| by Mayur Suresh
( August 24, 2014, New Delhi, Sri Lanka Guardian) If Irom Sharmila’s struggles with the law were not so inspirational, they would be entirely farcical. A temporary pause in this farce was came on August 19, when A. Guneshwar Sharma, a session judge in Manipur found that there was not enough evidence brought by the police against Irom Sharmila to even warrant a trial against her for the charge of an ‘attempt to commit suicide’.
The judgment records the underhanded way in which the Manipuri police have dealt with Irom Sharmila’s fast. She was first arrested under s. 309 of the Indian Penal Code (which punishes an attempt to commit suicide with a prison term of up to 1 year) in 2000 when she began her strike demanding the repeal of the Armed Forces Special Powers Act. The police then took her into custody and began to force feed her via a nasal tube. After the completion of 1 year, the police had to release her – since that is the maximum punishment for an offence under s. 309. Once released, she would continue her fast once again. The police then would wait 24 hours and arrest her again under S. 309. The police continued this pattern for 14 more years with no trial being conducted in any of these FIR’s. As if to commemorate each of the 15 years that she has been on a fast demanding the repeal of the Armed Forces Special Powers Act, the Manipur police have annually filed FIR’s against her for purported attempts to commit suicide.
Instead of looking at her hunger strike as one long event, each of these separate FIR’s are based on the theory that each time she fasted for 24 hours was a separate attempt to commit suicide. The legal fiction that each of these ‘attempts’ constitute a separate case has allowed the Manipur police to jail Irom Sharmila has been in prison for 14 years without any trial or charge framed. There was not even any adjudication of the cases until judge Sharma’s order on August 19.
This latest judgment pertains to the FIR filed on 14 March 2014. Irom Sharmila had been ‘released’ from custody a day earlier and once again began to fast. After a period of 24 hours and 5 minutes, she was once again arrested for an attempt to commit suicide. Unlike previous years however, the police filed a charge sheet and the Magistrate ordered trial against Irom Sharmila for an offence under s. 309. She appealed this order before the Sessions Judge and argued that there was no prima facie case against her as the prosecution had not provided any evidence that she intended to take her own life. She argued that by undertaking a hunger strike she was engaged in a valid form of political protest that even the Supreme Court had termed as “a form a protest which has been accepted, both historically and legally in our constitutional jurisprudence.”
In a detailed and largely well-reasoned order the judge agreed and held that the prosecution had failed to establish that Irom Sharmila by fasting had intended to take her own life. The judge observed that by merely fasting for 24 hours (after which the police proceeded to arrest and force feed her) does not indicate any intention on her part to commit suicide. The judge observed that by the logic of the police even people who fasted for 24 hours as a part of a religious practice would be guilty under s. 309. The Sessions judge rightly held that in order to sustain a charge under s. 309 there must be clear evidence that a person intends to take her own life and in Irom Sharmila’s case there was no evidence, only a bald allegation. The Judge pointed out that it is the duty of the judiciary to come to an independent assessment of the charges brought by the police, and held that as there was no evidence that she intended to take her own life, a charge against her under s. 309 could not be sustained and ordered her release.
The major blot on the judgment is it’s unfortunate order permitting the State to force-feed Irom Sharmila if she decides to continue with her fast. It is unclear under what authority the judge allows this force-feeding. Under the prison manuals of some states, forced feeding of prisoners is permitted if they refuse to eat. But this presumes that a person is in prison in the first place, and since Irom Sharmila had been released by his order these prison manuals are inapplicable. Neither does the judgment tell us how the Sessions Judge obtains the power to allow such forced feeding, nor does it tell us under what authority the police can forcible feed a person not in their custody.
Even if it were legally permissible to force feed – fully rational – people on hunger strike, the practice of force-feeding is an act of torture. When the police in Birmingham force-fed suffragette prisoners in the early 1900’s, - “with the instrumental invasion of the body, accompanied by overpowering physical force and humiliation” – it was an experience that was likened to rape. The force-feeding prisoners on hunger strike has been used by the regimes that torture: from the United Kingdom in Northern Ireland’s prisons to the United States in Guantanamo Bay.
The World Medical Association’s Declaration of Tokyo 1975 and 1991 Malta Declaration prohibits a medical doctor’s active or passive participation in torture. Article 5 of the Tokyo Declaration requires that prisoners on hunger strikes not be force-fed. According to the International Committee for the Red Cross prisoners “who were repeatedly force-fed over months or even years of continuing hunger strike” could be said to have been tortured. The World Health Organisation references the Malta declaration and states that “feeding accompanied by threats, coercion, force or use of physical restraints is in the huge majority of cases a form of inhuman and degrading treatment.” In condemning the forcible feeding of prisoners in Guantanamo Bay the United Nations High Commissioner For Human Rights stated “hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence.” And further that it was not acceptable to use “threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.” In permitting the police to forcibly feed Irom Sharmila, the Sessions Judge – knowingly or unknowingly – has judicially sanctioned torture.
Unfazed by this judgment the police, seemingly intent to pursue their annual farcical exercise, have re-arrested Irom Sharmila. Once again relying on the legal fiction that his continuing hunger strike is a fresh attempt to commit suicide, M.C. Singh a Manipur Police official reportedly stated, “It is clear that she is attempting suicide and we cannot allow her to do so." Presumably, she will be forcibly fed in order to prevent her from dying. Such cruel irony that a state, which can shoot its citizens with impunity, resorts to torture to save her life.
Mayur Suresh is a doctoral candidate at Birkbeck's School of Law, University of London and practiced law in Delhi for several years.