Dramatic Example of Law Vs Religion' - Frontline

9/5/2015
Dramaticexampleoflawvsreligion|Frontline
The Nation Print edition : September 18, 2015

Interview: Shekhar Hattangadi
Dramatic example of law vs religion
By V. Venkatesan
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A silent rally in Bhopal on August 24 to protest against the Rajasthan High
Court order criminalising Santhara. Photo:A. M. Faruqui
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Interview with Shekhar Hattangadi, law

professor and the maker of Santhara: A
Challenge to Indian Secularism? By V.
VENKATESAN
BY an uncanny twist of circumstances, the Rajasthan High Courts Santhara
judgment was preceded, by a few weeks, by the buzz surrounding a
documentary on the controversial Jain practice of voluntarily starving to death
by Shekhar Hattangadi, a Mumbai-based journalist, law professor and filmmaker. Completed earlier this year, the film, Santhara: A Challenge to Indian
Secularism?, has won awards at two film festivals and elicited sharp and
heated responses for and against the practice from among audiences. The film
itself takes no sides, but subliminally asks a question while exploring the
spiritual, scriptural, ethical, medico-legal and sociological aspects of the
practice: What happens when a traditional religious practice violates the law?
Based largely on interviews with, among others, those who filed the public
interest litigation (PIL) petition in the High Court and their representatives,
the film looks at how religion, law and constitutional secularism intersect in
the ongoing debate over Santhara. It also depicts the last moments in the life
of a Jain sadhvi who adopted this practice.
A science graduate with a dual masters degree in international politics and
journalism, Hattangadi is also a gold-medallist in law and a Kennedy Fellow
in Public Policy at Harvard Universitys John F. Kennedy School of
Government, besides being an alumnus of the Film and Television Institute,
Pune. He spoke to Frontline about the making of the film and about the court
judgment. Excerpts:
What, according to you, are the social implications of the Santhara judgment?
In a faith-based society like ours which accepts, and even encourages, public
displays of religiosity (meaning, over-the-top religious festivals and practices),
the social and the religious are inextricably interlinked. So the first social
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impact of the Rajasthan High Court judgment would be that Jains will balk at
it and bristle against what they view as an unjustified encroachment by the
state into the realm of religion, and particularly their religion. Many among
them see it as a violation of the constitutional guarantee of the right to
religious freedom and practice as it pertains to individuals (Article 25) and to
religious institutions (Article 26). Even as I say this, I hear news reports of
Jains downing shutters and taking their peaceful protest against the judgment
to the streets.
Apart from being a faith-based society in a larger sense, were also a society
with multiple faiths. So I anticipate the Santhara judgment to have an indirect
but nonetheless chilling effect of sorts on practitioners of rituals and practices
of other religionsparticularly those rituals and practices which seem to
tread a fine line with respect to legal and constitutional provisions. I have in
mind practices like the restricted entry of women into certain temples and
dargahs, the practice of bal-diksha, the use of wine in church rituals in States
where consumption of alcohol is prohibited, and so on. Naturally, theyre
waiting and watching with considerable trepidation as the matter moves to
the Supreme Court. This is a nervous time for religions in India.
How do you think it will pan out legally?
This arguably is a case in which we as members of the legal fraternity and
also as Indian citizens expect a lot from the higher judiciary. I know you cant
really fault the Rajasthan High Court judgment on the basis of whats already
there in our statute books (for example, the Indian Penal Code, which
criminalises suicide) and in our court precedents (for example, the Gian Kaur
case, which held that the right to life enshrined in Article 21 did not include
the right to terminate ones life). I must admit, however, that I was hoping the
High Court would be a little more proactive and creative in its interpretations
of suicide and the right to life concepts as they pertain to religious
practice. Remember, the most exciting period in the life of our higher
judiciaryparticularly the Supreme Courtso far has been the period of socalled judicial activism in the 1970s and the 1980s when progressive-minded
judges expanded the scope and meaning of right to life and gave some pathbreaking judgments. Now that the Santhara case has reached the Supreme
Court, can we expect a rebirth of that activism? At the very least, can we
expect an informed discussion on the origin, nature, utility and applicability
of some of our debatable laws as well as some of our equally debatable legal
doctrinessuch as the Essential Practice doctrineto which the Rajasthan
High Court judgment took recourse?
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What about the political fallout of the judgment?

Its a tricky job to assess the political implications of the Santhara judgment.
The Jains are a wealthy and influential community, and Im sure no political
party wants to rub them the wrong way. The UPA [United Progressive
Alliance], on the eve of the 2014 general elections, granted them minority
status. The BJP [Bharatiya Janata Party], with its Hindutva manifesto, is facing
a unique dilemma. The countrys traderssmall shopkeepers, in the main
are a major constituency of the ruling party, and they include a large
proportion of Jains. At the same time, Jains technically dont count among the
Hindu majority.
Its a political blessing for the BJP that some of the tenets of the two religions,
such as non-violence and vegetarianism, overlap nicely. Beyond that, there
could be points of discordance. Already there are murmurs within the Jain
community that the court has deferred to the majority sentiment by
discriminating against a minority religion. While this perception might well
be an instance of reading too much into the judgment, some public policy
decisions of the executive branch of the government (notably the beef ban in
Maharashtra) would indicate that the ruling political establishment is keen to
align its norms of governance with the more fundamentalist diktats of the
majority religion. Its debatable, though, how many of them will ultimately
survive legal scrutiny if challenged in a court of law.
You have researched Santhara and the Jain religious philosophy for your
documentary for the better part of five years. Over that period, have you
changed your own perception of Santhara as a religious practice?
For me, it was never a question of personal preference or even perception. I
approached the practice of Santhara from the perspective of a research
scholar, which is why my film too takes no sides in the controversy. Let me
admit here that the choice of making a documentary on Santhara was frankly
an afterthought. It all began when a law college in Mumbai assigned me to
teach my favourite subject: constitutional law. Most law students have this
erroneous notion of the Indian Constitution as being an essentially
theoretical, esoteric and abstract document which has very little connect with
our everyday lives, and therefore a difficult statute to comprehend. Thats not
true at all. And so, to dispel this notion and correct their misperception, I
would bring to class news clippings of some event, incident or development
that had no obvious nexus with the Constitution, and by the Socratic method
of asking leading questions, the classwith a little help from mewould
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discover that there indeed was at least one constitutional provision at the root
of the controversy!
One of such news clippings concerned the legal controversy over Santhara.
During this session, the class stumbled upon that legal rarity: both the
litigants in the Rajasthan High Court PIL were invoking the same law, the
same statute, in fact the same constitutional provision namely, Article 21
and the differences hinged entirely on its interpretation by either side. This
feature of the case stayed on with me long after the class was over. Intrigued, I
then undertook to research the whole issue on my own, and made several
trips to Rajasthan to meet the dramatis personae. The research and the
interviews yielded several articles, published in scholarly journals as well as
popular magazines. Somewhere along the way, after Id earned the trust and
confidence of my sources, I contemplated seriously the possibility of filming
the interviews for a documentary project. What still fascinates me about
Santhara is that its the most illustrative and dramatic example of the lawversus-religion conundrum in the context of the social reality in
contemporary India. Primarily because it centres on a life-and-death issue, but
also because the issues it raisesof the right of religious practice among
minorities, and also of the larger concern over the incompatibility between a
practice that stems from an Eastern religious philosophy and an act of
perceived criminality according to a statute that stems from a Western
religious bioethichave a deeper resonance for us as a society, a resonance
that goes beyond the immediate case.
But surely, some aspects of the Santhara practice must have struck you as
being out of the ordinary. Never experienced a single moment of epiphany?
Sure. And I can recall not just one, but three moments of near-epiphany
during the entire process of making the film.
First, the realisation of the absolute and extreme nature of the Santhara
practice as compared to similar rituals in other religions. If you look at
practices and rituals relating to dietary abstinence in religions other than
Jainism, there is Ramzan among Muslims, Lent among Christians, fasting
during Yom Kippur and Tisha Bav among Jews, and a host of astronomy- and
astrology-related fasts among Hindus. None of these takes fasting to the point
of starvation and ultimately death as in Santhara. In demanding of its
practitioners an absolute and total abstinence from food and drink, Santhara
arguably represents the radical extreme of ahimsa (non-violence), the most
fundamental of the three essential philosophical tenets of Jainism, the other
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two being aparigriha (non-possessiveness or detachment from worldly

comforts and pleasures) and anekantavada (non-absolutism or openness to
differingand even contrastingopinions and beliefs). Since any kind of
eating or drinking would result in a disruption (however minimal) of and add
a burden (however small) to the natural ecology around them, orthodox Jains
consider zero-consumptionthat is, starvation unto death or Santhara to
be the high point among the Jain traditions of austerity and self-denial, and
therefore the truest real-world act of ahimsa. I think it was Osho Rajneesh
who once described Mahatma Gandhi as a violent man, and qualified that
statement by pointing out that the only difference between him and the other
villains of his time was that he directed all his violence at himself! Interesting
to note that Gandhis philosopher-friend and spiritual guru Raychandji Mehta
is said to have died at the young age of 33, having undertaken Santhara after
contracting an illness. And lets not forget that fasting unto death was a
potent instrumentality of the Mahatmas political strategy that ultimately
brought us freedom.
Second, even for adherents who may not take the extreme step of Santhara,
the basic belief extrapolates into a hierarchy of sorts on the amount of bad
karma associated with the consumption of certain foods, and also underlies
the rather convoluted theological rationale for why a devout Jain should
prefer eating mangoes over strawberries! Going strictly by the philosophy of
ahimsa, eating a single-seed fruit like a mango would be deemed less sinful
than eating a multi-seed strawberry because of the latters natural potential to
procreate several more lives in the flora. By that logic, one is effectively
aborting a multitude of life-creating possibilities by consuming a strawberry
as compared to just one in the case of a mango. The same philosophical tenet
prompts Jains to shun vocations like farming which are believed to cause
violence to plant and micro-organic life in the soiland to opt for relatively
non-violent commercial pursuits such as banking and diamond-trading.
The third point of personal exclamation, if you will, was the parallel that
opponents of Santhara draw with the practice of Sati. Ideally, all Santharas
should be voluntary and with the express approval of the higher echelons of
Jain priesthood. But the PIL petitioner Nikhil Soni and his counsel Madhav
Mitra are emphatic that at least some of the Santharas are coerced: the
victims are mostly elderly women or widows with no support systems, and
after their Santhara-induced death, their relatives bask in the glorification of
the act. This, if true, brings Santhara perilously close to Sati. But it should be
noted also that this wasnt a legal issue at all in the PIL because even the
defenders of Santharaparticularly Panachand Jain, a retired judge of the
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Rajasthan High Court, who is the brain behind the legal defence of the
practiceare categorically opposed to such forced Santharas, and want the
culprits to be prosecuted and punished.
So you reject the characterisation of Santhara as a form of Sati?
One could arguably characterise a forced or coerced Santhara doubtless, a
most inhuman and dastardly actas a variant of Sati. The comparison
becomes all the more credible because of the similarity of the profiles of the
victims. But no way would a voluntary Santhara come even close to Sati.
Remember that the practice of Sati was in fact a clever device triggered by
economic interests, and it only wore the dubious and fraudulent mask of
religion for garnering social approval. If it indeed were a genuine religious
practice among the Hindus of those times, why wasnt it common all over
India wherever Hindus lived? In the Dayabhaga system of succession that was
prevalent in Bengal and surrounding regions, the widow could claim a share
in the family property. So Sati was in a sense imposed in these regions to
ensure that the property stayed within the family. The rest of the country
followed the Mitakshara system, which made no such provision and which
therefore never had to contend with the scourge of this practice. Ironic, but
true.
What are the jurisprudential thoughts in other countries with respect to this
law-versus-religion issue? Can you think of any comparable case?
Im tempted to compare the Santhara case with the famous Peyote case in the
U.S. Supreme Court (1990). Two members belonging to a sect of indigenous
Americans were denied unemployment benefits after being dismissed from
their jobs in a government-run drug and alcohol rehab facility. They were
fired because they had ingested a banned substance called peyote at a
religious ceremony of the Native American Church to which they owed
allegiance. Rejecting the mens claim that the law barring peyote consumption
under all circumstances violated their religious freedom, the court held that
freedom of religion did not allow individuals to break the law. When reading
this judgment, one must also take into account the social and political climate
(war on drugs) of that time, as compared to the more recent
decriminalisation and liberalisation of drug use in that country. The revival of
the peyote practice was also helped by the Religious Freedom Restoration Act
of 1993 which protected this freedom.
We could see something similar happening in the case of Santhara. Talk
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about decriminalising the attempt to commit suicide has been capturing

front-page headlines in newspapers with increasing frequency. If this does
come to pass, the Santhara case will be rendered infructuous, though that will
not necessarily bring a closure to the larger law-versus-religion conflict with
which were grappling.
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ON August 24, the Jain community

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five States in protest against the
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judgment of the Rajasthan High C...
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9/5/2015

The Nation Print edition : September 18, 2015

Interview with Shekhar Hattangadi, law

What about the political fallout of the judgment?

two being aparigriha (non-possessiveness or detachment from worldly

about decriminalising the attempt to commit suicide has been capturing

Recent Article in The Nation

ON August 24, the Jain community

judgment of the Rajasthan High C...

CORRECT WITH GRAMMARLY

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