By Netbrandvalue 
Judgments from the Supreme Court, and High Courts, recognise hunger strike as ‘a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence’
The Supreme Court, in the case of farmers’ leader Jagjit Singh Dallewal who is fasting unto death, treads a fine line between protecting his freedom of expression and ensuring the state’s duty to preserve his life.
The court has clarified that its directions to the Punjab government to hospitalise Mr. Dallewal did not mean the farmers’ leader ought to break his fast. However, the very act of hospitalisation may interrupt Mr. Dallewal’s fast and its raison d’etre, that is, to stake his own life for a cause he obviously believes in and leads. The use of the strong arm of law by the State may also prove counterproductive. Years ago, Manipuri activist Irom Sharmila was prosecuted for ‘attempt to suicide’ for her fast unto death to repeal the Armed Forces Special Powers Act. She was eventually acquitted.
Judgments from the Supreme Court in the suo motu Ram Lila Maidan Incident case, and the High Courts, especially the Madras High Court, recognise hunger strike as “a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence”.
The Madras High Court had reasoned that the police’s power in the face of a protest by hunger strike was confined to imposing “reasonable restrictions to ensure the safety and convenience of the people at large” without confronting a peaceful protest.
The Supreme Court has recognised hunger strike as a form of expressing dissent which draws its source from the Satyagraha of Mahatma Gandhi. It has underscored that indefinite fast by someone protesting a government action or decision cannot be perceived as a threat to public order.
“Hunger strike, in our country, is a well-known form of peaceful protest, and it is difficult to connect this with public disorder,” the apex court has observed in its judgment Mohd. Yousuf Rather vs. State of J&K, reported in 1979.
The court has made it clear that a threat to go on hunger strike or the action itself “cannot be termed as unconstitutional or barred under any law”.
The Punjab government, in Mr. Dallewal’s case, has to navigate with care, as, in the words of the Madras High Court in a August 2023 judgment in P. Thangam vs The Superintendent of Police, “protesting democratically by way of hunger strike without causing any inconvenience to anybody is the right guaranteed by the Constitution of India”.
The Madras High Court noted in 2013 in K. Thiagarajan @ Thozhar Thaigu vs the Commissioner of Police that even Chief Ministers had gone on hunger strike. Here, the petitioner had threatened to go on a fast at the Marina beach to highlight the cause of the Tamil language, tradition and culture. The Chennai Police Commissioner had termed it a punishable act. The High Court had differed, saying the police’s job was to put sufficient safeguards in place. The police could even obtain an undertaking from the protesters to maintain peace and orderliness, but could not interfere or impose themselves on basic rights guaranteed by the Constitution.
“Preventive steps should be founded on an actual and prominent threat endangering public order and tranquility,” the Supreme Court has observed in the Ram Lila Maidan case judgment. It has cautioned the state to exercise power with great caution and without arbitrariness.