When the Supreme Court has recognised the right to go on hunger strike, why is Irom Sharmila’s protest against impunity of the armed forces a criminal act?

Over the past 12 years, Irom Sharmila Chanu has carried on an inconceivable hunger strike, which has seen her body wither and her skin turn pale. During this period, she has emerged as the face of the civilian resistance to the immunity, and impunity, granted by the Armed Forces (Special Powers) Act to the army in Manipur. The Indian state has done its part to disfigure that face, by exhibiting either an inability or unwillingness to meet Sharmila’s demands. Today, it is impossible to think of Sharmila without recalling images of the feeding tube that has been forcibly thrust down her nose to keep her alive. However, the repeal of AFSPA and justice for the 10 civilians who were shot dead in November 2002 by the Assam Rifles in supposed retaliation to an attack by insurgents in Malom, Manipur — which triggered Sharmila’s protest — still remain elusive. Instead, Sharmila’s dissent expressed via her fast unto death has repeatedly been viewed as criminal.

Sharmila has put the Indian state in a peculiar position, by reconfiguring the dynamics of power through a public sacrifice of her body. Should the state, as it has done so far, view her indefinite fast through the lens of criminality and consider it “an attempt to commit suicide,” when Sharmila has unequivocally asserted her love of living? Or is it incongruous to do so, especially when the Supreme Court, in its recent and much-hailed intervention in the Ram Lila Maidan protests against corruption, has recognised that “hunger strike is a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence”? In fact, Sharmila’s hunger strike is an area of stark legal vacuum. When there is a conflict between her freedom of expression and the Indian state’s interest, and perhaps duty, in keeping her alive, can a balance between these conflicting ends be struck without criminalising Sharmila’s actions?

The history

Examples of hunger strikes used as an expression of dissent are copious; the suffragettes used them in their campaign seeking the vote for women in England during the early 20th century. Hunger strikes around the world have typically, though not exclusively, been waged by prisoners. Such was the case when some imprisoned Irish Republicans famously went on a hunger strike in 1981 to protest British rule of Ireland, leading to the death of Bobby Sands and nine others. Prisoners tend to use hunger strikes as a mode of protest, either to advocate a cause disagreeable to the state or to express their dissent against what they believe to be a wrongful conviction. In the former category fall cases like that of Marion Wallace Dunlop, a pioneering suffragette who was sent to prison for printing an extract from the Bill of Rights on the wall of St. Stephen’s Hall in the House of Commons. In prison, Dunlop commenced a hunger strike to continue her protest seeking the right of women to vote. In the latter category fall prisoners like William Coleman, who has been on a hunger strike lasting almost five years in a jail in Connecticut, U.S., to protest what he believes to be his wrongful conviction. Since the global trend has been for persons already imprisoned to resort to a hunger strike, this mode of protest has usually been viewed abroad as a prisoners’ rights issue. The state’s response of force-feeding prisoners has been considered by some as being tantamount to torture and an unacceptable intrusion in the autonomy of the prisoner, akin to rape.

However, India’s own experience with hunger strikes, which has been very well documented, has shown that viewing the issue through a prisoners’ rights framework is ill-advised. Our freedom fighters, Mahatma Gandhi in particular, developed and perfected this non-violent form of protest as a facet of satyagraha, and although several hunger strikes were carried out by freedom fighters during periods of incarceration, the resort to this mode of protest has never been an exclusive domain of the imprisoned. For instance, Potti Sreeramulu, a freedom fighter and Gandhian, fasted to his death, in seeking the creation of a separate State of Andhra Pradesh in independent India. The Narmada Bachao Andolan movement witnessed hunger strikes in 2002 to protest the construction of dams over the Maan River in Dhar, Madhya Pradesh.

More recently, Anna Hazare and his associates carried on hunger strikes against corruption. All of these protests were, and continue to be, carried on for the large part, outside the walls of prison. For this reason, a prisoners’ rights framework may, by itself, be insufficient to view the legality of hunger strikes in India.

Attempted suicide?

An alternative way to analyse hunger strikes, especially fasts unto death, is through the framework of a constitutional right to die. In India, not a little morbidly, this argument seems to have reached a “dead end.” Although the Supreme Court in P. Rathinam v. Union of India (1994) initially asserted that the Indian constitutional guarantee of a fundamental right to life carries with it a fundamental right to die, subsequent decisions in Gian Kaur v. State of Punjab (1996) and Aruna Shanbaug v. Union of India (2011) overruled that view, and it is now conclusively established that Indian citizens do not have a fundamental right to die. In Gian Kaur, the Supreme Court upheld the validity of Section 309 of the Indian Penal Code, which criminalises the “attempt to commit suicide” (i.e. the provision under which Sharmila has been charged, and previously convicted). In Shanbaug, the Supreme Court allowed only for a highly circumscribed right to approach courts to seek withdrawal of life support systems for patients in a permanent vegetative state. Thus, it appears futile to argue that Indian citizens have a right to fast unto death when, according to the apex court, they have no right to die. However, this does not automatically mean that the undertaking of fasts unto death is criminal or that one does not have a fundamental right to hunger strike of a definite period where there is no danger of death being caused. One may not have the right to do something, but to do it nonetheless needn’t be criminal.

In independent India, the resort to hunger strikes has usually, though with some exceptions (such as the hunger strike by prisoners within a jail), not been viewed through the lens of criminality. For instance, Potti Sreeramulu was never considered criminal or suicidal by the Indian state for his fatal hunger strike. Anna Hazare likewise has undertaken several indefinite hunger strikes for various causes, but has never been perceived as a criminal on this account. The most prominent example of the Indian state criminalising a fast unto death per se is that of Sharmila’s. If we really believe rape is as vile as we have recently claimed it to be, then would it be just to treat Sharmila’s strike against AFSPA, a law that shields rapists from prosecution, differently from Hazare’s strike against corruption? More importantly, would it be just for a society’s laws to selectively criminalise hunger strikes depending upon the objectives such strikes seek to achieve?

This brings us to the question of whether Sharmila’s case, and more generally fasts unto death, are appropriately viewed as “attempts to commit suicide” under Section 309 of the Indian Penal Code. Any criminal offence, barring certain exceptions, requires the proof of a mens rea, or the existence of a guilty mind. Sharmila has been fasting not with an intention to die, but with an intention to achieve a desired result from the state. Her refusal to consume food or water can be criminalised only if she has acted in furtherance of a conscious endeavour to commit suicide. In the absence of such conscious endeavour, to accuse and prosecute her for an offence under Section 309 is misconceived.

Freedom to express

The questions of whether to treat Sharmila as criminal and whether the state should be allowed to force-feed her are distinct. As misguided as Sharmila’s prosecution may be, the question regarding the legality of nasally force-feeding her to keep her alive still remains open. The Supreme Court has, on the one hand, held that the threat of going on a hunger strike extended by Baba Ramdev at Ram Lila Maidan, cannot be termed illegal. Presumably, this right that the court spoke of flows from a citizen’s right to freedom of expression. That right is subject to “reasonable restrictions” in the interest of the sovereignty and integrity of India, public order, decency, morality, or in relation to contempt of court, defamation or incitement to an offence. If Sharmila’s fast unto death is essentially an exercise of her fundamental right to freedom of expression, the state, in force-feeding her, may presumably be acting in furtherance of its right to impose reasonable restrictions as permitted by our Constitution. However, force-feeding, even if conducted in a humane and largely non-intrusive manner, has been widely considered to be tantamount to torture. Even though the state might merely be imposing restrictions that are reasonable within the meaning of Article 19 of the Constitution, the measure might nonetheless be a violation of Sharmila’s right to life and personal liberty under Article 21.

In our opinion, fasts unto death occupy an area of legal vacuum that offer no easy solutions. Should the state allow Sharmila to die and, in the process, abdicate its duty to protect life? Or must it resort to force-feeding her, even though such actions hit at the core of her bodily integrity? While neither offers a perfectly tailored legal solution, what is certain is that a balance ought to be struck between these starkly conflicting ends without criminalising Sharmila’s actions. For, to do so would be tantamount to stigmatising an exercise by a citizen of her right to freedom of expression in advocating a particular cause when other citizens have used the freedom in exactly the same manner without suffering prosecution, simply because they advocated causes of a different, and less complex, nature.

(The authors are advocates practising in the Madras High Court)