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Starving to live, not die

March 30, 2013

thehindu.com

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 Sharmilas 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 Sharmilas
protest still remain elusive. Instead, Sharmilas 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 muchhailed 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, Sharmilas hunger strike is an area of stark legal vacuum. When there is a conflict between her
freedom of expression and the Indian states interest, and perhaps duty, in keeping her alive, can a balance
between these conflicting ends be struck without criminalising Sharmilas 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.
Stephens 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 states 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, Indias 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 neednt 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 Sharmilas. If we really believe rape is as vile as we have recently claimed it to
be, then would it be just to treat Sharmilas strike against AFSPA, a law that shields rapists from
prosecution, differently from Hazares strike against corruption? More importantly, would it be just for a
societys laws to selectively criminalise hunger strikes depending upon the objectives such strikes seek to
achieve?
This brings us to the question of whether Sharmilas 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 forcefeed her are distinct. As misguided as Sharmilas 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 citizens 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 Sharmilas 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 Sharmilas 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 forcefeeding 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 Sharmilas 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)
Irom Sharmila: Im against a government that uses violence to govern
I love life... if AFSPA is repealed Ill take food again: Irom Sharmila

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