On the 20th day of the hunger strike over exam paper leaks, Ladakhi activist Sonam Wangchuk was forcefully shifted by the Delhi Police from the Jantar Mantar protest site to a hospital. The Police fell back on a Delhi High Court order, which directed the authorities to monitor Wangchuk's health and adopt necessary medical interventions clinically, to justify its action.
India is not new to hunger strikes. It is one of the recognised forms of protest, and India has a history of witnessing hunger strikes even during the freedom movement. The longest, however, has been post-independence, by civil rights activist Irom Sharmila Chanu seeking abolition of the controversial Armed Forces(Special Powers) Act, 1958 in Manipur. She began her intermittent hunger strike in 2000, and ended it in 2016 after being “force-fed”.
While hunger strikes are not illegal in India, it is at the intersection of two competing rights: the right to protest under Article 19(1)(a)&(b) and the right to life under Article 21 of the Indian Constitution. Neither right is absolute and can be restricted on grounds of reasonable restrictions. In Mazdoor Kisan Shakti Sangathan (MKSS) v. Union of India (2018), the Supreme Court had recognised that Articles 19(1)(a)&(b) together ensure that the people in the country have a right to peaceful assembly and protest against any action or decision-making by the government as a basic feature of a democratic system.
“Legitimate dissent is a distinguishable feature of any democracy…Dissenters may be in the minority. They have a right to express their views. A particular cause which, in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. That is the reason that this Court has always protected the valuable right of peaceful and orderly demonstrations and protests,” it had said.
In fact, in one of the constitution bench judgments in Himat Lal K. Shah v. Commissioner of Police, Ahmedabad(1972), the Supreme Court, while upholding the right to protest as a fundamental right, stated that the State can make regulations in “aid” of the right to assembly of the citizens. This was in the context of certain Rules framed under the Bombay Police Act regulating public meetings on the streets. In this, the Court held that the government can regulate the prohibition of public meetings in streets to avoid nuisance or traffic disruptions, but that doesn't mean it can close all streets or open areas violating Articles 19(1)(a)&(b) of citizens.
On similar lines, the Madras High Court, in a recent decision, reiterated that protests form a hallmark of democracy while quashing a criminal case lodged against a farmers' leader for holding a hunger strike.
In the Shaheen Bagh protest matter(2020), the Supreme Court had reiterated that the right to peaceful protest must be encouraged by the State; at the same time, it warned that public spaces can't be indefinitely occupied.
Classical case of Irom Sharmila
Sharmila serves as a case study because she holds the record for the longest hunger strike in India. Three days after she had begun her fast on November 2, 2000, she was arrested on grounds of attempting to commit suicide, which was an offence under Section 309 of the Indian Penal Code, 1806. Earlier, the right to hunger strike intersected with the attempt to commit suicide, which was a criminal offence before it was decriminalised.
It may be noted that in 2017, the Mental Healthcare Act was enacted, which added a non-obstance clause that, notwithstanding anything contained in Section 309, a person who attempts to commit suicide shall be presumed to be under severe stress. Because she was charged under Section 309, she was force-fed by nasogastric intubation. Since the maximum punishment for the attempt to commit suicide was one year, Sharmila was re-arrested every year and force-fed until a Sessions Court in Manipur dismissed charges against her in 2014.
Interestingly, the Court had noted that since she had not refused to be fed through the nose, it negates the presumption of “intention of fasting unto death” which was required for a person to be charged under Section 309. It didn't interfere with her fasting but had ordered the State government to take appropriate measures to monitor her health. Likewise a Delhi Court acquitted her of similar charges when she had gone to protest at Jantar Mantar in Delhi.
How have courts dealt with it?
One of the persons who had extended Sharmila support was social activist Anna Hazare, who himself had gone on 96 hours hunger strike in 2011 to exert pressure on the government to enact the Lokpal Bill, 2011. The government had eventually accepted his demands.
Similarly, Baba Ramdev also went on a hunger strike supporting the anti-corruption movement, which had led to widespread protests in the country. The Delhi police cracked down upon Ramdev's protest at Ramlila Maidan during night, an action which led the Supreme Court to make a suo motu intervention.
The Supreme Court in Ramlila Maidan Incident v. Home Secretary, Union of India(2012), criticised the high-handedness of the police, and directed action against the erring officials. The Court observed hat Ramdev's decision to sit on hunger strike is not an exceptional circumstances which reflect some imminent threat to law and order. It reiterated that the fundamental rights of the citizens can't be compromised or violated by causally invoking Section 144 CrPC orders.
In that case, the Supreme Court acknowledged the widespread acceptance of hunger strikes as a method of protest, remarking that it is not unconstitutional or barred by law and said: “It is a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence.”
This position has been relied upon by the Madras High Court to observe that merely going on a hunger strike will not attract the offence of 'attempt to commit suicide', which is punishable under Section 309 of IPC.
A similar pacifist approach was recently adopted by the Supreme Court in the case of veteran Punjab farmers leader Jagjit Singh Dallewal, who went on fast-unto-death, demanding minimum support price for farmers.
When the Court was informed that Dallewal was even unable to drink water, the Court had ordered that he may be shifted to a hospital where his vitals can be monitored properly. However, the order made it clear that the Court was not asking him to break his fast. In fact, the Court had reprimanded the officers for creating an impression that the Court is deliberately making attempts to persuade Dallewal to break his fast.
“Our directions were not to break his fast. We only said that let his health part be taken care of and he can continue his peaceful protest even when he is hospitalised. You have to persuade him from this angle. Shifting to the hospital does not mean he will not continue his fast. There are medical facilities which will ensure that no harm is caused to his life. That is our only concern. His life is precious as a farm leader. He is not aligned to any political ideologies and he is taking care of only the farmers' cause," the Court had commented.
Can a person be force-fed: twisted pathway
As per the World Medical Association's Declaration of Malta on Hunger Strikes, a physician faces a dilemma in cases of prolonged fasting because while it's their duty to care for the patient, they have to respect their autonomy. One of the principles laid down in the Declaration is that a hunger striker should not be forcibly given treatment they refuse. “Applying, instructing or assisting forced feeding contrary to an informed and voluntary refusal is unjustifiable. Artifical feeding with the hunger striker's explicit or necessarily implied consent is ethically acceptable”.
As far as Courts are concerned, they have respected the right of the person while balancing larger State interests. In most cases, it has exercised judicial restraint and has not ordered that the person may be force-fed. But such decisions are mostly based on the specific facts and circumstances of that very case. For instance, in Sharmila case, the Courts didn't interfere when the State wanted to force-feed her; however, in Dallewal's case, despite his deteriorating condition, it had merely ordered that he may be shifted to a hospital.
Sharmila's case actually reveals a twisted pathway for force-feeding through the route of Section 309. In her case, when the police had arrested her and she was imprisoned, the Prison Act became applicable. As per Section 52 of the Prison Act, 1894, the refusal to take food by a prisoner has been made an offence as per Lakshmi Narain v. State (1959).
In Lakshmi Narain case, some police officers wanted to redress some grievances and were on a hunger strike when they were taken to jail. It was argued by them that since a hunger strike per se is not an offence, it is not open for the State to declare an act of hunger strike as an offence within the meaning of Section 309 by arresting a person and sending him to jail where the prison manual would become operational.
Therefore, the Allahabad High Court said: "It can, therefore, safely be held that the act of hunger strike per se does not constitute an offence. If a person is removed to jail merely because he has gone on hunger strike and then after placing him inside the jail the jail authorities prosecute him under Section 52 of the Prisons Act, obviously such a prosecution would be illegal and a conviction cannot be maintained in such circumstances. In such a case, the accused would not be a prisoner within the meaning of Section 3(2) of the Prisons Act."
The Court laid down a test, which is whether a person's entry into jail is on the basis of some offence committed by him or because he went on a hunger strike. In the latter case, it would be illegal as "what is permitted to a citizen is not permitted to a prisoner".
Hunger strike continues to be a prison offence under Section 39(xxi) of the Model Prisons and Correctional Services Act, 2023.