We are with you, Irom Sharmila.

Recognise Sharmila's Fasting; Don't ill treat her!!

Hunger striking as a tactic is part of an ancient Indian tradition. The right to protest peacefully is one of the remarkable aspects of living in a democracy. In recent times, in spite of the alarming tendencies at stifling and censuring protest, the culture of protest continues to be vibrant in India. Irom Sharmila has been on hunger strike for over 12 years against the Armed Forces Special Powers Act (AFSPA) which has been an instrument of human rights violation. The purpose of Sharmila’s struggle has been to seek the withdrawal of the AFSPA. Sharmila’s hunger strike is a method of non-violent resistance or an act of political protest  to provoke feelings of guilt in the state machinery, with an objective of achieving a specific goal of the repeal of the draconian AFSPA.  She didn’t subvert democracy with her hunger strike but indeed she is trying to strengthen it.

Hunger strikes are no doubt a legitimate form of protest in matters of public importance. It is a pressure tactic in an attempt to make the government more accountable. India has a lot more supporting evidences to show that many people have done this in the past like Bhagat Singh’s fast to treat all prisoners equally, VP Singh’s hunger strike against the Bombay Riots in 1993, Medha Patkar’s hunger strike in protest of the Narmada Dam in 2006, etc.  It is also true that fasts can be sometimes coercive like Gandhi’s fasting against separate electorates for the untouchables. Even though the way Anna Hazare used fasting methods undemocratically, the state and the media endorsed the drive as passive resistance and yielded to the demands of the campaign. Unfortunately, Sharmila’s indefinite fast for over a decade continues to be ignored by the civil society, the political leadership and the mainstream media.

When Anna Hazare’s hunger strike garnered considerable government attention, why civil rights activist Irom Sharmila’s hunger strike was rebuffed with the slapping of IPC 309? How terribly has the state dealt with Irom Sharmila’s protests? She has frequently been arrested, charged with an attempt to commit suicide, for her sustained fasting. Sharmila is under arrest for over a decade, and is being force-fed, a practice which the World Medical Association deems as a form of inhuman torture and degrading treatment. It has been through her concerted efforts that criticism of AFSPA has become an integral part of civil society discourse. It was totally unconstitutional for the Indian government to place Irom Sharmila under arrest, and it was further immoral of them to accuse her of black-mailing the government. A hunger strike is a perfectly legitimate pressure tactic that has been employed throughout history by many citizens and political leaders, to demand their rights in a democracy. It is a constitutionally valid, non-violent form of protest, which works only when the demand of the person fasting represents popular opinion. Fasting should be allowed as part of any functioning democracy, which allows citizens the right to protest and express their views in any non-violent manner. Hunger-strikes or fasts have long been an essential part of the Indian form of resistance. In a democracy, hunger-strike cannot be tantamount to extra-constitutional blackmail.

For your further reading, The Hindu Report dated 30-03-2013

Starving to live, not die

When the Supreme Court has recognised the right to go on hunger strike, why is Irom Sharmila’s protest against impunity of the armed forces a criminal act?

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 Sharmila’s 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 Sharmila’s protest — still remain elusive. Instead, Sharmila’s 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 much-hailed 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, Sharmila’s hunger strike is an area of stark legal vacuum. When there is a conflict between her freedom of expression and the Indian state’s interest, and perhaps duty, in keeping her alive, can a balance between these conflicting ends be struck without criminalising Sharmila’s 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. Stephen’s 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 state’s 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, India’s 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 needn’t 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 Sharmila’s. If we really believe rape is as vile as we have recently claimed it to be, then would it be just to treat Sharmila’s strike against AFSPA, a law that shields rapists from prosecution, differently from Hazare’s strike against corruption? More importantly, would it be just for a society’s laws to selectively criminalise hunger strikes depending upon the objectives such strikes seek to achieve?

 This brings us to the question of whether Sharmila’s 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 force-feed her are distinct. As misguided as Sharmila’s 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 citizen’s 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 Sharmila’s 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 Sharmila’s 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 force-feeding 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 Sharmila’s 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.

Sterlite Copper closure: A Welcome Step

My Letter to The Hindu dated 01-03-2013

The plant closure is a major victory for MDMK-backed activists who campaigned for it for two decades. The resistance group comprising fishermen, farmers and students was small but it took on the copper smelting giant even as the company denied causing pollution. It is true that development involves industrialisation. But it is absurd to argue that it can be achieved only by destroying the environment. The struggle at Tuticorin represents the efforts of the locals to wage a relentless battle against a company at both the judicial and grass-roots levels.

For your reading, the Hindu Report dated 31-03-2013:

TN government orders closure of Sterlite copper smelter

Mired in controversy in recent days, Sterlite Industries Limited’s copper smelter in Tuticorin was shut down on Saturday.

Operations in the plant came to a standstill in the wake of an order from the Tamil Nadu Pollution Control Board. Tuticorin Collector Ashish Kumar instructed officials to inspect the Vedanata group company to make sure that the production lines remained shut.

The closure order has come after a gas leak was reported in the early hours on March 23.

Following emission of sulphur dioxide from Sterlite, people in the neighbourhood experienced unease and complained of suffocation, sneezing and burning sensation in the eye.

D. Dhanavel, General Manager, Projects, Sterlite Copper, said the closure order was received on Friday night.

An order was served by Revenue Divisional Officer of Tuticorin, K. Latha, to the company on March 24, seeking explanation for the incident within five days.

A team comprising Revenue Divisional Officer of Tuticorin, officials from the Pollution Control Board, Revenue and Tangedco has been carrying out inspections at the sulphuric acid plant, the phosphoric acid plant and other plants since 8 a.m., Ms. Latha said.

The Collector, when contacted, told The Hindu that power lines to the company were disconnected.

Tuticorin Tangedco Superintending Engineer, R. Amirtha Rathnakumar, said power was cut at 12.21 a.m. on Saturday.

Activists celebrate

Activists protesting against the functioning of the copper smelter celebrated the shutdown, but the company insisted that it had been in operation for 17 years with all requisite clearances and approvals.

It said it would explain the factual position to the TNPCB and cooperate fully with the authorities so that it could restart operations soon.

Calling it a victory for the local population, Vaiko, general secretary, MDMK, in a statement thanked Chief Minister Jayalalithaa for her decision to close down the smelter. He termed Sterlite as a ‘noxious industry’ causing harm to the lives of people. Pollution in all forms from Sterlite and its baneful effects impacted the livelihoods of farmers, fishermen and traders as farm lands turned unproductive and groundwater and seawater became unusable.

Chinua Achebe passed away

The Man who cried “My weapon is literature” is no more.

“Nobody can teach me who I am. You can describe parts of me, but who I am - and what I need - is something I have to find out myself.” ― Chinua Achebe

It was end of an era on Friday with the passing away of Chinua Achebe, one of the World's most admired literary figures.  It is to his credit that he rose from humble beginnings to make a name for himself in Africa and abroad. His writings have served and will continue to serve as an inspiring model for thousands of young African writers and even writers outside Africa.

 

National Shame

News brief in The Hindu dated 06-03-2013

In Chhattisgarh, tribal women retract rape charges

Of the six tribal women of Shamsetti village in Sukma district of Chhattisgarh who in 2009 gave statements in court that they had been gang-raped by Salwa Judum functionaries, three have now withdrawn their charges. Three key witnesses — family members of the women — have also retracted their statements.

Some lawyers in Dantewada familiar with the case say that the women are withdrawing due to “severe pressure” from several quarters. Many Salwa Judum members have now been inducted into the regular police force as constables.

The lawyers say that the remaining victims and witnesses may appear in court soon and retract their statements. “It is difficult to say whether their complaints were made under pressure or the withdrawal. But the way they are turning hostile it is a matter of time before the accused, who are on bail, are set free,” said Mamta Sharma, the chief public prosecutor at Dantewada court, who is defending the women.

“Clearly there is severe pressure on these women, else why would they retract their statements?” a lawyer said on condition of anonymity. Sudha Bharadwaj, the lawyer who represented the Shamsetti women in the Konta court where the statements were recorded, said the women and their relatives recorded their statements through a translator in 2009. “The magistrate did not record any unusual demeanour on their part. Surprisingly, in these cases the accused were granted bail even prior to withdrawal, meaning prosecution did not seriously oppose bail and no departmental enquiry, not that I know of, was carried out against the accused, who are State employees,” she said.

In December 2012, The Hindu reported about six tribal women who had come forward to lodge formal complaints of gang rape against Special Police Officers (SPO) of the now defunct anti-Maoist vigilante force Salwa Judum, amidst allegations of hundreds of rapes in the conflict-ridden south Chhattisgarh between 2005 and 2009. With some of them withdrawing their statements now, many in Dantewada, Chattisgarh, are asking if this was yet another instance of miscarriage of justice — one in which the State actively connived.

In the first week of February 2013, Mira and Sanika (names changed) retracted their statements in front of the sessions judge of Dantewada, A. K. Beck. According to their statements given in June 2009 before the judicial magistrate of Konta, Amrit Kerketta, both women, along with four others, had described how they were gang-raped in 2006 by seven SPOs of Sukma district. However, in their latest statements, copies of which are with The Hindu, Mira and Sanika stated that “nothing ever happened” to them. Mira said, “I never went to the police station to complain. I never submitted any complaint letter in the Konta court or made any statement in any court.”

The legal fraternity in Dantewads is questioning the validity of the retractions. “Are we to assume that the magistrate in Konta recorded false statements? Or that the women are faking statements now,” asked a lawyer.

An investigation by The Hindu revealed that one of the accused, Kwashi Mangalram, was picking up the complainants and witnesses from Shamsetti and bringing them to the court.

Mr. Mangalram denied the accusation and said he was not pressurising the women. An SPO-turned-peon in Dornapal School, he said, “I am inspired by Communist thought, you can check with CPI leaders. I am against such actions [rape].”

Last Saturday, at the Dantewada court, another complainant, Era (name changed), retracted her statement. When asked by the court if she knew one of the accused, Madkam Kama, a constable from Erabore, the young Muria Gond girl took a cursory look at him and denied having seen him before hurrying away. However, Era had accused Kama of rape four years ago in court. On Saturday, she denied having made a statement in 2009.

While Era was retracting her statements inside the court, four of the main accused, Kiche Nanda, Biddu Raja, Markam Kama, Kwashi Mangalram — all former SPOs — were seated on a bench outside. Nanda, who headed the dreaded Nanda group at the peak of the Salwa Judum movement, denied his involvement in the gang rape when he spoke to this correspondent in December. Markam Kama, another accused, also refuted the charges against him and said: “I am seeing this girl [Era] for the first time.”

Statue of rape accused adorns this Chhattisgarh village (The Hindu dated 06-03-2013)

At the peak of his career, Surya was accused of several cases of murder, rape and arson, though no formal complaint was lodged. He was made an accused, legally, by one of the women of Shamsetti who now has withdrawn her statement. The villagers claim that he used to visit Shamsetti often, carrying firearms, and threaten the residents quite openly.

A short but sturdy woman, wearing a golden nose ring and a white scarf came out of her mud house and looked straight at this correspondent. “Why have you come here,” she asked in a tone that was anything but polite. “To figure out why rape victims are retracting their statements in court,” we, a reporter from the local press and this correspondent, explained.

She was also told that there are reasons to believe that her name is Mira (name changed) — one of the six women who have retracted their allegation of rape against the Sukma SPOs.

“I have changed my statement,” she nodded in agreement. Asked why she did so, the woman said in almost flawless Hindi that “nothing ever happened” to her. “Because, I am not Mira, I am Madbi [name changed] and I do not know anything about Mira,” the woman said while moving away from us. But her recent statement identifies her as Mira alias Madbi and moreover, the 2009 statement in Konta court has her photograph on it, which establishes her identity, she was told. “How many more times will you people come to ask the same questions! Go away,” her voice choked as she disappeared into the room.

Her husband, Lakshman Soni (name changed) and the father in-law remained unmoved. A middle- aged man, who identified himself as the uncle of Mr. Soni, tried to calm things down. “It was a 2006 case; we had no plans to revive it. The human rights activists asked us to record our statements. Once the statements were recorded in 2009, everyone disappeared leaving us to deal [with the SPOs],” said a relative of the family.

The father of Era, another rape victim, also acknowledged that his wife and daughter went to the court to retract statements.

The villagers, however, did not deny that the entire village and the victims in particular were under ‘severe pressure’ for registering statements against the SPOs. The village next to Shamsetti, Misma, belongs to Kartam Surya — the most dreaded SPO-turned-constable of the area — who was killed in early 2012. At the peak of his career, Surya was allegedly involved in murder, rape and arson, though no formal complaint was lodged. He was made an accused, legally, by one of the women of Shamsetti who now has withdrawn her statement. The villagers claim that he used to visit Shamsetti often, carrying firearms, and threaten the residents quite openly. “He convinced the girls to withdraw their statements but he got killed,” said a villager who helped the women file the complaints.

His task has been taken up by Kwashi Mangalram, the former SPO who is now with the education department. Mangalram, himself an accused in the Shamsetti rape case, lives in another village adjacent to Shamsetti and ‘takes a stroll every now and then’ in the neighbourhood. Mira told The Hindu that she was ‘picked up from Shamsetti’ by Kwasi Mangalram to testify in court and retract her allegation. Other villagers corroborated her and said that he took the witnesses to court. Mangalram denied the allegation.

However, what Mangalram did not deny was his access to senior police officials in the district. Recently, to mark Kartam Surya’s death anniversary, Surya’s statue was installed in the town of Dornapal in the presence of Sukma’s SP Abhishek Shandilya. Video footage available with The Hindu establishes Mr. Shandilya’s presence at the installation programme, with Mangalram standing next to him.

Undisputed leader, says Sukma SP

Mr. Shandilya told The Hindu on phone that he felt there was “nothing wrong” in installing the statue in Dornapal. “He was the undisputed leader of the area and do not forget that anybody can be made an accused and slapped with false cases. However, the statue was financed by Surya’s family, but I was present at the programme,” he said.

He also said that Shamsetti women’s allegations are ‘false and motivated.’ “Four months back, I held a meeting in Misma, where people from other villages participated. They told me in clear terms that the allegations are false. It seems so to me as well.” Mr. Shandilya denied that the former SPOs were ‘pressurising’ the Shamsetti women to retract their statements.

“At the peak of the [Salwa Judum] movement if they [women] could go to court and file complaints [against SPOs], what stops them from fighting the case now, when there is complete calm in the area,” he asks. According to Mr. Shandilya, the women were “telling the truth now” by retracting their statements.

My letter to The Hindu dated 07-03-2013

This refers to the report “In Chhattisgarh, tribal women retract rape charges” (March 6). The retraction reinforces the constant struggle of tribal and Dalit women against sexual violence, used as a means to suppress them. That three out of six tribal women have withdrawn their charges against Salwa Judum functionaries, allegedly under pressure, implies that they are not worthy of protection from Indian laws and society. Adding insult to injury is the statue of a rape accused put up in Dornapal.

Can the accused be absolved and glorified even if the rape victims withdraw their charges? The treatment meted out to the women is in blatant disregard of human rights standards. The rape victims should have been provided adequate legal advice. Their allegations should be investigated by an agency which is not under the State police.