The doctrinal path to Harish Rana

Indian courts have long guarded against conflating a right to die with dignity with a general right to die. In Gian Kaur v State of Punjab, a Constitution Bench upheld Sections 306 and 309 of the Indian Penal Code, holding that Article 21 does not encompass a general right to die, while leaving open a narrower question, that of a dignified death for the terminally ill. Parliament later softened this position through Section 115 of the Mental Healthcare Act 2017, decriminalising attempted suicide. Additionally, Justice KS Puttaswamy v Union of India located bodily autonomy within Article 21, clearing a path for a narrower right: not to hasten death, but to refuse futile treatment and die without needless suffering.

Indian courts have long been wary of equating the right to die with dignity with a broad right to die. In Gian Kaur v State of Punjab, a Constitution Bench upheld Sections 306 and 309 of the Indian Penal Code, holding that Article 21 does not include a general right to die, leaving open a narrower question, that of a dignified death for the terminally ill. Later, Parliament softened this stance through Section 115 of the Mental Healthcare Act 2017, decriminalizing attempted suicide, and Justice KS Puttaswamy v Union of India placed bodily autonomy within Article 21, leading to a narrower right: not to hasten death, but to refuse futile treatment and die without unnecessary suffering.

In Aruna Ramchandra Shanbaug v Union of India, the Court permitted passive euthanasia in principle but required High Court approval case by case. The 241st Report of the Law Commission of India then recommended legislation, which Parliament never enacted. A Constitution Bench went further in Common Cause v Union of India, holding that the right to die with dignity is intrinsic to Article 21, validating living wills and prescribing a two tier medical board procedure, later simplified in 2023. The right remained theoretical, presupposing a competent patient or an executed living will.

In Harish Rana, Rana suffered a traumatic brain injury after falling from the fourth floor of his accommodation in 2013 and developed quadriplegia and was in a permanent vegetative state sustained through a PEG tube for over a decade. His parents sought a medical board to consider passive euthanasia, but in 2024 the Delhi High Court rejected the plea, reasoning that withdrawal would amount to starvation since Rana was not on mechanical ventilation. Medical boards later found his condition irreversible and withdrawal in his best interests, leaving the Supreme Court to decide: is artificial food and water always basic care, or can it become futile treatment that may lawfully be withdrawn?

A landmark shift, still incomplete

The Supreme Court reversed the High Court, holding that CANH requires clinical judgment and ongoing management of complications, and is therefore medical treatment rather than basic nursing care, falling within the Common Cause framework, a distinction previously echoed by the English House of Lords in Airedale NHS Trust v Bland. It also clarified the best interests test: the inquiry cannot be confined to whether treatment can biologically prolong life, but must weigh prognosis, the burdens and benefits of treatment, and the patient’s dignity as a whole. Crucially, withdrawal does not mean withdrawal of care, and the Court directed Rana’s admission to palliative care at AIIMS under a supervised plan.

This tracks the World Health Organization’s view that palliative care is core to the right to health under Article 12 of the ICESCR. In India, that promise remains largely unmet: nearly 7-8 million people require palliative care, but less than 4% can access it, and coverage stays concentrated in states such as Kerala while much of central and eastern India has almost none. A right to a dignified death, without accessible palliative care, risks becoming a right in name only.

Harish Rana transforms this right from principle into an operational one, yet the architecture remains incomplete. India still has no dedicated statute governing end-of-life decisions, and withdrawal rests on judicial safeguards rather than legislation. Implementation remains uneven, with several states yet to constitute the required medical boards. Thus, the Court has urged the Parliament to legislate, echoing decades-old recommendations.

Health rights are understood as requiring the state to preserve life, but Harish Rana shows the harder dimension: dignity sometimes requires recognising when treatment should end. Ensuring withdrawal is accompanied by palliative care rather than abandonment, the Court has placed dignity at the centre of end-of-life medicine, an obligation that, once medicine can no longer cure, becomes one of ensuring life’s final stage is governed by care and dignity.

From Consultation to Participation

International standards already contain elements of this participatory approach. Rule 50 of the European Prison Rules provides that prisoners should be allowed to discuss general conditions of imprisonment and are encouraged to communicate with prison authorities. The Nelson Mandela Rules draw an equally important boundary: prisoners must not be employed in a disciplinary capacity, although properly functioning systems of prisoner self-government are not prohibited. This distinction is important: participation should give detainees a voice in matters affecting their lives, without placing them in positions of authority over other detainees or transferring to them functions that remain the responsibility of the State. Together, these principles point towards participation without delegation of the State’s coercive authority.

Consultation asks people what they think. Participation gives them a defined opportunity to influence what happens next. The difference is not semantic. A consultation may end when information has been collected; meaningful participation requires feedback, a record of how views were considered, and an explanation when they were not followed. It does not give participants a veto, but it does create institutional accountability for listening.

Participation Across the Detention Cycle

The most immediate application concerns daily conditions of detention. People living in an institution know how formal rules operate in practice: when water is actually available, who can reach healthcare, how food is distributed, where intimidation occurs, and which complaint channels are trusted. Representative prisoner councils, confidential surveys, and issue-specific working groups can reveal problems that administrative data or short visits may miss. They can also help test practical solutions before scarce resources are committed.

Participation is equally important for rehabilitation and social reintegration. Reintegration programmes are often designed around the services available within the prison or criminal justice system, rather than starting from the practical obstacles people are likely to encounter after release.  Current and former prisoners can identify gaps in access to identity documents, housing, work, health care, family support and continuity of treatment. Their contribution can help shift reintegration from a standard package delivered before release to a pathway that reflects the realities encountered afterwards. The United Nations guidance on preventing recidivism and supporting social reintegration already emphasises the importance of community-based support; people who have navigated release should be recognised as part of the expertise needed to design it.

The same logic applies to alternatives to detention. A measure may appear proportionate on paper while being impossible to comply with in practice. Reporting obligations, travel restrictions, curfews or electronic monitoring may conflict with precarious work, care responsibilities, disability, or distance from public services. The Tokyo Rules require non-custodial measures to respect the rights of the person concerned and encourage community participation. Involving people who have experienced such measures can help determine whether an alternative genuinely reduces deprivation or merely relocates it outside prison walls.

Participation in Preventive Monitoring

The case for participation is especially strong under the Optional Protocol to the Convention against Torture (OPCAT). The OPCAT gives preventive bodies unrestricted access to information and the opportunity to conduct private interviews with persons deprived of their liberty. These interviews are indispensable. But they usually position detainees as sources from whom monitors obtain information, rather than as partners who can also improve the questions asked, the risks prioritised and the recommendations followed up.

National Preventive Mechanisms could involve people with lived experience at several stages without compromising their independence. Former detainees and representative organisations could advise on thematic priorities, review the accessibility of interview methods and complaint procedures, and identify issues that outsiders may overlook. After visits, safe and confidential forms of engagement could help assess whether recommendations have changed daily reality. In selected contexts, people with lived experience could also contribute as trained external experts. Practice in mental-health monitoring already shows the value of including monitors with lived experience, who may recognise hidden barriers and make it easier for detainees to discuss sensitive concerns.

This would not transform detainees into inspectors of the institutions holding them. Nor should participation replace private interviews, independent professional judgment, or confidential monitoring. Its purpose is to complement them by ensuring that preventive methodologies are informed not only by legal and professional expertise, but also by knowledge generated through detention itself.

Making Participation Safe and Meaningful

Participation in closed institutions carries obvious risks. Prisoners may be selected by the administration because they are considered cooperative, while women, foreign nationals, persons with disabilities, LGBTQI+ people and those in high-security or segregated regimes remain unheard. Participants may face pressure from staff or other prisoners, and consultation fatigue may deepen mistrust when nothing changes. A visible role can also expose individuals to retaliation.

For these reasons, participation must be voluntary, informed, accessible and representative. It should use multiple channels rather than rely on a single prisoner representative. Furthermore, confidential options and safeguards against reprisals are essential. Participants should know the purpose and limits of the process, receive feedback on its outcomes, and be able to withdraw. Former detainees who contribute sustained expertise should be remunerated on the same basis as other experts. Above all, institutions should be able to show what changed as a result of participation.

The boundary with informal prison governance must also remain clear. Participation concerns voice, knowledge and influence; it must not entail control over discipline, access to rights, allocation of essential services, or the use of force. The State remains fully responsible for prison management and for protecting everyone in its custody.

Conclusion

Prevention depends on seeing risks before they become violations. People who live through detention often see those risks first, yet preventive systems tend to involve them only after experts have decided what to examine. Moving from testimony to participation would not solve every failure of detention policy, and it would not remove the need for independent oversight, adequate resources or State accountability. It would, however, improve the quality of each.

“Nothing about detention without detainees” should therefore be understood not as a slogan of institutional self-government, but as a principle of better prevention: those most affected by detention should have safe and meaningful ways to shape the policies, programmes and monitoring methods intended to protect their dignity.

As I argue in my recent book, Housing and Human Rights, housing policies that do not centre housing as a human right generally entrench inequality, and when they fail to tackle structural factors, they individualise housing issues inhibiting our ability to see and to resist human rights violations.

Let me illustrate one facet of this process using Australia’s housing crisis as an example. The baby’s death in the Wagga Wagga encampment was reported in the national media, and characterised as a tragedy and a ‘tipping point’ in Australia’s deep housing crisis. But there was no palpable sense of wide or enduring outrage. The baby, and the community’s hardship and grief, were soon forgotten by most. Why? As my book discusses, many governments – the Australian government included – have worked hard to create the landscape of housing law and policy which produced this situation, and ‘sell’ this vision of housing to their citizens.

Homeownership is ‘the Australian Dream’. Successive governments of all political persuasions have supported ownership with significant tax breaks and preferential policies, promoting it on the basis of personal, and indeed intergenerational, financial security and belonging. In doing so, they have created a system of ‘asset-based welfare,’ where the family home (and increasingly an additional home purchased as in investment) is expected to step in and fulfil the role of the state. With asset-based welfare, the state no longer needs to provide social security, rights to adequate pay and working conditions, rights to aged care, or even education: the financial security of one’s home can, it is assumed, be leveraged to deliver these social goods.

But asset-based welfare not only acquits governments of their social rights obligations, it works against the realisation of human rights in general. It makes housing unaffordable as it becomes financialized, encourages unsustainable mortgage debt burdens increasing housing insecurity, and privileges exchange value over use value, violating the heart of the right to housing: as a place to live in dignity, security and peace. At the same time, investment in housing concentrates housing in the hands of the few, leading to more unequal societies, which are the ‘antithesis of human rights’. And, I argue, by privatizing our social goods and rights and expecting them to be fulfilled through individual home ownership, it makes us look away from the social deprivations of others, and accept the violation of their human rights without outrage.

As my book argues, the answer to the global housing crisis cannot lie in commodified and financialized homeownership, in treating housing as a wealth-generating machine, or in ever further ways to financialise people’s living spaces. Instead, it lies in remembering that housing is a human right and that housing justice lies at the heart of a fair society, one in which we are all included.  And it lies in framing our laws, policies, and activism around that heart.

This controversial constitutional conundrum in the Gambia is forcing the nation and human rights advocates worldwide to confront enduring tensions between cultural identity and the protection of fundamental rights. At the heart of the dispute are efforts by some religious leaders and a Member of Parliament to overturn the ban on FGM, a practice that disproportionately affects children and has serious health and human rights consequences. A coalition led by MP Almameh Gibba has challenged the 2015 prohibition in the Gambian Supreme Court, claiming that criminalization violates constitutional guarantees of cultural and religious freedom. The central argument of this blog is that the legal challenge to the FGM ban threatens to undermine hard-won protections for women and girls by prioritizing claims of cultural and religious freedom over the fundamental human rights to health, dignity, and bodily integrity.

Recent surveys show that approximately 73% of Gambian women aged 15–49 have undergone FGM, often in early childhood, despite overwhelming evidence that the practice causes serious physical and psychological harm. FGM confers no medical benefit and is categorized by global health authorities as a harmful practice that jeopardizes physical and psychological well-being. Within this context, the ongoing Supreme Court challenge transcends abstract debates over religious or cultural prerogatives; it poses a fundamental legal test of the state’s duty to uphold the rights to life, bodily integrity, and human dignity, especially with respect to minors who are most at risk. As the United Nations and UNICEF have noted, thousands of Gambian women and girls have experienced the practice, which can result in long-term physical, psychological, and social consequences and is widely recognized as a form of violence against women and girls.

Despite the enactment of the Women’s (Amendment) Act 2015 (supra), enforcement remained largely dormant for several years, with few recorded prosecutions. The situation shifted in 2023 when three women were convicted for performing female genital mutilation on eight young girls, the first significant criminal convictions under the law. These prosecutions triggered intense backlash from segments of religious and traditional leaders who perceived the enforcement of the ban as an intrusion into long-standing cultural and religious practices. In response, a constitutional challenge was initiated before the Supreme Court of The Gambia, with opponents arguing that the statutory prohibition unjustifiably restricts constitutionally protected freedoms relating to culture and religion. The Court has since confirmed that it possesses jurisdiction to hear the matter, clearing preliminary procedural hurdles and setting the stage for a substantive determination on the constitutionality of the FGM ban.

Fatou Baldeh described FGM as a “serious form of violence against women” that destroys physical and psychological well‑being and emphasised that the resurgence of the debate signals broader threats to women’s rights. She adds that “across all regions, women and girls continue to confront systematic and coordinated attacks on their hard-won rights.” The intensification of this legal struggle has drawn parallels with other retrogressive movements seen globally, where women’s rights are contested, from access to reproductive health services to protection against violence. Comparative jurisprudence, including decisions from Kenya, has similarly affirmed that bans on FGM are compatible with constitutional rights and necessary to protect women and girls. International human rights organizations widely recognize female genital mutilation (FGM) as a violation of human rights, infringing on women’s and girls’ rights to health, dignity, and physical integrity. The World Health Organization (WHO) and UNICEF categorize FGM as discriminatory and harmful, while UN agencies jointly affirm that it cannot be justified on any grounds.

The regional legal context also supports anti‑FGM stances. The Economic Community of West African States (ECOWAS) Court of Justice  has characterized harmful practices like FGM as cruel, inhuman, and degrading treatment rising to the level of torture and therefore not protected under claims of tradition or religion. This jurisprudence reinforces that even deeply entrenched cultural practices cannot justify the infliction of severe physical and psychological harm. Across West Africa, national responses to FGM vary significantly, with some states adopting comprehensive legal prohibitions and enforcement measures while others have either limited bans or no effective prohibition at all. For example, Senegal has outlawed FGM and actively pursued legal measures to suppress the practice, backed by decades of community and legislative action following its ban. Similarly, Ghana has criminalized FGM through explicit provisions in its Criminal Code and related domestic violence legislation, giving prosecutors clear authority to bring offenders to justice, and civil society has long championed enforcement. Burkina Faso, too, has statutory prohibitions against FGM and is regarded as having a legal framework with relatively strong anti‑FGM provisions among West African nations.

By contrast, other countries in the region exhibit inconsistent legal coverage or resistance to formal prohibition. Sierra Leone, for example, remains one of the few countries in West Africa with no comprehensive ban on FGM despite widespread prevalence and cultural pressure; although initiation ritual–related cutting was criminalized in 2019, other forms of FGM remain legal in many contexts. Mali and Guinea, both with some of the highest regional prevalence rates of the practice at around 88–94 percent among women, lack fully enforced national bans and continue to contend with deep cultural adherence to FGM. These disparities illustrate that, while some states have taken clear legislative and enforcement steps to protect girls and women from FGM, others have lagged or resisted codifying explicit legal protections, contributing to a patchwork of legal responses within the region.

A decision to uphold the ban would reaffirm the primacy of human rights protections over cultural relativism in harmful practices; a reversal could embolden movements to undermine women’s rights across the region. Crucially, the razor blade, a tool historically associated with secrecy and violence now symbolizes a crossroads: it may either remain a stark reminder of the urgent need for legal and social reform or become emblematic of retrogression and impunity.

This blog argues that facial age estimation should not displace the benefit of the doubt owed to individuals whose age remains uncertain. Where an algorithmic estimate cannot reliably distinguish between childhood and adulthood, particularly around the critical sixteen-to-eighteen boundary, uncertainty should operate in favour of child protection rather than against it. Otherwise, a technology presented as merely supporting human decision-making may, in practice, become highly influential in determining access to the safeguards attached to childhood.

The problem is not simply that facial age estimation can be wrong. It is that accuracy is lowest precisely where the legal distinction matters most. A recent UK Parliament briefing reported that leading systems show a mean absolute error of around 2.5 years at the critical sixteen-to-eighteen boundary. That figure does not predict the error in every individual case. It does, however, make the misclassification of sixteen- and seventeen-year-olds a foreseeable risk.

The consequences are substantial. Provisional Home Office statistics published in July 2026 show that, among 1,885 people initially assessed as adults between July and December 2025, 326 were later found to be children, while another 377 cases remained pending. These figures concern the existing age-assessment process, before facial age estimation becomes operational. They already reveal the fragility of initial decisions. A wrong classification can remove a child from the safeguards attached to childhood. The person may be placed in adult asylum accommodation, processed under adult procedures and separated from child-welfare services at the very moment protection is most needed. A later correction cannot fully undo the fear, exposure or loss of support caused by the first decision.

This is not merely an administrative problem. Under Article 3 of the UN Convention on the Rights of the Child, the child’s best interests must be a primary consideration in administrative decisions affecting them. Section 55 of the Borders, Citizenship and Immigration Act 2009 likewise requires immigration functions to be exercised with regard to safeguarding and promoting children’s welfare.

The UN Committee on the Rights of the Child has also made the relevant principle clear: where uncertainty remains after an age assessment, the individual must receive the benefit of the doubt and be treated as a child. The Home Office’s own guidance reflects this approach, stating that where the threshold for treating someone as clearly adult is not met and doubt remains, the person should be treated as a child pending further assessment. Facial age estimation must therefore operate, if at all, within this protective presumption. It should not become evidence capable of tipping an uncertain case into adulthood.

The promise of “human control” is not enough. Numerical outputs can appear fast, scientific and objective, encouraging officials to give them disproportionate weight. The real question is not simply who signs the decision, but whether the officer understands the system’s limitations, can depart from its estimate and must explain what weight was given to it.

Before deployment, the government should publish independent validation results, disclose the uncertainty attached to each estimate and create an accessible route to challenge its use. Most importantly, an algorithmic estimate should never displace the benefit of the doubt owed to a possible child.

At the border, an error of two years is not merely technical. It can determine whether a vulnerable person is protected as a child or exposed as an adult.

In 2025, three major legal developments demonstrate regulators attempting to close this gap, and all three possess the same structural blind spot.

In March 2025, the UK Home Office provided new statutory guidance on ensuring transparency in supply chains under section 54 of the Modern Slavery Act 2015 (MSA). The guidance strengthens expectations for corporate disclosures, proposes a tiered reporting system, and calls for corporations to monitor their supply chains beyond Tier 1 suppliers. The guidance, however, changes the underlying legal obligation; section 54 requires the companies to publish a transparency statement. There is no independent verification mechanism, and the compliance remains self-reported. Meanwhile, in the European Union, the Corporate Sustainability Due Diligence Directive (CSDDD), significantly amended by Directive (EU) 2026/470, requires companies to identify human rights risks throughout their value chains, including to indirect suppliers where “objective, verifiable information” indicates a specific risk. The EU Forced Labour Regulation, which will be implemented in December 2027, takes an additional step, allowing customs authorities to prohibit products manufactured with forced labour from the EU market. Together, these measures comprise the most ambitious regulatory framework for supply chain accountability ever developed. Additionally, they suffer from a shared failure; collectively, they generate duties without creating the investigative instruments necessary to discharge them.

This is where open-source investigation (OSINT) comes in, not as a technological breakthrough, but as a legal necessity.

Open-source investigation leverages publicly available information, shipping and customs records, satellite imagery, corporate registry filings, procurement databases, and social media to map supply chain structures and identify indicators of exploitation invisible to conventional audit methodologies. It is not hypothetical in the case of modern slavery. In 2021, Sheffield Hallam University’s report on Xinjiang cotton demonstrated how customs and shipping data may be used to trace forced labour inputs through various levels of supply chains into the goods of big global companies. This is exactly the sort of “objective, verifiable information” the CSDDD obliges corporations to obtain, but the Directive lacks guidance on how to obtain it.

The legal argument is straightforward: Open-Source Investigation should be recognised as a legitimate investigative methodology in modern slavery enforcement regimes. It could have three approaches. First, for regulators: Open-Source Investigation may be a standard tool for customs and national competent authorities to identify at-risk products and supply chains according to the EU Forced Labour Regulation’s enforcement mechanism. Second, for companies: The amended UK MSA guidance recommends firms to map their supply chains, and Open-Source Investigation provides a scalable, economical way to do this beyond Tier 1. Third, for litigation: Cases such as Limbu v Dyson require claimants to establish what occurred inside distant, informally contracted facilities that brands routinely deny controlling. This is the evidentiary burden that conventional corporate disclosure hardly ever meets. Open-source investigation can address it directly: shipping manifests and customs records can establish a direct and documented commercial relationship between a specific factory and a brand, establishing the brand’s knowledge of that facility beyond credible dispute; satellite imagery can document undisclosed production sites operating outside corporate audit procedures; and corporate registry filings can trace the ownership structures through which liability is deliberately obscured across supply chain tiers. Each of these technologies addresses an issue that the courts in transnational supply chain conflicts are already asking, and that self-reported company compliance data cannot answer.

The UK Joint Committee on Human Rights announced in January 2025 that it will be conducting an inquiry into forced labour in UK supply chains. It published its findings in July 2025. The Committee observed that products manufactured employing forced labour are entering the UK market, that the UK risks becoming a dumping ground for products banned overseas, and that comprehensive supply chain due diligence is urgently needed. However, the report’s proposals still do not answer the central question of a standardised approach. How should businesses, regulators and enforcement agencies actually see through the supply chains they are now legally obligated to scrutinise?

Open-source inquiry is not a supplementary tool waiting to be discovered. It is the investigative system that provides practical enforceability to these duties. 

The Act was formulated after the honour killing of a 19-year-old pregnant woman, Manya Patil, for marrying a Dalit man. The 242^nd Law Commission of India Report defines ‘honour crimes’ as incidents of violence and harassment caused to couples marrying against the wishes of the community or family.

Though a pioneering initiative, the Act carries a conspicuous omission. Section 2(a) of the Act defines inter-caste marriage as marriage between persons belonging to different castes or sub-castes, while making no parallel provision for interfaith unions. While Section 5(1) carries a general prohibition barring acts against “any person” in the name of caste, custom, tradition or “honour”, the legislation’s structure, definitions and the stated object centre solely on caste, leaving out interfaith couples from its protection. This selective recognition is not neutral as it tracks the same suspicion of interfaith unions that the State has already written into the anti-conversion law.

The State has a protective obligation towards couples in inter-caste and inter-religious unions. In Lata Singh v. State of Uttar Pradesh and Shakti Vahini v. Union of India, the Supreme Court directed the Centre and state governments to protect inter-caste and inter-religious couples from honour-based crimes and to uphold fundamental constitutional values. The right of choice of one’s partner is constitutionally protected as per Shafin Jahan v. Asokan K.M., where the Court held that choice of a life partner, including interfaith, lies at the heart of dignity and autonomy as recognised in K.S. Puttaswamy (Retd.) v. Union of India and also invokes the freedom of conscience under Article 25. None of this compels the State to legislate protection at all. But that is not the claim: having elected to protect honour-crime victims, it cannot draw the protected class along religious lines.

It is important to contextualise this omission within the broader socio-political context. Karnataka’s anti-conversion law imposes stringent punishments for “unlawful conversions” and renders marriages between interfaith couples void where conversion is treated as unlawful under the Act. It empowers the family members of couples to file complaints alleging unlawful conversion, the same actors who perpetrate honour crimes in most instances.

This produces a stark contradiction. As per the 2026 Act, a person in an interfaith marriage is a victim deserving protection; however, the anti-conversion law casts aspersions on the same union, and the same person becomes a potential perpetrator. How can the act of marital choice deem a person a victim under one law and an offender under the other? It is this coexistence that makes the omission arbitrary rather than merely incomplete.

This contradiction lies at the heart of the issue. The distinction between inter-caste and inter-faith couples is perfectly intelligible; the flaw lies elsewhere. In The State of West Bengal v. Anwar Ali Sarkar, the SC laid down that Article 14 permits classification only where (i) there is an intelligible differentia and (ii) that differentia bears a rational nexus to the statute’s object. Here the object is protecting couples who marry against family/community wishes, and interfaith couples face that risk no less than inter-caste couples (242^nd Law Commission report). The second limb therefore fails.

A defender might say this is under-inclusion, not discrimination, and that a legislature may protect by stages. That answer works only where the omission holds a space open for later protection. Here it does not. The excluded couples are not merely unaddressed; they are branded as suspects by the State’s own 2022 anti-conversion law, which the 2026 Act leaves untouched. The State might have protected interfaith couples through some other instrument, but Karnataka has enacted none and offered no reason for confining this Act to caste; an unreasoned exclusion, set against an active regime of suspicion, is not phased reform but a choice. Silence set against that statute is not phased reform but sustained suspicion. In Shayara Bano v. Union of India, the Supreme Court’s test of manifest arbitrariness against legislative action as capricious, irrational and/or lacking an adequate determining principle reaches exactly this animus-based line. And Article 15(1) forbids it outright, since the disadvantage falls on couples only because their union crosses a religious line. That is a constitutionally impermissible classification, not a drafting defect to be cured later.

Irreversibility matters because it eliminates the argument that third states supporting Israel can separate legitimate security facilitation from unlawful practices. Once you sustain an administration that kills through racially segregated courts, you cannot claim you only support the lawful parts.

This is where the state responsibility doctrine becomes critical. Because the ICJ characterised the right to self-determination as a peremptory norm (paragraph 233 of the AO), Israel’s continued presence constitutes a serious breach engaging the customary duties codified in Article 41(2) of the Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA): no state may recognise the resulting situation as lawful, nor render aid or assistance in maintaining it. The European Union’s (EU) Foreign Affairs Council’s (Council) 21 April 2026 decision not to suspend the EU-Israel Association Agreement is where these questions become concrete. This decision followed the EU’s External Action Service finding Israel in breach of the Agreement’s human rights clause (Article 2) and the enactment of the March statute.

How State Killing Makes the Apparatus Irreversible

To understand why irreversibility changes the legal calculus, it is necessary to examine what the ICJ found and how the statutes operationalise it. At paragraph 229 of its AO, the Court identified a structure: Israel’s laws “impose and serve to maintain a near-complete separation” between settlers and Palestinians, violating the prohibition on apartheid in Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

The Death Penalty for Terrorists Law makes that bifurcation lethal through differential jurisdiction. Article 3 establishes mandatory death by military court for Palestinians who cause death in acts of terrorism, excluding Israeli citizens or residents. Israeli citizens face civilian courts where Article 6 imposes death only for killings to negate the existence of the State of Israel. Human Rights Watch and Amnesty International documented that Palestinian residents face mandatory death in military courts, whilst Israeli citizens face death only for a narrowly defined intent that functionally excludes nationalist killings of Palestinians.

The military courts administering death operate with a 99.7% conviction rate, based largely on torture-extracted confessions. These conviction rates matter because they demonstrate the courts are not impartial tribunals but components of the apparatus the ICJ found unlawful. When the United Nations’ Committee on the Elimination of Racial Discrimination (CERD) stated that the law perpetuates racial discrimination, it confirmed differential vulnerability to state killing along ethnic lines. Administrative detention was theoretically reversible. State-administered execution is not.

When Third State Support Breaches the Duty of Non-Assistance

The duty of non-assistance requires no proof of complicit intent. At paragraph 278 of its AO, the Court held that the duty of distinguishing dealings with Israel between its own territory and the OPT encompasses, among other obligations, the duty “to abstain from entering into economic or trade dealings with Israel concerning the Occupied Palestinian Territory or parts thereof which may entrench its unlawful presence in the territory,” and “to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation.” The Court’s phrase “may entrench” establishes a probabilistic standard. States need not prove their conduct caused a specific harm, only that it sustains Israel’s administrative capacity.

The Court found Israel’s entire presence unlawful. There is no lawful administration to sustain. Arms, intelligence, and preferential trade that sustain capacity therefore sustain the wrongful situation, within which a death regime operates.

Unlike complicity under ARSIWA’s Article 16, which requires that assistance be given with knowledge and with a view to facilitating the wrongful act, the Article 41(2) duty covers conduct after the fact that maintains the unlawful situation, with the International Law Commission considering it “hardly conceivable” that a state would lack notice of a serious breach. Any residual doubt about notice dissolved when the CERD Committee called on States Parties to ensure that their “resources are not used to enforce or support discriminatory policies and practices against Palestinians living in the Occupied Palestinian Territory.” When the EU’s External Action Service found Israel in breach of Article 2 of the Agreement, and the Council nonetheless decided not to suspend, the Union placed itself squarely within the conduct paragraph 278 prohibits. Twenty UN experts stated that suspension is “a legal imperative,” not a matter of political discretion.

What This Reveals About Metropolitan Responsibility

The Council’s decision reveals how the ICJ’s “may entrench” standard operates as burden inversion. The question is whether conduct sustains the apparatus through which apartheid is maintained and death administered, not whether governments intend to facilitate it. Once the apparatus kills, separability collapses. The courts executing Palestinians are those that the ICJ found unlawful. International legal infrastructure has constituted settler-colonial projects in Palestine, not merely recognised them.

Article 41(2) asks when metropolitan support becomes co-constitutive of the wrongful situation. The answer: when it sustains administrative capacity that kills through racially segregated courts. This tests whether the duty of non-assistance retains doctrinal content or serves merely as a rhetorical cover for sustaining colonial structures.

The Bill seeks to address omissions in the existing Foreign Contribution (Regulation) Act, 2010 (FCRA), which has undergone amendments in 2016, 2018, and 2020, and faces strict FCRA accreditation requirements that affect NGOs’ ability to receive foreign funding. At the heart of the present amendment lies the power of the designated authority to manage, use, transfer, or dispose of assets created from foreign contributions by NGOs whose FCRA certificate is cancelled, surrendered or ceased. Such assets will be utilised for public purposes, thereby amplifying the existing disparities in granting operational autonomy to NGOs.

While the Indian Supreme Court upheld that receiving foreign funding by charitable associations is not a vested right, the proposed amendment serves as a blatant mechanism for harassing, intimidating, and censoring NGOs. This reinforces concerns about undermining the right of NGOs to freedom of association, as protected by Article 19 of India’s Constitution and Article 22 of the International Covenant on Civil and Political Rights (the “ICCPR”). The prohibition on foreign funding enables the Government to target the NGOs, which is prejudicial in protecting the individual’s ability to operate NGOs without undue government interference. Statistical abstraction indicates that 21,933 organisations in India have lost their FCRA licenses, resulting in permanent closure or severe restrictions on their activities.

Amnesty International has warned that the amendment enables the government to further crack down on civil society under the pretext of national security. Without empathetically understanding the potential side effects of arbitrarily curtailing NGOs’ freedom of association, the government quietly turns FCRA into a political weapon. For receiving foreign funding, every NGO is mandated to obtain a certificate of registration, which is renewable every 5 years. Such a certificate is revocable when it prejudicially affects “public interest”.

The enforcement of the Bill will trigger the closure of NGOs that depend on foreign funding, leaving them to seek mercy at the whims and fancies of the designated authority.  UN Special Rapporteur Maina Kiai had signalled that the Indian government’s unfettered discretion in determining the grant of foreign funding to NGOs, based on notions of public interest, is vague and overbroad, imposing onerous and burdensome requirements on NGOs. International comparative practice indicates that access to foreign funding is vital to the exercise of freedom of association, and that governmental discretion in regulating such funding must be curbed. For instance, the United States (US) does not restrict NGOs from receiving foreign funding and stipulates that funding is not tied to a registration requirement, thereby protecting the freedom to form associations of NGOs. The Foreign Agents Registration Act, 22 U.S.C. § 611 et seq. (FARA) is a disclosure statute operating in the US to facilitate a transparent mechanism in ensuring financial accountability and anti-money-laundering safeguards by mandating any person or organisation (US or foreign) that is an agent of a foreign principal to make periodic disclosure about the receipts and disbursements of foreign funding utilised in conducting the activities of the NGOs.

The operational autonomy of NGOs in India has been severely curtailed to accommodate the state’s interests in achieving compliance with compliance standards. The Financial Action Task Force (FATF) in 2024 noted that India is only ‘partially compliant’ with safeguards for NGOs, as FCRA continues to stifle NGOs’ access to essential funds.

On April 1^st, the Opposition parties protested against the passage of the Bill, terming it “draconian” as seizure of assets by the designated authority on minuscule grounds risks NGOs, charities and civil society organisations from functioning effectively. Moreover, the Kerala Catholic Bishops’ Council and the Catholic Bishops’ Conference of India (CBCI) have highlighted that the proposed amendment is “dangerous, undemocratic, unconstitutional and contrary to principles of natural justice”. The Centre had no choice but to put the Bill on hold in the Lok Sabha.

The grave concern raised by the Bill reflects the prolonged influence of government authorities in clamping down on human rights defenders who have been targets of intimidation and abuse. It will be interesting to see how India’s democracy will oscillate between invalidating the present amendment and deferring to political volatility in the upcoming days of discussion.

The Statutory Framework and Its Limits

India lacks central legislation on witch hunting. States such as Jharkhand and Bihar rely on the Prevention of Witch (Daain) Practices Act, 1999, a statute that, despite criminalising witch branding, is structurally inadequate. NCRB data records approximately 2,500 witchcraft-related murders between 2000 and 2016, averaging 150 deaths annually. A 2024 Nirantar Trust survey documents systematic underreporting, as authorities classify such cases as personal disputes, erasing the gendered dimension of the violence entirely.

Four structural deficiencies compound this failure. First, Section 4 of the Act prescribes a maximum of six months’ imprisonment for branding a woman as a witch and subjecting her to torture, grossly disproportionate to the harm caused. The same conduct, prosecuted under the Bharatiya Nyaya Sanhita (BNS), attracts up to seven years for grievous hurt, creating a de facto “legal discount” for superstition-motivated violence. Second, the Act inadequately addresses ojhas (faith healers) who routinely instigate mob violence yet face equally lenient penalties a sharp contrast with BNS Section 49, under which an instigator bears the same punishment as the principal offender where the abetted act is committed. Third, most offences remain bailable, enabling perpetrators to return and intimidate witnesses, precipitating the evidentiary collapse behind persistently high acquittal rates. Fourth, the Act provides no rehabilitation, relocation, or witness protection, forcing survivors back into hostile environments.

Constitutional and International Obligations

These failures carry serious constitutional and international human rights consequences. Witch hunting strikes at the Constitution’s most fundamental guarantees. Article 21, which the Supreme Court in Francis Coralie Mullin v. Union Territory of Delhi (1981) read to encompass dignity, imposes a positive obligation to protect life against non-state violence. Article 14 demands equal protection of law; the state’s tolerance of superstition-motivated killings constitutes a discriminatory denial of that protection to those most at risk. The structural impunity built into the 1999 Act is itself a constitutional violation.

At the international level, Article 2 of CEDAW requires states to eliminate discriminatory customary practices; Article 6 of the ICCPR guarantees the right to life and security. International human rights law imposes a duty of due diligence demanding proactive prevention, not merely reactive punishment. The absence of accessible healthcare and scientific education in rural and tribal regions creates a vacuum in which superstition flourishes. This neglect is itself a form of state failure.

A Two-Pronged Way Forward

Addressing this crisis demands both legislative reform and structural investment. India must enact a National Prevention of Witch-Hunting Act that classifies witch branding as a non-bailable, non-compoundable offence, aligns sentencing with BNS provisions to close the existing legal discount, and introduces strict liability for ojhas and other instigators ensuring those who mobilise mob violence bear the same accountability as those who execute it.

Legislative reform alone is insufficient. Academic analysis consistently calls for dedicated oversight machinery: states should establish District Vigilance Committees comprising legal, medical, and gender rights experts to monitor high-risk communities and coordinate rehabilitation. Mandatory witness protection and state-funded relocation must ensure survivors are not compelled to remain near their attackers during trial. Since witch hunting is frequently deployed as an instrument of land dispossession, the law must also provide for property restoration with state-backed legal title, a model already signalled by the Assam Witch Hunting (Prohibition, Prevention and Protection) Act, 2015. Only through this dual commitment to punitive accountability and structural redress can India fulfil its constitutional obligations and move from reactive policing to proactive protection.