Вы находитесь на странице: 1из 43

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION


SPECIAL LEAVE PETITION (CIVIL) NO.

OF 2015

[From the final judgment and order dated 10.8.2015 passed by the
Honble High Court of Judicature for Rajasthan at Jaipur brnch,
Jaipur in D.B. Civil Writ petition no. 7414 /2006.]
WITH PRAYER FOR INTERIM RELIEF
IN THE MATTER OF:
Akhil Bharat Varshiya Digamber Jain Parishad.

Petitioners

Versus
Union of India & ors..

Respondents

WITH

I.A. No. ____________ OF 2015


Application for permission to file the special leave petition

PAPER

BOOK

FOR INDEX
KINDLY SEE INSIDE

ADVOCATE FOR THE PETITIONER: SMT. PRATIBHA JAIN

INDEX
S.NO.

Particulars.

1.

Office Report on Limitation

2.

Listing Proforma

3.

Synopsis & List of Dates

4.

Copy of the Final impugned judgment and order


dated 10.8.2015 passed by the Honble High
Court of Judicature for Rajasthan at Jaipur
bench, Jaipur in D.B. Civil Writ petition no.
7414 /2006
- APPEALED AGAINST-

5.

Special Leave Petition with Affidavit

6.

Annexure P-1
A copy of the D.B. Civil Writ Petition No.
7414/2006 filed before the Honble High Court
of Judicature for Rajasthan at Jaipur bench,
Jaipur dated 29.5.2006

7.

Annexure P-2
A copy of the order dated 22.09.2006 of the
Honble High Court of Judicature for Rajasthan
at Jaipur Bench, Jaipur in D.B. Civil Writ Petition
No. 7414/2006

8.

Annexure P-3
A copy of the impleadment application filed
before the Honble High Court of Judicature for
Rajasthan at Jaipur Bench, Jaipur in D.B. Civil
Writ Petition No. 7414/2006 dated 29.9.2006

9.

Annexure P-4
copy of the order dated 21.12.2006 by the
Honble High Court of Honble High Court of
Judicature for Rajasthan at Jaipur Bench, Jaipur
in D.B. Civil Writ Petition No. 7414/2006

10.

Annexure P-5
Written submissions filed by Shri Veerendra
kumar Jain filed before the Honble High Court
of Judicature for Rajasthan at Jaipur Bench,
Jaipur in D.B. Civil Writ Petition No. 7414/2006
dated nil.

11.

Annexure P-6
copy of the reply filed by the State
Government filed before the Honble High

Pages
A

Court of Judicature for Rajasthan at Jaipur


Bench, Jaipur in D.B. Civil Writ Petition No.
7414/2006 dated 16.9.2006
12.

Annexure P-7
Copy of the order dated 23.04.2015 passed by
the Honble High Court Honble High Court of
Judicature for Rajasthan at Jaipur Bench, Jaipur
in D.B. Civil Writ Petition No. 7414/2006

13.

Annexure P-8
Copy of the impleadment application No. 23487
of 2015 filed by the petitioner before the Honble
High Court of Judicature for Rajasthan at Jaipur
Bench, Jaipur in D.B. Civil Writ Petition No.
7414/2006

14.

I.A. No.
of 2015
Application for permission to file the special
leave petition

SYNOPSIS
The

present

case

involves

substantial

question

as

to

the

interpretation of the words Liberty of thought, expression, belief,


faith and worship used in the Preamble read with Articles 25(1),
26 and 29 of the Constitution of India. It is submitted that the
Honble High Court has in the impugned judgment, without
appreciating the basic philosophy and tenets of the Jain religion
and without compliance of its earlier order dated 21.12.2006 has
finally directed as under:
43. The Writ Petition is allowed with the directions to the
State authorities to stop the Practice of Santhara or
Sallekhana and to treat it as a suicide punishable under
section 309 of the Indian Penal Code and its abetment by
persons under section 306 of the Indian Penal Code. The
State Shall stop and abolish the practice of Santhara or
Sallekhana in the Jain religion in any form. Any complaint
made in this regard shall be registered as a criminal case
and investigated by the police, in the light of the recognition
of law in the Constitution of India and in accordance with
section 309 or 306 IPC, in accordance with law
It is submitted that the aforesaid order impugned herein has been
passed in a Public Interest Litigation petition filed in the year 2006
by the writ petitioner - respondent no.3 herein who is neither a
Jain nor well versed with the concept of Sallekhana or Santhara.
The petitioner herein most respectfully submits that the Honble
High Court has decided the aforesaid issue, which is part of
religious faith of all the members of the Jain Community, without
ensuring that the entire community and its sections, who would be
affected by the decision and who have a vital interest in the lis,
are duly represented. The petitioner most respectfully submits that
the Digambar Jain Community, which is one of the major sect of
the Jain Community was entirely unrepresented before the Honble
High

Court

and

the

writ

petitioner

did

not

implead

the

bodies/organizations in a manner so that there is a proper


representation of all sections. It may be also submitted that the
Honble High Court also failed to appreciate that Sh. Virendra
Kumar Jain, who was the only representative member of the
Digambar Jain community had filed an application for impleadment
under Order 1 Rule 10 of CPC and had also submitted written
submissions

which

have

however

not

been

taken

into

consideration by the Hon'ble High Court.


The petitioner herein most respectfully submits that the writ
petition was filed by the Respondent no.3 Shri Nikhil Soni on a

total misconception and false notion of Sallekhana or Santhara


conjured

from

inadequate/erroneous

knowledge

of

pious

religious practice. It is submitted that the Honble High Court


without discussing the actual historical/ancient origin and object of
Santhara/ Sallekhana and its religious importance as part of a
basic element of Jainism i.e. aparigriha has proceeded to equate
the same with the offence of suicide. It is submitted that the
Hon'ble High Court has ignored the extensive submissions as well
as the sculptures placed before the Hon'ble High Court showing
the Jain faith in taking vow of Santhara/Sallekhana. It is submitted
that before the Hon'ble High Court, Shri P.C. Bhandari also recited
the Atra and shlokas and narrated the various stages of attaining
the Santhara/Sallekhana and explained the same to the Hon'ble
Court. The Honble High Court has treated the said explanations
given by Shri P.C. Bhandari as an object of amusement to the
general public, which the petitioner submits amounts demeaning a
pious religious practice which was entirely uncalled-for. It is
submitted that the Honble High Court has in the impugned
judgment observed:Shri P.C.Bhandari has explained to us in great detail as to
how the Santhara is practiced reciting the Mantras and
narrating the stages of attaining the Santhara with
reverence. He submits that it is a highest order in Jain
religion. He has explained to us the manner in which the
vow of Santhara is taken and has recited the slokas in a loud
voice in the Court, to the amusement of the general public
sitting in the Court.
It is further submitted that Santhara being a religious practice is
based on the ancient traditions of Jainism. True meaning and
philosophy of this religious belief and practice could only be
explained by references to the revered scriptures, which included
Shloka and mantras. The Honble High Court however did not
appreciate the either the meaning of the shlokas or the philosophy
behind the same.
It is submitted that in the impugned judgment, though the Honble
High Court records some of the contentions in the written
submissions filed by the interveners/impleaded parties but has
failed to either discuss the same or consider the same on legal or
religious principles. The Honble High Court has not appreciated
the form and context of the arguments and hence there was a
complete non application of mind on the contentions put forth in
the said written submissions.

Without prejudice to the above, the petitioners submit at the


outset that the directions to equate Santhara with suicide have
been given by the Hon'ble High Court without appreciating or
realizing the basic philosophy and tenets of the Jain Religion and
its practices the concept of Ahimsa non violence. The concept
popularly known as jiyo aur jine do Live and let live is one of
the very fundamental tenet of Jain religion which believes in nonviolence and which abjures all forms of violence including violence
to ones own self. It is submitted that it is unwise and improper to
link a sacred practice of the Jain religion (i.e. Santhara or
Sallekhana), which religion is itself premised on ahimsa (i.e. nonviolence) with a suicide - an inherently violent act. The Hon'ble
High Court has also not appreciated the true concept of the vow of
Sallekhana or Santhara and the purity and simplicity of the
thought behind the said practice and has grossly erred in
comparing it with suicide or sati- which finds a huge disfavour
even in the Jain religion.
It is submitted that the practice of Sallekhana or Santhara,
conceptually and actually is very distinct from Suicide and
cannot at all be termed or equated with it so as to attract the
provisions of either section 309 or section 306 of the Indian Penal
Code. It is submitted that the Hon'ble High Court has without
dealing with the extensive submissions made before the Hon'ble
High Court by the representatives of the Jain Community relating
to the religious practice has simply in one sentence in para 42
observed that the members of the Jain Community had failed to
establish that Sallekhana or Santhara is an essential religious
practice without which the following of the Jain Religion is not
possible and therefore does not enjoy the protection of Article 25
of the Constitution of India.
PHILOSOPHY OF THE JAIN RELIGION AND THE VOW OF
SALLEKHANA
A. Jainism is a religion seeking happiness in renunciation
Tyag, Aparigraha and Veetragta:
Jainism believes that the soul (the Jeev or Aatman) is eternal, pure
and perfect. The soul in this pure form is an eternal bliss. However
due to the acts that we commit (i.e. the karmas), which could be
good or bad, the soul gets bound to the body and becomes subject

to cycle of birth and rebirth. The person gets happiness or woes


in a birth according to his previous karmas. However this worldly
happiness or sorrow is temporary and leads to further bondage of
karmas. The only way therefore to attain eternal happiness or bliss
(moksha) is the liberation of the soul from the bondage of karma.
According

to

the

Jain

philosophy,

this

liberation

and

the

consequent state of eternal bliss (moksha) can be achieved by


preventing the influx of new karmas (samvar) i.e. by getting rid of
both bad karmas as well as good karmas. In order to prevent the
influx of new karmas, the soul has to let go of the greed/lust for all
material pleasures and has to adopt equanimity (samabhav) in
happiness or in sorrow. This equanimity can be achieved by
renunciation of anger, pride, deceit and lust for worldly pleasures.
The

Jain

philosophy

therefore

lays

great

stress

on

Tyag

(renunciation), Aparigraha (non-attachment) and Veetragta (the


absence of passion or hatred).
It is submitted that in Jain religion, there is faith and belief of
inculcating tyaga or renunciation from childhood itself. The
followers of Jainism therefore have great faith in renunciation and
endevour

to

renounce

various

material

pleasures

including

renunciation of food or fasting. They follow a systematic pattern of


fasting or renunciation of food as per their ability as part of their
routine lives. Many Jains renounce having food after sunset a
practice called chauvihar. They also abstain from eating or using
any meat or animal product which causes violence or himsa.
Apart from this, on every Ashtami or Chaturdashi (the eighth day
and the fourteenth day the lunar fornight), Jains observe some
kind of renunciation of food, popularly called vrat, i.e either
complete fast or one meal a day or renouncing some particular
items of a meal as per the ability and choice of the person. This
totals to 48 days of vratas in a year when food and other worldly
pleasures are renounced in some form. Apart from this, the Jains
also carry out a 10 day celebration called the Paryushan Parv in
the Indian calendar month of Bhadra pada which is also nothing
but a celebration of renunciation. All Jains young and old, Sadhus
and Gruhasthas do observe some kind renunciations in these
days which could even be a 10 day fast without food and water.
This makes 58 days of fasting or food renunciation in an year.

In the 10 days of Paryushan Parv, each of the 10 days (under the


Digambar sect) stand for particular dharma as follows:Day 1- day of Kshama seek forgiveness
Day2 day of Mardav abjure wanton pride
Day3- day of Aarjav adopt simplicity and avoid deceit
Day 4- day of Satya Speak and adopt truth
Day 5 day of Sauch adopt peity and purity in life
Day 6- day of Sanyam adopt discipline and curb desires
Day 7- day of Tap observe penance or Tapasya
Day 8 day of Tyag renunciation
Day 9- day of Ankinchan reduction of desires to possess
material things
Day 10- day of Bhramcharya renunciation of all worldly
pleasures including sexual pleasures
At the end of Paryushan Parv the day of Kshmavani is celebrated
when all Jains seek forgiveness for their conduct from others
irrespective of the age, social status and relationship. This mutual
exchange of forgiveness even with the younger ones is intended to
rid a person of his wanton pride and anger and leads to
purification of his soul.
Apart from the above, in shwetambara sect of Jains, the practice of
maaskhaman is popular which involves fasting for one month
drinking only warm water once a day. The Jain acharyas follow
even stricter forms of renunciation i.e having food only once a day
limiting themselves to 32 morsels including water and renouncing
the food if the desired conditions are not met. (For a detailed
reference on the lifestyle of Jain Acharyas the Petitioner craves
leave to relavent portions of the Jain scriptures at the time of
hearing). It is submitted that not only this, several other forms of
renunciation like Dana (donations) and Aparigraha (limiting the
number of facilities you enjoy) is also practiced widely.
As is clear from the above, Jain religion seeks to achieve happiness
by abjuring desires for material pleasures. It is believed that these
desires lead to passions and bondage of karma which binds the
soul and prevent it from attaining eternal bliss. Therefore the
concept of renunciation to achieve eternal bliss is at the very core
of Jainism which cannot be achieved without Tyag, Aparigraha and
Veetragta and hence all forms of Tyag, Aparigraha and Veetragta
constitute an essential religious practice which distinguishes it
from other religions where God is worshipped for seeking material
well being.

B. Sallekhana or Santhara is an extension of the basic


philosophy of renunciation followed by the Jains through
out their lives:
It is submitted that renunciation or Tyag and Aparigraha are the
very basic tenets of Jain philosophy and is at the core of the very
philosophy of the religion. It is submitted that all Jains do practice
them in their daily lives in some form according to their ability.
They seek and endeavor to raise their spiritual level and decrease
the influx of karma by taking up stricter renunciations of material
pleasures for reduction of anger, deceit, wanton pride and greed.
This

process

of

renunciation,

and

finding

contentment,

detachment from passions and hatred, is a way of life and goes on


through out the life.
The vow of Sallekhana is nothing but a systematic process of
renunciation in which first the person tries to get himself rid of all
gross passions, hatred, attachment, anger, pride, greed, deceit
and finds contentment in renunciation of material pleasures. It is a
process of curbing all desires desires which lead to passions
which are responsible for the influx of karmas which ultimately
results in bondage of the soul and loss of the state of eternal bliss.
In the Jain faith, a soul never dies, it only changes bodies till it
achieves Moksha or the state of eternal bliss. Thus death, in
Jainism, is not an end but a mere change, a departure of the soul
from the body in order to acquire a new one unless the soul attains
moksha. The state of eternal bliss is the state where the soul is
pure and without the bondage of karma or body and is thus free
from the cycle of birth and rebirth. Thus to get out of the said
cycle, a vow of sallekhana is essential. At which stage of the cycle
birth and re-birth a person may be is not known and this is error
which the Honble High Court has committed to decide whether this
practice forms a core of the religion.
The High Court views the Jain religion followed by an individual in
the spectrum of one life span only and therefore considers that
since all Jains do not take Santhara or Sallekhana it cannot be
termed as an essential religious practice. The Jain faith on the
contrary is not limited to one life span and but accepts birth and
rebirth until the soul attains moksha. Whether the soul gets
liberated and achieves the eternal bliss is dependant on the
karmas of all births and re-births which accumulate to decide the

liberation of the soul at which stage of birth and re-birth a person


actually is not known. The soul would ultimately get liberated only
after being rid of all bondages or karmas. The basic concept
underlying a vow of Sallekhna or Santahara is to prevent influx
of new karmas so as to liberate the soul from bondage of karmas.
Thus sallekhana forms the core of the philosophies of the Jain
ideology.
C. The Practice of Sallekhana or Santhara how the vow is
taken and how it culminates
The word sallekhana is derived from the word sat and
lekhna. Sat means samyak i.e. rational or true, lekhna
means a gradual weakening of the passions/desires. Thus by
Sallekhana a person seeks to renounce mundane desires, weaken
the bondage of karmas and to achieve the consequent state of
eternal bliss. Thus Sallekhana is only a continuation of the practice
of renunciation and curbing of desires which a Jain follows throught
his life. The culmination of Sallekhana is Santhara. Though the
words Sallekhana and santhara are used synonymously there is
difference between the two. The preparatory penance to overcome
all forms of bondage is called Sallekhana and embracing death
whenever it comes, in a state of peace and equanimity of mind is
called samadhimaran or Santhara .
It is also to be noted that Santhara cannot be taken on ones own
choice and can be taken only if permitted by the sadhak gurus,
family, friends and relatives who are satisfied that the death is
imminent. Also, the vow of Sallekhana can be taken by the person
only if he consents to it and the same cannot be forced upon him.
The petitioner most respectfully submits that unlike the process
suggested in the impugned order, Sallekhana is not an abrupt
renunciation of all food and sustenance but is a slow and
systematic renunciation first of the four vices, i.e. anger, pride,
deceit and greed, then the desires of worldly pleasures, then the
bondage of love and hatred. The renunciation of food is very
gradual and is undertaken by the person only at his will depending
upon the conditions of his body and his ability to undergo such
renunciation peacefully. The person undertaking Santhara or
Sallekhana has the choice of revoking the vow anytime if he feels

so and there is no compulsion on him to continue with the vow


once taken.
The most important aspect of the present case and the concept of
Sallekhana or santhara is that there is no will to die as the idea is
to renounce all desires including the desire to die also. It is
submitted that there are instances where even after taking the
vow of Sallekhana, the person has survived for several years. The
Petitioner submits that a living example is Acharya Vidyanandi ji
Maharaj who had taken the vow of Sallekhana several years ago
and is still surviving.
In Shewtambar Jain shastras namely Achrang Sutra and Shri
Bhagwati Sutra and in Digambar Jain Shastras namely Bhagwati
Aaradhana and Moolachar, we may trace the philosophy of
Santhara or Sallekhna in detail. They lay down that Sallekhna an
effort to live according to religious tenets till the last breath It is an
experiment of cultivating detachment. The petitioner craves
liberty to refer to these scriptures and produce further references
and scriptures during the course of hearing.
D.

Writ

petitioners

oral

version

of

the

practice

of

Sallekhana is totally misconceived.


It is submitted that the act of sallekhana or santhara as potrayed
by the writ petitioner which forms mention in para 19 of the
impugned order that:The petitioner appearing in person has tried to
demonstrate that adoption of Santhara, an act with criminal
content, has become a means of climbing social ladder. Any
person adopting Santhara is not allowed to go back on his
vow, and the entire family and community forces him/her to
complete the process in which he has to go through
inhuman and intolerant conditions. He/she is some times
tied to the chair or bed and is not allowed to eat and drink,
even if he/she wants to come out of the vow or suffers from
pain on the ground of criticism. A person adopting Santhara
is surrounded by the groups singing Bhajan and Kirtan and
he/she is made to loose conscience and drawn by religious
fanaticism, to accept the process of death. It is nothing but
killing a person, who may or may not have in the religious
belief vowed to adopt Santhara as a means to end his/her
life.
is a perverse description of the true meaning of practice of
Sallekhana or santhara. It is submitted that this perversity has
stemmed from half baked or inadequate knowledge of the tenets
of Jain religion. It is submitted that none of the aforesaid
allegations were made in the Writ Petition or Reply or Additional
Affidavit filed before the Honble High Court. It is submitted that no

such

instance

is

there

in

the

Jain

religion

where

Santhara/Sallekhana has ever been misused by anyone in the


community and the same is just contrary to Jain religion concepts
altogether. The allegations are completely false and no proof or
evidence to prove the aforesaid allegation has been filed by the
writ petitioner alongwith the writ petition.
E. Santhara is certainly not suicide suicide is prohibited in
Jain religion.
Sallekhana or Santhara is not an act to terminate ones life, but is
a vow taken for the remaining duration of the life whatever the
remaining duration of the life may be. The vow is intended to
purify the soul from the karmas and under no circumstances it can
be equated to committing suicide. Santhara or Sallenkhana is
conceptually different from suicide as this vow is not taken either
in passion or in anger, deceit etc but it is a conscious process of
spiritual purification where one does not desire death but seeks to
live his life whatever is left of it in a manner so as to reduce the
influx of karmas.
Suicide on the other hand is an offence of passion, the grossest
form of it and is therefore abhorred upon in the Jain religion.
Suicide is undertaken by a person in severe bouts of passion in
anger, depression or hatred antithetical to the concept of
peaceful and joyous renunciation which is the basis of
sallekhana. Suicide is preempted by a will to die which will is
absent in Sallekhana or santhara.
Suicide is a self-assassination secretly committed by a person
disgusted with his own life, while santhara is taken by a person
who is above life and death and believes in immortality of soul. A
person does not and cannot take santhara to run away from the
problems he faces in life like the case with suicide. In santhara, a
person changes his way of life, achieves contentment by reducing
his passions and accepts death whenever it comes with dignity
and peace. While dying an untimely and unnatural death in deep
distress and frustration to get rid of wordly responsibilities and a
life full of turmoil and turbulence, Suicide or an attempt to commit
suicide is not a feature of a normal life. It is an incident of
abnormality or of an extraordinary situation of an uncommon trait
of personality. On the other hand the candidate observing

sallekhana is fully engrossed in purest contentment and he


practices absolute abstinence for the liberation of the soul from
karmas. He has no attachment to life and he is in no hurry to die
and therefore does not cause any hurt or grievance to his family.
F. Sallekhana brings peace and contentment
The practice of Sallekhna cannot interfere with public order, health
or morality as it intended to bring peace and contentment to the
person undergoing it and those around him. Sallekhna is pinnacle
of glory of both life and death. It is not an immolation but
promotion of soul. In fact, any person observing a monk or a nun
practicing the vow of Sallekhna will feel spiritually elevated and
ethically purified at the sight of one who has renounced all the
worldly belongings and desires, and whose sole objective is to
attain salvation by being liberated from the travails of the body.
Such a sight would be edifying to the individual and a lesson on
piety to the society.
It is submitted that preventing this practice by enforcing a ban or
to treat this as an offence would result in complete collapse of the
faith and force Jains to be eternally entangled in the cycle of life
and death, birth or re-birth from which the Jains seek liberation.
The basic premise of the philosophy of the religion and the faith of
the members of the community to renounce karmas would get lost
and hence the practice is the core of the right which cannot be
interfered with. It is not a question of a practice being followed by
all and without which the practice be said to be a Core of the
religion. The religion believes in continuous cycle of birth and rebirth as a result of the karmas and the only way of renunciation of
the karmas, when ever a person may chose to follow in whichever
life, and achieve moksha is through a process of renunciation
throughout the life culminating in the last with a process of
sallekhana to prevent influx of any new karmas. The practice is
therefore a core of the philosophy of the Jainism.
G. Sallekhana or Santhara is an age old practice as old as
the religion and faith of Jainism
It is submitted that the practice of Sallekhana/ Santhara is at the
very core of the Jain philosophy and the practice is as old as the
religion or faith itself. The observations of the Honble High Court
that:-

There is no evidence or material to show that the Santhara


or Sallekhana has been practiced by the persons professing
Jain religion even prior to or after the promulgation of the
Constitution of India to protect such right under Article 25 of
the Constitution of India.
is exfacie wrong. The references to Sallekhana/Santhara are also
found in the accounts of king Alexander and Augustus Ceaser. The
Kalandri (Sirohi State) Inscription records Sallekhana by Jain monks
way back in Samvat 1389 (E.I. Vol. XX, Appending p. 98 No. 691).
Justice T.K.Tukol, former Vice-Chancellor, Bangalore University in
his book Sallekhna is not suicide has given complete history.
In Chapter 3 under title Sallekhna in practice, he has given various
instances

of

Sallekhna

prevalent

in

the

country

in

Jain

community. He opines that that practice is prevalent from time


immemorial.
H.

The concept of Santhara or Sallekhana is not alien to

other religions
It is submitted that the concept of Santhara/ Sallekhana is not
alien to the vedic culture also. The two commendations of Manu,
Govendhara and Kulluka say that a man may under take the
Maha prasthan on a journey which ends in death, when he is
incurably ill or meets with a great misfortune.
The Law of Manu edited by F. Max Mullar adds a note stating that
voluntary death by starvation was considered the befitting
conclusion of hermits life. The antiquities and general prevalence
of the practice may be inferred from the fact that the Jain ascetics
too consider it meritorious. Suicide or attempt to commit it has
never been an object of abhorrence or condemnation which would
be so if life by it self was considered reverend.
Everyman as per Hindu religion lives to accomplish four objectives
of life Dharma Artha Karma and Moksha. When the
earthly objectives are complete, religion would require a person
not cline to the body. Thus a man has moral right to terminate his
life, as death is simply changing the old body to a new one. Life is
sacred. It is the gift of god and he alone can take it. There is life
after death and the individual soul must complete the full cycle of
birth.
In recent days Acharya Vinoba Bhave met his end by undertaking
what could be termed as sallekhana. The erstwhile Prime Minister
Mrs. Indira Gandhi cut short her Russia visit and came to persuade

Acharaya to break his vow. But Acharya very peacefully refused to


do so.
In Christianity, reference may be made to what Pope John Paul 11
stated when he gave his approval to the document issued by the
sacred congregation stating:
when inevitably death is imminent in spite of the means
used, it is permitted in conscience to take decision to refuse
forms of treatment that would only secure precarious and
burdensome prolongation of life, so long as the normal care
due to sick person in similar cases is not interrupted......
Thus in view of the aforesaid, it is submitted that comparing
sallekhana with suicide is premised on a misconception not only of
the Jain philosophy but hindu vedic philosophy as well. The
practice is permitted and accepted even in other religions as well.
CONSTITUTIONAL PROTECTION
A. The Petitioner submits that the Hon'ble High Court at the
behest of a public interest litigant who had absolutely no
understanding of the theme behind the practice, in purported
modern thinking sought to impose the said thought on the
members of the Jain Community, which the Petitioner submits is
antithetical to the very basis of the Constitution of India. The
high ideals mentioned in the preamble find incorporation into
various provisions of the constitution which recognizes, entitles,
allows and protects to every person to have the Liberty of
thought, expression, belief, faith and worship. The said
theme under the Constitution runs through various provisions of
Part III of the Constitution:25. Freedom of conscience and free profession,
practice and propagation of religion.(1)
Subject to public order, morality and health and to the
other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely
to profess, practise and propagate religion.
(2)
Nothing in this article shall affect the operation of any
existing law or prevent the State from making any
law(a)

regulating or restricting any economic, financial,


political or other secular activity which may be
associated with religious practice;

(b)

providing for social welfare and reform or the


throwing open of Hindu religious institutions of a
public character to all classes and sections of
Hindus.

The Petitioner most respectfully submits that the Article 25


protects a right of every person to the freedom of conscience
which entitles a person to a right to have his own beliefs and
faith and as such the so called modern thinking cannot be
imposed on the members of the Jaina Community. It is further
submitted the there is also no reason to believe that the Jaina
thought of aparigriha is not a modern thought which a
member of the Jain community is entitle to Profess, Practice
and Propagate
B. It is submitted that the Hon'ble High Court has in the judgment
committed a patent error of law in proceeding to decide the
issue whether the practice of Santhara or Sallekhana
constitutes an essential religious practice which the Petitioner
submits did not arise for consideration at all in the present
case. Without prejudice to the submission that the said practice
is based on a basic philosophy of the Jain religion which has
already been submitted before, it is submitted that the issue of
essential religious practice arises which the state seeks to
control or regulate a religious practice and which action is
challenged in courts. In the present case the State Government
expressly and in no uncertain terms submitted before the
Hon'ble High Court that it found nothing wrong in the practice
of Santhara or Sallekhana followed by the Members of the Jain
community which is evident from the submissions of the state
government recorded by the Hon'ble High Court in the
Impugned judgment itself. There is no express provision to
prohibit, control, restrict or prevent the practice of Sallekhana
or Santhara. The restriction is sought to be brought in by an
interpretative process of reading the said practice as
suicide. It is submitted that where the state is not seeking to
restrict the said practice, every person has a fundamental
freedom of conscience and liberty of thought and belief. It is
submitted that the issue in the present case was therefore
whether the Vow of Santhara or Sallekhana was a belief
which every individual was entiled to possess, practice and
propagate. In any case it is submitted that the practice of
Sallekhana and Santhara was connected intrinsically with the
basic philosophy of the religion, which the members of the Jain
Community may voluntarily adopt.

C. Without prejudice to the above, it is submitted that concept of


essential religious practice is elucidated by this Honble court in
Commr.

of

Police

v.

Acharya

Jagadishwarananda

Avadhuta, (2004) 12 SCC 770 at page 782


9. The protection guaranteed under Articles 25 and 26 of
the Constitution is not confined to matters of doctrine or
belief but extends to acts done in pursuance of religion and,
therefore, contains a guarantee for rituals, observances,
ceremonies and modes of worship which are essential or
integral part of religion. What constitutes an integral or
essential part of religion has to be determined with reference
to its doctrines, practices, tenets, historical background, etc.
of the given religion. (See generally the Constitution Bench
decisions in Commr., H.R.E. v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt [AIR 1954 SC 282 : 1954 SCR
1005] , Sardar Syedna Taher Saifuddin Saheb v. State of
Bombay [AIR 1962 SC 853 : 1962 Supp (2) SCR 496]
and Seshammalv. State of T.N. [(1972) 2 SCC 11 : AIR 1972
SC 1586] regarding those aspects that are to be looked into
so as to determine whether a part or practice is essential or
not.) What is meant by an essential part or practices of a
religion is now the matter for elucidation. Essential part of a
religion means the core beliefs upon which a religion is
founded. Essential practice means those practices that are
fundamental to follow a religious belief. It is upon the
cornerstone of essential parts or practices that the
superstructure of a religion is built, without which a religion
will be no religion. Test to determine whether a part or
practice is essential to a religion is to find out whether the
nature of the religion will be changed without that part or
practice. If the taking away of that part or practice could
result in a fundamental change in the character of that
religion or in its belief, then such part could be treated as an
essential or integral part
It is submitted that in view of the philosophy and tenets of
Jainism, Sanlekhana is essentially an embodiment of Tyaga
renunciation the basic theme underlying the Jain Religion and
therefore it is an essential religious practice. It is submitted that
the test is not whether all Jains have to follow it or not, the test
is whether the nature of religion would change without that
practice. It is submitted that without the practice of Sallekhana,
the Jains believe that it is impossible to achieve Moksha the
ultimate goal of life and therefore Sallekhana is an essential
religious practice.
D. The rights of individual to practice Sallekhna or Santhara is a
private act of the person as part of his faith in the religion to
which subscribes. It is submitted that the right of privacy is an
integral part of the right protected under Article 21.

E. Article 26 lays down that every religious denomination or any


section thereof shall have the right to manage its own affairs in
the matter of religious. Undoubtedly like all other fundamental
rights this right is also subject to public order immorality and
health. It is submitted that practice of Sallekhna is impossible
for each and everybody to adopt the vow of Sallekhna because
it requires the devotee to possess an unshakeable conviction
that the soul and the body are separate that the body is the
result of accumulated karamas and that liberation from karmas
is possible only by an austere life of supreme conduct founded
on right faith and knowledge. The right is also protected under
Article 29 of the Constitution of India. It cannot be denied that
Jains have their own culture and therefore any section of the
citizens residing in the territory of India having culture if its own
has the right to conserve the same. The Jain community is a
religious minority community and also it is a cultural minority
and therefore it is the mandate of the constitution that the
State shall not impose upon it any other culture, which may be
local or otherwise. The state has no authority to force feed a
Sadhak who has taken the vow of Sallekhna.
CONCLUSION
In light of the very concept of Sallekhana, it is most humbly
submitted that it would be legally wrong to categorize and
compare the vow of Sallekhna with the offence of attempt to
commit suicide.
It is submitted that Santhara was in practice in Jain community
and Prayopagmna in Hindu community having sanction of religion,
which is practiced even today. It has become the culture of the
said communities and thus stands on a very high pedestal and is
fully protected by Articles of 26 and 29 of the Constitution of India.
To term such practices as suicide exhibits ignorance about Vedic or
Jain religion.
Under the law of the country nobody can be forced to eat or drink
against his /her will. The case of hunger strike is quite different. In
the case of hunger strike if the demand is made the person
concerned would automatically withdraw the fast. As such the
case of Santhara is quite different. Further, as already submitted
above, the practice of Santhara has become part of the culture of

Jain community. It is a part of religious practice for the person who


voluntarily takes vow of Santhara. It is not suicide as contemplated
under the provisions of the Indian Penal Code.
It is therefore submitted that the Hon'ble High Court was entirely
unjustified

in declaring

the holy and peaceful practice

of

Sallekhana and comparing it with suicide to make such practice a


punishable offence under section 309 and 306 of the Indian Penal
Code.

LIST OF DATES

------

Santhara/ Salllenkhana is an ancient practice followed


and practiced by the members of the Jain Community as
part of and an extension of the philosophy of Tyaga and
Aparigriha which forms the core of the Jain religion and
ideology. As part of the said practice, a person takes a
vow of renunciation in a gradual step by step manner to
rid the soul of all bondages of worldly attachments for
the remaining duration of the life whatever the period of
life may be. In the said vow, there is no willingness to die
and one does not invite death but a person waits in
dignity and peace while renouncing all relationships,
feelings and desires for the life. This practice in Jainism is
a part of the basic philosophy and faith of the religion.
History

is

replete

with

instances

of

monks

and

householders (grahasths) undertaking the practice of


Santhara/ Salllenkhana to free themselves from the
bondage of karma.
09.05.2006

A Writ Petition being D.B. Civil Writ Petition No.


7414/2006 was filed before the Honble High Court of
Judicature for Rajasthan at Jaipur Bench, Jaipur seeking
declaration

that

the

practice

of

Santhara

or

Sallenkhana practiced in the Jain community was


illegal. A copy of the Civil Writ Petition No. 7414/2006
filed before the Honble High Court of Judicature for
Rajasthan at Jaipur Bench, Jaipur is annexed herewith

and marked as Annexure P-1


It is submitted that the Petitioner is neither a Jain nor a
person well versed in the Jain relegion, faith and
practices and therefore the averments in the writ
21.9.2006

petitions are incorrect and incomplete.


D.B. Civil Writ Petition No. 7414/2006 came up for
consideration before the Honble High Court when the
Court was pleased to issue notice in the writ petition.
The Court adjourned the matter and orally directed the
petitioners

counsel

to

implead

bodies/associations

representing the Jain community as party respondents. It


is submitted that the objective of the said direction was
to ensure a representation of all sections of the Jain
Community.
It is submitted that in purported compliance of the said
direction, the writ petitioner impleaded Sthanakvasi Jain
Shrawak sangh through Shri Vimal chand Daga and
Shrimal Sabha as respondent no. 3 and 4. It is submittd
that no effort was made by the writ petitioner to implead
any representative bodyof the Digambar Jain community.
Infact, no digambar association was impleaded as
respondent and thus they have not been heard in the
present case.
22.09.2006

Honble High Court was pleased to issue notice. A copy


of the order dated 22.09.2006 of the Honble High Court
of Judicature for Rajasthan at Jaipur Bench, Jaipur in Writ
Petition No. 7414/2006 is annexed herewith and marked

29.9.2006

as Annexure P-2.
Shri Veerendra kumar Jain a person belonging to the
Digambar Jain Sect filed an impleadment application in
the writ petition. A typed copy of the said impleadment
application

is

enclosed

herewith

and

marked

as

Annexure P-3.
21.12.2006

The Honble Court allowed the impleadment applications


filed by the associations of Shwetambar associations and
they would be impleaded as respondents and directed
that the individual intervenors would be heard. It was
held that:
Having regard to the significance of the issue we

are of the view that while intervention by


bodies/associations
representing
the
Jain
community may be impleaded as respondents,
individual intervenors may be heard. It need hardly
be pointed out that if all and sundry are formally
impleaded as respondents and allowed to file their
respective reply, it would make the exercise difficult
and cumbersome. In the above view of the matter,
intervention by bodies/associations is allowed and
they may be added as respondents. The individual
intervenors may be heard.
A copy of the order dated 21.12.2006 by the Honble
High Court of Rajasthan in Writ Petition No. 7414/2006 is
annexed herewith and marked as Annexure P-4
Written submissions were filed by Shri Veerendra Kumar
Jain. The written submissions were not considered nor
any

order

was

passed

on

his

application

for

impleadment. Copy of written submissions filed by Shri


Veerendra kumar Jain is enclosed herewith and marked
16.9.2010

as Annexure P-5.
The State Government of Rajasthan filed reply to the writ
petition opposing the reliefs prayed in the writ petition.
Typed copy of the reply filed by the State Government is
enclosed herewith and marked as Annexure P-6.
It is submitted that the Union of India, though a party in

23.04.2015

the writ petition, did not submit reply.


The parties were heard in the petition and the Honble
High Court reserved the judgment grating liberty to the
parties to file their written submissions. Copy of the
order dated 23.04.2015 passed by the Honble High
Court in Civil WP 7414/2006 is enclosed herewith and
marked as Annexure P-7.

12.5.2015

The Petitioner filed impleadment applications before the


Honble High Court as no representative body of the
Digambar Jain sect had been represented. A copy of the
impleadment application submitted by the petitioner is
annexed herewith and marked as Annexure P-8.
No orders were passed on the impleadment application.

10.08.2015

The Honble High Court, vide order impugned herein


allowed the writ petition no.7414/2006 and directed the

State authorities to stop the practice of 'Santhara' or


'Sallekhana' and to treat it as suicide punishable under
section 309 of the Indian Penal Code and its abetment by
persons under section 306 of the Indian Penal Code.
Hence the present petition special leave petition

IN THE SUPREME COURT OF INDIA


CIVIL APPELLATE JURISDICTION
(Order XXI Rule 3(1) (a)
SPECIAL LEAVE PETITION (CIVIL) NO.

OF 2015

(Under Article 136 of the Constitution of India)


With prayer for Interim relief
BETWEEN

Position of parties
In the High
Court

1. Akhil Bharat Varshiya Digamber Jain


Parishad Registered Head Office
Kalkaji New Delhi Having its Rajasthan
Branch Office at Banji House Ghee
Walon Ka Rasta, Johri Bazar, Jaipur,
Through its President Rajendra Kumar
Tholia s/o Seth Banji Lal Tholia.aged
86 years r/o Banji House Ghee Walon
Ka Rasta, Johri Bazar, Jaipur

Not Party

In this
Court
Petitioner
No.1

VERSUS
1. Union of India, through the
Secretary, Deparment of Home,
New Delhi

Respondent
Contesting
No. 1 Respondent
No. 1

2. State of Rajasthan through The


Secretary Revenue Department
Sachivalaya Gandhinagar.

Respondent
Contesting
No.2 Respondent
No.2

3. Shri Nikhil Soni, Advocate, Son of


Shri S.M. Soni, Resident on 1/416,
Vidyadhar Nagar, Jaipur
4. Sthanakwasi Jain Shravak Sangh,
through its President, Lal Bhawan,
Chaura Rasta, Jaipur, Rajasthan

Contesting
respondent
no.3
Respondent
Proforma
No.3 Respondent
No.4

5. Shrimali Sabha Moti Dungri,


Dadwani, M.D. Road, Jaipur.

Respondent
Proforma
No.4 Respondent
No.5

To,
Hon'ble the Chief Justice of India

Petitioner
no.1

and His Companion Judges of the


Supreme Court of India at New Delhi.
MOST RESPECTFULLY SHEWETH:
1.
That the petitioners above named are filing the present petition
seeking special leave to appeal against the final judgment and
order dated dated 10.8.2015 passed by the Honble High Court
of Judicature for Rajasthan for Jaipur in D.B. Civil Writ petition
no. 7414 /2006 whereby the Honble High Court has allowed the
writ petition filed by the respondent no.3.
1 A.

It is submitted that the LPA or W.A. not maintainable against

this impugned order.


Questions of Law :

2.

The following questions of law arise for consideration by this


Hon'ble Court:(i)

Whether the practices of Santhara and Sallekhana being


followed with reverence by the members of the Jain
community constitute a religious faith and belief of every
member of the community as well as the community as a
whole which is protected under articles 21, 25, 26 and 29
of the Constitution of India

(ii)

Whether the Hon'ble High Court has without appreciating


the basic philosophy of the Jain religion including the
concepts of Tyaga and Aparigriha, erred in equating the
vow

of

sallekhana

and

santhara

with

suicide

and

punishable under section 309 and 306 of the Indian penal


code
(iii)

Whether the Hon'ble High Court has without considering


or dealing with the material, scriptures and shastras
submitted for the consideration of the Hon'ble Court,
erred in holding that the members of the Jain community
have failed to establish that the practice of Sallekhana is
core of the religion

(iv)

Whether the Hon'ble High Court has erred in directing the


State authorities to stop the Practice of Santhara or
Sallekhana and to treat it as a suicide punishable under

section 309 of the Indian Penal Code and its abetment by


persons under section 306 of the Indian Penal Code
(v)

In view of the fact that the Jain religion which is premised


on the philosophy of the Ahimsa or non-violence and
which abjures all forms of violence including violence to
ones own self whether it the Hon'ble High Court was
wholly unjustified in linking a sacred practice of the Jain
religion (i.e. Santhara or Sallekhana), which religion is
itself premised on ahimsa (i.e. non-violence) with a
suicide - an inherently violent act

(vi)

In view of the fact that Sallekhana or Santhara is not an


act to terminate ones life, but is a vow taken for the
remaining duration of the life whatever the remaining
duration of the life may be and is intended to purify the
soul from the karmas whether under any circumstances
the practice can be equated with the act of committing
suicide

(vii)

In view of the fact that Santhara or Sallenkhana is


conceptually different from suicide as this vow is not
taken either in passion or in anger, deceit etc but it is a
conscious process of spiritual purification where one does
not desire death but seeks to live his life whatever is left
of it in a manner so as to reduce the influx of karmas,
whether the Hon'ble High Court has erred in equating the
practice with suicide so as to attract the provisions
section 306 and 309 of the Indian penal code.

(viii) In view of the fact that the state has in no manner


expressed its indication to prohibit, restrict or regulate
the practice of santhara or sallekhana whether the
Hon'ble High Court erred in invoking the doctrine of
essential religious practice which did not arise for
consideration in the present case
(ix)

In view of the fact that the practice of santhara or


sallekhana forms part of the core philosophies of Tyaga
and Aparigriha of the Jain ideology and the religious belief
that in order to get out of the cycle of birth and re-birth
and for the liberation of the soul from the Karmas the vow
of sallekhana and the practice of santhara is an essential
religious practice, whether the Hon'ble High Court erred

in observing that the said practice does not constitute a


core of the religion
(x)

Whether the directions of the State Shall stop and abolish


the practice of Santhara or Sallekhana in the Jain
religion in any form constitutes and illegal encroachment
of the religious beliefs which is protected under Articles
21, 25, 26 and 29 of the Constitution and which every
person has a fundamental right to practice, profess and
propagate

(xi)

Whether the Hon'ble High Court was justified in deciding


the matter without ensuring that all sections of the Jain
community were duly represented before the Hon'ble
High Court to decide an issue which is and is also
considered to be the core of the Jain ideology.

(xii)

Whether the Hon'ble High Court ought to have followed


the procedure under order 1 rule 8 CPC

before

considering and deciding the issue which affects all


members of the Jain Community
3.

Declaration in terms of Rule 3(2):

The petitioners state that no other petition seeking leave to


appeal has been filed by the petitioners against the impugned
judgment and order.

4.

Declaration in terms of Rule 5:

The annexure P-1 to P- 11 produced along with the Special


Leave Petition is copy of the pleadings/documents which formed part
of the records of the case in the Courts below against whose order
the leave to appeal is sought for in this petition.

5.

Grounds:
The Special Leave to Appeal is sought for on the following

amongst other grounds:-

A. BECAUSE the present case involves substantial question as to


the interpretation of the words Liberty of thought, expression,
belief, faith and worship used in the Preamble read with
Articles 25(1), 26 and 29 of the Constitution of India. It is
submitted that the Honble High Court has passed the
impugned

judgment,

without

appreciating

the

basic

philosophy and tenets of the Jain religion and without


compliance of its earlier orders.

B. BECAUSE the Honble High Court has decided the aforesaid


issue, which is part of religious faith of all the members of
the Jain Community, without ensuring that the entire
community and its sections, who would be affected by the
decision and who have a vital interest in the lis, are duly
represented. The petitioner most respectfully submits that the
Digambar Jain Community, which is one of the major sect of
the Jain Community was entirely unrepresented before the
Honble High Court and the writ petitioner did not implead the
bodies/organizations in a manner so that there is a proper
representation of all sections. It may be also submitted that
the Honble High Court also failed to appreciate that Sh.
Virendra Kumar Jain, who was the only representative
member of the Digambar Jain community had filed an
application for impleadment under Order 1 Rule 10 of CPC
and had also submitted written submissions which have
however not been taken into consideration by the Hon'ble High
Court

C. BECAUSE the writ petition was filed by the Respondent no.3


Shri Nikhil Soni on a total misconception and false notion of
Sallekhana or Santhara conjured from inadequate/erroneous
knowledge of a pious religious practice. It is submitted that
the writ petitioner - respondent no.3 herei is neither a Jain

nor well versed with the concept of Sallekhana or Santhara


and is a mere busybody and meddlesome interloper.

D. BECAUSE the Honble High Court without discussing the


actual historical/ancient origin and object of Santhara/
Sallekhana and its religious importance as part of a basic
element of Jainism i.e. aparigriha has proceeded to equate
the same with the offence of suicide. It is submitted that the
Hon'ble High Court has ignored the extensive submissions as
well as the sculptures placed before the Hon'ble High Court
showing the Jain faith in taking vow of Santhara/Sallekhana.
It is submitted that before the Hon'ble High Court, Shri P.C.
Bhandari also recited the Atra and shlokas and narrated the
various stages of attaining the Santhara/Sallekhana and
explained the same to the Hon'ble Court. The Honble High
Court has treated the said explanations given by Shri P.C.
Bhandari as an object of amusement to the general public,
which the petitioner submits amounts demeaning a pious
religious practice which was entirely uncalled-for
E. BECAUSE though the Honble High Court records some of the
contentions

in

the

written

submissions

filed

by

the

interveners/impleaded parties but has failed to either discuss


the same or consider the same on legal or religious principles.
The Honble High Court has not appreciated the form and
context of the arguments and hence there was a complete non
application of mind on the contentions put forth in the said
written submissions.
F. BECAUSE

Jainism

renunciation

is

religion

Tyag, Aprigraha

seeking

happiness

in

and Veetragta. Jainism

believes that the soul (the Jeev or Aatman) is eternal, pure


and perfect. The soul in this pure form is an eternal bliss.
However due to the acts that we commit (i.e. the karmas),
which could be good or bad, the soul gets bound to the body

and becomes subject to cycle of birth and rebirth. The


person gets happiness or woes in a birth according to his
previous karmas. However this worldly happiness or sorrow is
temporary and leads to further bondage of karmas. The only
way therefore to attain eternal happiness or bliss (moksha) is
the liberation of the soul from the bondage of karma.
According to the Jain philosophy, this liberation and the
consequent state of eternal bliss (moksha) can be achieved by
preventing the influx of new karmas (samvar) i.e. by getting rid
of both bad karmas as well as good karmas. In order to
prevent the influx of new karmas, the soul has to let go of the
greed/lust for all material pleasures and has to adopt
equanimity (samabhav) in happiness or in sorrow. This
equanimity can be achieved by renunciation of anger, pride,
deceit and lust for worldly pleasures. The Jain philosophy
therefore lays great stress on Tyag (renunciation), Aparigraha
(non-attachment) and Veetragta (the absence of passion or
hatred).It is submitted that in Jain religion, there is faith and
belief of inculcating tyaga or renunciation from childhood
itself. The followers of Jainism therefore have great faith in
renunciation and endevour to renounce various material
pleasures including renunciation of food or fasting. They follow
a systematic pattern of fasting or renunciation of food as per
their ability as part of their routine lives. Many Jains
renounce

having

food

after

sunset

practice

called

chauvihar. They also abstain from eating or using any meat


or animal product which causes violence or himsa. Apart
from this, on every Ashtami or Chaturdashi (the eighth day
and the fourteenth day the lunar fornight), Jains observe
some kind of renunciation of food, popularly called vrat, i.e
either complete fast or one meal a day or renouncing some
particular items of a meal as per the ability and choice of the
person. This totals to 48 days of vratas in a year when food
and other worldly pleasures are renounced in some form.

Apart from this, the Jains also carry out a 10 day celebration
called the Paryushan Parv in the Indian calendar month of
Bhadra pada which is also nothing but a celebration of
renunciation.

All

Jains

young

and

old,

Sadhus

and

Gruhasthas do observe some kind renunciations in these


days which could even be a 10 day fast without food and
water. This makes 58 days of fasting or food renunciation in
an year.In the 10 days of Paryushan Parv, each of the 10
days (under the Digambar sect) stand for particular dharma
as follows:Day 1- day of Kshama seek forgiveness
Day2 day of Mardav abjure wanton pride
Day3- day of Aarjav adopt simplicity and avoid deceit
Day 4- day of Satya Speak and adopt truth
Day 5 day of Sauch adopt peity and purity in life
Day 6- day of Sanyam adopt discipline and curb desires
Day 7- day of Tap observe penance or Tapasya
Day 8 day of Tyag renunciation
Day 9- day of Ankinchan reduction of desires to possess
material things
Day 10- day of Bhramcharya renunciation of all worldly
pleasures including sexual pleasures
At the end of Paryushan Parv the day of Kshmavani is
celebrated when all Jains seek forgiveness for their conduct
from others irrespective of the age, social status and
relationship. This mutual exchange of forgiveness even with
the younger ones is intended to rid a person of his wanton
pride and anger and leads to purification of his soul.
G. BECAUSE in shwetambara sect of Jains, the practice of
maaskhaman is popular which involves fasting for one
month drinking only warm water once a day. The Jain
acharyas follow even stricter forms of renunciation i.e having
food only once a day limiting themselves to 32 morsels
including water and renouncing the food if the desired
conditions are not met. (For a detailed reference on the
lifestyle of Jain Acharyas the Petitioner craves leave to
relavent portions of the Jain scriptures at the time of
hearing). It is submitted that not only this, several other
forms of renunciation like Dana (donations) and Aparigraha
(limiting the number of facilities you enjoy) is also practiced

widely. As is clear from the above, Jain religion seeks to


achieve

happiness

by

abjuring

desires

for

material

pleasures. It is believed that these desires lead to passions


and bondage of karma which binds the soul and prevent it
from attaining eternal bliss. Therefore the concept of
renunciation to achieve eternal bliss is at the very core of
Jainism which cannot be achieved without Tyag, Aparigraha
and Veetragta and hence all forms of Tyag, Aparigraha and
Veetragta constitute an essential religious practice which
distinguishes it from other religions where God is worshipped
for seeking material well being.
H. BECAUSE Sallekhana or Santhara is an extension of the basic
philosophy of renunciation followed by the Jains through out
their lives. It is submitted that renunciation or Tyag and
Aparigraha are the very basic tenets of Jain philosophy and
is at the core of the very philosophy of the religion. It is
submitted that all Jains do practice them in their daily lives
in some form according to their ability. They seek and
endeavor to raise their spiritual level and decrease the influx
of karma by taking up stricter renunciations of material
pleasures for reduction of anger, deceit, wanton pride and
greed.

This

process

of

renunciation,

and

finding

contentment, detachment from passions and hatred, is a


way of life and goes on through out the life. The vow of
Sallekhana

is

nothing

but

systematic

process

of

renunciation in which first the person tries to get himself rid


of all gross passions, hatred, attachment, anger, pride,
greed, deceit and finds contentment in renunciation of
material pleasures. It is a process of curbing all desires
desires which lead to passions which are responsible for
the influx of karmas which ultimately results in bondage of
the soul and loss of the state of eternal bliss.

In the Jain

faith, a soul never dies, it only changes bodies till it achieves


Moksha or the state of eternal bliss. Thus death, in Jainism,
is not an end but a mere change, a departure of the soul
from the body in order to acquire a new one unless the soul
attains moksha. The state of eternal bliss is the state where
the soul is pure and without the bondage of karma or body

and is thus free from the cycle of birth and rebirth. Thus to
get out of the said cycle, a vow of sallekhana is essential. At
which stage of the cycle birth and re-birth a person may be
is not known and this is error which the Honble High Court
has committed to decide whether this practice forms a core
of the religion. The High Court views the Jain religion
followed by an individual in the spectrum of one life span
only and therefore considers that since all Jains do not take
Santhara or Sallekhana it cannot be termed as an essential
religious practice. The Jain faith on the contrary is not limited
to one life span and but accepts birth and rebirth until the
soul attains moksha. Whether the soul gets liberated and
achieves the eternal bliss is dependant on the karmas of all
births

and

re-births

which

accumulate to

decide

the

liberation of the soul at which stage of birth and re-birth a


person actually is not known. The soul would ultimately get
liberated only after being rid of all bondages or karmas. The
basic concept underlying a vow of Sallekhna or Santahara is
to prevent influx of new karmas so as to liberate the soul
from bondage of karmas. Thus sallekhana forms the core of
the philosophies of the Jain ideology.
I. BECAUSE The word sallekhana is derived from the word
sat and lekhna. Sat means samyak i.e. rational or true,
lekhna

means

gradual

weakening

of

the

passions/desires. Thus by Sallekhana a person seeks to


renounce mundane desires, weaken the bondage of karmas
and to achieve the consequent state of eternal bliss. Thus
Sallekhana is only a continuation of the practice of
renunciation and curbing of desires which a Jain follows
throught his life. The culmination of Sallekhana is Santhara.
Though the words Sallekhana and santhara are used
synonymously there is difference between the two. The
preparatory penance to overcome all forms of bondage is
called Sallekhana and embracing death whenever it comes,
in a state of peace and equanimity of mind is called
samadhimaran or Santhara . It is also to be noted that
Santhara cannot be taken on ones own choice and can be
taken only if permitted by the sadhak gurus, family, friends

and relatives who are satisfied that the death is imminent.


Also, the vow of Sallekhana can be taken by the person only
if he consents to it and the same cannot be forced upon him.
The petitioner most respectfully submits that unlike the
process suggested in the impugned order, Sallekhana is not
an abrupt renunciation of all food and sustenance but is a
slow and systematic renunciation first of the four vices, i.e.
anger, pride, deceit and greed, then the desires of worldly
pleasures, then the bondage of love and hatred. The
renunciation of food is very gradual and is undertaken by the
person only at his will depending upon the conditions of his
body and his ability to undergo such renunciation peacefully.
The person undertaking Santhara or Sallekhana has the
choice of revoking the vow anytime if he feels so and there
is no compulsion on him to continue with the vow once
taken. The most important aspect of the present case and
the concept of Sallekhana or santhara is that there is no will
to die as the idea is to renounce all desires including the
desire to die also. It is submitted that there are instances
where even after taking the vow of Sallekhana, the person
has survived for several years. The Petitioner submits that a
living example is Acharya Vidyanandi ji Maharaj who had
taken the vow of Sallekhana several years ago and is still
surviving. In Shewtambar Jain shastras namely Achrang
Sutra and Shri Bhagwati Sutra and in Digambar Jain Shastras
namely Bhagwati Aaradhana and Moolachar, we may trace
the philosophy of Santhara or Sallekhna in detail. They lay
down that Sallekhna an effort to live according to religious
tenets till the last breath It is an experiment of cultivating
detachment. The petitioner craves liberty to refer to these
scriptures and produce further references and scriptures
during the course of hearing
J. BECAUSE

the writ petitioners version of Sallekhana as

potrayed in the para 19 of the impunged order is totally


misconceived and detached from reality. It is a perverse
description of the true meaning of practice of Sallekhana or
santhara. It is submitted that this perversity has stemmed
from half baked or inadequate knowledge of the tenets of

Jain religion. It is submitted that none of the aforesaid


allegations were made in the Writ Petition or Reply or
Additional Affidavit filed before the Honble High Court. It is
submitted that no such instance is there in the Jain religion
where Santhara/Sallekhana has ever been misused by
anyone in the community and the same is just contrary to
Jain

religion

concepts

altogether.

The

allegations

are

completely false and no proof or evidence to prove the


aforesaid allegation has been filed by the writ petitioner
alongwith the writ petition
K. BECAUSE santhara is not suicide. Sallekhana or Santhara is
not an act to terminate ones life, but is a vow taken for the
remaining duration of the life whatever the remaining
duration of the life may be. The vow is intended to purify the
soul from the karmas and under no circumstances it can be
equated to committing suicide. Santhara or Sallenkhana is
conceptually different from suicide as this vow is not taken
either in passion or in anger, deceit etc but it is a conscious
process of spiritual purification where one does not desire
death but seeks to live his life whatever is left of it in a
manner so as to reduce the influx of karmas. Suicide on the
other hand is an offence of passion, the grossest form of it
and is therefore abhorred upon in the Jain religion. Suicide is
undertaken by a person in severe bouts of passion in anger,
depression or hatred antithetical to the concept of peaceful
and joyous renunciation which is the basis of sallekhana.
Suicide is preempted by a will to die which will is absent
in Sallekhana or santhara. Suicide is a self-assassination
secretly committed by a person disgusted with his own life,
while santhara is taken by a person who is above life and
death and believes in immortality of soul. A person does not
and cannot take santhara to run away from the problems he
faces in life like the case with suicide. In santhara, a person
changes his way of life, achieves contentment by reducing
his passions and accepts death whenever it comes with
dignity and peace. While dying an untimely and unnatural
death in deep distress and frustration to get rid of wordly
responsibilities and a life full of turmoil and turbulence,
Suicide or an attempt to commit suicide is not a feature of a

normal life. It is an incident of abnormality or of an


extraordinary situation of an uncommon trait of personality.
On the other hand the candidate observing sallekhana is
fully engrossed in purest contentment and he practices
absolute abstinence for the liberation of the soul from
karmas. He has no attachment to life and he is in no hurry to
die and therefore does not cause any hurt or grievance to
his family.
L. BECAUSE Sallekhana brings peace and contentment. The
practice of Sallekhna cannot interfere with public order,
health or morality as it intended to bring peace and
contentment to the person undergoing it and those around
him. Sallekhna is pinnacle of glory of both life and death. It is
not an immolation but promotion of soul. In fact, any person
observing a monk or a nun practicing the vow of Sallekhna
will feel spiritually elevated and ethically purified at the sight
of one who has renounced all the worldly belongings and
desires, and whose sole objective is to attain salvation by
being liberated from the travails of the body. Such a sight
would be edifying to the individual and a lesson on piety to
the society. It is submitted that preventing this practice by
enforcing a ban or to treat this as an offence would result in
complete collapse of the faith and force Jains to be eternally
entangled in the cycle of life and death, birth or re-birth from
which the Jains seek liberation. The basic premise of the
philosophy of the religion and the faith of the members of
the community to renounce karmas would get lost and
hence the practice is the core of the right which cannot be
interfered with. It is not a question of a practice being
followed by all and without which the practice be said to be
a Core of the religion. The religion believes in continuous
cycle of birth and re-birth as a result of the karmas and the
only way of renunciation of the karmas, when ever a person
may chose to follow in whichever life, and achieve moksha is
through a process of renunciation throughout the life
culminating in the last with a process of sallekhana to
prevent influx of any new karmas. The practice is therefore a
core of the philosophy of the Jainism.

M. BECAUSE Sallekhana or Santhara is an ancient and old


practice as old as the religion as the faith itself and the
observations of the Honble High Court in this regard is
exfacie wrong, The references to the practice are found as
far back as in Samvat 1389. Justice Tukol in his book
sallekhana is not suicide opines that the practice is
prevalent since time immemorial.
N. BECAUSE the concept of Santhara or Sallekhana is not alien
to Hindu and Christian and Buddhist cultures also. Acharya
Vinoba Bhave is an example who had taken Sallekhana at
the end of his life.
O. BECAUSE the Hon'ble High Court at the behest of a public
interest litigant who had absolutely no understanding of the
theme behind the practice, in purported modern thinking
sought to impose the said thought on the members of the
Jain Community, which the Petitioner submits is antithetical
to the very basis of the Constitution of India. The high ideals
mentioned in the preamble find incorporation into various
provisions of the constitution which recognizes, entitles,
allows and protects to every person to have the Liberty of
thought, expression, belief, faith and worship. The
said theme under the Constitution runs through various
provisions of Part III of the Constitution. The Petitioner most
respectfully submits that the Article 25 protects a right of
every person to the freedom of conscience which entitles a
person to a right to have his own beliefs and faith and as
such the so called modern thinking cannot be imposed on
the members of the Jaina Community. It is further submitted
the there is also no reason to believe that the Jaina thought
of aparigriha is not a modern thought which a member of
the Jain community is entitle to Profess, Practice and
Propagate.
P. BECAUSE It is submitted that the Hon'ble High Court has in
the judgment committed a patent error of law in proceeding
to decide the issue whether the practice of Santhara or
Sallekhana constitutes an essential religious practice

which the Petitioner submits did not arise for consideration


at all in the present case. Without prejudice to the
submission that the said practice is based on a basic
philosophy of the Jain religion which has already been
submitted before, it is submitted that the issue of essential
religious practice arises which the state seeks to control or
regulate a religious practice and which action is challenged
in courts. In the present case the State Government
expressly and in no uncertain terms submitted before the
Hon'ble High Court that it found nothing wrong in the
practice of Santhara or Sallekhana followed by the Members
of the Jain community which is evident from the submissions
of the state government recorded by the Hon'ble High Court
in the Impugned judgment itself. There is no express
provision to prohibit, control, restrict or prevent the practice
of Sallekhana or Santhara. The restriction is sought to be
brought in by an interpretative process of reading the said
practice as suicide. It is submitted that where the state is
not seeking to restrict the said practice, every person has a
fundamental freedom of conscience and liberty of thought
and belief. It is submitted that the issue in the present case
was therefore whether the Vow of Santhara or Sallekhana
was a belief which every individual was entiled to possess,
practice and propagate. In any case it is submitted that the
practice

of

Sallekhana

and

Santhara

was

connected

intrinsically with the basic philosophy of the religion, which


the members of the Jain Community may voluntarily adopt
Q. BECAUSE the concept of essential religious practice is
elucidated by this Honble court in Commr. of Police v.
Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC
770 which has been totally ignored by the Honble High
Court. It is submitted that in view of the philosophy and
tenets of Jainism, Sanlekhana is essentially an embodiment
of Tyaga renunciation the basic theme underlying the Jain
Religion and therefore it is an essential religious practice. It
is submitted that the test is not whether all Jains have to
follow it or not, the test is whether the nature of religion
would change without that practice. It is submitted that

without the practice of Sallekhana, the Jains believe that it is


impossible to achieve Moksha the ultimate goal of life and
therefore Sallekhana is an essential religious practice
R. BECAUSE The rights of individual to practice Sallekhna or
Santhara is a private act of the person as part of his faith in
the religion to which subscribes. It is submitted that the right
of privacy is an integral part of the right protected under
Article 21
S. BECAUSE

Article

26

lays

down

that

every

religious

denomination or any section thereof shall have the right to


manage

its

own

affairs

in

the

matter

of

religious.

Undoubtedly like all other fundamental rights this right is


also subject to public order immorality and health. It is
submitted that practice of Sallekhna is impossible for each
and everybody to adopt the vow of Sallekhna because it
requires the devotee to possess an unshakeable conviction
that the soul and the body are separate that the body is the
result of accumulated karamas and that liberation from
karmas is possible only by an austere life of supreme
conduct founded on right faith and knowledge. The right is
also protected under Article 29 of the Constitution of India. It
cannot be denied that Jains have their own culture and
therefore any section of the citizens residing in the territory
of India having culture if its own has the right to conserve
the same. The Jain community is a religious minority
community and also it is a cultural minority and therefore it
is the mandate of the constitution that the State shall not
impose upon it any other culture, which may be local or
otherwise. The state has no authority to force feed a Sadhak
who has taken the vow of Sallekhna.
T. BECAUSE In light of the very concept of Sallekhana, it would
be legally wrong to categorize and compare the vow of
Sallekhna with the offence of attempt to commit suicide. It is
submitted that Santhara was in practice in Jain community
and Prayopagmna in Hindu community having sanction of
religion, which is practiced even today. It has become the
culture of the said communities and thus stands on a very

high pedestal and is fully protected by Articles of 26 and 29


of the Constitution of India. To term such practices as suicide
exhibits ignorance about Vedic or Jain religion. Under the law
of the country nobody can be forced to eat or drink against
his /her will. The case of hunger strike is quite different. In
the case of hunger strike if the demand is made the person
concerned would automatically withdraw the fast. As such
the case of Santhara is quite different. Further, as already
submitted above, the practice of Santhara has become part
of the culture of Jain community. It is a part of religious
practice for the person who voluntarily takes vow of
Santhara. It is not suicide as contemplated under the
provisions of the Indian Penal Code. It is therefore submitted
that the Hon'ble High Court was entirely unjustified in
declaring the holy and peaceful practice of Sallekhana and
comparing it with suicide to make such practice a punishable
offence under section 309 and 306 of the Indian Penal Code.

U. BECAUSE the saints and sages of India are known for their
defiance of death. When they realize the futility of their
perishable body or when they have achieved their goal;
forsaking the love of life, they voluntarily invoke death. In
the present times Swami Ram Krishna Paramhans, Sant
Vinoba Bhave, Maa Anand Moyee Devi denied the body. In
the same tradition the great Jain Achayra Hasti Malji maharaj
has willingly started on the epic voyage of great liberation.
Long ago he raised himself above pleasure and pain; now he
has risen above life and death. This is the normal
methodology of Indian sages and saints to achieve liberation
from the body; may be it is a mystery for science and a
secret for the Western World. In the present self centered
materialistic society full of competition and struggle, this
great torch bearer of the true Shramanic tradition of Lord
Mahivir this shining example of the best of humanity and
dedicated devotee has embarked on the epic voyage of self
realization denying the perishable body.
V. BECAUSE in India and the South East Asia where the Hindu,
Jain and Buddha culture has its way, there has been a
tradition of voluntary death amongst the saints. Having

attained the goals of their lives and after the powers of the
body have exhausted, Indian saints in the normal course
deny the body adopting the path of great liberation. In
Brahamic tradition is called living Samadhi and under the
Jain auspices it is termed Santhara. The right to die or to end
ones life is not something new or unknown to civilization.
Some religions like Hindu and Jain have approved of the
practice of ending ones life by once own act in certain
circumstances while condemning in it other circumstances.
Among Jain, practice of Sallenkhana is still prevalent. The
Ratnakarnda sravaka car (chapter 5) of Samantshadra
(about 2nd century A.D.) diaates on Sallenkhana which
consists in abandoning the body for the accumulation of
merit in calamities, famines extreme old age and incurable
disease.
W. BECAUSE in the case of Smt. Gyan Kaur the Honble
Supreme court while acknowledging that right to life does
not include a right to die but it was clarified as under:The right to life including the right to live with human
dignity would mean the existence of such a right up to
the end of natural life. This also includes the right to a
dignified life up to the point of death, including a
dignified procedure of death. In other words, this may
include the right of dying man to also die with dignity
when his life is ebbing out. But the right to die with
dignity at the end of life is not to be confused or
equated with the right to die an unnatural death
curtailing the natural span of life
It is submitted that the process of sallekhana is part and
parcel of the right to life with dignity and to live the duration
of the life in the manner one chooses to individually. The same
cannot be forced upon the in the matter in which others think
it to be appropriate.

6.

Grounds for interim Relief:

That in the final judgment and order dated 10.8.2015 passed


by the Honble High Court of Judicature for Rajasthan for Jaipur in
D.B. Civil Writ petition no. 7414 /2006, the petitioner has prima

facie good case in its favour and has every likelihood to succeed
before this Honble Court. The balance of convenience is also in
favour of the petitioners. It is, therefore, not only fit and proper but
also in the interest of justice that Your Lordships may be pleased to
stay operation of the final judgment and order dated 10.8.2015
passed by the Honble High Court of Judicature for Rajasthan for
Jaipur in D.B. Civil Writ petition no. 7414 /2006 during the
pendency of the present petition.

7.

Main Prayer:

It is therefore most respectfully prayed that this Honble Court may


be pleased to:

a) Grant special leave to appeal against the final judgment and


order dated 10.8.2015 passed by the Honble High Court of
Judicature for Rajasthan for Jaipur in D.B. Civil Writ petition
no. 7414 /2006 and,

b) Pass such other order or orders as this Honble Court may


deem fit and proper in the facts and circumstances of the
case.
8. Prayer for Interim Relief:
a) stay operation of the final judgment and order dated
10.8.2015 passed by the Honble High Court of Judicature for
Rajasthan at Jaipur in D.B. Civil Writ petition no. 7414 /
2006 during the pendency of the present petition;
b)pass ex-parte ad-interim orders in terms of prayers (a) above;
and
c) pass such other and further orders as may be deemed fit and
proper in the facts and circumstances of the present case.

Drawn and filed by

(Smt. Pratibha Jain)


Advocate for the petitioners
Drawn on :
Filed on :

IN THE SUPREME COURT OF INDIA


CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.

OF 2015

IN THE MATTER OF:


Akhil Bharat Varshiya Digamber Jain Parishad

Petitioner

Versus
Union of India & Ors.

Respondents

C E R T I F I C A T E
Certified that the Special Leave Petition is confined only to the
pleadings before the High Court whose order is challenged and the
other documents relied upon in those proceedings.

No additional

facts, documents or grounds have been taken therein or relied upon


in the Special Leave Petition. It is further certified that the copies of
the documents/annexures attached to the Special Leave Petition are
necessary to answer the question of law raised in the petition or to
make

out

grounds

urged in the

Special Leave Petition for

consideration of this Hon'ble Court. This certificate is given on the


basis of instructions given by the petitioner whose affidavit is filed in
support of the S.L.P.
DRAWN AND FILED BY

(SMT. PRATIBHA JAIN)


ADVOCATE FOR THE PETITIONER
DRAWN ON:
FILED ON: