Clash of Orders and Santara

The judgement delivered by the Rajastan High Court making Santara/Sallekhana illegal has raised multiple questions, for the manner in which the whole question has been decided. The sole question that the Rajastan High Court sought, or at least attempted, to answer over was whether the practice of Santhara is an essential religious practice or not. A simple reading of the judgement reveals some glaring confusion over the question that is sought to be decided by the High Court. Though the much part of the judgement proceeds with discussions over the arguments and counters upon whether the act of Santhara will fall under the term suicide or not the active reasoning that is espoused to declare it illegal is over whether it qualifies as an essential religious practice or not, though this reasoning and reliance placed upon essential practice test is in itself a doubtful one. Logics and rationale apart the decision also attains another important and oft ignored dimension in cases where an alternative legal order comes into direct conflict with the majoritarian dictated standards. Seized of this question, the Supreme Court is looking at a much larger question, that this case has given rise to, than that of the one which is decided by the High Court. In a longer run, the manner in which the apex court resolves it is going to redefine landscape of interactions between different legal orders and the conditions of such conflicts. The significance of any decision over this question and its overwhelming impact in a pluralistic society like India needs no emphasis.

The present situation that the judiciary is trying to resolve, given the implications that it bears, must be seen from a radically different perspective than that of pulling it down to mere questions over whether it qualifies the predetermined conditions and rules of order of a society. Looking at the bigger picture, there arises a need for the judiciary to decide that whether alternative norms such as santara, which is in direct conflict with the existing one, can be accommodated and if yes what the necessary qualifiers for such accommodated are. Here I am using the word accommodation with certain positive implications, for the process of accommodation shall involve a legitimate initiation of a dialogic process upon such conditions of conflict rather than emphatic rejection. Here a question might arise over the need for such engagement with such alternative norms for which the answer lies in the arguments that is put forward by the supporters of santhara. If the judgement of the high court is gone through carefully one can very easily see that they are not questioning the legitimacy of the existing norms, rather their main proposition is that they are bound by a different legal order altogether. This is nothing less than a legitimate aspiration of a group of people for recognition of their rights within the existing norms of the society. The rejection aside, real problem lies in the manner in which it has been arrived at. The portrayal of the act of Santhara merely as an act of suicide, couched within its language, has resulted in the misconstruction of the arguments of its supporters. This has essentially resulted in an inverse approach towards the civil liberties where rights are enjoyed by citizens in accordance with law is altered to limited freedom as dictated by the law, providing little latitude for any dissent to survive, much less be recognized. Without any discussions over the implications of arguments that it cannot simpliciter be seen as a suicide, the judgement proceeds to validate its point by the standards of morality which is incompatible with the legal order that it seeks to adjudicate the problem with. The problem in such situation is that, though it is a political disagreement, it is deliberately depicted as a moral disagreement to achieve the ends, which is the non-accommodation within the existing legal order. Though such accommodations can happen at certain level it only happens when the disagreement is conditioned and falls within the perceptional value sets that are created within it. In a pluralistic society’s legal order such instances of deliberate disregard arises when the existing legal order comes in collision course with a set a beliefs, like religion, sexual orientation, race etc. that is different from existing norms of the society. My intention here is not to say that the decision of the High Court is wrong in any sense. It is valid in its own field of reasoning. However, the arbitrary rejection of a dissent from the moral standards defined by the perceptional grids of the majority, in a society that proclaims itself to be a pluralistic or at the least attempts to be one this only ends up raising the potentiality of such conflicts in the future. Besides, this will also have an adverse impact over the very plural character that the Constitution seeks to preserve, for this is an attempt at the homogenization of the legal orders. As indicated earlier the result of this conflict is the misconstruction of the dissent, with little chance for it to be engaged in any meaningful engagement. A similar misconstruction happened in the recent decision of Supreme Court of India over the constitutionality of law that criminalized homosexual acts as well. Given such a situation the Supreme Court is vested with a golden opportunity to explore the possibility any engagement with such alternative legal orders and their accommodation within the existing system.