INTRODUCTION
People have often used hunger strikes as a political instrument to compel authorities to comply with demands they believe are necessary. This was done because many believed their lives were too necessary for the government to risk, for failing to comply with their demands. As a result, many followed such actions. In 2014, Irom Sharmila was discharged by the Manipur court, as she faced charges on and off for an attempt at suicide for fourteen years, holding that the prosecution had produced no evidence that she was in fact attempting suicide.[1] Her offence in the eyes of the state was the refusal to eat food. Irom Sharmila had started a hunger strike, in protest of the Malom massacre, where 10 civilians were shot dead by Assam Rifles personnel, her stated purpose for the protest was for the government to repeal the Armed Forces (Special Powers) Act 1958. The court later declared her fast as a ‘political demand through lawful means.’[2] Together, the two orders frame this piece’s central question: whether a hunger strike is simply an “attempt to commit suicide” that happens to carry a political motive, or a category the criminal law was never built to capture? This piece traces that question through Section 309 of the Indian Penal Code 1860 (“IPC”), the Mental Healthcare Act 2017 (“MHCA”), and Section 226 of the Bharatiya Nyaya Sanhita 2023 (“BNS”), and argues that each reform shifted the terms of the debate without settling it.
THE COLONIAL INHERITANCE AND THE DOCTRINAL GAP
Section 309 of IPC punishes “whoever attempts to commit suicide” with imprisonment up to a year or a fine, or both.[3] It was a provision with no significant amendment in over a century, even after the questions raised towards it. The constitutionality of the provision was tested twice in the Supreme Court, within two years. In the case of P. Rathinam v Union of India, a two-judge bench held that the “right to life” under Article 21 of the Constitution implicitly carried with it a “right not to live,” thereby rendering Section 309 unconstitutional.[4] Two years later, a five-judge bench in the case of Gian Kaur v State of Punjab overturned this reasoning, holding that Article 21 protected the right to a dignified life and could not be stretched to include a right to end it; the “right to die” was, in the Court’s words, inherently inconsistent with the “right to life.”[5] Due to this judgment, the provision remained in force for two more decades.
Neither judgment dealt with hunger strike as a factor. Both treated ‘attempt to suicide’ as a coherent action, indifferent to its origin, either that being a personal despair or a political protest, with this indifference being the exact doctrinal gap into which hunger strike falls. This does not mean a hunger strike falls automatically outside Section 309: the provision required an actual attempt to commit suicide as a factual matter, and Sharmila was discharged precisely because the prosecution could not establish that ingredient on the evidence, not because a hunger strike is inherently exempt from it. Whether a given fast satisfies the test is based on the intentions and circumstances, where the strike’s stated purpose is the presence of the specific demand and the manner of the fast, which the courts must determine case by case rather than resolve categorically. Section 309, drafted without any such distinction, left this determination to ad hoc judicial improvisation, as it did for Sharmila, arrested and force-fed for over a decade under a charge whose applicability to her conduct was never legislatively settled.
2017: DECRIMINALISATION BY MEDICALISATION
The Mental Healthcare Act 2017 altered this picture, but its operation is narrower than is sometimes assumed. Section 115(1) applies only once a person has been proceeded against for “attempt to commit suicide” under Section 309: in that circumstance, the person “shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code”.[6] The presumption operates within a Section 309 prosecution; it does not itself declare hunger strikes presumptively stress-induced, nor does it excuse the threshold question of whether the “attempt to commit suicide” ingredient is made out at all. Where it does apply, Section 115 is not a repeal of Section 309 but a rebuttable presumption layered on top of it, shifting the practical burden away from prosecution and towards a duty on the government to provide the person with “care, treatment and rehabilitation.”[7]
For a striker actually charged, this reform is a mixed inheritance. It removes the threat of conviction, but does so, once triggered, by presuming “severe stress” rather than making any finding on whether the fast was a considered act of protest. This is a narrower approach than a general ‘medicalisation’ of these hunger strikers, where section 115 has nothing to do with the striker never being prosecuted but for one who is, it resolves criminal liability through a presumption of unwellness rather than a finding of political intent.
2023: A MORE PRECISE AND TELLING SUCCESSOR
In July,2024 the Bharatiya Nyaya Sanhita came into effect; it removed section 309 completely, where attempting suicide was no longer treated as a criminal offence. But BNS did not completely leave out this field, as section 226 creates a new, narrower offence where attempting suicide “with the intent to compel or restrain any public servant from discharging his official duty,” punishable with imprisonment up to one year, a fine, or community service.[8] he provision uses neither “hunger strike” nor “fasting”; it creates no standalone offence of protesting by fasting. It has two ingredients the prosecution must prove: an attempt to commit suicide in fact, with the same question that was addressed under section 309, and the specific intent to compel or restrain a public servant. A fast attracts Section 226 only where both are made out on the evidence; one that does not amount, factually, to an attempt to commit suicide falls outside the section regardless of its target.
Section 309 criminalised suicide attempts indiscriminately, absorbing the hunger strike into a general prohibition; Section 226 is the only BNS provision drafted with an act of this kind in view. It does not create an express, separate category of “criminalised hunger strikes”, but it does mean a fast satisfying both ingredients remains punishable specifically because of its target, even as suicide attempts generally cease to be an offence. In that narrow sense, the legislature has decriminalised suicide while preserving liability for the one configuration of it that looks most like protest.
CONCLUSION: RESOLVED OR REPHRASED?
When read together, MHCA and BNS do not resolve the issue that was present in the Sharmila case, but rather just rephrase it. Before 2017, the person on strike would be prosecuted as an undifferentiated “attempter” under Section 309, with the courts left to interpret whether a distinction between political fasting and suicidal despair existed, with no statutory language to support it, which the Manipur court went on to do.
After 2024, that improvisation is no longer necessary, because the statute itself now draws the very line the courts had been drawing informally, where fasting against a public servant’s discharge of duty is expressly carved out and preserved as an offence, while all other suicide attempts are folded into a regime of presumed stress and mandated care.
This is not obviously an improvement for protest legitimacy. Under the old regime, a court could find, as it did for Sharmila, that the “attempt to commit suicide” ingredient itself was not made out, and so escape Section 309 altogether. Under Section 226, that same factual question survives, of whether the test still needs to be proved but where it is, and the fast targets a public servant’s official conduct, no political characterisation of the protest can take it outside the section. The BNS has not decided whether a hunger strike is protected expression under Article 19(1)(a); it has simply made clear that, where the statutory ingredients are met, the law intends to keep punishing it when it is aimed at the state.
Author(s) Name: Neel Jain (S.V.K.M.s Pravin Gandhi College of Law)
References:
[1] Order of the Judicial Magistrate (Imphal East) discharging Irom Chanu Sharmila from a charge under section 309 of the Indian Penal Code 1860 (2014), as reported in ‘Irom Sharmila Released Once Again’ Deccan Herald (Imphal, 2014) https://www.deccanherald.com/india/irom-sharmila-released-once-again-2108396 accessed 1 September 2026.
[2] Order of a Manipur court (19 August 2014), as reported in International Commission of Jurists, ‘India: Manipur Government Must Drop All Charges Against Human Rights Defender Irom Sharmila’ (ICJ, 2014) https://www.icj.org/india-manipur-government-must-drop-all-charges-against-human-right-defender-irom-sharmila/ accessed 1 September 2026.
[3] Indian Penal Code 1860, s 309.
[4] P Rathinam v Union of India (1994) 3 SCC 394.
[5] Gian Kaur v State of Punjab (1996) 2 SCC 648.
[6] Mental Healthcare Act 2017, s 115(1).
[7] ibid, s 115(2)
[8] Bharatiya Nyaya Sanhita 2023, s 226.
