Suhana Roy*
Supply: Indian Categorical
This text examines the tragic demise of a three-year-old woman allegedly subjected to Santhara, a non secular fast-unto-death, by the lens of kid rights and constitutional regulation. It argues that no parental or non secular consent can override the elemental rights of a kid, particularly the best to life and dignity. Drawing on Indian jurisprudence, statutory provisions, and worldwide obligations just like the UNCRC, the article highlights authorized gaps and requires higher accountability. It additionally explores the position of parens patriae and constructive legal responsibility in such circumstances. The necessity for sensitization of authorities to tell apart cultural practices from youngster hurt is emphasised.
Introduction
On twenty fifth March 2024, information broke out from Indore {that a} three-year-old woman named Viyana Jain had died after collaborating within the Jain ritual of Santhara, a voluntary quick unto demise. Stories counsel she was within the firm of her grandmother and initiated into the non secular observance by a monk. The kid’s demise was glorified in some quarters, together with entries in file books. Nonetheless, civil society, authorized commentators, and youngster rights advocates have been alarmed. Is it potential for a kid to participate in such rituals? Can the liberty of faith be used to override the elemental proper to life and safety of a minor?
This tragedy brings again to the fore the extremely contentious debate round Santhara/Sallekhana, its constitutionality, and concord with youngster rights and legal regulation. On this weblog, we discover the intersection of faith, regulation, and bioethics by the lens of this incident, asking whether or not India’s authorized framework adequately safeguards the rights of kids when positioned within the crosshairs of religion and custom.
What Is Santhara/Sallekhana?
Santhara, also referred to as Sallekhana, Samlehnā, or Samādhi-Maraṇa, is a ritual fasting to demise noticed inside Jainism. It includes a voluntary and gradual discount of meals and water consumption, undertaken to purify the soul, detaching from worldly wishes, and destroying karma. Seen as a non secular apply slightly than an act of suicide, Santhara is seen by Jain students as a peaceable, passionless method of embracing demise, distinct from self-harm or violence. Whereas traditionally practiced by each ascetics and laypersons, together with girls and royalty, Santhara stays uncommon in modern occasions.
The apply was put beneath the judicial limelight in Nikhil Soni v. Union of India, wherein the Rajasthan Excessive Court docket in 2015 dominated that Santhara was tantamount to suicide and therefore infringed Sections 108 (abetment of suicide) and Part 226 (try to commit suicide) of the Bharatiya Nyaya Sanhita (BNS). Within the ruling, the ritual was in comparison with self-destruction beneath legal regulation. The Supreme Court docket, nevertheless, stayed the Excessive Court docket’s judgment, thus failing to determine on the authorized standing of Santhara.
Versus euthanasia, which normally is initiated when the affected person is within the final levels of his or her struggling, Santhara is often carried out even when the individual shouldn’t be sick; it’s a voluntary non secular exit. This distinction makes it particularly difficult to research within the framework of the standard conceptions of bioethics and regulation inside the parameters of suicide or medical aid-in-dying.
Santhara and the Indian Structure
Within the authorized argument, there’s a battle between Article 25, which ensures the liberty of conscience and faith, and Article 21, which ensures the best to life and private liberty.
Article 25, non secular freedom shouldn’t be absolute- it’s restricted by public order, morality, and well being. The place the practices are mentioned to be important non secular practices, the State could regulate or prohibit them the place they contradict these grounds. This was confirmed by rulings like Shayara Bano v. Union of India (2017), which struck down triple talaq though it’s of spiritual origins. Moreover, in youngsters’s conditions, the State takes the position of parens patriae, which is a guardian of all minors. Because of this no parental or non secular consent is superior to the elemental rights of a kid or can topic a toddler to irreparable injury. Because the Supreme Court docket held in Laxmi Kant Pandey v. Union of India, the welfare of the kid should be the paramount consideration in such issues, and each effort must be made to make sure that the kid grows up in an environment of affection and affection, free from neglect or ethical and emotional abandonment. The Court docket, performing as parens patriae, should defend the pursuits of the kid.
The Supreme Court docket’s judgments in Gian Kaur v. State of Punjab (1996) and Frequent Trigger v. Union of India (2018) reiterate that the best to die shouldn’t be a part of the best to life, besides beneath narrowly tailor-made safeguards in passive euthanasia circumstances. Santhara, as a non secular apply involving intentional demise, thus occupies a precarious authorized place, particularly within the case of minors who’re incapable of knowledgeable consent.
Can a Little one Select Loss of life?
The inclusion of a three-year-old youngster within the mentioned apply, even when it was to be accepted as a professional non secular act by consenting adults, presents a authorized, moral, and constitutional dilemma. A toddler lacks the cognitive and authorized capability to understand the finality of demise or consent to it. In response to Indian regulation, minors can not present consent for circumstances that contain critical bodily hurt or demise, as such consent is deemed legally void.
Moreover, the consent of the mother and father in life-and-death selections involving a toddler shouldn’t be absolute. Indian courts have intervened earlier than the place mother and father, basing on non secular causes, denied life-saving therapies to their youngsters. For instance, in relation to issues of Jehovah’s Witnesses, courts have allowed blood transfusions in opposition to parental needs to avoid wasting the kid’s basic proper to life beneath Article 21 of the Structure. This judicial strategy locations a higher weight on the curiosity of the kid, even the place non secular or parental claims come into play.
This stance is supported by a number of authorized frameworks. Beneath the Juvenile Justice (Care and Safety of Youngsters) Act, 2015, the State is obliged to guard youngsters from all kinds of hurt, akin to neglect and psychological or bodily abuse. Though the Safety of Youngsters from Sexual Offences (POCSO) Act, 2012 is worried with sexual offences, its underlying thought, i.e., minors are incapable of offering legitimate consent to high-risk bodily acts, could be utilized to deadly rituals akin to Santhara. Indian regulation and youngster safety jurisprudence lay a particular emphasis on the “greatest curiosity of the kid“, one which stems from each home regulation in addition to India’s obligations beneath the United Nations Conference on the Rights of the Little one. Exposing a minor to a non secular ceremony that results in demise, nevertheless draped in cultural or non secular justification, is opposite to this child-centric commonplace.
Crime or Customized? Legal Legislation Dimensions of a Little one’s Ritual Loss of life
The authorized system should confront a vital query: Can any individual be criminally accountable for the demise of the kid on this case? Quite a few the provisions of the Bharatiya Nyaya Sanhita (BNS) could be utilized. Part 106 on inflicting demise by negligence could also be relevant whether it is proved that the mother and father or non secular mentors have been missing within the responsibility of care to the kid. Part 108, which tackles abetment of suicide, can apply if the kid was in any method inspired or conditioned, within the subtlest of the way, to consider that voluntary demise was a virtuous or mandatory act.
Part 75 of the Juvenile Justice Act criminalizes cruelty to youngsters, together with acts which might be more likely to trigger bodily or psychological hurt and even demise. Notably, the availability doesn’t require proof of a particular intent to hurt; the statute covers wilful assault, neglect, abandonment, or omission, and courts have interpreted that even negligent or reckless conduct that endangers a toddler’s life or well-being could appeal to legal responsibility beneath this part. Within the case that this ritual was carried out with out medical oversight, and significantly if the kid was sick or unable to withstand, this may be a culpable omission if not even reckless endangerment. The idea of constructive legal responsibility may apply, beneath which the individuals who facilitated or silently inspired the act – be they non secular leaders, elders in the neighborhood, or family members of the perpetrator – could be made collectively liable.
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