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SCOI Report: SC stays HC ban on Jain Santhara within seconds of seeing Singhvi, Subramanium, Salve

Jain rights: A long battle ahead...
Jain rights: A long battle ahead...

Chief Justice of India HL Dattu and Justice Amitava Roy yesterday (31 August) granted a stay on the Rajasthan high court’s judgment delivered on August 10 criminalising the Jain community’s practice of Santhara – meaning abstinence from food and water by a person, who awaits death – and issued notice to the respondents in the case.

The grant of an ex-parte stay on the judgment – a prayer made by the appellants, representing the Jain community – was a foregone conclusion, as refusal to stay would have meant that the Jains as a religious community would have had to suffer interim loss of their religious freedom, if after the Supreme Court heard the SLPs, comes to the conclusion that the high court judgment has to be set aside.

The balance of convenience, for imposing a stay, was, therefore, in favour of the Jains.

Yet the appellants did not want to take chances, and lined up three senior counsel to argue their SLPs: Abhishek Manu Singhvi, Gopal Subramanium, and Harish Salve.

Dattu, who already appeared to be familiar with the pleadings in the SLPs on seeing their faces, did not want to waste time hearing them, and immediately granted the stay, issuing notices to the respondents, Nikhil Soni (the petitioner in the case in the High Court), the Rajasthan Government, and the Union of India.

Seven SLPs were listed in the causelist today. They were filed by Sthanakvasi Jain Shravak Sangh, Akhil Bharat Varshiya Digamber Jain Parishad, Bharat Varshiyya Digambar Jain Teerth Kshetra Committee, Rajasthan, Bharat Jain Mahamandal, Jain Swetamber Terapannthi Mahasabha, Sachin s/o Sumatilal Zaveri, and Dhawal Jiwan Mehta.It took the Rajasthan High Court almost nine years to hear Nikhil Soni’s petition challenging the practice of Santhara, which was filed in 2006. Considering the issues at stake, the Supreme Court is likely to take at least half the time taken by the high court to hear the case.

Experts say that the SLPs, however, may become infructuous if, in the mean time, the Centre goes ahead with its plans to decriminalise Section 309 of the Indian Penal Code, which makes attempt to suicide a punishable offence.

Although the Jains claim that Santhara ought not to be equated with suicide, the petitioner in the high court case had argued that there was nothing to distinguish it from suicide, and therefore, those abetting it must be booked under section 306 IPC, apart from prosecuting those who practice Santhara under Section 309 IPC

In its SLP, the Akhil Bharat Varshiya Digamber Jain Parishad has argued that the petitioner, Nikhil Soni, is neither a Jain nor well-versed with the concept of Santhara.

The Parishad has argued that the Digambar Jain community, which is one of the major sect of the Jains was entirely unrepresented before the High Court. The High Court did not consider an application for impleadment and written submissions by a representative of Digambar Jains.

The SLP has also alleged that the high court has demeaned a pious religious practice by treating detailed explanations of the community about the significance of Santhara with amusement.

The High Court did not appreciate either the meaning of the shlokas (the verses) or the philosophy behind it, it was argued in the SLP

Another SLP filed by Jain Swetamber Terapanthi Mahasabha claimed that Jains are a minority and they have a right to conserve the distinct culture as enjoined under Article 29(1) of the Constitution and Santhara is a part of their culture.

The SLP also claimed that prevention of Santhara taken within the precincts of his home by the householder or in an abode by the monk, without affecting public in any manner, would be tantamount to invasion of privacy.

With the interim stay, the Jains, who felt outraged by the High Court judgment, and held protests all over the country, can now heave a sigh of relief.

Image by Jain Prateek Chihna

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