Is Irom Sharmila attempting suicide? — Part I

ImageA criminal court in Delhi is hearing arguments in a case against Irom Sharmila for allegedly attempting to commit suicide (which under the Indian Penal Code, 1860 is punishable with simple imprisonment for a term which may extend to one year, or fine, or both.)

Sharmila is a human rights activist from Manipur (India). On November 2, 2000, Assam Rifles, a sub-division of Indian Army, massacred 10 civilians standing at a bus-stop in what came to be known as “Malom Massacre”. Since that day, Irom Sharmila has been on fast and is only fed through nasogastric intubation to keep her alive. Her primary demand to the Indian government is that it repeals the Armed Forces Special Powers Act (AFSPA). This legislation allows the central and the state governments to declare certain areas as ‘disturbed areas’ where army would have practically untrammelled powers of search and seizure, arresting, detaining, injuring and even killing people. AFSPA has been enforced primarily in Jammu and Kashmir and in the North-eastern states which have been troubled by cross-border terrorism and/or internal insurgency.

The question before the court is this: Whether Irom Sharmila by undertaking a fast unto death and persisting with the same and showing a relentless resolve of not abandoning it till the Central Government abolishes AFSPA has attempted to commit suicide?

However, this question involves an antecedent question: what suicide is? Are all acts involving putting oneself in a position risking death, an attempt to commit suicide? If not, then on what principle should the demarcation happen? These questions are important because fasting, particularly in India, has had a tradition of being used as a powerful medium of protest. Gandhi popularized it in the freedom struggle. In a more recent manifestation, we saw anti-graft crusader Anna Hazare using the similar strategy. Many of these fasts were instrumental in galvanizing people, bolstering a non-violent revolution and compelling the government to reconsider its laws and policies.

Can the demarcation happen along the lines of ‘dying for a cause’? But if it is only about that, what do we have to say where a person, outraged by a government for almost reneging on its promise of carving an autonomous smaller province from a larger one, dies by hanging himself? How should we understand self-immolations in Tibet against the Chinese rule or by a medical student protesting against quotas in higher education? What about the farmers who were compelled to kill themselves because they were neck-deep in the liabilities, witnessed a drought, failed crop season and meeting the ends of the days itself became a struggle? Was that a sign of protest or a resignation to misfortune? But merely ‘protest’ may also be an insufficient parameter. For example, suppose in my protest against increasing animality among the males in Delhi, I shudder to associate myself with that culture and community and decide to kill myself. It is only after we answer these question can we arrive at any answer for the preceding question.

Of course one may say that this inquiry may be avoided by simply saying that criminal law requires intention and thus ‘intent to die’ is a sufficient test. But we know that knowledge of the probability of an act resulting into a crime is also punishable. By that logic, the knowledge that an act puts one under a serious risk of losing life can also be likewise brought within the conspectus of attempt to commit suicide. That surely would be an incorrect view if generalized to a level of principle. For example, a soldier employed in armed forces patrolling borders also puts himself at a grave risk of death, particularly if it is in the hostile terrains like Siachen Glacier where hundreds of soldiers from both India and Pakistan have lost lives due to extreme weather conditions. Or for that matter, people involved in high-action and extreme adventure sports put their lives to grave risk. In fact, as many as 212 people have died in 1920-2006 in a bid to scale Mt. Everest. But surely they are not attempting suicide despite the high probability of their acts posing great risk to their lives.

Whether location of the cause, internal or external, to the suicide is a principled distinction? The answer to this ought to be in the negative. It was reported that 20 persons committed suicide in Tamil Nadu distressed by the prolonged illness of their Chief Minister M.G. Ramachandran! Durkheim, in his masterpiece Suicide, also rejects the approach of finding the cause internal to a person. Instead, he classifies suicides into various types and argues for locating the causes externally to the social factors. In fact, Durkheim correctly notes that, suicide statistics could be unreliable. For example, they fail to record accidents which could potentially have been suicides. For example, if someone drives in an inebriated condition and rams her/his car into a tree and dies, it most certainly would be deemed to be an accident and person who miraculously survives it would most surely be treated in a hospital than tried for a suicide attempt.

The Indian Supreme Court has given two judgments on the question of constitutional validity of the provision relating to attempt to commit suicide in the Indian Penal Code, 1860. In P. Rathinam v. Union of India, (1994) 3 SCC 394, the court held the section to be ultra vires Article 21 (Right to life and personal liberty) observing that right to die is implicit in right to life. In Gian Kaur v. State of Punjab, (1996) 2 SCC 648, the court overruled Rathinam and restored the impugned provisions. Unfortunately, none of the judgments delved on the abovementioned dilemmas en route their judicial voyage.

The next part would be an attempt to arrive at a principle to see more clearly what act can really be understood as suicide and from that attempt to suicide. I believe there is a merit in this inquiry before abandoning the ‘attempt to commit suicide’ wholesale like Rathinam did. We may disagree with the idea of imprisonment and fines, but it is consistent with our ethical self-understanding of a social community that suicides ought to be prevented and the action in this regard needs to be taken both at the socio-political as well as individual level. And while we do that, I am sure we would be able to discern the fallacy in prosecuting Irom Sharmila for attempting suicide as she continues her valiant crusade against a draconian law.      

Trump Rights or Right Trumps? Understanding Dworkin’s ‘rights as trumps’ thesis

(This post owes much to an illuminating conversation I had with my friend, Shreya Atrey. She expressed doubts with conceptualizing rights as ‘trumps’ and suggested a more structural-contextual view of rights as incorporating varied aspects of balancing and proportionality. The inadequacies of my response prompted me to re-look Dworkinian rights thesis.)

This post tries to explain briefly, Ronald Dworkin’s conceptualization of rights as ‘trumps’. What is not attempted here are the questions relating to virtuosity of rights regime. Rights do appear to set up a confrontational model (and perhaps ‘trumps’ metaphor accentuates it too) and thus the role of inequality of power cannot be ruled out and rights skepticCivil Rights movement_march-on-washington may have a legitimate case there. Next, what I exclude from the discussion is the debate about indivisibility of socio-economic and civil-political rights. That is a question about what can be described as a right. My inquiry, on the other hand, is what a right can be described as. The other question that I am not answering is whether ‘trumps’ is the only or, if not that, whether it is the best metaphor to describe rights. It is however, important that (a) we do not misunderstand the metaphor and (b) that we do not understand it only from the metaphor.

Both absolutist and isolationist conceptions of right have long been rejected. The former conception states that the state lacks moral authority to constrain the free exercise of the content of a right guaranteed to individuals. Perhaps, only a disillusioned libertarian could stake a claim of that nature. The second conception erringly, in my opinion, takes a disengaged view of right that one ought to see a right in its own right and not in the light of other considerations, even if it is another important right. Rights often compete with one another as well as with other policy considerations. That being so, how can we say rights are trumps?  While I answer that, let me state another question, which I am not immediately concerned with, and that is this: how does this discussion germane in real life? Suffice it to say, on a political and ethical level on the legitimacy of a state and a political community, it may be a very relevant question, but that explication may be postponed.

The readers ought to keep in mind two foundational considerations in Dworkin’s work.  First, the underlying abstract principle of equal concern and respect i.e., political community must treat the respective fate of its members as ‘equally important and respect their individual responsibilities of their own life’ (Justice for Hedgehogs, 330). Second, Dworkin’s belief of truth in interpretation implies taking disagreements and differences in way people define the contours of interpretive concepts such as rights, good life, democracy, etc. seriously. The second admits of pluralism while the first suggests a modicum of principled universalism. The third is a liberal commitment to human dignity traceable to the jurisgenerative facet of human beings enabling them to define and pursue their interests. In that triad, we ought to understand the ‘trump’ conception of right.

Dworkin observes: “Individual rights are political trumps held by the individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them.” (Taking Rights Seriously, xi)

It is noteworthy that Dworkin does not say that rights are unregulated interests, he only points to certain justifications that in, his opinion, must be trumped by a countervailing strong right, should we take it seriously. One may say that over-insistence on individual rights compounded with a disregard for collective goals may prove costly not only for the community but also for the right holder (See, Robin West, Rights, Harms, and Duties: A Response to Justice for Hedgehogs, 90 B.U. L. Rev. 819 (2010). West believes that the emphasis must turn to imposing duties on the state to promote well-being of its citizens instead. This suggestion is based on a dangerous assumption that state may not have and thus may not impose its own conception of good life, however. The second wave of protests at Tahrir Square (regarding the post-conflict new Egyptian constitution) is enough to dispel doubts about its general unsustainability. There may however be some genuine collective goals worth considering such as sustainable development, security and liberal education. That however, is not incompatible with idea of rights as trumps, since those policy measures are geared towards creating the democratic conditions of a political community (See, Freedom’s Law, 23-6) which would allow one to not only make informed personal choices but participate as a member of that community as well. It is incorrect to say that treating rights as trumps obviates collective decision making. What it does militate against is the contingency of rights on a crude majoritarian premise because then calling an interest, a ‘right’, is a misnomer to say the least. It is cardinal to note this distinction.

Now that the rights can be regulated, how must it be done? This brings us to perhaps the central underlying abstract principle that Dworkin espouses: equal concern and respect. The state shall make those decisions treating each individual with equal concern and respect. Bentham’s utilitarianism fails to deliver on that front as it based on external preferences treats some more equal than others. This however, is different from the equality enhancing collective measures which to empower the historically marginalized sections of the society. Dworkin answers why racial segregation is impermissible in his account and affirmative action is, as the former is motivated by a prejudice and the latter is a step towards creating democratic conditions of a political community (TRS, 223-239). Another example, Dworkin criticises Lochner court’s verdict on right to freedom of contract, saying: “I cannot think of any argument that a political decision to limit such a right, in the way in which minimum wage laws limited it, is antecedently likely to give effect to external preferences, and in that way offend the right of those whose liberty is curtailed to equal concern and respect.” (TRS, 278). Thus principled collective decision-making, respecting that underlying value, is not at odds with Dworkinian rights thesis.

I shall now consider the isolationist concerns, that this metaphor may mislead us to. It is the idea that rights compete and often need to be balanced. What competition is permissible and what weight a right gets in the balancing act of the government? The second of this can be answered in terms of the preceding paragraph. As for competing rights, Dworkin rejecting the majoritarian reasoning argues for a more rigorous approach: “we must recognize as competing rights only the rights of other members of the society as individuals” (TRS, 194). Then, of course, a bigger trump may defeat the smaller trump.

What about other pressing political considerations? Can a government impose censor certain speech during wars? Dworkin concedes that under such situations rights may be restricted only when there is a danger of significant magnitude and the same is not speculative but ‘clear and present’.  Hence films cannot be banned and objectors cannot be silenced merely on speculation that it smells of conspiracy by opposition parties to discredit the government.

So what is ‘trump’ here? The trumps are about the kind of reasons a government may legitimately act upon to curtail rights. Trumps are not routinely used in a card game. When can these trumps be used? Dworkin answers this by saying that when the society is divided and the appeals to common good are pointless. Trumping contrasts with balancing and prevails when the latter would somehow make light of the moral significance of rights for external considerations. As Waldron notes, trumping instead of suggesting insulation from collective good generally reflects a determination to exclude reasons out from the politics and not to reason out politics in favour of some crude transcendentalism (See, Jeremy Waldron, Pildes on Dworkin’s Theory of Rights, 29 Jour. of Legal Stud. 301 (2000).