Sonam Wangchuk Protest : Law On Hunger Strikes & Judicial Approach

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 SharmilaSharmila 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...

Sonam Wangchuk Protest : Law On Hunger Strikes & Judicial Approach

Gursimran Kaur Bakshi

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Gursimran Kaur Bakshi

Sonam Wangchuk Protest : Law On Hunger Strikes & Judicial Approach

Gursimran Kaur Bakshi

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INR 1099+GST

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Gursimran Kaur Bakshi

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