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Updated: March 30, 2013 00:20 IST

Starving to live, not die

    Goutham Shivshankar
    Suhrith Parthasarathy
Comment (16)   ·   print   ·   T  T  

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)

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it is a very difficult situation for a democratic state like ours to not
to give any kind of importance to a person who fights for basic rights
secured by the constitution of india. the hindu deserve a praise for
this column.

from:  BRAJENDRA KUMAR
Posted on: Mar 31, 2013 at 20:50 IST

The article is literally an expression of feelings continously emerged in the heart of thousands of people those who have been believing in democracy, especially in the Indian cotext. Indefinite fast and Satyagraha are two universally accepted models of protest against any dracoinian rule of law imposed by the state. Gandhi used Satygraha and fast as a successful non - violent means of protest during the freedom movement of our country. Indian state is well aware of it that is why they used to celeberate fasting and satyagraha when Babba Ramdev and his followers organise in Ramlila ground and at the same time crucifies Irom Sharmila by registering criminal case against her. It is ironical to view in India, we project ourselves as models for other countries the believers of nonviliont means of protest to achieve human emancipation from viilent act. In cotrary to this belief, a women from north east started her historic protest through nonviolent means is becoming target of violence.

from:  Appde Rajeevan
Posted on: Mar 31, 2013 at 16:51 IST

India is a sham democracy. Be it rape and human right abuses by our
armed forces, extra judicial killings, "encounters", disappearances -
all of these are a blot on how we view the value of life. Without
question,our armed forces, have no absolutely no problem, killing or
maiming people.

Here comes the hypocrisy and double standards. We opposed apartheid,
and the war of liberation in then East Pakistan (now Bangladesh), but
at home we have our army commit excesses, with protection under the
law - be it in Kashmir or in the north eastern states. The rest of
India doesn't care because we are a nation of selfish people.

Irom Sharmila has been fighting the APSFA through non violence. The
government is stifling her fight, and won't withdraw the draconian
law. Not all princely states joined the state of India voluntarily.
Palestinians must have the right of self determination, but how about
Kashmir and the North Eastern states? A case of shameless, naked,
hypocrisy indeed!

from:  Mallika Sharma
Posted on: Mar 31, 2013 at 13:44 IST

Very rightly said. Sharmila Chanu's case should not be considered as an "attempt to commit suicide". There should also be a proper debate to ascertain the legality of the state force-feeding her.
But, the moot point is repeal of AFSPA. Sadly, even though i consider her to be extraordinarily strong-willed and determined, i feel her fast is now being debated more than repeal of AFSPA. I think it is better for her to give up her fast and instead try to build up a civil society movement demanding repeal or at least dilution of this law. There is none more inspiring than her to lead this movement.Anna Hazare's movement gained prominence because of the concerted pressure exerted by people. Sharmila cant win this battle alone. She has to build an effective all-India people's movement(possible if she is the leader)which will be ready to discuss the issue even with the armed forces. A consensus has to be reached between the people and defence forces. Only then the real issue will be solved.

from:  Mukut Ray
Posted on: Mar 30, 2013 at 20:57 IST

I believe, like Sharmila that starving / fasting is a means to let it
be known that you feel very strongly about a subject or that you are
affected deeply by a certain event. I know of a housewife who has
taken just such a stance within the four walls of the house, when she
felt that an in-law used some very harsh language, rather unjustly.
But she seems to be facing the same kind of utter lack of sensitivity
as displayed by the Indian Government in Sharmila's case.
Can't the Army relent and show a human enough face for a change, in
the case of Sharmila?

from:  swarna
Posted on: Mar 30, 2013 at 20:39 IST

Only keys changed hands and our shackles never broken. Now we have Indian masters instead of foreign invaders. We need a change in attitude of all citizens in my beloved nation. Empathy for fellow citizens is the need and not to have the attitude of the ruler and ruled.

from:  Khalil
Posted on: Mar 30, 2013 at 20:12 IST

To go on hunger strike is most humble non-violent way of protest which
was used by none other then father of nation mahatama gandhi. Sharmila
has every right to do so and her way of expression should be respected.
On the contrary govt. should try to understand why persons like shormila
are forced to do so and take action.

from:  Dhiraj
Posted on: Mar 30, 2013 at 19:35 IST

It is the Black coats create much complex illusional problem in the
name of legality apart from real problems that exist.Those security
people if they found to be barbarians they must be punished.One
doesn't need a Special AFSPA to shoot&kill unarmed civilians.It
happens everywhere in case of protests/for medals by the security
agencies.When different institutions trying harder to fight armed
insurgency/separatism,just for an aberration she is asking to repeal
the entire act.On contrary,if the act is allowing agencies to behave
autocratically/inhumanely her opposition will be seen as sacrificial
for a larger good.Without improving the situation repealing the AFSPA
is dangerous to the idea called nation.Don’t bring Individual’s
illusions(personalliberty)intothe category of state’s legal/society’s
problem.If somebody wantto eliminate imaginary legal complexity,just
repeal AFSPA&asksharmilla to take care of peace.Please don’tcompareher
illusion with righteous, sane stayagraha of Annaji

from:  Rajesh
Posted on: Mar 30, 2013 at 18:05 IST

For anyone be it Irom Sharmila or other social leaders like Arvind
Kejriwal who are on a hunger strike for some social cause should
understand that there are other methods to show their dissent towards
government laws and policies.In my opinion, there is not much
difference between a hunger strike and a suicide because hunger strike
to death will ultimately lead you to the same place where suicide will
provided that you do not have such power or support that can make
government to change his mind.So,Sharmila it is my request to you that
don't punish yourself and bring this hunger strike to an end.We need
people like you in our country who have will power and determination
as that of yours and power to take the stand.

from:  Mayank Uniyal
Posted on: Mar 30, 2013 at 17:03 IST

Wrong Information: Potti Srinamulu fasted for the creation of Andhra
state, comprising present Coastal Andhra and Rayalaseema, with Madras as
its capital. The result of this fast led to the creation of Andhra state
in 1953 with Kurnool as its capital. Later, in 1956 the state of Andhra
Pradesh was formed and Potti Sriramulu played absolutely no role in
this.

from:  vivek
Posted on: Mar 30, 2013 at 11:42 IST

There is considerable difference between offence to commit suicide and
right to hunger strike. Whereas the former means unequivocal assertive
step to kill oneself, the other is incidental to the outcome of demands
of social or political rights and in least probability would result in
end of life. As there are two conflicting judgments of apex court, it
is self evident that the matter has equal strong arguments be it for or
against. Democracy means responsiveness and until it be so, such
absurdness will remain.

from:  Manish Goel
Posted on: Mar 30, 2013 at 11:01 IST

Irom Sharmila, the symbol of freedom fighter against illegal military action have a right to go unto death. It is not an attempt to suicide. But the nation want her life for more fighting against the misuse of authority's muscle power. In the same time the state have keep its own interest for the common and its Democratic mood.

from:  unnikrishnan mangalasseri
Posted on: Mar 30, 2013 at 09:58 IST

i wish all the student and legal organisations organise a mass movement to encourage IROM SHARMILA and make government understand that peaceful methods of protest must be considered with all seriousness be it manipur or delhi

from:  vinod
Posted on: Mar 30, 2013 at 09:52 IST

If the state now withdraws force feeding because it is torture then it will in effect
have sanctioned the torture of Irom Sharmila for over 12 years and then be complicit
in her murder. Satyagraha has never been about fasting unto death but about
surrendering to men of violence in order to subvert violence with love. There is no
laywer like the Mahatma Gandhi and the British were less intransingent less violent
rulers than the administrations that followed. Her actual words were until or unless
AFSPA is repealed not fast unto death. As the two scribes point out on the one hand
the current Indian Criminal Code shields Indian Paramilitaries and Soldiers from any
fair trial by an Indian Criminal Court. Sharmila will be convicted a criminal and in the
same court (Delhi Patiala) two Italian Marines will be tried for murder because they
are not Indian soldiers and the crimes did not happen on Indian Sovereign soil. Glad
you have yet to forget her.

from:  Desmond Coutinho
Posted on: Mar 30, 2013 at 09:16 IST

Well written!!! Irom Sharmila is fasting today to save somebody precious life tomorrow from merciless killing of innocence in the name of militancy or insurgency. This article unveils Government Of India's color to criminalize somebody when one's demand is against its policy.
How can they call her criminal when the real culprits or criminal are under the veil of dragonian act AFSPA!!!

from:  Achom Roshan Singh
Posted on: Mar 30, 2013 at 05:13 IST

hunger strikes have never been effective! there are other innovative
means of protest!

from:  umesh bhagwat
Posted on: Mar 30, 2013 at 04:42 IST
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