For the families of those over 700 who went missing under Hasina’s 15 years rule, the legal vacuum only aggravates a psychological wound. Families are consistently experiencing prolonged grief, PTSD, and ambiguous loss, which the International Convention for the Protection of all Persons from Enforced Disappearance (ICPPED) acknowledges as forms of trauma in Article 24, defining family members also as victims. This blog contends that constitutional tort remedies under public law can be followed for judicial recognition of that harm.

The Legal Vacuum

Bangladesh signed up to the ICPPED in August 2024, but there is no national law that criminalises forced disappearance. However, the Constitution supplies the building blocks of a remedy. Articles 44 and 102 create the enforcement mechanism: Article 44 guarantees the right to move the High Court Division (HCD) to enforce fundamental rights, and Article 102 vests it with writ jurisdiction over the State. The substantive rights lie in Part III, principally Article 27 (equality before the law), Article 31 (protection of the law) and Article 32 (life and personal liberty).

In practice, this route is only partially effective. In habeas corpus petitions by families of the disappeared, the HCD has often confined itself to directing police to trace the missing person, declining to find State responsibility or award compensation where security agencies are the alleged perpetrators, treating the petitions as unresolved missing-person inquiries rather than proven violations. The UN Working Group on Enforced or Involuntary Disappearances’ June 2025 study visit highlighted this structural issue.

Public Law Torts and State Accountability

A public law tort is a claim, brought under constitutional writ jurisdiction rather than ordinary private law, in which the court awards compensation against the State for breaching fundamental rights. In DK Basu v State of West Bengal 1997 (1) SCC 416, the court ruled that ‘custodial torture and illegal detention were actionable through constitutional writs, independent of criminal liability.’ The Bangladesh HCD adopted the same reasoning in CCB Foundation v State of Bangladesh (2017), where a child died after falling into an uncovered pipe. The HCD held that this violation of the right to life under Article 32 of the constitution was a public law tort and awarded compensation directly against the State.

The doctrine applies squarely to enforced disappearance, which engages the rights to life and liberty, the protection of the law (Art 31), and equal protection (Art 27). It also differs usefully from an ordinary rights petition. A habeas corpus claim asks only that the body be produced. A constitutional tort claim asks the court to find that a violation occurred and to award compensation. That is why it is more likely to be enforced. Most importantly, it acknowledges the mental anguish suffered by family members as a compensable injury.

International Jurisprudence: Legal Recognition of Psychological Harm

International courts have solidly established that psychological damage inflicted by the State during the disappearance is a legal injury. The InterAmerican Court of Human Rights in Velásquez Rodríguez v Honduras (1988) held that ’the victim’s family was entitled to reparations for the crime of enforced disappearance, and that delayed claims can be pursued.’ In Bazorkina v Russia (2006), the European Court of Human Rights also found that the mental anguish arising from the disappearance was covered by Article 3 of the ECHR, and awarded damages to the mother of the disappeared detainee.

These precedents provide a basis for a framework where Bangladesh’s judiciary can hold the state accountable for enforced disappearance as a violation of fundamental rights (under sections 27, 31, and 32 of the Constitution). Rather than declaring a breach of fundamental rights, the public law tort doctrine allows the court to award compensation for state abuse of powers and psychological harms. The judiciary will likely be more willing to apply this doctrine because of evidentiary issues and the unequal sides of the state and the victims.

Conclusion: Civil Remedies as a Form of Recognition

It is now more important than ever to intervene in the lapsing of the Ordinance. While the legislature has been stalled and the BNP-led government has committed itself to introducing a revised bill at a future date, families may have only one legal avenue available to them at present for seeking recognition and redress: the tort claims route. However, civil remedies cannot take the place of criminal accountability.

Therefore, where prosecutions continue to stall in the political realm, a doctrine of “constitutional tort” found in Bangladeshi, Indian, and international precedent gives the judiciary an opportunity to establish what international law already recognizes: that enforced disappearance causes harm to not only the victim, but also to the families.

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 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.

PAK and the Policing of Healthcare

The legal battle began with a 16-year-old girl, known as PAK, who experienced pregnancy complications in Kilifi County. She sought emergency treatment from Salim Mohamed, a trained clinical officer, who determined she had suffered a spontaneous abortion and  performed a life-saving abortion procedure.

During the procedure, police officers stormed the clinic, confiscated medical records, and arrested both the patient and the provider. PAK was forced to sign a confession without legal representation and was later charged with procuring an abortion under the Penal Code. This case highlighted a dangerous reality that, in Kenya, seeking medical help for a miscarriage can lead to a police cell.

The High Court: Prioritizing Dignity and Health

In 2022, the High Court issued a momentous decision in favour of reproductive rights. Justice Nyakundi quashed the criminal charges, declaring that abortion care is a fundamental right under the Kenyan Constitution. The court found that Article 26(4), which allows abortion when a woman’s life or health is in danger, must be read alongside the rights to privacy, health, and dignity.

The judgment was precise in its practical impact. It affirmed that the opinion of a single trained health professional is sufficient to authorize a legal abortion. It also ruled that the police lack the medical expertise to second-guess these clinical decisions. By aligning Kenyan law with global standards, the High Court recognized that forcing a woman to carry an unwanted pregnancy to term is a violation of her bodily integrity.

The Court of Appeal: A Return to Restriction

This progress was short-lived. On 24^th April 2026, the Court of Appeal overturned the High Court decision. The appellate judges held that abortion is not a fundamental right. Instead, they argued the Constitution “expressly prohibits” it, viewing the health exceptions in Article 26(4) as narrow gaps in a general ban. Consequently, the court reinstated the criminal proceedings against the teenager and her doctor.

The reasoning of the Court of Appeal contains significant analytical weaknesses. It relies on a rigid interpretation of Article 26(1), which states that life begins at conception, while ignoring the requirement to balance this against the rights of the living woman. By prioritizing the criminal process over constitutional vindication, the court has allowed the punitive 1963 Penal Code to effectively override modern human rights protections.

A Conflict of Constitutional Interpretation

The Appeal Court failed to interpret the Constitution as an integrated whole. A holistic reading requires that rights to life, health, and non-discrimination sustain each other. When the law treats a medical procedure as a crime, it creates a chilling effect that deters health providers from offering legal services for fear of harassment.

This decision signals a retreat from the living instrument doctrine that has long guided Kenyan jurisprudence. By viewing Article 26(4) only as a restrictive exception rather than a right-based protection, the court has marginalized the health needs of women.

Beyond the Paper Promise

This decision is a major setback for the rule of law. It suggests that constitutional gains can be clawed back, leaving the most vulnerable, like PAK, at the mercy of an aggressive criminal justice system. If seeking reproductive healthcare remains a gamble with one’s liberty, the daily toll of seven deaths will continue to rise. Sadly, the Appellate Court has traded the promise of dignity for the safety of a legalistic cage. As this matter inevitably moves toward the Supreme Court, the apex court faces a defining choice between upholding the transformative spirit of the Constitution or allowing the shadow of the Penal Code to eclipse the right to health. Until the courts reconcile the law with the reality of women’s lives, the Constitution will remain a magnificent promise on paper while seven more women die in the shadows today.

The right to mental health internationally is enshrined in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), with its accompanying General Comment 14 describing “the highest attainable standard of physical and mental health”, which includes access to treatment and care (para 17). India’s ratification of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007 further mandates non-discriminatory mental health services (see, e.g., preamble). India’s obligations to various human rights instruments reinforces the constitutional imperative to protect and promote mental health.

The Right to Mental Health in India

Mental health under Article 21 encompasses psychological health, dignity, emotional stability, and mental integrity. This expanded understanding builds on key Supreme Court’s precedents. In Francis Coralie Mullin v. Administrator, UT of Delhi (1981), the Court held that the right to life includes the right to live with human dignity (para 5), laying the groundwork for incorporating psychological and emotional well-being as essential components of dignity. In Common Cause v. Union of India (2018), the Court implicitly affirmed that mental health integrity and well-being are integral to the right to life (paras 22, 48, 82), reinforcing that a dignified life is not merely the absence of disease but a positive state of psychological wholeness.

The Saha judgment extends this reasoning and complements the Mental Health Care Act, 2017 (MHCA) formalising Sections 18 (right to access mental healthcare), 115 (presumption of severe stress in suicide), and other rights against inhumane treatments via institution specific mandates (the Saha guidelines). It elevates mental health from a statutory entitlement under the MHCA to a fundamental right under Article 21, making it directly enforceable via writ petitions under Article 32/226 of the Constitution of India. The Court now recognises a positive constitutional duty on States and institutions to prevent psychological harm from academic pressure, ragging, or neglect, in contrast to the MHCA’s short-comings on imposing binding obligations on institutions.

More specifically, the Saha guidelines impose 15 institutional mandates, including: adopt uniform mental health policies (UMMEED and Tele-MANAS), appoint councillors (1 per 100 students), ban performance segregation/shaming, mandate bi-annual staff training, support vulnerable groups, ensure anonymous reporting, and strengthen anti-bullying committees. The Saha guidelines yield tangible benefits like holistic care models reducing suicides, empowerment of marginalised students through targeted support (Guideline VII), and a reduced institutional liability through proactive protocols, and synergy with MHCA for a nationwide integration. They reduce institutional liability if institutions follow them. Compliance creates a due diligence defence. It shifts liability from strict outcome-based to a fault-based liability. Institutions are liable only when negligence contributes to harm. But non-compliance increases liability. Failure to follow the guidelines breaches Article 21 and leads to fines or even closures.

Challenges to mental health often arise from resource scarcity in rural institutions, weak enforcement, weaker penalties, and the persistent cultural stigmas persisting among faculty/parents. To be able to achieve mental health as a facet of dignity, augmented government funding, mandatory audits by district committees, human rights education in curriculum, institutional oversight, and legislative codification are vital.

Student Mental Health: The Pathway forward

The Saha judgment cited alarming National Crime Records Bureau (NCRB) statistics published in 2022 revealing 13,044 student suicides in India, including 2,248 directly due to examination failure which the Court used as a factual foundation to declare a ‘systemic failure’ [para 9]. This marked a decisive step beyond formal education, urging the mainstreaming of mental health into policy with dedicated resources. The Saha guidelines demand immediate institutional action, ensuring that Article 21 of the Constitution protects mind and spirit alike, fostering a rights-based educational ecosystem.

The current crisis over the borders of Thailand and Cambodia descend from overlapping claims between the former Kingdom of Siam, which turned into Thailand, and the portion of French Indochina that corresponds to modern Cambodia. An area of explicit disagreement after the independence of Cambodia in 1953 was on the ownership of Preah Vihear, an ancient Hindu temple. While the International Court of Justice ruled in favor of Cambodia’s claim, Thailand never relented on their right to it and other areas that fell under their understanding of the historic French Siamese border.

In 2025, recriminations over the use of landmines in the Thai-Cambodian border escalated to a full-blown war. Armed conflict officially started on July 24 with a ceasefire later announced on July 28. The ceasefire was followed with a peace agreement on October 26. After the peace deal broke down on landmines, the conflict restarted on December 8. Finally, a third ceasefire was announced on December 27. UN Secretary-General António Guterres noted large-scale civilian deaths, injuries, and displacements in the interim.

Prey Chan and Chouk Chey (Ban Nong Ya Kaeo), villages inside Cambodia’s Banteay Meanchey province and Thailand’s Sa Kaeo province, were hit hard during the July and December phases of the war. An official Cambodian source put more than 4,600 civilians living in shelters. Only about 20% of pre-war properties remained accessible to the Cambodian population. The Khmer Times were able to capture footage of destroyed houses in what was alleged to be indiscriminate bombings of Chouk Chey (Ban Nong Ya Kaeo). Pen Rithy, the chief of the village, pointed out containers, barbed wires, and other obstacles that prevented access to it. The separation was confirmed by a statement from the 1st Army Area, who were responsible for the Thai sections of Prey Chan, Chouk Chey (Ban Nong Ya Kaeo), and others. They cited the captured villages as under Thai sovereignty. The access previously afforded to Cambodian nationals were only a temporary measure, and the removal of their property after the ceasefire was to get rid of future security hazards. Anutin Charnvirakul, the prime minister of Thailand, promised to build a border wall around the disputed area.

Under Article 29 of the Geneva Conventions, to which Thailand and Cambodia are parties, no States have the right to permanently deport protected persons from the lands they occupy. A temporary evacuation, inside the boundaries of the occupied territory, may be allowed. None of the exceptions apply in the case of Prey Chan and Chouk Chey (Ban Nong Ya Kaeo). The Cambodian nationals departed the area because it was an active warzone in July and December. After the ceasefire was declared, Thailand, as the occupying power, had an obligation to allow them to return. The deployment of barriers by Thai authorities to block said access is an explicit violation of Article 29. The post-ceasefire destruction of civilian properties in Prey Chan and Chouk Chey (Ban Nong Ya Kaeo) is also against the letter of the Rome Statute of the International Criminal Court. Article 8(2)(b)(xiii) of the Statute classifies the destruction of enemy property not within the necessities of war as a potential war crime. There was no military necessity for the barriers because there was no war with Cambodia to justify them.

The actions taken by Thai authorities to restrict and destroy the access of Cambodian nationals to their former homes in Prey Chan and Chouk Chey (Ban Nong Ya Kaeo) runs counter to international humanitarian law. Claims of sovereignty cannot be an excuse to sidestep obligations owed to protected persons. Thailand should move to redress the violated rights of the Cambodian nationals and compensate them for their losses.

This amendment was passed with an overwhelming majority in  the Parliament, following a wave of arrests of LGBTQ+ individuals in February 2026. The Parliament echoed with chants like “homosexuals will no longer breathe in this country,” and “homosexuals will no longer have freedom of expression in this country.” The amendment delineates unnatural sexual acts as homosexuality, bisexuality, transsexuality, zoophilia and ​necrophilia. It criminalises sexual orientation and activities, as well as gender identities and expressions.

It introduces the offence of apology, which penalises anyone who promotes, supports, or defends the LGBTQ+. Since promotion of homosexuality is also punishable, it places journalists, civil society activists, human rights organisations, and medical service providers supporting the LGBTQ+ in jeopardy.

Same-sex relationships were always punishable in Senegal. However, doubling the imprisonment and fines, and punishing the “promotion” of homosexuality further endangers the LGBTQ+ community. This amendment, which now explicitly discriminates against the LGBTQ+ community, exacerbates the continuing violation of  several civil and political rights in Senegal, including the right to life (Article 6), the right against torture, inhuman, or degrading treatment (Article 7), privacy (Article 17), expression (Article 19), peaceful assembly (Article 21), association (Article 22), etc. of the International Covenant on Civil and Political Rights, 1966.

The violation of civil and political rights is condemnable. But the violation of economic and social rights is equally concerning. These violations affect granular aspects of LGBTQ+ lives, causing indirect discrimination and deprivation.

Among the various ICESCR rights infringed, the most notable is the right to the highest attainable standards of physical and mental health (Article 12). HIV status is considered a determinative factor for unnatural sex, and the (intentional) transmission of HIV is punishable. With this draconian amendment, LGBTQ+ individuals might avoid HIV testing, leading to a negative impact on detection, counselling, and treatment. NGOs cannot even freely impart sexual awareness due to fear of persecution. Since possession of lubricants and condoms is also considered indicative of homosexuality by the police, many individuals will avoid buying them, potentially causing STIs and other health concerns.

The cascading implications on the health of LGBTQ+ individuals will also erode years of Senegal’s progress against HIV. Alongside deteriorated physical health, mental health too will suffer. These implications transgress Article 12, and also defy the CESCR’s General Comment No. 14 (2000) – proscribing discrimination based on HIV/AIDS in health care accessibility (Paragraph 18), General Comment No. 22 (2016) – proscribing intersectional discrimination based on sexual orientation and HIV/AIDS status in the realisation of sexual and reproductive health (Paragraph 30), and General Comment No. 20 (2009) – promoting non-discrimination, and expanding “other status” in Article 2(2) to prohibit discrimination based on sexual orientation (Paragraph 32) and health status (Paragraph 33).

The amendment ostracises LGBTQ+ people from the community and curtails their access to public facilities. This causes difficulties accessing nutrition, sanitation, and accommodation. This violates their right to an adequate standard of living (Article 11(1)). They suffer from the lack of equal employment opportunities, jeopardising their right to work (Article 6). Similarly, the Bill also violates the right to work (Article 15), the right to health (Article 16(1)), the right to partake in cultural life of the community (Article 17(2)), etc., of the Banjul Charter.

This amendment is an addition to discriminatory laws across the world that criminalise the existence of the LGBTQ+ community and deprive them of the right to health. Three human rights treaty bodies have urged Senegal to repeal Article 319 and implement legislation prohibiting discrimination based on sexual orientation. During Senegal’s 2019 UPR cycle, 13 state parties likewise recommended. Unfortunately, it only noted their recommendations.

What does it mean to die with dignity? In India, this question has a constitutional history. The right to life under Article 21 of the Indian Constitution has, over time, been read to encompass the quality and character of that existence, and has been interpreted to include the right to die with dignity.

The journey began in Gian Kaur v. State of Punjab, wherein the Court, while rejecting any general right to die under Article 21, recognised that for patients who were terminally ill or in PVS, the right to die with dignity would be a part of the right to live with dignity. In Aruna Shanbaug v. Union of India, this right was given substance by recognising the legality of withholding or withdrawing life-sustaining treatment, when the decision to withdraw was in the patient’s best interests. However, the approval for the same had to be granted by a High Court. In Common Cause, a five-judge constitution bench grounded the right firmly in Article 21, displaced the courts from the centre of decision-making and laid down a framework for withholding or withdrawing treatment.

Under this framework, where there is no Advance Medical Directive, a treating physician, after determining that a patient is in an irreversible condition, may inform the hospital, which will constitute a primary medical board (PMB). The PMB, after discussing with the patient’s next of kin, gives an opinion on whether withdrawal of medical treatment is in the best interests of the patient. If it certifies withdrawal, a secondary medical board is constituted. Where both boards are unanimous, the hospital can proceed with withdrawal after informing the judicial magistrate. When there is a disagreement at any stage, the matter may be taken to the High Court, which must decide, keeping in mind the best interests of the patient. In Harish Rana, the Court, while applying this framework, also clarifies what a best interest assessment involves, resolves whether CANH constitutes medical treatment, and strengthens the institutional framework through which the right operates.

Best Interests Standards

While Common Cause established that any decision to withdraw treatment from incompetent patients was to be taken only when it was in their best interests, it did not expand on what this principle entailed. Harish Rana fills that gap by conducting a cross-jurisdictional analysis across seven legal systems and drawing from them a set of considerations that should be taken into account while determining the best interests of the patient.

The Court clarifies that a best interests analysis cannot merely include a clinical assessment of medical futility, which is necessary but not sufficient. The inquiry must also examine the patient’s own wishes and values, reconstructed through the evidence of those who knew them. Neither clinical judgment nor family preference alone is determinative; the constitutional obligation requires the assessment of the patient as an individual (para 233).

Resolving the CANH Classification 

Under Common Cause, only an intervention that qualifies as ‘medical treatment’ could be considered for withdrawal. Earlier, there was a lack of clarity on whether CANH fell within the definition of ‘medical treatment’ or whether it was basic primary care. The Court, in Harish Rana, clarifies this by recognising CANH as ‘medical treatment,’ thus making it subject to the procedure laid down in Common Cause. Without this classification, the withdrawal framework could not be triggered for a significant category of patients, including Harish Rana himself.

Strengthening the Framework

Beyond clarifying doctrine, the judgment also strengthens the infrastructure through which the right must operate. The Court directed states to ensure that a panel of registered medical practitioners is established without delay, who will be available to serve on medical boards. It further directed High Courts to issue directions to judicial magistrates to receive intimation from hospitals where medical boards are unanimous in their decision to withdraw or withhold treatment. These directions serve to ensure that the right can be realised not only in principle, but also in practice.

The Legislative Gap

While the decision in Harish Rana is a significant advance, the right to die with dignity still rests on judge-made guidelines with no statutory backing. The path to realising this right, as demonstrated by the case itself, has been spearheaded by the judiciary. This is not a sustainable model for accessing a right. The right to die with dignity cannot only be a right for those who can litigate it. A constitutional guarantee of this significance must be embedded in statute, with clear procedures and trained institutional actors.

The Court notes that, despite explicit judicial direction since 2018 and Law Commission recommendations dating back to 2006, the Parliament has still not acted. The Harish Rana case has illustrated what operationalising a right can look like; what remains is to see what accessing such a right will look like.

What did the African Court order?

The LIDHO case originated in 2006 in Abidjan. The claimants argued that the illegal dumping of toxic waste at multiple sites by the ship Probo Koala, chartered by TRAFIGURA Limited had resulted in severe harm to life and the environment. The consequences ranged from groundwater contamination to air pollution, causing multiple deaths and serious health effects. Relying on extensive evidence, the Court found that Côte d’Ivoire had violated the rights to life and health of all affected persons. Crucially, it concluded that the Ivorian authorities failed to protect the right to a generally satisfactory environment, having neither prevented the dumping nor ensured effective decontamination.

To remedy these violations, the Court ordered a comprehensive set of reparation measures, demonstrating how large-scale pollution can be effectively addressed. Côte d’Ivoire was required to prosecute those responsible for the environmental disaster, establish a compensation fund, create a register of all victims, implement legislative reforms banning hazardous waste dumping, and enact laws holding companies liable for human rights and environmental harms. The Court also mandated training programs for public officials and universities to raise awareness of the interdependence between the environment and human rights.

Côte d’Ivoire: has it really complied?

Côte d’Ivoire was ordered by the Court to implement the prescribed reparation measures within one year of the notification of the judgment. On 23 November 2023, just only two months after the Court’s ruling, the country amended its domestic law through a new Environmental Act. This new legislation incidentally reflects some of the Court’s orders, establishing, inter alia, a right to a healthy environment, a right to environmental education, criminalising the import and dumping of hazardous waste, providing a right to remedy for ecological harm, and introducing criminal liability provisions for companies involved in toxic waste dumping.

However, this legislation was not a direct response to the LIDHO judgment, raising concerns about true compliance with the judgment. According to the Ivorian Minister of Environment, in a statement of 18 October 2024, the purpose of the reform – without any reference to the Court’s ruling – was to modernize the previous legal framework and align it with the imperatives posed by emerging environmental challenges and protection needs. Côte d’Ivoire’s full compliance with the Court’s orders remains uncertain. In addition, the Court has not thus far received any detailed report on the implementation of these measures. In its 2024 Activity Report, it emphasized that key information regarding the execution of decisions concerning Côte d’Ivoire, including the LIDHO judgment, are still missing, despite repeated reminders to the authorities. In short, Côte d’Ivoire has not complied yet with the ruling, which raises the key question: what comes next?

AU Executive Council’s response and what lies ahead

On 13 February 2025, following its examination of the Court’s 2024 Activity Report, the AU Executive Council — mandated to monitor the execution of the Court’s judgments — merely called upon States to comply fully with the Court’s rulings. It stopped short of expressly naming non-compliant States, including Côte d’Ivoire. No concrete follow-up measures were adopted, nor were States required to provide detailed information on implementation. This pattern of supervision, regrettably, is not new.

Yet the story may not end there. As in the Ogiek case, the Court could suo motu convene a public hearing to assess whether — and to what extent — Côte d’Ivoire has implemented the LIDHO judgment. Such a move would be more than welcome, as the Ivorian government’s response stands to influence expectations of future environmental cases. LIDHO’s implementation therefore deserves close scrutiny.

Even though there have been legislative advancements, such as the Anti-Honour Killing Laws (Criminal Amendment Bill) of 2016 which aims to identify the legal loopholes enabling killers to be acquitted by the victim’s families, the tradition of ‘honour’ killings still persists. The acquittal of Muhammad Wasim (Muhammad Wasim v. The State), demonstrated judicial inability to apply the law strictly, accepting family compromise despite the Act. These cases, alongside 2025 killings, highlight difficulties in enforcement amid societal tolerance.

These developments, while leading to arrests and momentary public outrage, underscore a struggle to dismantle entrenched cultural justifications undermining Pakistan’s obligations under international human rights law. A major part of this challenge lies in the legislative gaps persisting even after the landmark Anti-Honour Killing Laws (Criminal Amendment Bill) of 2016. The law’s crucial weakness is the insertion of the word ‘may’ instead of ‘shall’ when mandating life imprisonment (Tazir) for honour killings, even if the victim’s family grants a pardon. This small legislative detail grants judges vast discretion, allowing judicial officers to be swayed by patriarchal cultural pressures to accept a family’s waiver of Qisas (retribution) and let the perpetrator walk free, as painfully demonstrated by the acquittal of Muhammad Wasim. Furthermore, the defence often feeds on the argument that the murder was explicitly committed ‘in the name of honour’ which enables the case to revert to ordinary murder charges where family forgiveness is permissible.

These ambiguities are amplified by concerning judicial trends. Pakistan’s higher courts frequently show a troubling tendency by leaning towards technical acquittal, procedural flaws and retracted confessions over the clear intent of the Anti-Honour Killing law, especially when a compromise is reached. This trend underscores a continued societal and judicial deference to customary practices and the concept of family ‘honour’ over the state’s obligation to uphold the rule of law. While there is a counter-trend of the State challenging these acquittals in the Supreme Court, the persistence of these loopholes and the routine acceptance of family pardons serve as a constant reminder that without eliminating judicial discretion and definitively closing the door on forgiveness for honour crimes, legal reforms will remain insufficiently effective in protecting vulnerable individuals and ensuring justice.

A Shared Human Rights Imperative: Deconstructing ‘Honour’ and Upholding Rights

The inability to prosecute honour murders signals systemic failure. Despite the 2016 Act amending the Pakistan Penal Code (sections 299-311) to treat honour killings as murder punishable by death or life without family pardon discretion in most cases, enforcement remains irregular due to jirgas protecting offenders. Resource shortages and poor investigations lead to misclassifications and acquittals.

The failure of the state is also apparent in its disregard for its preventive responsibilities. Numerous instances demonstrate that at-risk persons, frequently young women asserting their fundamental right to select a mate, remain unprotected despite evident risks to their lives. These failures constitute a direct infringement of established international commitments, including Article 16 of the Universal Declaration of Human Rights and Article 23 of the International Covenant on Civil and Political Rights, as well as Pakistan’s obligations under the Convention on  the Elimination of All Forms of Discrimination Against Women (CEDAW)

Pakistan’s challenge stems not from absent laws, but from failing to enforce them against patriarchal authority, bias, and the myth of ‘honour’. To fulfil international obligations, lawmakers must replace judicial discretion with mandatory life sentences, dismantle jirgas, and invest in prevention like shelters for at-risk women. Only then can South Asia reclaim the right to life from the shadow of ‘honour’.