The removal of Sonam Wangchuk from protest site to the Hospital in order to provide 'essential medical care' raises very serious constitutional questions about individuals right to protest, carry on hunger strike and his bodily autonomy and when can the State intervene to protect the life of the protestor.
The right to protest and to carry on is a well recognised human right globally as well as in India. Constitutional Courts in India has also recognised right to carry on hunger strike as a fundamental right and cannot be denied for being suicidal or on ground that right to life does not include in it the right to die. The right to carry on a hunger strike is also recognised as a peaceful form of protest under the umbrella of freedom of expression and bodily autonomy. The decision to not have food is the absolute right of a mentally competent person who is fully informed about the consequences of the fasting. The protestor also have the right to voluntarily refuse the medical treatment. The Declaration of Tokyo, 1975 revised in 2016, dealing with the right to go on hunger strike by prisoners, states:-
“Where a prisoner refuses nourishment and is considered by the doctor as capable of forming an unimpaired and rational judgement concerning the consequence of such voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgement should be confirmed by at least one other independent doctor. The consequence of the refusal of nourishment shall be explained by the doctor to the prisoner.”
The World Medical Association's Declaration on Hunger Strikes, laying down ethical code of conduct over the doctors handling with such protestors cast a duty upon 'All physicians' by binding them to the medical ethics to respect for the autonomy. The Declaration prohibits forcible treatment to strikers 'if they refuse'. The Declaration of Malta on hunger strikes prohibits force-feeding of hunger strikers as “degrading and inhuman” without their consent.
Various Declarations and Covenants under International law and the Constitutional principles governing the right to protest, read together in Indian context, can be summarised as:-
1. The right to protest is a fundamental right under Article 19 (1) (a) of the Constitution of India;
2. The right to carry on hunger strike is a fundamental right under Article 21 and 19(1)(a) of the Constitution of India;
3. Hunger Striker cannot be forced fed / nourished or even treated against his Will and without his consent till the time he is mentally fit to consent, which is his bodily autonomy. A hunger striker has an absolute right to voluntarily refuse the medical treatment.
4. A hunger striker can be treated only when he is mentally unable to consent or refuse and without such treatment, the protestor would die.
5. Even under medical supervision, the protest survives and the protest cannot be disrupted or stopped;
Any deviation from these constitutional principles would render the nourishment / treatment and the exercise of removal from the protest site to be unconstitutional, illegal, arbitrary and a sophisticated repetition of what happened with Baba Ramdev and fellow protestors in Ramlila maidan during the midnight of 4-5 th June, 2011. When Delhi Police removed Baba Ramdev and other protestors from Ramlila maidan, Supreme Court of India took suo moto cognisance of the police action and held it to be an invasion of the liberties and exercise of fundament freedoms.
In the case of Sonam Wangchuk's removal from protest site on 18th July, 2026, the Government assuming the charge to protect the life of the protestor, over that of the protestor himself, removed the protestor from the protest site claiming to be operating under the High Court's direction in the name of 'medical intervention'. The High Court, though had only directed for the medical supervision and necessary medical intervention by the 'treating doctors'. The High Court's order has been contemptuously misused. The Government then admits him in the Hospital, where his wife, lawyers and even the doctors who were supervising him for last 20 days during the hunger strike are not allowed to meet despite their Chief Medical Officer explaining his condition to be safe and he being conscious, alert and communicating. The medical briefings show that the hunger striker is fully conscious and communicating and his medical condition is nowhere near to dying. There is no reason why his family members and personal doctors are not allowed access to him. The exercise of removal of the protestor from the protest site seems to be illegal and arbitrary. The right to protest does not end here and the protestor is entitled to carry on the hunger strike from wherever the State has kept him including from the hospital, if he is conscious and mentally fit to do so.
The Supreme Court of India, in RE: RAMLILA MAIDAN INCIDENT[1], though declared the in imposition of section 144 of the Cr. P. C. and disruption in the peaceful protest and hunger strike caused by Delhi Police as illegal and arbitrary and an invasion in the freedom of expression and civil liberties did not deal with the constitutional balance amongst the right to protest, carry on hunger strike, the right to bodily autonomy and the degree and limits of state intervention in such circumstances. An adjudication and the guidelines are the dire need of the hour today more so in the circumstances the dissents are being curbed, protests are shunned and voices are silenced with the help of aid of massive State machinery and misleading narratives.
(2012) 5 SCC 1 ↑
Author is an Advocate on Record, Supreme Court Of India. Views are personal.