Civil Writ Petition No. 7414/2006. Case: Nikhil Soni Vs Union of India and Ors.. Rajasthan High Court
| Case Number | Civil Writ Petition No. 7414/2006 |
| Counsel | For Appellant: Madhav Mitra, Nishant Sharma, Veerendra Singh and Abhishek Naithany, Advs. and For Respondents: P.C. Bhandari, Rakesh Chandel, Abhinav Bhandari, Dinesh Pareek, S.K. Gupta, Addl. Advocate General, J.K. Singh, Sr. Counsel assisted by Anuroop Singhi, Saurabh Jain, Ajeet Bhandari, Sunil Nath, Uday Sharma and Vimal Choudhary, Advs. |
| Judges | Sunil Ambwani, C.J. and Veerender Singh Siradhana, J. |
| Issue | Constitution of India - Articles 13, 14, 174, 21, 213, 226, 25, 25(1), 25(2), 26, 26(b), 29, 306, 51A(e), 51A; Indian Penal Code 1860, (IPC) - Sections 107, 300, 306, 309, 92 |
| Judgement Date | August 10, 2015 |
| Court | Rajasthan High Court |
Order:
Sunil Ambwani, C.J.
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In this writ petition filed under Article 226 of the Constitution of India in public interest, the petitioner, a practising lawyer at Jaipur Bench of the Rajasthan High Court, has prayed for directions to the Union of India through Secretary, Department of Home, New Delhi-respondent No. 1 and the State of Rajasthan through Secretary, Department of Home, Secretariat, Rajasthan, Jaipur-respondent No. 2, to treat "SANTHARA" or "SALLEKHANA" as illegal and punishable under the law of the land and that the instances given in the pleadings, be investigated and subjected to suitable prosecution of which, the abetment be also treated as criminal act.
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The "Santhara", which means a fast unto death, is a practice prevalent in Shvetambara group of Jain community. According to the petitioner, it is a religious fast unto death on the pretext that when all purpose of life have been served, or when the body is unable to serve any purpose of life, the Santhara will obtain "Moksha" (salvation). A person, after taking vow of Santhara stops eating and even drinking water and waits for death to arrive. It is submitted that the Santhara is religious thought, which has no place under the law of the land. The Constitution of India guarantees right to life, and protects the life of an individual. The right to freedom of religion under Article-25 in Part-III-Fundamental Rights, is subject to public order, morality and health and to the other provisions of this Part, which includes Article 21. All persons are entitled to freedom of conscience and the right freely to profess, practice and propagate religion. A practice, however, ancient it may be to a particular religion, cannot be allowed to violate the right to life of an individual.
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It is submitted that a voluntary fast unto death is an act of self-destruction, which amounts to "suicide", which is a criminal offence and is punishable under section 309 IPC with simple imprisonment for a term which may extend to one year or with fine or with both. The abetment of suicide is also punishable under section 306 IPC with imprisonment of the term which may extend to ten years and also liable to fine. "Suicide" means an intentional killing of oneself. Every act of self-destruction by a human being subject to discretion is, in common language described by the word "suicide" provided it is an intentional act of a party knowing the probable consequence of what he is about to do. Suicide is never to be presumed. Intention is the essential legal ingredient under section 309 IPC.
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It is submitted that Shvetambara group of Jain religion believes that the Santhara is a means to attain moksha. A person adopting the Santhara is helped by the entire community in designing it ceremoniously. People visit the person for his/her darshan and to witness the occasion with reverence. The house of such person becomes a place of pilgrimage. The entire act is considered to be an act of courage and rational thinking on the pretext that soul never dies. They glorify the act and its eventuality. The petitioner has given several examples of the Santhara to show that it is not an age old and forgotten practice and that it is being practiced even now regularly. Some of the instances of Santhara have been given in paragraph 4 of the writ petition as follows:-
"(i) Sohan Kumariji administered the vow of SANTHARA, on 7th Oct., 1993. Her fast lasted for 20 days.
(ii) Premji Hirji Gala in Nov. 1994. Fasted uptill 212 days.
(iii) Jethalal Zaveri fast lasted for 42 days in 1997.
(iv) Nirmalananda (illustration taken from the Deccan Herald Jan. 10, 1997) the fast lasted for three weeks.
(v) Haraklalji Bhairulalji Mehta in Oct. 2000 Ahmedabad. Fast lasted for 23 days. He hails from Mahendra Garh near Bhilwara, Rajasthan.
(vi) Sadhvi Nerbhay Vani. Fasted for 20 days, 24th May 2003 at Jain Temple Gohana Town and Muni Matiryaji Maharaj, Fasted for 35 days belonging to Terapanth Dharam Sangh at Udasar near Bikaner, Rajasthan."
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An additional affidavit was filed bringing on record the adoption of the Santhara by late Vimla Jain, who was given the status of Sadhvi and her fast unto death was widely publicized by her family members with her photographs in the obituary columns for having adopted the Santhara. The decorated photograph of her dead body was also published in the newspaper. The newspaper report publicized the religious meetings and glorified the act of late Vimla Devi raising the status of the family in the community. Though it was an offence under section 309 IPC for which the entire family and the community abetted, no action was taken by the police as the Administration in Rajasthan accepts the act as a part of religious practice.
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Notices of the petition were issued on 22.9.2006 also calling upon the Superintendent of Police (East), Jaipur to do the needful if the petitioner approaches him with a complaint. On the next date fixed on 21.12.2006, a large number of individuals sought intervention, to which an objection was taken by the petitioner that they are not true representatives of the Jain community. The Court observed that if all the sundry are formally impleaded as respondents and allowed to file their respective replies, it would make the exercise difficult and cumbersome and thus, allowed intervention by bodies/associations and they were added as respondents and individual intervenors to be heard.
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On 2.5.2007, the Court permitted Shri Man Singh Mehta to intervene in the matter as an individual as others were also allowed to intervene.
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The matter has, thereafter, been on voyage on the cause list from 6.8.2008 for seven years until it was heard on 23.4.2015. The cause of the petition for the last nine years has been a subject matter of curiosity by the general public, and a lot of concern of the Jain community. The matter was argued and defended with passion. The petitioner is advocating modern thought and thinking, and has relied heavily upon the Constitution of India to be the governing law of the land. The respondents on the other hand are represented by Shri Mr. P.C. Bhandari with Mr. Rakesh Chandel, Mr. Abhinav Bhandari and Mr. Dinesh Pareek as lawyers and members of the Jain community and Mr. S.K. Gupta, Addl. Advocate General representing the State of Rajasthan. Mr. J.K. Singhi, Sr. Counsel, Mr. Anuroop Singhi, Mr. Saurabh Jain, Mr. Ajeet Bhandari, Mr. Sunil Nath and Mr. Uday Sharma participated in the hearing with curiosity and concern.
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The response of the State to the prayers made in the writ petition is mixed with respect and reverence for the religion, and protection of ancient and rich culture of Jain community, which has economic dominance in the State of Rajasthan. Out of the confusion and protectionist attitude arises a curious plea by the State that the right of individual practising Santhara or Sallekhana is protected as a religious practice under the Constitution. It is stated in the reply that the petitioner is seeking relief to declare the Santhara or Sallekhana as illegal, which is a religious practice or religious feeling followed by the Society of Jain since times immemorial. The basis of the writ petition is that under section 309 IPC, such practice amounts to an offence, however, the petitioner has failed to substantiate as to how this public interest litigation is maintainable for declaring the religious activity punishable under criminal law. He has failed to place on record any sort of evidence or particular instance, which falls within the ambit of Section 309 IPC and thus, the petition deserves to be dismissed as baseless. It is further stated that the delayed investigation of such instances is meaningless and for which the writ petition is not maintainable at all. The petitioner has placed on record some clippings of the newspaper, but in absence of matters falling within the ambit of Section 309 IPC and as no complaint has been filed in the Police Station, the investigation is not permissible in law. It is stated that the petitioner has not carried out any research and has also failed to go through the Article 25 of the Constitution of India, which gives right to freedom of religion. The petitioner has not placed on record any such facts or material, which may demonstrate glorifying of Sati, which is an offence under the law and in no religion glorifying of Sati Pratha is religious activity or religious faith or amounts to belief in God.
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The State Government has relied on a study carried out by Justice T.K. Tukol, former Vice-Chancellor, Bangalore University, who has written a book published from Ahmedabad, namely, "Sallekhana is not suicide" in which a lot of research work and instances have been given and which provides the procedure, stage, situation for the person, who wants to adopt or follow the religious path known as "Sallekhana". It is submitted on behalf of the State that it is not in public interest to entertain such petition. In paragraph 5 of the reply, affirmed by Shri Om Prakash Sharma, Addl. S.P. (East), Jaipur, it is stated that the petitioner has not placed on record any example in which the practice of Santhara amounts to offence under section 309 IPC, whereas commonly and religiously it is known as religious activity or faith in Jain religion like other religions. He has failed to submit on record that the practice of Santhara/Sallekhana is practised under force or compulsion and does not amount to religious activity, whereas it is sufficient to state at this stage that this religious practice or activity or faith is nowhere defined as illegal or criminal act and as such, the same is neither punishable nor subjected to investigation unless any specific complaint is received by the police authorities. The writ petition is without any research work in the field and thus, liable to be dismissed at the threshold.
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A reply has been filed by Shri Vimal Chand Daga, Secretary of Stanakvasi Jain Shravak...
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