Sunil Ambwani, J.

1. In this writ petition filed under Article 226 of the Constitution of India in public interest, the petitioner, a practising lawyer at Jaipur Bench of the Rajasthan High Court, has prayed for directions to the Union of India through Secretary, Department of Home, New Delhi-respondent no.1 and the State of Rajasthan through Secretary, Department of Home, Secretariat, Rajasthan, Jaipur-respondent no.2, to treat “SANTHARA” or “SALLEKHANA” as illegal and punishable under the law of the land and that the instances given in the pleadings, be investigated and subjected to suitable prosecution of which, the abetment be also treated as criminal act.

2. The “Santhara”, which means a fast unto death, is a practice prevalent in Shvetambara group of Jain community. According to the petitioner, it is a religious fast unto death on the pretext that when all purpose of life have been served, or when the body is unable to serve any purpose of life, the Santhara will obtain “Moksha” (salvation). A person, after taking vow of Santhara stops eating and even drinking water and waits for death to arrive. It is submitted that the Santhara is religious thought, which has no place under the law of the land. The Constitution of India guarantees right to life, and protects the life of an individual. The right to freedom of religion under Article-25 in Part-III-Fundamental Rights, is subject to public order, morality and health and to the other provisions of this Part, which includes Article 21. All persons are entitled to freedom of conscience and the right freely to profess, practice and propagate religion. A practice, however, ancient it may be to a particular religion, cannot be allowed to violate the right to life of an individual.

3. It is submitted that a voluntary fast unto death is an act of self-destruction, which amounts to “suicide”, which is a criminal offence and is punishable under section 309 IPC with simple imprisonment for a term which may extend to one year or with fine or with both. The abetment of suicide is also punishable under section 306 IPC with imprisonment of the term which may extend to ten years and also liable to fine. “Suicide” means an intentional killing of oneself. Every act of self-destruction by a human being subject to discretion is, in common language described by the word “suicide” provided it is an intentional act of a party knowing the probable consequence of what he is about to do. Suicide is never to be presumed. Intention is the essential legal ingredient under section 309 IPC.

4. It is submitted that Shvetambara group of Jain religion believes that the Santhara is a means to attain moksha. A person adopting the Santhara is helped by the entire community in designing it ceremoniously. People visit the person for his/her darshan and to witness the occasion with reverence. The house of such person becomes a place of pilgrimage. The entire act is considered to be an act of courage and rational thinking on the pretext that soul never dies. They glorify the act and its eventuality. The petitioner has given several examples of the Santhara to show that it is not an age old and forgotten practice and that it is being practiced even now regularly. Some of the instances of Santhara have been given in paragraph 4 of the writ petition as follows:-

“(i) Sohan Kumariji administered the vow of SANTHARA, on 7th Oct.1993. Her fast lasted for 20 days.

(ii) Premji Hirji Gala in Nov.1994. Fasted uptil 212 days.

(iii) Jethalal Zaveri fast lasted for 42 days in 1997.

(iv) Nirmalananda (illustration taken from the Deccan Herald Jan.10, 1997) the fast lasted for three weeks.

(v) Haraklalji Bhairulalji Mehta in Oct.2000 Ahmedabad. Fast lasted for 23 days. He hails from Mahendra Garh near Bhilwara, Rajasthan.

(vi) Sadhvi Nerbhay Vani. Fasted for 20 days, 24th May 2003 at Jain Temple Gohana Town and Muni Matiryaji Maharaj, Fasted for 35 days belonging to Terapanth Dharam Sangh at Udasar near Bikaner, Rajasthan.