TEAM CODE _____

T HE 5 TH A MITY L AW S CHOOL I NTRA C OLLEGE M OOT C OURT C OMPETITION - 2011

IN THE HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

LUCKNOW BENCH, LUCKNOW

(CASE NO.________ OF 2011)

IN THE MATTER OF:

MS. PRABHA DEVI,

--- PETITIONER

Versus

STATE OF UTTAR PRADESH,

--- RESPONDENT

MEMORIAL for RESPONDENT

 TEAM CODE _____

T HE 5 TH A MITY L AW S CHOOL I NTRA C OLLEGE M OOT C OURT C OMPETITION - 2011

IN THE HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

LUCKNOW BENCH, LUCKNOW

(CASE NO.________ OF 2011)

IN THE MATTER OF:

MS. PRABHA DEVI,

--- PETITIONER

Versus

STATE OF UTTAR PRADESH,

--- RESPONDENT

MEMORIAL for RESPONDENT

Table of Contents II

TABLE OF CONTENTS

T AB L E OF A B B R E V I A T I O N ................................................................................................IV

I NDE X OF A U T H OR I T I E S ................................................................................................. VII

Cases .................................................................................................................................. VII

Statutes .................................................................................................................................. X

Books Referred ..................................................................................................................... X

Articles .................................................................................................................................. X

Other Authorities .................................................................................................................XI

S T AT E M E N T OF J U R I S D I C T I ON ..................................................................................... XII

S T AT E M E N T OF F A C T S ................................................................................................... XIII

S T AT E M E N T OF I S S U E S ................................................................................................... VIII

S UM M A RY OF A R GU M E N T S ..............................................................................................IX

A R GU M E N T S A D V A N C E D ..................................................................................................... 1

I. WHET HER T HE PRACTICE OF SANT HA R A ENJOY S P ROTE CTI ON U NDER

C O N S T I T U T I O N A L P R O V I S I O N S . ......................................................................................... 1

A. That practice of Santhara contradicts the fundamental spirit of Art. 21. ........ 2

B. That protection under Art. 25 is ensured when a religious belief or practice

fulfils certain prerequisite. .............................................................................................. 9

B.1 Freedom to Practice a religion of his choice. ............................................... 9

B.2 Freedom of Conscience. ................................................................................ 10

MEMORIAL for RESPONDENT

Table of Contents III

II. WHET HER T HE ADMI NISTRATIV E INTERV E NTION WA S IN BREA C H OF T HE

PETITIONE RS F U N D A M E N T A L R I G H T T O O B S E R V E H E R R E L I G I O U S P R A C T I C E . ..... 14

A. That the administrative action was justified. .................................................... 14

B. That the petitioner intends to unlawfully end her life. ..................................... 15

C. That the petitioner had no spiritual motive but to end her miseries by ending

her life. ............................................................................................................................ 17

C.1 That the attempt to commit suicide was intentional by the petitioner. ........... 19

D. That the state has to safeguard the larger interests of the society. ................. 20

P RA YE R .................................................................................................................................. 21

MEMORIAL for RESPONDENT

Table of Abbreviation IV

TABLE OF ABBREVIATION

§ …. Section

¶/¶¶ …. Paragraph(s)

A.I.R …. All India Reporter

A.L.J …. Allahabad Law Journal

A.P. …. Andhra Pradesh

ACR …. Allahabad Criminal Rulings

AIHC …. All India High Court Cases

AIR …. All India Reporter

ALD(Cri) …. Andhra Legal Decision (Criminal)

All ER …. All England Law Reports

All. …. Allahabad

ALT …. Andhra Law Times

AWC …. Allahabad Weekly Cases

BLJR …. Bihar Law Journal Reports

Bom. L.R. …. Bombay Law Reporter

Bom. …. Bombay

C.L.J …. Calcutta Law Journal

Cal. …. Calcutta

CCR …. Current Criminal Reports

CriLJ …. Criminal Law Journal

DLT …. Delhi Law Times

ed./eds. …. Editor(s)

MEMORIAL for RESPONDENT

Table of Abbreviation V

edn. …. Edition

Guj. …. Gujarat

H.P. …. Himachal Pradesh

HL …. House of Lords

Hyder. …. Hyderabad

I.C. …. Indian Cases

I.L.R …. Indian Law Reports (Gov. of India Publications)

Ibid. …. Ibidem

JLJ …. Jabalpur L aw Journal

JT …. Judgment Today

KCCR …. Karnataka Civil and Criminal Reporter

Ker. …. Kerala

KLT …. Kerala Law Times

Ltd. …. Limited

M.B. …. Madhya Bharat

M.L.J …. Madras Law Journal

M.P. …. Madhya Pradesh

Mad …. Madaras

MPHT …. MP High Court Today

Mys. …. Mysore

Nag. …. Nagpur

No. …. Number

Ori. …. Orissa

MEMORIAL for RESPONDENT

Table of Abbreviation VI

Ors. …. Others

Pat. …. Patna

p./ pp. …. Page/ Pages

Punj. …. Punjab

Pvt. …. Private

QB …. Queen‟s Bench

Rang. …. Rangoon

Rep. …. Reprint

S.C.A. …. Supreme Court Appeals

S.C.J …. Supreme Court Journal

S.C.R. …. Supreme Court Reports

Sau. …. Saurashtra

SCALE …. Supreme Court Almanac

Supp. …. Supplement

T.C. …. Travancore and Cochin

U.S. …. U.S. Supreme Court

UJ …. Unreported Judgment

v. …. Versus

Vol. …. Volume

WritLR …. Writ Law Reporter

MEMORIAL for RESPONDENT

Index of Authorities VII

INDEX OF AUTHORITIES

Cases

‘X’ v Hospital ‘Z’, (1998) 8 SCC 296 ...................................................................................... 8

A.S. Narayana v. State of A.P., AIR 1996 SC 1765. ............................................................ 11

Acharya Jagadishwarananda Avadhuta v. Commissioner of Police, (1983) 4 SCC 522:

AIR 1984 SC 51 ..................................................................................................................... 1

Adelaide Company of Jehovah's Witnesses v. The Commonwealth, 67 CLR 116 ............. 3

Arunish Singh v. State of M.P., 1984 CrLJ 1616(MP). ........................................................ 15

Arver v. US, (1918) 245 US 366 .............................................................................................. 9

Bijaylakshmi Tripathy v. Managing Committee of Working Women Hostel, AIR 1992

Ori 242 ................................................................................................................................... 5

Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 ....................................................... 10

Board of Education v. Barnette, (1943) 319 US 624. ............................................................ 2

C. A. Thomas Master and etc. v. Union of India and Ors., 2000 CriLJ 3729, ILR 2000 (3)

Kerala 368. ........................................................................................................................... 19

Cantwell v. State of Connecticut, (1939) 310 US 296 (303) .................................................. 2

Chenna Jagadeeswar v. State of Andhra Pradesh, (1988) Cri 357 : 1988 Cri LJ 549 ....... 16

Clift v. Schwabe, (1846) 3 CB 437. ........................................................................................ 18

Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, AIR 2004 SC 2984 10

Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, AIR 2004 SC 2984:

(2004) 12 SCC 770. ............................................................................................................... 1

Commr., H.R.E. v. Lakshmindra, AIR 1954 SC 282 .......................................................... 12

Davis v. Beason, (1890) 133 US 333 ........................................................................................ 9

District Registrar and Collector v. Canara Bank, (2005)1 SCC 496 ................................... 4

MEMORIAL for RESPONDENT

Index of Authorities VIII

Dr. Banwarilal Sharma v. State of U.P. and Ors., JT 1998 (4) SC 466, (1998) 3 SCC 604.

.............................................................................................................................................. 16

Durgah Committee v. Hussain, AIR 1965 SC 1402 ............................................................. 12

E.R.J. Swami v. State of Tamil Nadu, AIR 1972 SC 1586 .................................................. 11

Emperor v. R. Vinayak Dhulekar, 1925 All 165. ................................................................ 15

Employment Division Department of Human Resources v. Smith., (1990) 494 US 879. .. 9

Fowler v. Rhode Island, (1953) 345 US 67 ............................................................................. 2

Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 .... 5

Govindlalji v. State of Rajasthan, AIR 1963 SC 1638 ......................................................... 12

Harrison Malayalam Ltd. v. State of Kerala and Ors., 2007 (4) K.L.T. 540. ................... 14

Inderpuri General Store v. Union of India, AIR 1992 J&K 11. ........................................... 5

Jagdish Chander Bhatia v. State, 1983 CrLJ NOC 235 (Del) ............................................. 15

Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461............................................. 5

Krishnan v. State of Madras, AIR 1951 SC 301 .................................................................... 5

Malak Singh v. State of Punjab & Haryana, MANU/SC/0157/1980 : 1981CriLJ 320 ........ 7

Mohd. Hanif Qureshi & Ors v. State of Bihar, AIR 1958 SC 731: [1959] 1 SCR 629 ...... 20

Mohini Jain v. State of Karnataka, AIR 1992 SC 1858 ........................................................ 5

Moti Das v. Sahi, AIR 1969 SC 942....................................................................................... 12

Munn v. Illinois, (1877) 94 U.S................................................................................................ 3

N. Adithayan v. Travancore Dewaswon Board, AIR 2002 SC 3538 .................................. 12

Olga Tellis v. Bombay Municial Corporation, AIR 1986 SC 180 ........................................ 5

P. Rathinam v. Union of India, AIR 1994 SC 1448 ............................................................ 15

P. Rathinam v. Union of India, AIR 1994 SC 1844 ............................................................... 6

Raghunath v. State, 1963 CriLj 899 ...................................................................................... 15

Ram Singh v. State of Delhi, AIR 1951 SC 270 ...................................................................... 5

MEMORIAL for RESPONDENT

Index of Authorities IX

Ramamoorthy alias Vannia Adikalar v. State of Madras, 1992 CriLJ 2074:

MANU/TN/0140/1990 ......................................................................................................... 19

Ramanuja v. State of T.N., AIR 1972 SC 1586 .................................................................... 12

Ratilal Panachand Gandhi v. State of Bombay and Ors. (1954) SCR 1055........................ 9

Ratilal Panachand Gandhi v. State of Bombay and Ors., (1954) SCR 1055..................... 10

Reliance Telecommunications Ltd. v. S. I. of Police, W.P. (Cri) No. 6433 of 2010:

MANU/KE/2352/2010 ......................................................................................................... 14

Reynolds v. U.S., (1879) 98 US 145. ........................................................................................ 2

Reynolds v. US., (1978) 98 US 145 .......................................................................................... 9

Saifuddin v. State of Bombay, AIR 1962 SC 853 ................................................................... 9

Shaibya Shukla v. State of U.P., AIR 1993 All 171 ............................................................... 5

Smt. Gian Kaur v. State of Punjab, AIR 1996 SC 946: 1996 (1) ALD (Cri) 102: 1996 (1)

ALT (Cri) 535: 1996 (2) BLJR 809: 1996 CriLJ 1660: 1996 (1) CTC 454: (1996) 2 GLR

563: JT 1996 (3) SC 339: 1996 (2) SCALE 881: (1996) 2 SCC 648: [1996] 3 SCR 697 .... 7,

15

Smt. Selvi and Ors. v. State of Karnataka, 2010 (2) Crimes 241 (SC) ................................. 8

Sri Jagannath Temple Puri Management Committee v. Chintamani Khuntia, (1997) 8

SCC 422 ............................................................................................................................... 12

State of Gujarat v. Mirzapur Moti Kurshi Kassab Jamat, AIR 2006 SC 212 .................. 12

State of U.P. v. Shah Mohd., AIR 1969 SC 1234 ................................................................... 5

State of West Bengal v. Ashutosh Lahiri, AIR 1995 SC 464 .............................................. 12

Swarup v. State of Bihar, AIR 1979 SC 809......................................................................... 12

T.V. Narayana v. Venkata Subbamma, AIR 1996 SC 1807 ............................................... 11

The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshimindra

Thirtha Swamiar of Sri Shirur Mutt, (1954) 1 SCR 1005 ................................................ 9

MEMORIAL for RESPONDENT

Index of Authorities X

Torcaso v. Watkins, (1961) 367 US 488.................................................................................. 2

Statutes

Code of Criminal Procedure, 1973. ......................................................................................... 14

The Constitution of India. .......................................................................................................... 6

The Indian Penal Code, 1860. .................................................................................................. 18

The Police Act, 1861................................................................................................................ 14

Books Referred

A. Ashworth, Principles of Criminal Law (Oxford: Clarendon Press, 1991).......................... 17

Durga Das Basu, Commentary on The Constitution of India ( vol 3, LexisNexis: 2008) ......... 2

G. William, Salmond on Jurisprudence (LexisNexis: 2007) ................................................... 17

W. O. Russell, Russell on Crime (J.W.C. Turner Ed., Universal Law Publishing Pvt., New

Delhi: 2001) ......................................................................................................................... 17

Articles

A.S. Jain, “Santhara - A Religious Fast To Death” (available

http://www.jainworld.com/jainbooks/images/29/SANTHARA_-

_A_RELIGIOUS_FAST.htm) [accessed August 20, 2011] ................................................ 13

Prakash Bhandari, “Another Jain Woman on fast unto Death” (available

http://articles.timesofindia.indiatimes.com/2006-09-30/india/27821360_1_Santhara-jain-

festival-age-old-jain-ritual [accessed August 16,2011]) ........................................................ 4

Wikipedia, “Santhara” (available http://en.wikipedia.org/wiki/Santhara [accessed August 18,

2011]) ..................................................................................................................................... 4

MEMORIAL for RESPONDENT

Index of Authorities XI

Other Authorities

Draft Penal Code, Appendix Note B.,...................................................................................... 18

Sayre, Mens Rea (Harvard Law Review: 1932), ..................................................................... 17

Norman Chever, A manual of Medical Jurisprudence for Bengal and North Western

provinces(3rd edn.,Bengal Military Press: 2004) ................................................................. 19

MEMORIAL for RESPONDENT

Statement of Jurisdiction XII

STATEMENT OF JURISDICTION

THE PETITIONER HAS INVOKED THE JURISDICTION OF THE HON‟BLE HIGH COURT OF

ALLAHABAD, LUCKNOW BENCH, LUCKNOW UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA AND THE RESPONDENTS HUMBLY SUBMIT TO THE

JURISDICITON AS INVOKED BY THE PETITIONER.

MEMORIAL for RESPONDENT

Statement of Facts XIII

STATEMENT OF FACTS

1. The petitioner Prabha Devi, aged about 51 years, is a resident of Lucknow from the

Jain community who suffers from Liver Cancer. The petitioner took voluntary

retirement from the post of a Lecturer in a City College.

2. The petitioner unlike any other cancer patient undergoes chemotherapy and radiation

treatment and the experts hold the opinion that she may recover provided the

treatment is continuous, especially if performed at a reputed cancer treatment centre at

the United States.

3. Since, the cost of treatment has taken a heavy toll on family income and savings,

making it difficult for them to continue the treatment so the petitioner undertakes the

vow of santhara to end her life which in a consequence will put an end to her

miseries. In furtherance to her object of self- destruction she denied food, water and

medication.

4. The family somehow managed to withhold the information of the commission of the

cognizable offence in their presence. But, they couldn‟t cling to that state of affairs for

too long and it came to the notice of the city administration.

5. The police intervened and broke the ritual by force feeding Prabha Devi, as force

feeding was the only option left since she was not conceding to the persistent requests

of the relatives to eat food. The police, however, did not lodge a case on the ground

that she was reeling under severe ailment and that an attempt to suicide was prevented

by the necessary action, but the petitioner was warned of penal consequences if the

act was ever repeated.

6. Consequently, the petitioner stubbornly files a writ petition before the Hon‟ble High

Court of Judicature at Allahabad, Lucknow Bench.

MEMORIAL for RESPONDENT

Statement of Issues VIII

STATEMENT OF ISSUES

I. WHETHER THE PRACTICE OF SANTHARA ENJOYS PROTECTION UNDER CONSTITUTIONAL

PROVISIONS.

II. WHETHER THE ADMINISTRATIVE INTERVENTION WAS IN BREACH OF THE PETITIONERS

FUNDAMENTAL RIGHT TO OBSERVE HER RELIGIOUS PRACTICE.

MEMORIAL for RESPONDENT

Summary of Arguments IX

SUMMARY OF ARGUMENTS

I. WHET HER THE PRA CTICE OF SANT HARA ENJOYS P R OTECTI ON UNDER

CON STITUTI ONAL PR OV ISIONS.

The practice of Santhara is unconstitutional as it vehemently violates the principles of Article

21 which ensures right to life, whereas Santhara is a practice that encourages suicide by

individual in name of religion. There is no evidence to suggest that Santhara is a essential

practice of Jain religion, removal of such illegal practice would not change the principles

enshrined in Jain religion.

No such practice in name of religion enjoys protection under Article 25 of Indian

Constitution. And, contending that such practice is performed with one‟s home, would not

amount to breach of privacy as police has such powers to stop such illegal activity.

II. WHET HER THE A DMI NISTRATIV E INTERV ENTION W AS IN BREA C H OF THE

PETITIONE RS FUND AMENTAL RI GHT T O OBSE RV E HER RELI GIOUS P RACTICE.

The local police of the State of U.P. is empowered under § 149 the Code of Criminal

Procedure as well as under § 23 the Indian Police Act, 1861 to prevent the commission of

cognizable offences. As an attempt to suicide (§ 309 of IPC) is a cognizable offence as per

Schedule –I of the code, hence the police were justified in preventing the commission by

using a reasonable force against the petitioner (offender) and force feeding her.

That the petitioner never had a spiritual motive behind the practice of santhara but the ill

intent to end her life which in consequence might end her miseries. The ill-practice is cloaked

in the guise of religious sanction which is a sham, because there is no pride in committing

suicide. And, lastly that our constitution does not provide a right to extinguish one‟s life

while enumerating the right to life.

MEMORIAL for RESPONDENT

Arguments Advanced 1

ARGUMENTS ADVANCED

The courts have the power to determine whether a particular rite or observance is regarded as

essential by the tenets of a particular religion.1

I. WHET HER T HE PRACTICE OF SAN T HARA ENJOYS PR OTE CTION UNDE R

CON STITUTI ONAL PR OV ISIONS.

1. Santhara is a practice where an individual‟s takes a vow to fast until death in name of

religion. The sanctity of life which has been held in number of cases by the Hon‟ble

Supreme Court ceases to exist in such type of religious activity. United States which

is considered to be the mother of liberty was also provisions to restrict such illegal

activity in name of religion.

2. The first Amendment to America‟s Constitution (1791) says: “Congress shall make

no law respecting an establishment of religion or…prohibiting the free exercise

thereof”

3. The freedom to practice religion taken to an extreme can be used as a license for

illegal conduct. But even when the conduct stems from deeply held conviction,

government resistance to it is understandable. The inevitable result is a clash between

religion freedom and social order.2

1
Acharya Jagadishwarananda Avadhuta v. Commissioner of Police, (1983) 4 SCC 522: AIR 1984 SC 51;
see Also Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, AIR 2004 SC 2984: (2004) 12
SCC 770.
2
THE CHALLENGE TO DEMOCRACY (Government of America) by Janda, Berry and Goldman, Chap XVII,
“Order and Civil Liberties” at pg. 627-28

MEMORIAL for RESPONDENT

Arguments Advanced 2

4. In the case of Cantwell v. State of Connecticut, 3 the US Supreme Court clarified the

legality of any statute or law and the grounds on which it can be struck down.

“Religious belief is absolute except a person from the sweep of criminal law where

the practice resulting from such belief affects the public at large. Religious belief, in

short, is no defense to an offence created by a valid statute, unless so provided by the

statute itself.4.”

5. While the First Amendment freedom to exercise religion against state in absolute

terms, it is however, that while freedom of belief may be conceded to be absolute, the

state cannot allow that belief to be followed by absolute freedom to act according to

such belief, if the state has to protect public order, health and morals. The Court had,

therefore, to intervene to hold that while freedom of belief was absolute, freedom to

act in the expression of such belief was subject to regulation in exercise of the State‟s

“police powers”5.

6. Freedom of Religious belief and to act in the exercise of such belief cannot override

the interests of peace, order or morals of the society and to that extent, the freedom of

religion is subject to the control of the State6

A. That practice of Santhara contradicts the fundamental spirit of Art. 21.

7. No person shall be deprived of his life or personal liberty except according to

procedure established by law. Where any religious practice which is against the law

can be struck down no matter how essential it is a part of a religion. The case of

3
(1939) 310 US 296 (303); also referred in Fowler v. Rhode Island, (1953) 345 US 67 and Torcaso v.
Watkins, (1961) 367 US 488.
4
Reynolds v. U.S., (1879) 98 US 145.
5
Durga Das Basu, Commentary on The Constitution of India ( vol 3, LexisNexis: 2008), pp .3450; also refer
supra fn 2
6
Board of Education v. Barnette, (1943) 319 US 624.

MEMORIAL for RESPONDENT

Arguments Advanced 3

Adelaide Company of Jehovah's Witnesses v. The Commonwealth,7 discuss the

evil practices in name of religion. The judgment of Latham C. J. the Australian

Supreme Court, contains a useful and illuminating discussion of the ambit

of religious liberty

“At all periods of human history there have been religions which have involved

practices which have been regarded by large number of people as essentially evil and

wicked. Many religions involve the idea of sacrifice and the practice of sacrifice has

assumed the form of human sacrifice or animal sacrifice as appears in the Old

Testament, and in many other sacred writings and traditions. So also religions have

differed in their treatment of polygamy. Polygamy was not reproved in the Old

Testament; it has been part of the Mormon religion; it is still an element in the

religion of millions of Mohammedans, Hindus, and other races in Asia. The criminal

religions in India are well-known. The thugs of India regarded it as a religious duty to

rob and kill. The practice of Suttee, involving the immolation of the widow upon the

funeral pyre of her husband, was for centuries a part of the Hindu religion."

8. Though above contention regard a very harsh view, but it is important to understand

the fundamental language of Art. 21 which state that no person shall be deprived of

his life or personal liberty except according to procedure established by law. Special

emphasis should be laid on the word, except according to procedure established by

law. Therefore it is emphasized that a life8 of any individual can only be taken

according to the procedure established by law.

7
67 CLR 116
8
We have already extracted a passage from the judgment of Field, J. in Munn v. Illinois, (1877) 94 U.S, where
the learned Judge Pointed out that "life" in the 5th and 14th Amendments of the U.S. Constitution corresponding
to Article 21, means not merely the right to the continuance of a person's animal existence, but a right to the
possession of each of his organs-his arms and legs etc. We do not entertain any doubt that the word "life" in

MEMORIAL for RESPONDENT

Arguments Advanced 4

9. It is humbly submitted that although fasting is a part of Indian culture, made famous

by independence leader Mahatma Gandhi, who took up hunger strikes in protest

against British rule, laws do not permit euthanasia or suicide. Ultimate result of this

practice in cloak of religion is death of individual, a voluntary practice taken up by a

Jain individual which results in death. Jains claim that Santhara is the most ideal,

peaceful, and satisfying form of death. Many Jain religious leaders contend that when

a person commits suicide, it is usually in anger or depression. The act of suicide is

conducted by isolating oneself from the world and the purpose can be given in a

suicide note9. But it is asserted that in majority of cases Santhara is practices by aged

women10 who have atleast suffered a trauma.

10. In the case of District Registrar and Collector v. Canara Bank,11 it was held by the

Hon‟ble Supreme Court that life and liberty can only be curtailed by satisfying the

triple test:-

a) It must prescribe a procedure

b) The procedure must withstand the test of one or more of the fundamental

rights conferred under Art. 19 which maybe applicable in a given situation.

Article 21 bears the same signification. Is then the word "personal liberty" to be construed as excluding from its
purview an invasion on the part of the police of the sanctity of a man's home and an intrusion into his personal
security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an
animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is
designed to "assure the dignity of the individual" and therefore of those cherished human value as the means of
ensuring his full development and evolution. We are referring to these objectives of the trainers merely to draw
attention to the concepts underlying the Constitution which would point to such vital words as "personal liberty"
having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve
those objectives and by no means to stretch the meaning of the phrase to square with any preconceived notions
or doctrinaire constitutional theories.
9
Wikipedia, “Santhara” (available http://en.wikipedia.org/wiki/Santhara [accessed August 18, 2011])
10
Prakash Bhandari, “Another Jain Woman on fast unto Death” (available
http://articles.timesofindia.indiatimes.com/2006-09-30/india/27821360_1_Santhara-jain-festival-age-old-jain-
ritual [accessed August 16,2011]) “ A day after 60-year-old Shwetambar Jain woman Vimla Devi Bhansali
died while on terminal fast under the faith's Santhara tradition in the Pink City, another case has come to light
of 93-year-old woman, who has given up food and water for the past 24 days under this ritual”.
11
(2005)1 SCC 496

MEMORIAL for RESPONDENT

Arguments Advanced 5

c) It must also liable to be tested with reference of Art.14.

11. The procedure established by law for deprivation of rights conferred by Art.21 must

be fair, just and reasonable12. In the case of Krishnan v. State of Madras,13 it was

decided that “Procedure established by law‟ in Art.21 means the law prescribed by

parliament at any given point. Parliament only has the power to change its procedure

by enacting a law, by amending it and when the procedure is so changed it becomes

the „procedure established by law”.

12. The term Law here signifies “Law14” made by the legislature in accordance with its
15
ordinary legislative procedure. Also in the case of Gopalan v. State of Madras, it

was observed Law in this expression means state made-law or enacted law and not the

general principles of natural justice16. Procedure established by law thus means

procedure prescribed by legislature. And held:-

“Art.21 affords no protection against competent legislative action in the field of

substantive criminal law, for there is no provision for judicial review, on the grounds

of reasonableness or otherwise of such laws…”

13. Similarly, in Francis Coralie Mullin v. Administrator, Union Territory of

Delhi,17. It was held thus:

12
Olga Tellis v. Bombay Municial Corporation, AIR 1986 SC 180
13
AIR 1951 SC 301; also referred in State of U.P. v. Shah Md., AIR 1969 SC 1234 (1238)
14
“ The expression “‟Law” does not include within itself ordinance, order, bye-laws, rule, regulation,
notification, custom or usage having the force of law nor Amendment of Constitution in accordance with the
prescribed Art.368” ; Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
15
(1950) SCR 88
16
Ram Singh v. State of Delhi, AIR 1951 SC 270
17
AIR 1981 SC 746; also referred in Bijaylakshmi Tripathy v. Managing Committee of Working Women
Hostel, AIR 1992 Ori 242; Mohini Jain v. State of Karnataka, AIR 1992 SC 1858; Shaibya Shukla v. State
of U.P., AIR 1993 All 171; Inderpuri General Store v. Union of India, AIR 1992 J&K 11.

MEMORIAL for RESPONDENT

Arguments Advanced 6

“We think right to life includes right to live with human dignity and all that goes

along with it, namely the bare necessities of life such as adequate nutrition, clothing

and shelter and facilities for reading, writing and expressing oneself in diverse forms,

freely moving about, mixing and commingling with fellow human being. Right to life

must include right to carry on such functions and activities to constitute the bare

minimum necessities of human self”.

14. When there is a constitutional18 guarantee that is so sacrosanct in nature, it cannot

therefore be said to include such activities like Santhara within its meaning and

nature of religious guarantee. The Hon‟ble Supreme in plethora of cases has held that

guarantees given under Art.21 should not be confused with religious freedom

especially when these freedoms are followed by corrupt practices.

15. If Art. 21 confers on a person the right to live a dignified life, does it also confer a

right not to live if the person chooses to end his life? If so, then what is the fate of the

provisions in the penal code making attempt to commit suicide penal?

16. Hon‟ble Supreme Court tried to resolve this controversy in P. Rathinam v. Union of

India,19 while addressing the controversy on the relationship. This view constituted

an authority for the proposition that an individual has the “right to do as he pleases

with his life and to end it if he so pleases. A person cannot be forced to enjoy right to

life to his detriment, disadvantage or disliking”. The Court argued that the word life in

Art. 21 means “right to live with human dignity and the same does not merely connote

continued drudgery. Thus the Court concluded that the right to live of which Art. 21

speaks of can be said to bring in its trail the right not to live with forced life”.

18
The Constitution of India.
19
AIR 1994 SC 1844.

MEMORIAL for RESPONDENT

Arguments Advanced 7

17. The above radical view could not last for long. The Rathinam20 ruiling came to be

reviewed by full bench of the Court in Gian Kaur v. State of Punjab.21 The question

arose that if attempt to commit suicide is not regarded as penal then what happens to

someone who abets suicide, since abetment to commit suicide is made punishable

under § 306 of Indian Penal Code. The Court observed:-

“…Right to life is a natural right embodied in Art. 21 but suicide is an unnatural

termination or extinction of life and, therefore, incompatible and inconsistent with the

concept of right to life”

18. In Gian Kaur22. The Supreme Court has distinguished between euthanasia and

attempt to commit suicide. Euthanasia is termination of life of a person who is

terminally ill or in a persistent vegetative condition23. In such a case, death due to

termination of natural life is a certain and imminent fact. The process of natural death

has commenced, it is only reducing the period of suffering during the process of

natural death. This is not the case of extinguishing life but only of accelerating

conclusion of the process of natural death which has already begun. But this cannot

be equated with right to die an unnatural death curtailing the natural span of life.

19. Similarly in case of Malak Singh v. State of Punjab & Haryana, 24 it was held “We

may notice here that interference in accordance with law and for the prevention of

20
Ibid.
21
1996 (2) SCC 648
22
Supra 19
23
(Persistent vegetative state). Wikipedia. A persistent vegetative state is a disorder of consciousness in which
patients with severe brain damage who were in acoma progress to a state of partial arousal rather than true
awareness. It is a diagnosis of some uncertainty in that it deals with a syndrome. After four weeks in
a vegetative state (VS), the patient is classified as in a persistent vegetative state. This diagnosis is classified as
a permanent vegetative state (PVS) after approximately 1 year of being in a Persistent Vegetative State. [last
visited on 16.08.2011].
24
MANU/SC/0157/1980 : 1981CriLJ 320

MEMORIAL for RESPONDENT

Arguments Advanced 8

disorder and crime is an exception recognised even by European Convention of

Human Rights to the right to respect for a person's private and family life."

20. It is pertinent to mention that even though right to privacy is covered within the ambit

of Art. 21, but if any illegal act takes place within the four walls, then Police has right

to interfere with privacy of that individual. Right to privacy is not absolute and can be

curtailed when there is an apprehension that a potential crime is or can take place.

25
21. In the case of Smt. Selvi and Ors. v. State of Karnataka, the judicial

understanding of privacy in our country has mostly stressed on the protection of the

body and physical spaces from intrusive actions by the State. While the scheme of

criminal procedure as well as evidence law mandates interference with

physical privacy notwithstanding this, it concluded that this right to privacy is not in

existence under the Constitution, with Ayyangar, J laying down that: “The right of

privacy is not guaranteed under our Constitution and therefore the attempt to

ascertain the movements of an individual which is merely a manner in which privacy

is invaded is not an infringement of fundamental right guaranteed by Part III”.26

22. Right to privacy is an essential component of the right to life but it is not absolute and

may be restricted for prevention, disorder or protection of health or morals or

protections of rights and freedom of others.27

25
2010 (2) Crimes 241 (SC)
26
Supra f.n. 22.
27
‘X’ v Hospital ‘Z’, (1998) 8 SCC 296, (¶ 28).

MEMORIAL for RESPONDENT

Arguments Advanced 9

B. That protection under Art. 25 is ensured when a religious belief or practice

fulfils certain prerequisite.

The respondent submits that every individual has the following enshrined

fundamental rights. Firstly, Freedom to practice a religion of his choice [B.1] and

freedom of conscience [B.2].

B.1 Freedom to Practice a religion of his choice.

23. The Courts have interpreted the clause to be subject to some limitations which are

necessary in the interest of society itself. “However free the exercise of religion may

be, it must be subordinate to the criminal law of the country, passed with reference to

actions regarded by general consent as properly the subjects of punitive legislation”.28

24. Freedom of Religion would not allow a man to commit human sacrifice29 even though

human sacrifice is sanctioned by some religious creed (some people in India are

adherents of a set of theistic philosophies called Tantrism which forms the basis and

founding philosophies of all Tantric cults both Hindu and Buddhist. Most either use

animal sacrifice or symbolic effigies, but a minority continue to practice human

sacrifice despite the risk of prosecution30); or to commit an act which is a crime under

penal law31

25. It is submitted before this Court that in the case of The Commissioner Hindu

Religious Endowments, Madras v. Shri Lakshimindra Thirtha Swamiar of Sri

28
Davis v. Beason, (1890) 133 US 333
29
Saifuddin v. State of Bombay, AIR 1962 SC 853
30
According to the Hindustan Times, there was an incident of human sacrifice in western Uttar Pradesh in
2003. Similarly, police in Khurja reported "dozens of sacrifices" in the period of half a year in 2006.
31
Arver v. US, (1918) 245 US 366; also referred in Reynolds v. US., (1978) 98 US 145; Employment
Division Department of Human Resources v. Smith., (1990) 494 US 879.

MEMORIAL for RESPONDENT

Arguments Advanced 10

32
Shirur Mutt: Mukherjee, J. observed that State interference can be justified on

certain grounds even if it means to restrict the scope of Art. 25. It was held that:-

“The state upon free exercise of religion are permitted both under Art. 25 and 26

restrict the activities on ground of public order, morality and health. Art. 25 reserves

the right of State to regulate of restrict any economic, financial, political or any other

secular activities which may be associated with religious practice and there is a

further right given to the State by Sub-Clause (b )under which the State can legislate

for social welfare and reform even though by doing so it might interfere with religious

practices…”

B.2 Freedom of Conscience.

26. Conscience is the inmost thought or the sense of moral correctness that governs or

influences the action of an individual. Every individual justifies his omission and

commission with reference to same influencing force. One of the articulate and

outward expressions of the conscience is religion33.

27. Freedom of Conscience is restricted by doctrine of essential element , in Bijoe

Emmanuel v. State of Kerala, 34the court concluded that a belief or practice which is

a part of conscience can be questioned on the ground of it reasonableness and

accordingly held:-

“The question is not whether a particular religious belief or practice appeals to our

reason or sentiment, but whether the belief is genuinely and conscientiously held as a

32
(1954) 1 SCR 1005; also referred in Ratilal Panachand Gandhi v. State of Bombay and Ors., (1954) SCR
1055
33
Ratilal Panachand Gandhi v. State of Bombay and Ors., (1954) SCR 1055
34
AIR 1987 SC 748

MEMORIAL for RESPONDENT

Arguments Advanced 11

part of the profession or practice of the religion. Our personal views and reactions

are irrelevant”.

28. The Courts in India have interpreted the religious freedom and rights guaranteed

under Art. 25 in light of reasonable restrictions imposed on them. As evident in the

35
case of Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, the

Court take into consideration the conscience of the community and the tenets of the

religion concerned to decide whether a particular practice is „religious‟ in character

and if so whether it is an essential and integral part of the religion. There cannot be

addition or subtraction to essential or integral part or practice of a religion as they are

the very essence of that religion and alteration will change the fundamental character

of the religious concerned. It is such permanent essential parts which are protected

under the ambit of Art. 25. Nobody can say that an essential part or practice of one‟s

religion has changed from a particular date or by an event. Such alterable parts are

mere embellishments to the essential part or practice and not protected under Art. 25.

29. What is an essential or integral part or practice of religion 36? It was held that essential

part means the core beliefs upon which the religion is founded. Essential practice

those practice that are fundamental to follow a religious belief. It is the cornerstone of

essential parts or practices that superstructure of religion is built, without which a

religion will be no religion.

30. It is pertinent to mention that in the case of „Ananda Margis‟ the order founded in

1955, and the practice of Tandava dance was introduced in 1966. Even without the

35
AIR 2004 SC 2984
36
“Religion is not necessarily theistic…Religion is that which binds the man with his Cosmos, his Creator, or
superior force, and his faith in the superior force which regulate the existence of sentiment beings and the force
of the universe.” Held in A.S. Narayana v. State of A.P., AIR 1996 SC 1765.

MEMORIAL for RESPONDENT

Arguments Advanced 12

practice of Tandava dance, the Ananda Margi order was in existence37 nor is the

system of hereditary archakas not an essential or integral part of Hindu religion.

Appointment of archakas was a secular matter and legislation is competent to abolish

the same38. When the observance of a practice is only optional, then the same is not

essence of religion, slaughter of Cow on Bakrid Day is only optional and hence the

same could be regulated39. Where there are additions or alterations the same cannot be

treated as an essential part and such alterable parts or practices are not the “core”

religion40.

31. Similarly the practice of Santhara cannot be equated as integral or essential practice

which if struck down will change the fundamentals of Jainism. In a secular state

which guarantees constitutional protection to religious freedom, secular matter should

not be allowed to get mixed up with matters of religion as far as possible. When the

nature of given practice is clearly secular, there is no difficulty41. Though it is

generally acknowledged that the question of „what constitutes a secular activity?‟ is to

be decided by religious denomination itself42, it has at the same time been laid down

that the determination of such denomination is not final, but is subject to the decision

of the Court43. As what constitutes as an essential part of the religion or religious

37
Supra f.n. 34.
38
E.R.J. Swami v. State of Tamil Nadu, AIR 1972 SC 1586; T.V. Narayana v. Venkata Subbamma, AIR
1996 SC 1807
39
State of West Bengal v. Ashutosh Lahiri, AIR 1995 SC 464; State of Gujarat v. Mirzapur Moti Kurshi
Kassab Jamat, AIR 2006 SC 212
40
Supra f.n. 34.
41
Sri Jagannath Temple Puri Management Committee v. Chintamani Khuntia, (1997) 8 SCC 422
42
Commr., H.R.E. v. Lakshmindra, AIR 1954 SC 282
43
“This question will always have to be decided by the court and in doing so, the court may have to enquire
whether the practice in question is religious in character, and if it is, whether it can be regarded as integral or
essential part of the religion…” as held in Govindlalji v. State of Rajasthan, AIR 1963 SC 1638; also referred
in Ramanuja v. State of T.N., AIR 1972 SC 1586; Swarup v. State of Bihar, AIR 1979 SC 809; Moti Das v.
Sahi, AIR 1969 SC 942; Durgah Committee v. Hussain, AIR 1965 SC 1402

MEMORIAL for RESPONDENT

Arguments Advanced 13

practice has to be decided by the Courts “with reference to the doctrine of a particular

religion or practice regarded as a part of religion”44.

32. There are certain grounds on which the practice of Santhara should never be

performed, these grounds directly come from the religious texts, There are following

five major violations pertaining to this vow of Santhara45:

1. Desiring worldly status like becoming an emperor, or wealthy after

death,

2. Desiring to become a divine personality after death,

3. Desiring prolonged life with the view of becoming popular,

4. Desiring early death, in order to cut short the physical pains, etc., or

5. Desiring sensual pleasures of the world.

34. According to the fact sheet Prabha Devi contends that the practice of Santhara would

put her miseries to end46 which violates the ground number 4 and the purpose of

observing such unconstitutional practice.

44
N. Adithayan v. Travancore Dewaswon Board, AIR 2002 SC 3538
45
A.S. Jain, “Santhara - A Religious Fast To Death” (available
http://www.jainworld.com/jainbooks/images/29/SANTHARA_-_A_RELIGIOUS_FAST.htm) [accessed August
20, 2011]
46
Fact Sheet, ¶ 7.

MEMORIAL for RESPONDENT

Arguments Advanced 14

II. W HETHE R T HE ADMINISTR ATIV E INT ERV ENTION WAS IN BREAC H OF THE

PETITIONERS FUND AM ENTAL RI GHT T O OBSE RV E HER RELI GIOUS P RACTICE.

35. The administrative intervention resorted to by the local police was an act in

furtherance of the power coupled with duty to prevent the commission of a cognizable

offence, and to maintain law and order in the state. Firstly, the administrative action

was justified [A], Secondly, the petitioner intends to unlawfully end her life [B],

Thirdly, the petitioner had no spiritual motive but to end her miseries by ending her

life [C], Lastly, the state has to safeguard the larger interests of the society [D].

A. That the administrative action was justified.

36. As per Chapter XI, § 149 of the Code,47 every police officer has the power and

statutory duty in taking steps to prevent the commission of cognizable offences. Even

the Police Act of 1861, under § 23 enumerates such a duty. Further, it is the

prevention of crime is one of the prime purposes of the constitution of a police force.

In Harrison Malayalam Ltd. v. State of Kerala and Ors.,48 the Kerala High Court

when deciding over the issue of maintainence of law and order by the police and

eviction of encroachers from the petitioner company observed in ¶ 6 of the judgment

that „the police fails in discharging their statutory duty, the same is liable to be

corrected by issuing appropriate writ for police protection, so as to maintain rule of

law.‟

47
Code of Criminal Procedure, 1973.
48
2007 (4) K.L.T. 540; see Also Reliance Telecommunications Ltd. v. S. I. of Police, W.P. (Cri) No. 6433 of
2010: MANU/KE/2352/2010.

MEMORIAL for RESPONDENT

Arguments Advanced 15

37. The local police while obstructing Ms. Prabha Devi, during the observance of the

unlawful Samadhi were justified because of the above-mentioned mandates in the

statutory laws. And, that the police action is justified in using any reasonable amount

of force to prevent the commission of such offence which demonstrates that the force

feeding of the petitioner was permissible because she appeared weak and famished at

the time of intervention. Such an appearance could have been probable considering

either of the following reasons:

a. That she had starved her body for many days, or

b. That she had become weak due to her treatment and physical suffering

coupled with voluntary denial of food.

38. Since, preventive jurisdiction under § 149 of the Code49 is classified under two broad

heads. The first may be called magisterial action; and the second police action. The

cases falling under the second head are purely executive and unlike, the first head

there is no judicial inquiry at all; and from the very urgency of the cases the police

have to act on their own initiative and of their own knowledge. The powers given are

very wide indeed and their exercise is ordinarily summary.

39. The petitioner was not arrested because the commission of the offence was prevented

by force feeding and was left by a warning keeping in mind her physical ailments and

old age. But, if the commission of the offence cannot be prevented then the petitioner

would have been arrested.50

B. That the petitioner intends to unlawfully end her life.

49
Raghunath v. State, 1963 CriLj 899; also in Emperor v. R. Vinayak Dhulekar, 1925 All 165, wherein the
court held: „to collect and communicate intelligence affecting the public peace, to prevent the commission of
offences and Public nuisance.‟
50
§ 151 of the Code; see Also Jagdish Chander Bhatia v. State, 1983 CriLJ NOC 235 (Del); Arunish Singh
v. State of M.P., 1984 CrLJ 1616(MP).

MEMORIAL for RESPONDENT

Arguments Advanced 16

40. Every civilized legal system recognises the right to life. That right to life does not

include right to die which has been emphasised by the Apex court in a plethora of

judgments overruling its earlier verdict of P. Rathinam v. Union of India,51 in Smt.

Gian Kaur v. State of Punjab,52 by a five judge Constitution Bench of the Supreme

Court, holding that Article 21 cannot be construed to include within it the „right to

die‟ as a part of the fundamental right guaranteed therein, and therefore, it cannot be

said that § 309 is violative of Article 21. The right to die is inherently inconsistent

with the right to life‟.

41. The court made it clear that the 'Right to Life', including the right to live with human

dignity, would include the existence of such a right till 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. This may include the right of a dying man to die with dignity,

when his life is ebbing out. However, according to the court, the „Right to Die‟ with

dignity at the end of life is not to be confused with the 'Right to Die' an unnatural

death.

42. The Andhra Pradesh High Court in Chenna Jagadeeswar v. State of Andhra

Pradesh,53 wherein it was held:

“... in a country like India, where the individual subjected to tremendous pressure, it

is wise to err in the side of caution. To confer a right to destroy one-self and to take it

away from the purview of the Courts to enquire into the act would be one step down

51
AIR 1994 SC 1448, wherein a two- judge of the Supreme Court through Justice B.L. Hansaria invalidated §
309 of the Penal Code, which made attempt to commit suicide an offence, on the ground that it „violated the
fundamental right to life‟.
52
AIR 1996 SC 946: 1996 (1) ALD (Cri) 102: 1996 (1) ALT (Cri) 535: 1996 (2) BLJR 809: 1996 CriLJ 1660:
1996 (1) CTC 454: (1996) 2 GLR 563: JT 1996 (3) SC 339: 1996 (2) SCALE 881: (1996) 2 SCC 648: [1996] 3
SCR 697; ¶ 22 “Whatever may be the philosophy of permitting a person to extinguish his life be committing
suicide, we find it difficult to construe Article 21 within it the “right to die” as a part of the fundamental right
guaranteed therein.” (Emphasis supplied)
53
(1988) Cri 357 : 1988 Cri LJ 549

MEMORIAL for RESPONDENT

Arguments Advanced 17

in the scene of human distress and motivation. It may lead to several incongruities

and it is not desirable to permit them. Hence S. 309, I.P.C. is valid and does not

offend Arts. 19 an 21 of the Constitution of India.”

43. The Court again reiterated that the argument to support the views of permitting the

termination of life in such cases (e.g. a dying man, who is terminally ill and is totally

dependent on life support s stems), by accelerating the process of natural death,

when it was certain and imminent, was not available to interpret Article 21 to include

the right to curtail the natural span of life.54 One has to perform his duties towards

himself and towards the society at large.

44. We do not have any precedents, either Indian or foreign to support the argument that

life includes death or right to live includes right to die. The right to life is guaranteed

in almost all the constitutions that have a bill of rights as well as in all international

human rights documents. But, inspite of the continuing intense debate on dignified

death, the right to die has not been recognized under any of them. For example, in

United States, in some cases State laws providing for removal of life saving devices in

the case of comatose persons who have no chance of survival have been upheld, but

no general right to end one‟s life has yet been recognised.

C. That the petitioner had no spiritual motive but to end her miseries by ending

her life.

45. The basic rule of criminal liability revolves around the basic Latin Maxim-

actus non facit reum, nisi mens sit rea. It means that to make one liable it must be

shown that act or omission has been done which was forbidden by law and has been

54
Dr. Banwarilal Sharma v. State of U.P. and Ors., JT 1998 (4) SC 466, (1998) 3 SCC 604.

MEMORIAL for RESPONDENT

Arguments Advanced 18

done with guilty mind.55 Hence every crime has two elements one physical one

known as actus reus and other mental one known as mens rea.56 This is the rule of

criminal liability in technical sense but in general the principle upon which

responsibility is premised is autonomy of the individual, which states that the

imposition of responsibility upon an individual flows naturally from the freedom to

make rational choices about actions and behaviour.57

46. No act is per se criminal,58 the act becomes criminal when the actor does it with

criminal mind. The guilty intent is not necessarily that of intending the very act or

thing done and prohibited by common or statute law, or both but it must at least have

the intention to do something wrong. The intention may belong to one or the other of

two classes. It may be to do a thing wrong in itself apart from the positive law, or it

may be to do a thing merely prohibited by the statute or by common law, or by both

elements of intention may co-exist with respect to the same deed.

47. Here, in the case at hand the petitioner was reeling under acute pain and she thought

of right to end her life as inclusive in Article 21 by way of which she could end her

miseries,59 goes a step further to show that she acted in a manner (actus reus)

conducive to her mens rea. The petitioner is well aware that in this country there is no

such right as „right to die‟. Arguendo, even if she is not aware that cannot be taken as

an excuse.60

55
Sayre, Mens Rea (Harvard Law Review: 1932), p. 974; see Also G. William, Salmond on Jurisprudence
(LexisNexis: 2007), pp. 408-409; “Intention is a foresight that certain consequences will follow from an act,
and the wish for those consequences working as a motive which includes the act.”
56
W. O. Russell, Russell on Crime (J.W.C. Turner Ed., Universal Law Publishing Pvt., New Delhi: 2001), pp.
17-51; “actus reus connotes those result of human conduct which is forbidden by law and hence constitutes of
Human action; result of conduct and act prohibited by law. On other hand, mens rea is generally taken as
blame worthy mental condition”
57
A. Ashworth, Principles of Criminal Law (Oxford: Clarendon Press, 1991) pp. 79-81.
58
See Draft Penal Code, Appendix Note B., p. 108.
59
Fact sheet, ¶ 7, last line.
60
Maxim: Ignorantia juris neminem excusat - Ignorance of the law excuses no one.

MEMORIAL for RESPONDENT

Arguments Advanced 19

C.1 That the attempt to commit suicide was intentional by the petitioner.

48. The essence of suicide is an intentional self- destruction of life. The word „to commit

suicide‟ is for a person voluntarily to do an act (or, as it is submitted, to refrain from

taking bodily sustenance), for the purpose of destroying his own life, being conscious

of that probable consequence, and having, at the time „sufficient mind to will the

destruction of life‟.61

49. The word „suicide‟ is not defined in the Penal Code.62 Therefore, one must look at the

dictionary meaning of the word. As held by the Kerala High Court, a finding of

suicide must be based on evidence of intention. Every act of self- destruction is, in

common language, described by the word „suicide‟, provided it is the intentional act

of a party knowing the probable consequence of what he is about to commit.63

50. Further, the causes and circumstances leading one to take such a decision are wholly

irrelevant for deciding the question as to whether the death was a suicide or not.

Similarly, whether she was responding or not responding to treatment or whether she

had been reeling under a liver cancer is wholly immaterial to the commission of the

act because the act was done intentionally and voluntarily. The petitioner had

calculated the risks and probable consequences. The relatives as well as the family

suppressed this information to which they were duty bound to disclose, as per law.

51. Unless there is some overt declaration by the accused of his intention to fast unto

death, it is difficult to be sure that he intended to preserve to the bitter end. 64

However, in the instant case the petitioner had proclaimed to observe the vow of

Santhara and that seldom it is seen the devotee withdrawing himself at any future

61
Clift v. Schwabe, (1846) 3 CB 437.
62
The Indian Penal Code, 1860.
63
C. A. Thomas Master and etc. v. Union of India and Ors., 2000 CriLJ 3729, ILR 2000 (3) Kerala 368.
64
Ramamoorthy alias Vannia Adikalar v. State of Madras, 1992 CriLJ 2074: MANU/TN/0140/1990c

MEMORIAL for RESPONDENT

Arguments Advanced 20

stage during its observance. No matter he may be asked if he intends to proceed

further in the Samadhi.

52. Hence, a decision taken by persons to voluntarily put an end to his life on the footing

that one has led a successful life and the mission in his life is complete would amount

to suicide.65 These arguments don‟t hold water. As a noteworthy fact, Physical

Suffering is one of the major causes of suicide in India.66 Santhara has now become a

way for families to avoid taking care of the aged, and win some religious prestige

along the way.

D. That the state has to safeguard the larger interests of the society.

53. Way back in 1958, the Supreme Court in Mohd. Hanif Qureshi & Ors v. State of

Bihar,67 took on the issue of a ban on cow slaughter impinging on Muslim festivities

during -Id and on the fundamental right of butchers to carry on their trade. But this

time, the issue is decidedly more sensitive, and its consequences far more profound. It

involves the extinguishment of a human life.

65
C. A. Thomas Master and etc. v. Union of India and Ors., 2000 CriLJ 3729, ILR 2000 (3) Kerala 368.
66
Norman Chever, A manual of Medical Jurisprudence for Bengal and North Western provinces(3rd edn.,Bengal
Military Press: 2004), p. 670.
67
AIR 1958 SC 731, [1959] 1 SCR 629.

MEMORIAL for RESPONDENT

Prayer 21

PRAYER

Wherefore, may it please the Court in the light of the questions presented, arguments

advanced, and authorities cited, to adjudge and declare that:

I. To adjudge and declare that santhara is not a core jain ritual and hence, the

petitioner has no fundamental right to observe the immoral practice.

II. To further, declare that such observances cloaked in the guise of religion are

contrary to the established principles of Article 21 of the Indian Constitution

and deserve necessary action under the statutory penal laws of the country.

III. To dismiss the petition of the petitioner and impose a fine which this Hon’ble

Court deems fit.

The Hon‟ble High Court may be pleased to pass any such order in favour of the respondent

and for this act of kindness the respondents are duty bound and shall ever pray.

All of which is respectfully affirmed and submitted

X______________________________

COUNSELS FOR THE RESPONDENT

MEMORIAL for RESPONDENT