‘Dramatic Example of Law vs Religion’ _ Frontline

9/5/2015 Dramaticexampleoflawvsreligion|Frontline

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The Nation Print edition : September 18, 2015

Interview: Shekhar HattangadiDramatic 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 HighCourt order criminalising Santhara. Photo:A. M. Faruqui

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Interview with Shekhar Hattangadi, lawprofessor and the maker of Santhara: AChallenge to Indian Secularism? By V.VENKATESAN

BY an uncanny twist of circumstances, the Rajasthan High Courts Santharajudgment was preceded, by a few weeks, by the buzz surrounding adocumentary on the controversial Jain practice of voluntarily starving to deathby Shekhar Hattangadi, a Mumbai-based journalist, law professor and film-maker. Completed earlier this year, the film, Santhara: A Challenge to IndianSecularism?, has won awards at two film festivals and elicited sharp andheated responses for and against the practice from among audiences. The filmitself takes no sides, but subliminally asks a question while exploring thespiritual, scriptural, ethical, medico-legal and sociological aspects of thepractice: What happens when a traditional religious practice violates the law?Based largely on interviews with, among others, those who filed the publicinterest litigation (PIL) petition in the High Court and their representatives,the film looks at how religion, law and constitutional secularism intersect inthe ongoing debate over Santhara. It also depicts the last moments in the lifeof a Jain sadhvi who adopted this practice.

A science graduate with a dual masters degree in international politics andjournalism, Hattangadi is also a gold-medallist in law and a Kennedy Fellowin Public Policy at Harvard Universitys John F. Kennedy School ofGovernment, besides being an alumnus of the Film and Television Institute,Pune. He spoke to Frontline about the making of the film and about the courtjudgment. 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, publicdisplays of religiosity (meaning, over-the-top religious festivals and practices),the social and the religious are inextricably interlinked. So the first social



impact of the Rajasthan High Court judgment would be that Jains will balk atit and bristle against what they view as an unjustified encroachment by thestate into the realm of religion, and particularly their religion. Many amongthem see it as a violation of the constitutional guarantee of the right toreligious freedom and practice as it pertains to individuals (Article 25) and toreligious institutions (Article 26). Even as I say this, I hear news reports ofJains downing shutters and taking their peaceful protest against the judgmentto the streets.

Apart from being a faith-based society in a larger sense, were also a societywith multiple faiths. So I anticipate the Santhara judgment to have an indirectbut nonetheless chilling effect of sorts on practitioners of rituals and practicesof other religionsparticularly those rituals and practices which seem totread a fine line with respect to legal and constitutional provisions. I have inmind practices like the restricted entry of women into certain temples anddargahs, the practice of bal-diksha, the use of wine in church rituals in Stateswhere consumption of alcohol is prohibited, and so on. Naturally, theyrewaiting and watching with considerable trepidation as the matter moves tothe 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 andalso as Indian citizens expect a lot from the higher judiciary. I know you cantreally fault the Rajasthan High Court judgment on the basis of whats alreadythere in our statute books (for example, the Indian Penal Code, whichcriminalises suicide) and in our court precedents (for example, the Gian Kaurcase, which held that the right to life enshrined in Article 21 did not includethe right to terminate ones life). I must admit, however, that I was hoping theHigh Court would be a little more proactive and creative in its interpretationsof suicide and the right to life concepts as they pertain to religiouspractice. Remember, the most exciting period in the life of our higherjudiciaryparticularly the Supreme Courtso far has been the period of so-called judicial activism in the 1970s and the 1980s when progressive-mindedjudges expanded the scope and meaning of right to life and gave some path-breaking judgments. Now that the Santhara case has reached the SupremeCourt, can we expect a rebirth of that activism? At the very least, can weexpect an informed discussion on the origin, nature, utility and applicabilityof some of our debatable laws as well as some of our equally debatable legaldoctrinessuch as the Essential Practice doctrineto which the RajasthanHigh Court judgment took recourse?



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 politicalparty wants to rub them the wrong way. The UPA [United ProgressiveAlliance], on the eve of the 2014 general elections, granted them minoritystatus. The BJP [Bharatiya Janata Party], with its Hindutva manifesto, is facinga unique dilemma. The countrys traderssmall shopkeepers, in the mainare a major constituency of the ruling party, and they include a largeproportion of Jains. At the same time, Jains technically dont count among theHindu 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, therecould be points of discordance. Already there are murmurs within the Jaincommunity that the court has deferred to the majority sentiment bydiscriminating against a minority religion. While this perception might wellbe an instance of reading too much into the judgment, some public policydecisions of the executive branch of the government (notably the beef ban inMaharashtra) would indicate that the ruling political establishment is keen toalign its norms of governance with the more fundamentalist diktats of themajority religion. Its debatable, though, how many of them will ultimatelysurvive legal scrutiny if challenged in a court of law.

You have researched Santhara and the Jain religious philosophy for yourdocumentary for the better part of five years. Over that period, have youchanged your own perception of Santhara as a religious practice?

For me, it was never a question of personal preference or even perception. Iapproached the practice of Santhara from the perspective of a researchscholar, which is why my film too takes no sides in the controversy. Let meadmit here that the choice of making a documentary on Santhara was franklyan afterthought. It all began when a law college in Mumbai assigned me toteach my favourite subject: constitutional law. Most law students have thiserroneous notion of the Indian Constitution as being an essentiallytheoretical, esoteric and abstract document which has very little connect withour everyday lives, and therefore a difficult statute to comprehend. Thats nottrue at all. And so, to dispel this notion and correct their misperception, Iwould bring to class news clippings of some event, incident or developmentthat had no obvious nexus with the Constitution, and by the Socratic methodof asking leading questions, the classwith a little help from mewould



discover that there indeed was at least one constitutional provision at the rootof the controversy!

One of such news clippings concerned the legal controversy over Santhara.During this session, the class stumbled upon that legal rarity: both thelitigants in the Rajasthan High Court PIL were invoking the same law, thesame statute, in fact the same constitutional provision namely, Article 21and the differences hinged entirely on its interpretation by either side. Thisfeature of the case stayed on with me long after the class was over. Intrigued, Ithen undertook to research the whole issue on my own, and made severaltrips to Rajasthan to meet the dramatis personae. The research and theinterviews yielded several articles, published in scholarly journals as well aspopular magazines. Somewhere along the way, after Id earned the trust andconfidence of my sources, I contemplated seriously the possibility of filmingthe interviews for a documentary project. What still fascinates me aboutSanthara is that its the most illustrative and dramatic example of the law-versus-religion conundrum in the context of the social reality incontemporary India. Primarily because it centres on a life-and-death issue, butalso because the issues it raisesof the right of religious practice amongminorities, and also of the larger concern over the incompatibility between apractice that stems from an Eastern religious philosophy and an act ofperceived criminality according to a statute that stems from a Westernreligious bioethichave a deeper resonance for us as a society, a resonancethat goes beyond the immediate case.

But surely, some aspects of the Santhara practice must have struck you asbeing out of the ordinary. Never experienced a single moment of epiphany?

Sure. And I can recall not just one, but three moments of near-epiphanyduring the entire process of making the film.

First, the realisation of the absolute and extreme nature of the Santharapractice as compared to similar rituals in other religions. If you look atpractices and rituals relating to dietary abstinence in religions other thanJainism, there is Ramzan among Muslims, Lent among Christians, fastingduring Yom Kippur and Tisha Bav among Jews, and a host of astronomy- andastrology-related fasts among Hindus. None of these takes fasting to the pointof starvation and ultimately death as in Santhara. In demanding of itspractitioners an absolute and total abstinence from food and drink, Santharaarguably represents the radical extreme of ahimsa (non-violence), the mostfundamental of the three essential philosophical tenets of Jainism, the other



two being aparigriha (non-possessiveness or detachment from worldlycomforts and pleasures) and anekantavada (non-absolutism or openness todifferingand even contrastingopinions and beliefs). Since any kind ofeating or drinking would result in a disruption (however minimal) of and adda burden (however small) to the natural ecology around them, orthodox Jainsconsider zero-consumptionthat is, starvation unto death or Santhara tobe the high point among the Jain traditions of austerity and self-denial, andtherefore the truest real-world act of ahimsa. I think it was Osho Rajneeshwho once described Mahatma Gandhi as a violent man, and qualified thatstatement by pointing out that the only difference between him and the othervillains of his time was that he directed all his violence at himself! Interestingto note that Gandhis philosopher-friend and spiritual guru Raychandji Mehtais said to have died at the young age of 33, having undertaken Santhara aftercontracting an illness. And lets not forget that fasting unto death was apotent instrumentality of the Mahatmas political strategy that ultimatelybrought 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 badkarma associated with the consumption of certain foods, and also underliesthe rather convoluted theological rationale for why a devout Jain shouldprefer eating mangoes over strawberries! Going strictly by the philosophy ofahimsa, eating a single-seed fruit like a mango would be deemed less sinfulthan eating a multi-seed strawberry because of the latters natural potential toprocreate several more lives in the flora. By that logic, one is effectivelyaborting a multitude of life-creating possibilities by consuming a strawberryas compared to just one in the case of a mango. The same philosophical tenetprompts Jains to shun vocations like farming which are believed to causeviolence to plant and micro-organic life in the soiland to opt for relativelynon-violent commercial pursuits such as banking and diamond-trading.

The third point of personal exclamation, if you will, was the parallel thatopponents of Santhara draw with the practice of Sati. Ideally, all Santharasshould be voluntary and with the express approval of the higher echelons ofJain priesthood. But the PIL petitioner Nikhil Soni and his counsel MadhavMitra are emphatic that at least some of the Santharas are coerced: thevictims are mostly elderly women or widows with no support systems, andafter their Santhara-induced death, their relatives bask in the glorification ofthe act. This, if true, brings Santhara perilously close to Sati. But it should benoted also that this wasnt a legal issue at all in the PIL because even thedefenders of Santharaparticularly Panachand Jain, a retired judge of the



Rajasthan High Court, who is the brain behind the legal defence of thepracticeare categorically opposed to such forced Santharas, and want theculprits 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, amost inhuman and dastardly actas a variant of Sati. The comparisonbecomes all the more credible because of the similarity of the profiles of thevictims. 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 byeconomic interests, and it only wore the dubious and fraudulent mask ofreligion for garnering social approval. If it indeed were a genuine religiouspractice among the Hindus of those times, why wasnt it common all overIndia wherever Hindus lived? In the Dayabhaga system of succession that wasprevalent in Bengal and surrounding regions, the widow could claim a sharein the family property. So Sati was in a sense imposed in these regions toensure that the property stayed within the family. The rest of the countryfollowed the Mitakshara system, which made no such provision and whichtherefore never had to contend with the scourge of this practice. Ironic, buttrue.

What are the jurisprudential thoughts in other countries with respect to thislaw-versus-religion issue? Can you think of any comparable case?

Im tempted to compare the Santhara case with the famous Peyote case in theU.S. Supreme Court (1990). Two members belonging to a sect of indigenousAmericans were denied unemployment benefits after being dismissed fromtheir jobs in a government-run drug and alcohol rehab facility. They werefired because they had ingested a banned substance called peyote at areligious ceremony of the Native American Church to which they owedallegiance. Rejecting the mens claim that the law barring peyote consumptionunder all circumstances violated their religious freedom, the court held thatfreedom of religion did not allow individuals to break the law. When readingthis judgment, one must also take into account the social and political climate(war on drugs) of that time, as compared to the more recentdecriminalisation and liberalisation of drug use in that country. The revival ofthe peyote practice was also helped by the Religious Freedom Restoration Actof 1993 which protected this freedom.

We could see something similar happening in the case of Santhara. Talk



about decriminalising the attempt to commit suicide has been capturingfront-page headlines in newspapers with increasing frequency. If this doescome to pass, the Santhara case will be rendered infructuous, though that willnot necessarily bring a closure to the larger law-versus-religion conflict withwhich were grappling.

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Eloquent silence

ON August 24, the Jain communitymobilised itself in large numbers infive States in protest against the



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‘Dramatic Example of Law vs Religion’ _ Frontline