Rostrum’s Law Review | ISSN: 2321-3787

The Holy Fast to Death and Conflicting Constitutional Moralities

The holy fast to death among Jains, a practice known Santhara, has been at the centre of a debate as to how law should deal with the such predicaments where  religious practices   endanger the constitutionally protected right to life. Such a debate also touches upon some of core constitutional values that form the bedrock of the constitutional edifice, of which the fundamental rights continue to be the irreplaceable cornerstones. Moreover, it is one such issue that needs to be seen in view of the judicial precedent as well as the religious practice. The debate on the issue abounds in rival opinions replete with forceful and assertive arguments that have become more frequent especially after the judgment of the Rajasthan High Court in Nikhil Soni v. Union of India and Others[1]  on Santhara.  The Court observed that “There is no…preaching in the religious scriptures of the Jain religion or in the texts written by the revered Jain Munis that the Santhara or Sallekhana is the only method, without which the moksha is not attainable. There is no material whatsoever to show that this practice was accepted by most of the ascetics or persons following the Jain religion in attaining the nirvana or moksha.”[2] The court issued “directions to the State authorities to stop the practice of ‘Santhara’ or ‘Sallekhana’ and to treat it as attempt to suicide punishable under section 309 of the Indian Penal Code and its abetment under section 306 of the Indian Penal Code.” [3]

However, the present paper seeks to bring to fore some of the issues other than the issue of whether Santhara is suicide or not when seen from the perspective of criminal law. There are  important issues such as: whether Santhara is really a voluntary act, whether religious freedom under article 25 be allowed to trump the right enshrined under article 21 of the constitution of India. Lastly, how is it to be seen from the perspective of constitutional morality?[4] This last question bears great importance in that “Constitutional moralities play a unique and highly critical role with respect to written constitutions that are based on the consent of the people.”[5] The constitutional provisions, especially the ones that protect the fundamental rights under the constitution, are rooted in and nourished by the morality constitutionally recognised and accepted.


It is a practice that has acceptance among the followers of both the Shwetambara and the Digambara sects of Jainism. It requires that once a person takes the vow of Santhara, he or she gives up food and water. Such a person awaits the arrival of death. It is one such practice that needs to be analysed from many perspectives before embarking upon the constitutional questions it raises.  Therefore, a preliminary explicatory narrative is a prerequisite.

Santhara or Sallekhana   which means “a fast until death”[6] “is the complete renunciation of material sustenance, in the recognition that even the digestive process involves violence to microscopic organisms.”[7] It is a practice which is undertaken as the ultimate act of ahimsā and aparigraha.[8]

Santhara is undertaken only when the body is no longer capable of serving its owner as an instrument of spirituality and when the inevitability of death is a matter of undisputed certainty. Santhara is seen as the ultimate way to expunge all sins, liberating the soul from the cycle of birth, death and rebirth.[9] Those unhappy with the judgment argue that “The word Santhara means a way of life and encompasses a way of dying as well. In Jainism, the body is seen as a temporary residence for the soul which is reborn. One must remember that a word can embrace a multiplicity of worlds and meanings. As a result, translation is one of the most difficult of acts. It demands a delicacy of understanding about words which, in their consequences, can be lethal. Equivalences are welcome when we seek unity but we need a unity that can sustain the multiple senses of difference.”[10] It is also argued that “It is a ritual act of purification, done in consultation with a guru, and follows the most detailed of procedures. It cannot be an impulsive act or an egoistic one. It bears the imprimatur of theology and the approval of society.”[11]

Be that as it may, it is important to pause and ponder over the following question in this respect: can a “ritual act of purification” even if it bears the “imprimatur of theology and approval of society” be an act of such higher degree or order that despite its causing death it need not be criminalised? There are many practices in society that criminal law frowns upon with punitive sanctions despite their having societal approval or “imprimatur of theology”. Why we need to carve out an exception with respect to Santhara?

Moreover, the very reading of Santhara as a voluntary act needs to be dispelled. It is very difficult to accept arguments justifying Santhara as a voluntary act as it reflects a very shallow or a very literal reading of the word “voluntary”, especially when seen in view of the factual matrix of the cases where people have opted for “fasting to death.” More often, such people are old and sick, and  have given up the hope of life or have suffered great physical pain and want to be rid of the pain. Had they been without such severe infirmities physical or mental, they may not have chosen the path of “fasting to death”. Therefore, their so-called voluntary act is voluntary but only apparently. In fact, they are compelled by the circumstances to embrace death through fasting. As regards the notion of voluntariness in cases where a person chooses to embrace death, the following illustration and explanation given by Norrie brings home the point vividly:[12]

A good counter-example is provided by J.B. Priestley’s play, An Inspector Calls, in which the author persuades us to look behind the ‘voluntary’ act of the young woman’s suicide to the conduct of the various members of the well-to-do family, who each in their own way have contributed to the girl’s decision to take her life. Priestley forces the family to see that each of its members has in his or her own way caused the girl’s death. They cannot conceal behind the girl’s ‘voluntary’ act their own causal roles stemming from the interconnectedness of relations between rich and poor, which ensure that any focus on individual agency can only be falsely narrow. The girl’s suicide is ‘voluntary,’ but it is still caused by the acts of the family, so that no special finality is given to her actions. ‘Voluntariness’ loses its special character when a broader view of events and actions is taken.

Here, it is to be noted that generally, it is the old and sick person who opts for Santhara.[13] Therefore, we also need to understand the causal factor leading to death: whether it is the will of the person seeking death by fasting or a will constructed by compelling reasons or circumstances? If it is the second situation, then the very essence of Santhara stands defeated as portrayed to be a path towards nirvana. It needs to be read in light of the story of Samantabhadra. Long recollects a story of a renowned Digambara scholar-monk of the sixth century, Samantabhadra highlighting the essence of Santhara thus:[14]

…Samantabhadra…sought permission from his guru to undertake the fast to the death because he had contracted leprosy and wanted to, quite literally, put himself out of his misery. His request was denied because his guru could perceive that the real motive behind Samantabhadra’s desire was not, in fact, compassionate detachment, but rather the wish to avoid the physical discomfort of his disease. Only after he had spent a good deal of time in meditation and had come to accept his condition with equanimity was he granted permission to undertake sallekhanā.


The high court in Nikhil Soni very categorically asserted that “No religious practice, whether essential or non-essential or voluntary can permit taking one’s own life to be included under Article 25. The right guaranteed for freedom of conscience and the right to freely profess, practice and propagate (religion) cannot include the right to take one’s life, on the ground that right to life includes the right to end the life. Even in extraordinary circumstances, the voluntary act of taking one’s life cannot be permitted as the right to practice and profess the religion under Article 25 of the Constitution of India.”[15] It basically emphasises the fact that right to life is a right on a higher pedestal vis-à-vis the right to religious freedom guaranteed under the constitution. It is submitted that right to life can never be interpreted to include right to die even if backed by justification rooted in religious practice or belief. Any religious practice cannot be allowed to supersede right to life by simply giving such a practice trappings of a religious act as it happens in case of Santhara. The house of the person who takes the vow of Santhara becomes a kind of a place of pilgrimage. An air of reverence “pervades” the ambience. But even then the question remains: can all these religious trappings justify the death of a person who generally is an old (and sick) person?

There is a moral aspect to all this also. How far such a practice is in consonance with the constitutional morality? Can the subjective morality of the few trump the objective morality that remains deeply embedded in the letter and spirit of the Constitution of India? Moreover, One of the duties that Constitution casts upon us is “to abide by the constitution”[16] and the same constitution vests the power to deprive a person of his or her life to a procedure established by law. A person cannot deprive either himself or any other person of right to life enshrined under article 21 of the Indian Constitution. Therefore the high court rightly observed that “It does not permit nor include under Article 21 the right to take one’s own life, nor can include the right to take life as an essential religious practice under Article 25 of the Constitution.”[17] In Gian Kaur v. State of Punjab[18], the Supreme Court observed:[19]

The significant aspect of “sanctity of life” is also not to be overlooked. Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can “extinction of life” be read to be included in “protection of life”. Whatever may be the philosophy of permitting a person to extinguish his life …, we find it difficult to construe Article 21 to include within it the “right to die” as a part of the fundamental right guaranteed therein. “Right to life” is a natural right embodied in Article 21….

The Court further observed that:[20]

We have earlier held that “right to die” is not included in the “right to life” under Article 21. For the same reason, “right to live with human dignity” cannot be construed to include within its ambit the right to terminate natural life, at least before commencement of the natural process of certain death.

It needs to be emphasised that ““Sanctity of life” … has been understood historically as excluding freedom of choice in the self-infliction of death and certainly in the involvement of others in carrying out that choice. At the very least, no new consensus has emerged in society opposing the right of the State to regulate the involvement of others in exercising power over individuals ending their lives.”[21]


One of the major arguments raised in the above case was that a practice, however, ancient it may be to a particular religion, cannot be allowed to violate the right to life of an individual.[22]It was further argued that the right to freedom of religion under article 25 of the constitution of India is subject to public order, morality, and health and to other provisions of Part III of the constitution which includes article 21.[23] In defence of the practice of Santhara, it was argued that Santhara was inter alia saved by article 25 of the Constitution of India.[24] Therefore, few questions crop up necessitating a searching analysis in this regard, especially the issue of Santhara from the perspective of the constitution.

Religious freedom under the constitution is a qualified one. There are certain limitations that hedge the exercise of freedoms as envisaged under article 25 of the constitution. And taking cue from the high court judgment, it can be logically argued that the expression “subject to the provisions of this Part” does limit the scope and nature of the right that is protected under article 25.  The expression aforementioned does include article 21 of the constitution as pointed out by the high court. Therefore, article 25 should be read vis-à-vis article 21. However, such an exercise is to be preceded by understanding the crux of religious freedom that is permissible to be constitutionally protected.

The freedom of religion under Articles 25 and 26 of the Constitution is not only confined to beliefs but extends to religious practices also.[25]However, the rights guaranteed by Articles 25 and 26 are circumscribed and are to be enjoyed within constitutionally permissible parameters.[26] The Supreme Court in Nala Sangam very pertinently observed:[27]

Often occasions will arise when it may become necessary to determine whether a belief or a practice claimed and asserted is a fundamental part of the religious practice of a group or denomination making such a claim before embarking upon the required adjudication. A decision on such claims becomes the duty of the constitutional court. It is neither an easy nor an enviable task that the courts are called to perform. Performance of such tasks is not enjoined in the court by virtue of any ecclesiastical jurisdiction conferred on it but in view of its role as the constitutional arbiter. Any apprehension that the determination by the court of an essential religious practice itself negatives the freedoms guaranteed by Articles 25 and 26 will have to be dispelled on the touchstone of constitutional necessity.

Therefore, once it is decided that a particular practice is an essential part of religion without which “the religion itself does not survive”[28], then the obvious question is whether the practice is so essential to religious freedom that it may even override the right to life protected under article 21.

Constitutional morality vis-à-vis public morality

In Aarushi Dhasmana v. Union of India[29] it has been held by the Supreme Court that “Every life has an equal inherent value which is recognised by Article 21 of the Constitution and the Court is duty-bound to save that life.”[30] Therefore, if there is a conflict between rights under article 21 and 25, the courts should favour protecting life rather than upholding a religious practice that promotes “fasting to death”. Be that as it may, in Mr ‘X’ v. Hospital ‘Z’[31], the Supreme Court observed:[32]

…where there is a clash of two Fundamental Rights, … the right which would advance the public morality or public interest, would alone be enforced through the process of court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the hall known as the courtroom, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day”.

The “accepted morality of the day” may be the popular morality among the people or certain section of the people, in the present context the Jain community, but Delhi High Court in Naz Foundation case[33] had rightly observed that “Popular morality … is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong.”[34] Constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.[35] But this requires us to understand what this expression “constitutional morality” implies? In fact, there are a set of constitutional moralities that remain embedded in the text, and pervade the spirit, of the constitution.  As Frohnen’ and Carey observe:[36]

Constitutional moralities (there are many possible such) can be understood as anticipated norms of behaviour or even duties primarily on the part of individuals within our constitutional institutions. We use the term morality and refer to constitutional morality with regard to these norms or duties principally because of the purpose they serve; they can be viewed as imposing an obligation on individuals and institutions to ensure that the constitutional system operates in a coherent way, consistent with its basic principles and objectives.

As regards Part III of the Constitution, it comprises of strands of constitutional moralities, each strand getting represented in respective articles that comprise Part III. Often, there may be a situation where two such strands get entangled leading to problematic repercussions like the one we see in case of Santhara where article 21, one such strand, seems to be entangled with another strand, namely article 25 that recognises and protects religious freedom.

The norm emanating from article 21, in view of Aarushi Dhasmana, implies that courts ought to save life, and such a norm, therefore, arguendo mandates that no practice or act or conduct should be protected and promoted to an extent that it becomes a threat to right to life. There is no denying the fact that whether it is the public morality or the “accepted morality of the day”, adjudicating questions of moral dilemma requires adhering to constitutional morality which “basically means to bow down to the norms of the Constitution.”[37] Such a norm forming part of “constitutional morality” need to be respected and guarded as Andre Béteille reminds us that “In the absence of constitutional morality, the operation of a constitution, no matter how carefully written, tends to become arbitrary, erratic and capricious.”[38] Pratap Bhanu Mehta avers that “Religious practices cannot trump modern constitutional morality.”[39] And, “There is something quite vapid about…going to great lengths to show that religion, properly understood, is not in conflict with constitutional morality.”[40] Any consideration, moral or religious, must bow down to the constitutional morality, which should be the guiding light in situations that demand a firm negation of certain freedoms in favour of  rights that are inviolable and sacrosanct.


There are inherent problems with the practice of Santhara when seen from the perspective of the constitutional norms and spirit. The freedom for religion cannot extend to an extent that it undermines the very principles the constitutional edifice relies upon. Right to life and sanctity of life are so sacrosanct that they cannot be snatched away by a practice performed under the trappings of religion and religious freedom.  The practice of Santhara suffers from certain inherent problems: first one being the questionable nature of voluntariness of the act of Santhara, second one being its fallibility as regards the touchstone of constitutional morality of which right to life is an integral component. Therefore, when seen from a constitutional perspective, the practice of Santhara should be impermissible.

This Article is written by Dr. Rabindra Kumar Pathak working as an Assistant Professor at National University of Study and Research in Law Ranchi.


[1] 2015 Cr. L.J 4951 (Raj). [hereinafter referred to as Nikhil Soni]

[2] Id. at 4969.

[3] Ibid.

[4] See, generally Andre Béteille, “Constitutional Morality”, 43 Economic and Political Weekly 35-42(2008). Béteille recalls how Ambedkar was deeply concerned over the question of constitutional morality which he believed was “not a natural sentiment. It has to be cultivated. We must realise that our people are yet to learn it.” Id. at 36. Also see, William D. Guthrie, “Constitutional Morality”, 96 The North American Review 154-173 (1912)

[5] Infra note 36 at 499.

[6]  Both the terms are used synonymously to mean “fasting oneself to death”. Santhara literally means “a bed of hey or grass” whereas Sallekhana  implies “thinning out of the body” through fasting. See, Sudhir Kakar, Death and Dying (2014)

[7] Jeffery D Long, Jainism: An Introduction 98 (2009).

[8] Id. at 110.

[9] See, Thaddeus Mason Pope and Lindsey E. Anderson, “Voluntarily Stopping Eating And Drinking: A Legal Treatment Option At The End Of Life”, 17 Widener Law Review 363, 389 (2011).

[10] Shiv Visvanathan, “A Reductive Reading of Santhara”, The Hindu (24.08.2015) ( emphasis added).

[11] Ibid. ( Emphasis added). Visvanathan argues that “Santhara is a multivalent term which cannot be reduced to the dreariness of suicide as closure or a termination. The English term cannot comprehend Santhara in terms of being a ritual exit and a rite of passage to a different world. Santhara, performed correctly, is ritual non-violence. In fact… the court’s judgment misinterprets both the word and world.” Ibid.

[12] Alan Norrie, “A Critique of criminal Causation”, 54 Modern Law Review, 685,692(1991).

[13] For example, a lady, 73 years old, suffering from tuberculosis and bedridden for a year, decided to take Santhara when the doctors “gave up hopes”. She dies within 40 hours of starting Santhara. There are many such cases. See, Tanushree Venkatraman , Manasi Phadke, “Santhara: Glorified suicide or essential practice?”, The Indian Express(06.09.2015). Also see, Gopal Kateshiya, “A santhara row that divided Rajkot”, The Indian Express (06.09.2015).

[14] Supra note 9.

[15] Supra note 1 at 4969. (Emphasis added)

[16] See, Article 51A, Constitution of India, 1950.

[17] Supra note 1 at 4969.

[18] (1996) 2 SCC 648. Also see, Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454.

[19] Id. at 660.

[20] Id. at 663.

[21] Rodriguez v. B.C. (A.-G.) [107 DLR (4th Series) 342]

[22] Supra note 1 at 4952.

[23] Ibid.

[24] Id. at 4960.

[25] Adi Saiva Sivachariyargal Nala Sangam v. State of T.N., (2016) 2 SCC 725 at 752.[hereinafter Nala Sangam]

[26] Ibid.

[27] Ibid.

[28] Id. at 755.

[29] (2013) 9 SCC 475

[30] Id. at 482. [Emphasis added]

[31] (1998) 8 SCC 296

[32] Id. at 309. Emphasis added.

[33] Naz Foundation v. Govt. (NCT of Delhi), (2009) 111 DRJ 1.

[34] Id. at 35.

[35] Ibid.

[36] Bruce P. Frohnen & George W. Carey, “Constitutional Morality and Rule of Law”,26 Journal of Law & Politics 497,498 (2011)

[37] Manoj Narula v. Union of India, (2014) 9 SCC 1 at page 49.

[38] Andre Béteille , “Constitutional Morality”, 43 Economic and Political Weekly 40, 36(2008).

[39] Pratap Bhanu Mehta, “On triple talaq, court must say: Religious practice cannot trump modern constitutional morality”, The Indian Express (18.05.2017)

[40] Ibid.

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