Section 377’s Colonial Roots

Section 377 of the Penal Code, 1860, a British colonial-era law, criminalises homosexuality in Bangladesh. It provides that ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal’ may be punished with imprisonment for life or for a term of up to ten years imprisonment together with a fine. While the provision does not explicitly deal with homosexuality, focusing on the wording ‘voluntarily’ is significant here, as it reveals that Section 377, which comes with the heading ‘unnatural offence’, separates it from other offences such as rape that deal with non-consensual sexual intercourse.

As is obvious, the goal of Section 377 is not to deal with sexual violence but to criminalise sexual conduct that does not fit within the heterosexual penile-vaginal model of sexual intimacy. Indeed, this has been the case, especially with respect to male-to-male sex, since the time the British Empire came up with this heteronormative legal regulation in 1860. In Bangladesh, Section 377 has contributed to building an environment that subjects people to harassment, arrest threats, and extortion simply because of their sexual orientation. This, in turn, raises the significance of decriminalisation of homosexuality as a pressing human rights issue for Bangladesh, with serious implications for equality, dignity and privacy of LGBT+ persons.

Criminalisation as Discrimination

One route to decriminalisation is to argue that the criminalisation of homosexuality is discriminatory. Bangladesh has ratified, among others, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 2 of ICESCR prohibits discrimination, and the ICESCR committee have clarified in its General Comment No. 20 (2009) that this extends to sexual orientation.

The Constitution of Bangladesh does not have an open-ended list of grounds, unlike the ICCPR and ICESCR, and so this route may be closed off. However, the Constitution does include ‘sex’ as a ground. Thus, another way to interpret the provision is the approach followed in Toonen v. Australia. There, despite the ICCPR not containing any provision that explicitly addresses sexual orientation or gender identity, the Human Rights Committee interpreted the reference to “sex” in Articles 2(1) and 26 of the ICCPR as including sexual orientation for the purposes of protection against discrimination. Although the Committee did not provide any explanation for such interpretations, discrimination based on sexual orientation has been considered sex-based discrimination because it is grounded in stereotypes associated with sex, such as the assumptions that ‘real men’ and ‘real women’ are always heterosexual.

Clashing Rights

Interconnected with this is the question of the extent to which these interpretations of human rights may be rejected or qualified on the grounds of religion or culture, thereby curtailing sexual and gender freedom, as has already arisen in the context of Bangladesh. Islam is the constitutionally recognised state religion in Bangladesh.

The Human Rights Committee has made it clear that the existence of a state religion or the prevalence of a particular religious belief among the majority population does not justify restricting any rights under the ICCPR. Any restrictions must be in accordance with the principles of universality and non-discrimination. Hence, any appeal to popular morality must not receive serious consideration when it regulates, controls, or prohibits one from exercising their human right to sexual autonomy, including the ability to decide with whom they want to engage in sexual intimacy. Indeed, the Human Rights Committee had already called on Bangladesh to decriminalise consensual same-sex relationships.

If Bangladesh wants to comply with its international human rights obligations towards its queer community, decriminalisation of homosexuality is not merely about ticking off a checklist; it is a fundamental prerequisite. The fulfilment of this requirement would mark the beginning of a form of queer liberation in Bangladesh that is free from the shackles of unjust (colonial) laws.

The protests, involving thousands of students across several Indian states, were triggered by allegations that the integrity of one of India’s largest competitive examinations had been compromised. As demonstrations intensified, reports emerged of abusive police action against protestors, including the detention of minors, registration of criminal cases, and allegations of disproportionate use of force.

In response, multiple petitions were filed before the Supreme Court alleging violations of fundamental rights. The Court responded by directing authorities not to take coercive action against peaceful student protestors without criminal antecedents, ordering the release of eligible detained minors, and directing the preservation of CCTV footage, body-camera recordings, drone footage, and other digital evidence pending further proceedings. In Para 6, the court also indicated that allegations of police excesses warranted an independent investigation.

Although these directions are interlocutory rather than final, they represent an important reaffirmation of constitutional protections under Article 19(1)(a), which guarantees freedom of speech and expression, Article 19(1)(b), which guarantees the right to assemble peaceably and without arms, and Article 21, which protects the right to life and personal liberty. The Supreme Court has consistently recognised peaceful protest as an aspect of the freedoms guaranteed under Article 19. In Ramlila Maidan Incident, In Re, the Court held that the right to hold a peaceful demonstration to air grievances is traceable to Articles 19(1)(a) and 19(1)(b), while also emphasising that these freedoms are subject to reasonable restrictions, including in the interests of public order. Police action must therefore distinguish between peaceful demonstrators and individuals alleged to have engaged in violence rather than treating an entire protest as unlawful.

The Court’s insistence on preserving digital evidence is equally significant. Modern protests are increasingly documented through CCTV systems, police body cameras, drones, and mobile phones. Such evidence protects not only protestors alleging excessive force but also law enforcement officials facing allegations of misconduct. By directing that this material be preserved and that protestors’ personal data not be publicly disclosed, the Court recognised that accountability and privacy are complementary rather than competing constitutional values.

The decision also aligns Indian constitutional jurisprudence with international human rights law. Article 21 of the International Covenant on Civil and Political Rights (ICCPR), to which India is a State Party, protects the right to peaceful assembly. The UN Human Rights Committee has emphasised that restrictions on peaceful assemblies must comply with the requirements of legality, necessity and proportionality, and that States have positive duties to facilitate peaceful assemblies and create an enabling environment for their exercise, rather than merely refrain from interfering with them.

Importantly, the Court avoided framing the dispute as a binary contest between public order and civil liberties. Instead, it acknowledged that allegations of injuries to both students and police personnel required an impartial investigation. This balanced approach reinforces an important constitutional principle: protecting the right to protest does not require immunity from criminal law, but neither can allegations of violence justify indiscriminate restrictions on peaceful participants.

The NEET litigation, therefore, extends beyond examination reforms. It highlights the increasing role of constitutional courts in regulating the policing of public demonstrations in the digital age. Questions surrounding surveillance, data retention, police accountability, and the proportional use of force are not uniquely Indian concerns. International human rights bodies and courts have similarly addressed the need to balance the policing of demonstrations with the rights to peaceful assembly, privacy, and freedom of expression.

Whether the Supreme Court ultimately develops these interim directions into broader constitutional safeguards remains to be seen. Nevertheless, its intervention signals that effective maintenance of public order cannot come at the expense of fundamental freedoms. In reaffirming judicial oversight over executive responses to protest, the Court has underscored that peaceful assembly remains a constitutional right to be protected, not merely a public order challenge to be managed.

The Interest at Stake is the Users’ Rights

In India, Article 19(1)(a) of the Constitution protects not only the speaker’s right to impart information but also the listener’s right to receive it. This right was recognised by the Indian Supreme Court in Secretary, Ministry of Information & Broadcasting v Cricket Association of Bengal (1995), while explicitly citing Article 10 of the European Convention on Human Rights.

A platform-wide block, by its very design, is over-inclusive: it suppresses the lawful communications of everyone in order to reach the unlawful conduct of a few. The Delhi High Court noted that the government’s directions affected roughly 150 million users who use Telegram for “lawful and innocuous purposes” (para 38), yet resolved the challenge without any rights-holder asserting that interest before it.

The Court thus acknowledged the sheer number of users affected, but not the users as rights-holders whose distinct interests require justification in their own terms. This created a situation wherein the party most heavily burdened, the users of the platform, had no representative before the Court.

The Rights-Holder is Structurally Absent

Telegram, incorporated in the United Arab Emirates, could not have asserted these rights. It is well-settled law that Article 19 is available only to citizens and cannot be invoked by foreign companies. The Karnataka High Court reaffirmed this in X Corp v Union of India (2025), a challenge to the Government’s content-blocking and takedown mechanism (“Sahyog” portal), holding that the rights under Article 19 are citizen-centric rather than person-centric.

While the Indian Supreme Court in Bennett Coleman & Co v Union of India (1972) allows citizen-shareholders to project their speech rights through a company, that route requires citizen petitioners, whereas the Telegram case was brought by the company and not by any user.

Nor were any of Telegram’s Indian users joined to proceedings. X Corp demonstrates that even their presence may not resolve this: there, Indian users sought to intervene, but the applications were “not formally allowed” and were rejected for the reasons given against the platform. Whether absent, as here, or subsumed within the platform’s case, the right to receive information is adjudicated without hearing those who hold it.

The Applicable Standard

How platform blocking in India squares with its obligations under the International Covenant on Civil and Political Rights (“ICCPR”) remains to be seen. General Comment No. 34 on Article 19 of the ICCPR requires a restriction to be the “least intrusive instrument” available and binds the authorities applying it, not only the legislature (para 34). The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has warned that blocking is often disproportionate because it is “not sufficiently targeted” and reaches lawful content beyond that deemed illegal, and has called for effective remedies for the affected users themselves, including an appeal. A process addressed to the intermediary, not the public, offers no such remedy.

The European Court of Human Rights has developed the same concern. In Ahmet Yıldırım v Turkey (2012), it held that a wholesale block substantially restricted the rights of Internet users with significant collateral effects, and in Cengiz v Turkey (2015) that users who were never the targets of a block still suffer an interference with their right to receive information, and may complain of it in their own name.

When a whole platform is blocked, the interests of lawful users are not merely an aside. They are constitutional interests deserving their own justification. The legitimacy of a platform block depends in part on whether those affected by it have a real chance to be heard. This has not been the case here.

In addition to criminalising LGBTQIA+ consensual sexual acts, the new law criminalises persons entering into same-sex marriages, and the organisers, officiators, and witnesses of such marriages with imprisonment ranging from ten to twenty years (Article 391). It similarly criminalises forming LGBTQIA+ societies/associations (Article 392). Unlike many countries that have always had anti-LGBTQIA+ laws, Niger never expressly criminalised LGBTQIA+ activities/relationships until now.

Despite the lack of a criminalising provision in Niger’s 2003 Penal Code, homosexuality was nevertheless stigmatised, and law enforcement agencies sometimes invoked Articles 275 and 276 (public indecency), or 277 and 278 (indecent assault), to incarcerate LGBTQIA+ persons. Only Article 282 addressed homosexuality, limited to committing an indecent or unnatural act with a minor of the same sex.

One might speculate that this law is a byproduct of the military coup in July 2023 and the usurpation of power by General Abdourahamane Tchiani. But that is not the case. The former president, Mohamed Bazoum, had also sought the implementation of anti-LGBTQIA+ laws, even suggesting the death penalty.

While criminalising lesbian, gay, bisexual, and transgender acts violates many human rights like the right to privacy (Article 17, International Covenant on Civil and Political Rights [‘ICCPR’]), freedom of expression (Article 19), the right to life (Article 6), etc., criminalising intersex persons, because of their status as such, also violates the right against torture and cruel, inhuman, and degrading treatment (Article 7).

Intersex persons have inherent sexual characteristics/genes that do not conform to the sex or gender binary. These characteristics are not artificially induced. Rather, these exist from birth. If the law criminalises intersex individuals, they are forced to undergo medical interventions to align with binary stereotypes. But Article 390 also criminalises those who undertake medical transitions to change their sex at birth. While this might extend only to a binary man/woman transitioning to the opposite binary gender, the language of the provision is precarious and should be urgently addressed.

Intersex persons already face tremendous violence, discrimination in all spheres of life, denial of equal opportunities, and even intersex infanticide. Niger’s law exacerbates their miseries.

Forced medical interventions on intersex persons amount to torture or cruel, inhuman, and degrading treatment, prohibited by Articles 2 and 16 of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘UNCAT’). They can cause severe irreversible consequences, including permanent infertility, pain, incontinence, loss of sexual sensation, and chronic depression. Forced medical interventions without free, full, and informed consent of intersex persons, particularly children, also violate the right to the highest attainable standard of physical and mental health (Article 12 of the 1966 International Covenant on Economic, Social, and Cultural Rights).

They also violate the 1989 UN Convention on the Rights of the Child (‘CRC’). The CRC encourages States to abolish traditional practices prejudicial to the health of children  (Article 24[3]), like female and intersex genital mutilation. They are seldom in the best interests of the child (Article 3), and restrict enjoyment of good health (Article 24(1)). Even if some medical intervention is urgently required for the child’s health, medical intervention undertaken only to conform to gender stereotypes is wrongful. Forcing a child to undergo genital surgeries not only prejudices their health, but also vitiates their right to preserve their own identity (Article 8), which is fundamental to human dignity. This law transgresses Niger’s duty to safeguard children from violence, injury, neglect, negligent treatment, and abuse (Article 19).

Hence, Niger’s new Penal Code violates the human rights of intersex persons, particularly children. The Human Rights Committee (ICCPR) and the UN Human Rights Council have previously urged Niger to decriminalise consensual sexual intercourse between same-sex adults and enact comprehensive anti-discrimination legislation prohibiting discrimination based on sexual orientation and gender identity. Niger rejected their recommendations.

While many countries have criminalised non-heterosexual orientations, criminalising gender identity and voluntary sex transitions is a new low. International human rights bodies must continue to call for reform in Niger. Until reform, the survival of intersex persons in Niger is extremely endangered.

The Juridical Narrowing: From Violations to Vulnerability

The resolution’s adoption of persons in street situations rather than homelessness merits doctrinal scrutiny. Within the International Covenant on Economic, Social, and Cultural Rights (ICESCR) framework, homelessness carries specific juridical weight. The Committee on Economic, Social and Cultural Rights (CESCR) established in General Comment No. 4 (1991) that states must ascertain the full extent of homelessness and identify homeless persons among vulnerable groups that require particular attention under Article 11 (para. 13).

Furthermore, General Comment No. 3 (1990) established minimum core obligations regardless of resource constraints, and the Special Rapporteur on adequate housing concluded in the Guidelines for the Implementation of the Right to Adequate Housing (2020) that preventing and eliminating homelessness constitute core obligations. This creates justiciable duties: states may not adopt retrogressive measures and must demonstrate the use of maximum available resources before claiming inability to meet obligations.

Against this established architecture, the resolution’s definitional choice signals a departure. The preamble defines the population as ‘heterogeneous, characterised by extreme poverty, social exclusion, stigmatisation, interrupted or weakened family ties, and a lack of regular, conventional housing’. This vulnerability framing acknowledges ‘adequate housing programs, including housing-led approaches’ (para 5(a)), but does not centre the right to housing as the foundational obligation from which state duties derive. The shift is from a violation’s framework to a needs-based approach: ICESCR Article 11 obligates states to ensure adequate housing; the ‘street situation’ language suggests discretionary protection for vulnerable populations.

By emphasising visible rough sleeping rather than broader housing precarity, the formulation narrows the scope. Without the structural analysis of how policies reproduce homelessness, such terminology risks sustaining rather than dismantling systemic inequalities. Regional courts, treaty bodies, and advocates must determine whether this juridical reframing reflects strategic inclusivity or constitutes a doctrinal retreat from established housing rights obligations.

The Structural Connection: What the Narrowing Enables

This juridical narrowing is not coincidental with but symptomatic of the resolution’s substantive omissions. The relationship is enabling: by reframing the problem from housing rights violations to vulnerable populations in street situations, the resolution can address the issue without interrogating the economic structures that produce homelessness. A violations framework under ICESCR Article 11 would require examining why states fail to meet their housing obligations, implicating questions of resource allocation, privatisation, and commodification. In contrast, a vulnerability framework focused on street situations requires only cataloguing protective interventions for those who are visibly sleeping rough.

By framing the issue as street situations, the resolution addresses visible symptoms while erasing structural causes. Despite Special Rapporteur Leilani Farha’s 2015 report describing homelessness as rooted in ‘treating housing as a commodity rather than a human right’ (para 2), the HRC resolution omits any mention of financialization, commodification, or structural economic drivers. The resolution’s preamble notes that ‘factors leading to street situations are complex and multidimensional’, listing inequality, poverty, and lack of affordable housing. Yet it treats these as a backdrop rather than violations requiring remedy under Article 2(1) of the ICESCR, which obligates states to use maximum available resources for progressive realisation.

This evasion extends to the resolution’s treatment of criminalisation. The 2024 study by the Special Rapporteurs on extreme poverty and adequate housing, “Breaking the Cycle: Ending the Criminalisation of Homelessness and Poverty”, documented how criminalisation violates the International Covenant on Civil and Political Rights, and analysed systemic economic policies (including austerity, privatisation, and deregulation) that produce homelessness.

The HRC resolution addresses criminalisation but severs it from this systemic analysis, framing it as a discrete policy rather than a governance mechanism. Criminalisation deepens precarity: incarceration interrupts employment, severs services, generates criminal records barring housing access, and creates legal debt. By framing homelessness as a street issue, the resolution allows for managing visibility without confronting structural causes.

Conclusion: Testing the Framework

The Grants Pass moment reveals the consequences of the juridical reframing away from homelessness. When housing rights obligations are weakened through terminological shifts, the enforcement deficit of soft law becomes acute. The HRC resolution provides normative material for advocates, but whether it hardens into enforceable law depends on regional courts and treaty bodies.

The African Court on Human and Peoples’ Rights’ 2020 advisory opinion, declaring that vagrancy laws are incompatible with the African Charter on Human and Peoples’ Rights, demonstrates how international norms can influence regional jurisprudence. The challenge for these institutional actors is whether to work within the ‘street situations’ framework or resist the definitional narrowing by re-centring ICESCR Article 11’s housing rights architecture. That choice will determine whether the resolution marks normative progress or juridical retreat disguised as consensus.

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.

The Bill envisions several provisions to regulate work-life balance for private sector employees in India, reducing stress, burnout, and improving physical, mental, and emotional well-being. Some significant measures proposed include the Constitution of an Employees’ Welfare Authority (Section 3), the right to disconnect (Section 7), wages for working beyond ordinary work hours (Section 11), a remote work policy (Section 15), and the establishment of Digital Detox Centres (Section 18).

The Bill does not prohibit an employer from contacting employees outside work hours. Instead, it empowers employees to refuse answering such calls and not reply without fear of disciplinary action. If the employee works during out-of-work hours, they shall be entitled to overtime pay at the normal wage rate. The Bill obliges the government to provide digital counselling services for reasonable personal use of digital communication tools and counselling to employees for maintaining a healthy work-life balance (Section 17).

The Statement of Objects and Reasons correctly explains the necessity of the Bill, considering the increasing number of jobs that can be performed remotely, and the growing instances of burnout, stress, sleep deprivation of employees, the constant monitoring of work-related emails and messages on their devices, leading to imbalanced work-life distribution.

The Bill comes with challenges. There is no standard for permissible work hours across sectors. Some professions require round-the-clock availability or operate across different time zones. Opponents assert that this right dilutes the freedom of trade and contractual autonomy. Tracking enforcement is difficult. Nevertheless, this right is supported by constitutional principles and human rights frameworks.

The right to disconnect emanates from the principles of the Indian Constitution, especially Article 21 (The Right to Life), which the Judiciary has zealously enlarged to protect socio-economic rights, and Directive Principles of State Policy, like Article 39(e) (protecting the health of workers), Article 41 (Right to Work), and Article 42 (Provision of just and humane conditions of work).

This right is embodied in principles enshrined across various international human rights frameworks. Firstly, The Universal Declaration of Human Rights, 1948, provides the right to work, just conditions of work, just and favourable remuneration (Article 23), the right to rest and leisure, and reasonable working hours (Article 24). These provisions strengthen the right to disconnect and ensure overtime wages for working during out-of-work hours. Secondly, consistent allocation of work to employees during out-of-work hours may violate several provisions of the International Covenant on Civil and Political Rights, 1966, including the right to life (Article 6), especially considering its expansive interpretation by the General Comment 36 of 2018, and Article 17, which protects individuals from unlawful interferences with their private lives. Consistently subjecting employees to work beyond ordinary hours may also be construed as forced labour (Article 8). Thirdly, the right to disconnect also finds support from the International Covenant on Economic, Social, and Cultural Rights, 1966, particularly its provisions that include the right to choose work freely (Article 6), fair wages, healthy working conditions, and rest, leisure, and reasonable limitation of working hours (Article 7 (a), (b), and (d)). The right to disconnect is a stepping stone to attaining the highest possible standard of physical and mental health for employees (Article 12). Similar provisions are also enshrined in the Banjul Charter (Article 15). Justifications for this right also arise from various International Labour Organisation texts, such as the 1998 Declaration on Fundamental Principles and Rights at Work, Hours of Work (Commerce and Offices) Convention, 1930, Night Work Convention, 1990, etc.

Hence, the right to disconnect enjoys support from numerous international human rights conventions, and the Bill, if passed, will fortify India’s commitment to protecting human rights. A similar Bill was introduced in 2019, but did not proceed towards enactment. Only time will tell whether this Bill sees the light at the end of the legislative tunnel or collapses midway.

Kinetic Impact Projectiles

One of the earliest uses of rubber bullets took place in 1972 in Northern Ireland and wounded a child, permanently blinding him. This 10-year-old boy from Derry was hit by a kinetic impact projectile (KIP), which was debuted by the British Army during the Troubles. KIPs became prominent during protests against the Vietnam War in the United States and have expanded across the globe. Although their use is widespread, KIPs are an inappropriate tool for crowd-management.

Covered with a thin layer of rubber, these bullets can cause life-altering injuries, disability, and in some cases, death. Ocular trauma, or damage of the eye, has become a prevalent wound for protestors. Images of the bleeding eyes of protestors have reinvigorated conversation about the dangerous use of KIPs, leading to more concerted action to outlaw them.

Violating the Right to Peaceful Assembly: A Worldwide Phenomenon

Despite the signing of the Universal Declaration of Human Rights (UDHR) by all 193 member states of the United Nations, consistent violations of its contents have occurred since its drafting. Though peaceful assembly is protected by article 20 of the UDHR, nonviolent protestors are regularly met with excessive force from law enforcement. Further, the International Covenant on Civil and Political Rights recognizes the right to peaceful assembly in Article 21. This is a legally binding document with 174 state parties that must comply with its provisions, subject to certain Reservations, Understandings, and Declarations (RUDs) presented prior to their ratification of the treaty.

There is great diversity in the styles and intensity of protests in different contexts, but it is commonplace for efforts to confront repressive state policies to be labeled aggressive no matter the level of public disruption. Police violence against protestors only enhances feelings of anger and frustration, pushing people towards acts of desperation. It has become frighteningly clear that, whether escalated or nonviolent, protests will receive brutal opposition.

For states who have legal obligations to protect peaceful assembly, this should be a source of great concern. When a civilian population produces signs of unrest, it is often because they lack the means to survive and do not experience a high quality of life. The level of protest intensity must draw governments to consider the severity of the circumstances, rather than becoming a justification for violence.

Advocates Call for a Torture-Free Trade Treaty

In response to the routine misuse of KIPs as a method of crowd-control, advocates around the world are working to establish a Torture-Free Trade Treaty. In 2017, Amnesty International and the Omega Research Foundation collaborated on a report describing the tools used to inflict torture, which included KIPs. Dr. Alice Edwards, the Special Rapporteur on Torture, recommended a Torture-Free Trade Treaty in her 2023 report on torture and other inhuman or degrading treatment or punishment. In the forty years since the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted (UNCAT), survivors of torture have been speaking out about their experiences, urgently demanding for measures to protect people from harm and provide the necessary redress for those who have lived through this treatment.

A Torture-Free Trade Treaty would reduce the risk of excessive force by limiting accessibility to weapons like KIPs. It is time for the United Nations to take more decisive action to protect people from inhumane treatment, which includes harsh punitive measures inflicted on protestors.

Even with reforms, the desire for social change may never disappear. Protest will continue to be a relevant and impactful method of seeking progress, so it is paramount that world leaders defend this fundamental right and create the necessary legal protections for those engaging in demonstrations.

Meghna Alam was arrested under the SPA on 9 April 2025 for allegedly posing a “threat to public safety, law, and order”. This has been criticised for its evident lack of due process and fair trial guarantees. Preventive detention is defined as the pre-trial incarceration of individuals on the assumption that their release may harm societal interests, and is widely criticized for its potential abuse by authoritarian regimes. In Bangladesh, while its most notable misuse occurred during 1974–79 and 2007–08 since its introduction in 1974, its continued existence poses a chilling effect on individual freedoms.

As a party to all nine core international human rights treaties, Bangladesh’s enforcement of a legislation as repressive as the SPA severely undermines its professed commitment to human rights. It is therefore not surprising that the Constitutional Reform Commission of Bangladesh has recently recommended abolishing preventive detention laws.

Bangladesh introduced preventive detention in its Constitution through the Second Amendment in 1973. Paragraphs 4, 5, and 6 of Article 33 of the Bangladesh Constitution provide constitutional legality for preventive detention. Paragraph 4 empowers the government to detain individuals for up to six months without the approval of a three-member Advisory Board, and for an indefinite period with its approval. Paragraph 5 grants detainees the right to be informed of the grounds for detention, though it exempted the Government to disclose them in public interests.

Article 33 has been widely criticized for its lack of substantive and procedural safeguards. As M. Ehteshamul Bari has identified, it has several troubling features, namely the absence of a clear definition of the circumstances justifying preventive detention, the potential for executive bias within the Advisory Board, vague rules regarding the disclosure of detention grounds, and the absence of a maximum time limit for detention.

Bangladesh enacted the SPA with its amended Constitution on 9 February 1974. It provides among other things, a list of “prejudicial acts” for detaining an individual, procedures for detaining an individual, the powers and functions of the Advisory Board, and so on. It empowers the Government to detain an individual without trial for four months, and fifteen days without informing their of the grounds of detention.

The SPA also attracts similar criticisms for violating human rights. In fact, this law would likely fail the widely accepted three-part test for reasonable restrictions on human rights – particularly Article 9 of the International Covenant on Civil and Political Rights (ICCPR) – which requires that any restriction on liberty must (1) have a clear legal basis, (2) pursue a legitimate aim, and (3) be necessary and proportionate.

First, the Act’s vague and politically malleable definition of “prejudicial acts” for detaining an individual (Section 2(f)) challenges its legality. Second, while it may arguably pursue a legitimate aim of preventing certain acts for national interest, the appropriateness of that aim against the restriction upon human rights remain questionable. Third, the necessity and proportionality of the law are difficult to justify, as its objectives could be achieved through less restrictive means (such as house arrests, limitations on freedom of association and internet and so on). The same rationale applies for limitations placed on the right of fair trial (Article 14) and protection against torture (Article 7).

While some may argue that preventive detention is a necessary evil and compatible with human rights, in a country struggling with a fragile democracy and a challenging law-and-order situation, the dangers far outweigh any supposed benefits. Thus, the Government should take this opportunity to repeal preventive detention laws in Bangladesh. Since there is no Parliament in existence in Bangladesh, it is impractical to amend Article 33 of the Constitution. However, the Bangladesh Government may take immediate action by repealing the SPA through a Presidential Ordinance. This would be a vital first step in aligning domestic law with international human rights standards.

Towards Meaningful Public Participation

The Kenyan High Court in Enock Aura dealt with challenges against legislations relating to public health. Citing the landmark Doctors for Life case from South Africa, it emphasised the importance of public participation in ensuring the accessibility of state affairs to all stakeholders. Ultimately, the Court found that the process was vitiated as it was hastened and inaccessible to marginalised groups.

However, in formulating the tests for meaningful public participation, the Court introduced a new requirement. Supposing that the Parliament did pursue an effective consultative exercise, it must then engage with the results in good faith. It could nonetheless depart from the views of the public, but not without giving reasons. This opportunity to place the state under public scrutiny ensures that prior consultation does not become merely “a cosmetic or a public relations act” (para 64). Without an obligation to provide reasons for dismissing the public’s views, the requirement of public participation would be reduced to a tick-box exercise, regardless of the inclusivity or rigour of the consultation.

This reasoning was reiterated by the Court of Appeal in the Finance Act appeal case, which has since been appealed to the Kenyan Supreme Court. It remains to be seen whether the highest court will endorse the approach of the lower courts.

International Legal Weight

The significance of this finding as a comparative law citation for foreign courts sympathetic to public deliberations was recognised by Nyawa and Bhatia. However, it also qualifies as Kenyan state practice concerning public participation as a human right under Article 25 of the International Covenant on Civil and Political Rights (ICCPR). This is important to establish since the express requirement of public participation is uncommon as a constitutional norm, with the exception of states such as South Africa, East Timor, and Uganda. Therefore, reframing the Kenyan decisions as a state party’s interpretation of the ICCPR would give them further persuasive weight as foreign citations to the national courts of other states parties to the ICCPR more generally.

Article 25 of the ICCPR provides for the right to public participation. Typically, discourse around this right, outside the limited context of elections, focuses on creating and then ensuring rigour within the participatory process. The Human Rights Committee in its General Comment 25 concerning the right did not address whether and how states may become bound by the results of participatory processes. The obligation to provide reasons when departing from these results offers a minimum but important safeguard. The public may question and challenge the state if it fails to seriously engage with their voices. State parties to the ICCPR are expected to implement rights under the standard of conduct of due diligence. ‘The procedural safeguard of reason-giving, then, can be seen as Kenya’s interpretation of duly diligent state conduct as required under Article 25. With national courts providing remedies against states that seek to circumvent public participation, the public will be able to ensure that the state’s consideration of public views is not perfunctory.

It is important to note that the Kenyan judiciary did not cite Article 25 in the foregoing cases. However, considering the fact that Kenya is a state party to the ICCPR, and given the closeness between the contents of Article 25 and Kenya’s constitutional provisions on public participation, one may arguably consider interpretations of the latter as reflecting Kenya’s understanding of the former. This is bolstered by the fact that in Kenya’s reports within the Universal Periodic Review, it indeed takes pride in the apparent similarity between the international human right to public participation and Kenya’s constitutional provisions (see para 75 and para 84). In my view, any future discourse on Article 25 must, therefore, carefully attend to Kenyan case-law on the subject.