasures. The Jain philosophy therefore lays great stress on Tyag (renunciation), Aparigraha (non-attachment) and Veetragta (the absence of passion or hatred).It is submitted that in Jain religion, there is faith and belief of inculcating “tyaga” or renunciation from childhood itself. The followers of Jainism therefore have great faith in renunciation and endevour to renounce various material pleasures including renunciation of food or fasting. They follow a systematic pattern of fasting or renunciation of food as per their ability as part of their routine lives. Many Jains renounce
having
food
after
“sunset”
a
practice
called
“chauvihar”. They also abstain from eating or using any meat or animal product which causes violence or “himsa”. Apart from this, on every Ashtami or Chaturdashi (the eighth day and the fourteenth day the lunar fornight), Jains observe some kind of renunciation of food, popularly called “vrat”, i.e either complete fast or one meal a day or renouncing some particular items of a meal as per the ability and choice of the person. This totals to 48 days of vratas in a year when food and other worldly pleasures are renounced in some form.
Apart from this, the Jains also carry out a 10 day celebration called the Paryushan Parv in the Indian calendar month of “Bhadra pada” which is also nothing but a celebration of renunciation.
All
Jains
young
and
old,
Sadhus
and
Gruhasthas – do observe some kind renunciations in these days which could even be a 10 day fast without food and water. This makes 58 days of fasting or food renunciation in an year.In the 10 days of Paryushan Parv, each of the 10 days (under the Digambar sect) stand for particular dharma as follows:Day 1- day of Kshama – seek forgiveness Day2 – day of Mardav – abjure wanton pride Day3- day of Aarjav – adopt simplicity and avoid deceit Day 4- day of Satya – Speak and adopt truth Day 5 – day of Sauch – adopt peity and purity in life Day 6- day of Sanyam – adopt discipline and curb desires Day 7- day of Tap – observe penance or “Tapasya” Day 8 – day of Tyag – renunciation Day 9- day of Ankinchan – reduction of desires to possess material things Day 10- day of Bhramcharya – renunciation of all worldly pleasures including sexual pleasures At the end of Paryushan Parv the day of Kshmavani is celebrated when all Jains seek forgiveness for their conduct from others irrespective of the age, social status and relationship. This mutual exchange of forgiveness even with the younger ones is intended to rid a person of his wanton pride and anger and leads to purification of his soul. G. BECAUSE in shwetambara sect of Jains, the practice of “maaskhaman” is popular which involves fasting for one month drinking only warm water once a day. The Jain acharyas follow even stricter forms of renunciation i.e having food only once a day limiting themselves to 32 morsels including water and renouncing the food if the desired conditions are not met. (For a detailed reference on the lifestyle of Jain Acharyas the Petitioner craves leave to relavent portions of the Jain scriptures at the time of hearing). It is submitted that not only this, several other forms of renunciation like Dana (donations) and Aparigraha (limiting the number of facilities you enjoy) is also practiced
widely. As is clear from the above, Jain religion seeks to achieve
happiness
by
abjuring
desires
for
material
pleasures. It is believed that these desires lead to passions and bondage of “karma” which binds the soul and prevent it from attaining eternal bliss. Therefore the concept of renunciation to achieve eternal bliss is at the very core of Jainism which cannot be achieved without Tyag, Aparigraha and Veetragta and hence all forms of Tyag, Aparigraha and Veetragta constitute an essential religious practice which distinguishes it from other religions where God is worshipped for seeking material well being. H. BECAUSE Sallekhana or Santhara is an extension of the basic philosophy of renunciation followed by the Jains through out their lives. It is submitted that renunciation or Tyag and Aparigraha are the very basic tenets of Jain philosophy and is at the core of the very philosophy of the religion. It is submitted that all Jains do practice them in their daily lives in some form according to their ability. They seek and endeavor to raise their spiritual level and decrease the influx of karma by taking up stricter renunciations of material pleasures for reduction of anger, deceit, wanton pride and greed.
This
process
of
renunciation,
and
finding
contentment, detachment from passions and hatred, is a way of life and goes on through out the life. The vow of Sallekhana
is
nothing
but
a
systematic
process
of
renunciation in which first the person tries to get himself rid of all gross passions, hatred, attachment, anger, pride, greed, deceit and finds contentment in renunciation of material pleasures. It is a process of curbing all desires – desires which lead to passions – which are responsible for the influx of karmas – which ultimately results in bondage of the soul and loss of the state of eternal bliss.
In the Jain
faith, a soul never dies, it only changes bodies till it achieves Moksha or the state of eternal bliss. Thus death, in Jainism, is not an end but a mere change, a departure of the soul from the body in order to acquire a new one unless the soul attains moksha. The state of eternal bliss is the state where the soul is pure and without the bondage of karma or body
and is thus free from the cycle of birth and rebirth. Thus to get out of the said cycle, a vow of sallekhana is essential. At which stage of the cycle birth and re-birth a person may be is not known and this is error which the Honble High Court has committed to decide whether this practice forms a core of the religion. The High Court views the Jain religion followed by an individual in the spectrum of one life span only and therefore considers that since all Jains do not take Santhara or Sallekhana it cannot be termed as an essential religious practice. The Jain faith on the contrary is not limited to one life span and but accepts birth and rebirth until the soul attains moksha. Whether the soul gets liberated and achieves the eternal bliss is dependant on the karmas of all births
and
re-births
which
accumulate to
decide
the
liberation of the soul – at which stage of birth and re-birth a person actually is not known. The soul would ultimately get liberated only after being rid of all bondages or karmas. The basic concept underlying a vow of Sallekhna or Santahara is to prevent “influx” of new karmas so as to liberate the soul from bondage of karmas. Thus sallekhana forms the core of the philosophies of the Jain ideology. I. BECAUSE The word “sallekhana” is derived from the word “sat” and “lekhna”. Sat means “samyak” i.e. rational or true, “lekhna”
means
a
gradual
weakening
of
the
passions/desires. Thus by Sallekhana a person seeks to renounce mundane desires, weaken the bondage of karmas and to achieve the consequent state of eternal bliss. Thus Sallekhana is only a continuation of the practice of renunciation and curbing of desires which a Jain follows throught his life. The culmination of Sallekhana is Santhara. Though the words Sallekhana and santhara are used synonymously there is difference between the two. The preparatory penance to overcome all forms of bondage is called Sallekhana and embracing death whenever it comes, in a state of peace and equanimity of mind is called samadhimaran or Santhara . It is also to be noted that Santhara cannot be taken on ones own choice and can be taken only if permitted by the sadhak gurus, family, friends
and relatives who are satisfied that the death is imminent. Also, the vow of Sallekhana can be taken by the person only if he consents to it and the same cannot be forced upon him. The petitioner most respectfully submits that unlike the process suggested in the impugned order, Sallekhana is not an abrupt renunciation of all food and sustenance but is a slow and systematic renunciation first of the four vices, i.e. anger, pride, deceit and greed, then the desires of worldly pleasures, then the bondage of love and hatred. The renunciation of food is very gradual and is undertaken by the person only at his will depending upon the conditions of his body and his ability to undergo such renunciation peacefully. The person undertaking Santhara or Sallekhana has the choice of revoking the vow anytime if he feels so and there is no compulsion on him to continue with the vow once taken. The most important aspect of the present case and the concept of Sallekhana or santhara is that there is no will to die as the idea is to renounce all desires including the desire to die also. It is submitted that there are instances where even after taking the vow of Sallekhana, the person has survived for several years. The Petitioner submits that a living example is Acharya Vidyanandi ji Maharaj who had taken the vow of Sallekhana several years ago and is still surviving. In Shewtambar Jain shastras namely Achrang Sutra and Shri Bhagwati Sutra and in Digambar Jain Shastras namely Bhagwati Aaradhana and Moolachar, we may trace the philosophy of Santhara or Sallekhna in detail. They lay down that Sallekhna an effort to live according to religious tenets till the last breath It is an experiment of cultivating detachment. The petitioner craves liberty to refer to these scriptures and produce further references and scriptures during the course of hearing J. BECAUSE
the writ petitioner’s version of Sallekhana as
potrayed in the para 19 of the impunged order is totally misconceived and detached from reality. It is a perverse description of the true meaning of practice of Sallekhana or santhara. It is submitted that this perversity has stemmed from half baked or inadequate knowledge of the tenets of
Jain religion. It is submitted that none of the aforesaid allegations were made in the Writ Petition or Reply or Additional Affidavit filed before the Hon’ble High Court. It is submitted that no such instance is there in the Jain religion where Santhara/Sallekhana has ever been misused by anyone in the community and the same is just contrary to Jain
religion
concepts
altogether.
The
allegations
are
completely false and no proof or evidence to prove the aforesaid allegation has been filed by the writ petitioner alongwith the writ petition K. BECAUSE santhara is not suicide. Sallekhana or Santhara is not an act to terminate one’s life, but is a vow taken for the remaining duration of the life – whatever the remaining duration of the life may be. The vow is intended to purify the soul from the karmas and under no circumstances it can be equated to committing suicide. Santhara or Sallenkhana is conceptually different from suicide as this vow is not taken either in passion or in anger, deceit etc but it is a conscious process of spiritual purification where one does not desire death but seeks to live his life whatever is left of it in a manner so as to reduce the influx of karmas. Suicide on the other hand is an offence of passion, the grossest form of it and is therefore abhorred upon in the Jain religion. Suicide is undertaken by a person in severe bouts of passion in anger, depression or hatred – antithetical to the concept of peaceful and joyous renunciation – which is the basis of sallekhana. Suicide is preempted by a “will to die” – which will is absent in Sallekhana or santhara. Suicide is a self-assassination secretly committed by a person disgusted with his own life, while santhara is taken by a person who is above life and death and believes in immortality of soul. A person does not and cannot take santhara to run away from the problems he faces in life like the case with suicide. In santhara, a person changes his way of life, achieves contentment by reducing his passions and accepts death whenever it comes with dignity and peace. While dying an untimely and unnatural death in deep distress and frustration to get rid of wordly responsibilities and a life full of turmoil and turbulence, Suicide or an attempt to commit suicide is not a feature of a
normal life. It is an incident of abnormality or of an extraordinary situation of an uncommon trait of personality. On the other hand the candidate observing sallekhana is fully engrossed in purest contentment and he practices absolute abstinence for the liberation of the soul from karmas. He has no attachment to life and he is in no hurry to die and therefore does not cause any hurt or grievance to his family. L. BECAUSE Sallekhana brings peace and contentment. The practice of Sallekhna cannot interfere with public order, health or morality as it intended to bring peace and contentment to the person undergoing it and those around him. Sallekhna is pinnacle of glory of both life and death. It is not an immolation but promotion of soul. In fact, any person observing a monk or a nun practicing the vow of Sallekhna will feel spiritually elevated and ethically purified at the sight of one who has renounced all the worldly belongings and desires, and whose sole objective is to attain salvation by being liberated from the travails of the body. Such a sight would be edifying to the individual and a lesson on piety to the society. It is submitted that preventing this practice by enforcing a ban or to treat this as an offence would result in complete collapse of the faith and force Jains to be eternally entangled in the cycle of life and death, birth or re-birth from which the Jains seek liberation. The basic premise of the philosophy of the religion and the faith of the members of the community to renounce karmas would get lost and hence the practice is the core of the right which cannot be interfered with. It is not a question of a practice being followed by all and without which the practice be said to be a Core of the religion. The religion believes in continuous cycle of birth and re-birth as a result of the karmas and the only way of renunciation of the karmas, when ever a person may chose to follow in whichever life, and achieve moksha is through a process of renunciation throughout the life culminating in the last with a process of sallekhana to prevent influx of any new karmas. The practice is therefore a core of the philosophy of the Jainism.
M. BECAUSE Sallekhana or Santhara is an ancient and old practice as old as the religion as the faith itself and the observations of the Hon’ble High Court in this regard is exfacie wrong, The references to the practice are found as far back as in Samvat 1389. Justice Tukol in his book “sallekhana is not suicide” opines that the practice is prevalent since time immemorial. N. BECAUSE the concept of Santhara or Sallekhana is not alien to Hindu and Christian and Buddhist cultures also. Acharya Vinoba Bhave is an example who had taken Sallekhana at the end of his life. O. BECAUSE the Hon'ble High Court at the behest of a public interest litigant who had absolutely no understanding of the theme behind the practice, in purported “modern” thinking sought to impose the said thought on the members of the Jain Community, which the Petitioner submits is antithetical to the very basis of the Constitution of India. The high ideals mentioned in the preamble find incorporation into various provisions of the constitution which recognizes, entitles, allows and protects to every person to have the “Liberty of thought, expression, belief, faith and worship”. The said theme under the Constitution runs through various provisions of Part III of the Constitution. The Petitioner most respectfully submits that the Article 25 protects a right of every person to the “freedom of conscience” which entitles a person to a right to have his own beliefs and faith and as such the so called “modern” thinking cannot be imposed on the members of the Jaina Community. It is further submitted the there is also no reason to believe that the Jaina thought of ‘aparigriha’ is not a modern thought which a member of the Jain community is entitle to “Profess”, “Practice” and “Propagate. P. BECAUSE It is submitted that the Hon'ble High Court has in the judgment committed a patent error of law in proceeding to decide the “issue” whether the practice of Santhara or Sallekhana constitutes an “essential religious practice”
which the Petitioner submits did not arise for consideration at all in the present case. Without prejudice to the submission that the said practice is based on a basic philosophy of the Jain religion which has already been submitted before, it is submitted that the issue of “essential religious practice” arises which the state seeks to control or regulate a religious practice and which action is challenged in courts. In the present case the State Government expressly and in no uncertain terms submitted before the Hon'ble High Court that it found nothing wrong in the practice of Santhara or Sallekhana followed by the Members of the Jain community which is evident from the submissions of the state government recorded by the Hon'ble High Court in the Impugned judgment itself. There is no express provision to prohibit, control, restrict or prevent the practice of Sallekhana or Santhara. The restriction is sought to be brought in by an “interpretative” process of reading the said practice as “suicide”. It is submitted that where the state is not seeking to restrict the said practice, every person has a fundamental freedom of conscience and liberty of thought and belief. It is submitted that the issue in the present case was therefore whether the “Vow” of Santhara or Sallekhana was a “belief” which every individual was entiled to possess, practice and propagate. In any case it is submitted that the practice
of
Sallekhana
and
Santhara
was
connected
intrinsically with the basic philosophy of the religion, which the members of the Jain Community may voluntarily adopt Q. BECAUSE the concept of essential religious practice is elucidated by this Hon’ble court in Commr. of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770 which has been totally ignored by the Hon’ble High Court. It is submitted that in view of the philosophy and tenets of Jainism, Sanlekhana is essentially an embodiment of Tyaga – renunciation the basic theme underlying the Jain Religion and therefore it is an essential religious practice. It is submitted that the test is not whether all Jains have to follow it or not, the test is whether the nature of religion would change without that practice. It is submitted that
without the practice of Sallekhana, the Jains believe that it is impossible to achieve Moksha – the ultimate goal of life and therefore Sallekhana is an essential religious practice R. BECAUSE The rights of individual to practice Sallekhna or Santhara is a private act of the person as part of his faith in the religion to which subscribes. It is submitted that the right of privacy is an integral part of the right protected under Article 21 S. BECAUSE
Article
26
lays
down
that
every
religious
denomination or any section thereof shall have the right to manage
its
own
affairs
in
the
matter
of
religious.
Undoubtedly like all other fundamental rights this right is also subject to public order immorality and health. It is submitted that practice of Sallekhna is impossible for each and everybody to adopt the vow of Sallekhna because it requires the devotee to possess an unshakeable conviction that the soul and the body are separate that the body is the result of accumulated karamas and that liberation from karmas is possible only by an austere life of supreme conduct founded on right faith and knowledge. The right is also protected under Article 29 of the Constitution of India. It cannot be denied that Jains have their own culture and therefore any section of the citizens residing in the territory of India having culture if its own has the right to conserve the same. The Jain community is a religious minority community and also it is a cultural minority and therefore it is the mandate of the constitution that the State shall not impose upon it any other culture, which may be local or otherwise. The state has no authority to force feed a Sadhak who has taken the vow of Sallekhna. T. BECAUSE In light of the very concept of Sallekhana, it would be legally wrong to categorize and compare the vow of Sallekhna with the offence of attempt to commit suicide. It is submitted that Santhara was in practice in Jain community and Prayopagmna in Hindu community having sanction of religion, which is practiced even today. It has become the culture of the said communities and thus stands on a very
high pedestal and is fully protected by Articles of 26 and 29 of the Constitution of India. To term such practices as suicide exhibits ignorance about Vedic or Jain religion. Under the law of the country nobody can be forced to eat or drink against his /her will. The case of hunger strike is quite different. In the case of hunger strike if the demand is made the person concerned would automatically withdraw the fast. As such the case of Santhara is quite different. Further, as already submitted above, the practice of Santhara has become part of the culture of Jain community. It is a part of religious practice for the person who voluntarily takes vow of Santhara. It is not suicide as contemplated under the provisions of the Indian Penal Code. It is therefore submitted that the Hon'ble High Court was entirely unjustified in declaring the holy and peaceful practice of Sallekhana and comparing it with suicide to make such practice a punishable offence under section 309 and 306 of the Indian Penal Code.
U. BECAUSE the saints and sages of India are known for their defiance of death. When they realize the futility of their perishable body or when they have achieved their goal; forsaking the love of life, they voluntarily invoke death. In the present times Swami Ram Krishna Paramhans, Sant Vinoba Bhave, Maa Anand Moyee Devi denied the body. In the same tradition the great Jain Achayra Hasti Malji maharaj has willingly started on the epic voyage of great liberation. Long ago he raised himself above pleasure and pain; now he has risen above life and death. This is the normal methodology of Indian sages and saints to achieve liberation from the body; may be it is a mystery for science and a secret for the Western World. In the present self centered materialistic society full of competition and struggle, this great torch bearer of the true “Shramanic” tradition of Lord Mahivir this shining example of the best of humanity and dedicated devotee has embarked on the epic voyage of self realization denying the perishable body. V. BECAUSE in India and the South East Asia where the Hindu, Jain and Buddha culture has its way, there has been a tradition of voluntary death amongst the saints. Having
attained the goals of their lives and after the powers of the body have exhausted, Indian saints in the normal course deny the body adopting the path of great liberation. In Brahamic tradition is called living Samadhi and under the Jain auspices it is termed Santhara. The right to die or to end one’s life is not something new or unknown to civilization. Some religions like Hindu and Jain have approved of the practice of ending one’s life by once own act in certain circumstances while condemning in it other circumstances. Among Jain, practice of Sallenkhana is still prevalent. The Ratnakarnda sravaka car (chapter 5) of Samantshadra (about 2nd century A.D.) diaates on Sallenkhana which consists in abandoning the body for the accumulation of merit in calamities, famines extreme old age and incurable disease. W. BECAUSE in the case of Smt. Gyan Kaur the Hon’ble Supreme court while acknowledging that right to life does not include a right to die but it was clarified as under:The ‘right to life’ including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death, including a dignified procedure of death. In other words, this may include the right of dying man to also die with dignity when his life is ebbing out. But the “right to die” with dignity at the end of life is not to be confused or equated with the “right to die” an unnatural death curtailing the natural span of life” It is submitted that the process of sallekhana is part and parcel of the right to life with dignity and to live the duration of the life in the manner one chooses to individually. The same cannot be forced upon the in the matter in which others think it to be appropriate.
6.
Grounds for interim Relief:
That in the final judgment and order dated 10.8.2015 passed by the Hon’ble High Court of Judicature for Rajasthan for Jaipur in D.B. Civil Writ petition no. 7414 /2006, the petitioner has prima
facie good case in its favour and has every likelihood to succeed before this Hon’ble Court. The balance of convenience is also in favour of the petitioners. It is, therefore, not only fit and proper but also in the interest of justice that Your Lordships may be pleased to stay operation of the final judgment and order dated 10.8.2015 passed by the Hon’ble High Court of Judicature for Rajasthan for Jaipur in D.B. Civil Writ petition no. 7414 /2006 during the pendency of the present petition.
7.
Main Prayer:
It is therefore most respectfully prayed that this Hon’ble Court may be pleased to:
a) Grant special leave to appeal against the final judgment and order dated 10.8.2015 passed by the Hon’ble High Court of Judicature for Rajasthan for Jaipur in D.B. Civil Writ petition no. 7414 /2006 and,
b) Pass such other order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. 8. Prayer for Interim Relief: a) stay operation of the final judgment and order dated 10.8.2015 passed by the Hon’ble High Court of Judicature for Rajasthan at Jaipur in D.B. Civil Writ petition no. 7414 / 2006 during the pendency of the present petition; b)pass ex-parte ad-interim orders in terms of prayers (a) above; and c) pass such other and further orders as may be deemed fit and proper in the facts and circumstances of the present case.
Drawn and filed by
(Smt. Pratibha Jain) Advocate for the petitioners Drawn on : Filed on :
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO.
OF 2015
IN THE MATTER OF: Akhil Bharat Varshiya Digamber Jain Parishad
…
Petitioner
Versus Union of India & Ors.
… Respondents
C E R T I F I C A T E Certified that the Special Leave Petition is confined only to the pleadings before the High Court whose order is challenged and the other documents relied upon in those proceedings.
No additional
facts, documents or grounds have been taken therein or relied upon in the Special Leave Petition. It is further certified that the copies of the documents/annexures attached to the Special Leave Petition are necessary to answer the question of law raised in the petition or to make
out
grounds
urged in the
Special Leave Petition for
consideration of this Hon'ble Court. This certificate is given on the basis of instructions given by the petitioner whose affidavit is filed in support of the S.L.P. DRAWN AND FILED BY
(SMT. PRATIBHA JAIN) ADVOCATE FOR THE PETITIONER DRAWN ON: FILED ON:
